B will not escape liability by contending that his breach of duty is not shown to have had any causative effect. She discontinued proceedings against the first-named defendant, and on 1 February 2001 Curtis J dismissed her claim against Waddingtons plc and the Leeds City Council. The defendants appealed against that decision, and the Court of Appeal allowed their appeal and set aside the award in Mr Matthews' favour. 2 Matthews v. Associated Portland Cement and British Uralite plc QBD 11.07.01. In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. But there is no evidence of when and for how long and how frequently Mr Fox handled cargoes containing asbestos, nor of what cargoes he handled, nor of the identity of his employers when he was engaged in handling asbestos. by the House of Lords in the case of Fairchild v. Glenhaven Funeral Services Ltd.9 This is a case about questions of causation in tort law. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one. In our judgment, this leap over the evidential gap not only defies logic but is also susceptible of unjust results. The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) stream The three appeals dealt with by the House of Lords involved employees who had been exposed to asbestos at work and had subsequently contracted mesothelioma (a form of cancer caused by asbestos exposure). This note is concerned with the latest installment in this saga: International Energy Group Ltd v Zurich Insurance Plc UK Branch. <> In Fairchild, the principal issue was whether an employee could recover where he could prove negligently inflicted injury, but, having worked for more than one employer, not the identity of the person who caused the injury. 6. It is a very lengthy, but very well-argued decision, which in my view every teacher of comparative law should read. � �g���R�� Asbestos materials were used on a daily basis. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> 3. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. They failed to perform that duty. Associated Portland Cement and British Uralite admit that Mr Matthews' mesothelioma was caused by exposure to asbestos dust, and that each of them exposed Mr Matthews to asbestos dust in breach of duty. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard. Judgement for the case Fairchild v Glenhaven Funeral Services Ltd. Ps had been exposed to asbestos by different employers over different times and they caught a disease from it. He was described by a witness as being covered in dust from head to foot. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage. It is only natural that, the dyke having been breached, the But the incidence of the tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population, and there are some 1,500 cases reported annually. Logged in as READCUBE_USER. (back to preceding text) 16. Mr Fox told his wife that he was regularly involved in moving asbestos cargo and that asbestos was regularly released into his breathing area. Her claim was dismissed by Judge Mackay, sitting as a judge of the Queen's Bench Division in Liverpool on 27 March 2001. <> Following the decision of the Court of Appeal ([2001] EWCA Civ 1881, [2002] 1 W.L.R. Viscount Simonds' conclusion was clearly expressed (at pp 619-620): Lord Oaksey and Lord Morton of Henryton agreed. So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres. In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. Legal updates on this case; A summary of the House of Lords decision in Fairchild v Glenhaven Funeral Services. 2 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 A.C. 32 at [45], per Lord Nicholls of Birkenhead 3 Stapleton, Cause in fact and the scope of liability for consequences , L.Q.R. Fairchild suing on her own behalf and on behalf of the Estate of and dependants of Arthur Eric Fairchild (deceased) (appellant) v. 2 0 obj I now give my reasons for reaching that decision. Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from 1973-81 at their factory in Strood, Kent. Waddingtons plc accepted at trial that it had exposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him under section 63 of the Factories Act 1961. 1. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 ... IEG v Zurich ‘The relaxation of the causal requirement in mesothelioma claims emerged from the conjoined appeals in Fairchild precisely because the insurers were hoping that such claims would founder on the rock of uncertainty created by the inability to satisfy the “but for is C entitled to recover damages against either A or B or against both A and B? If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case. In Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29, he said: More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said: Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368: 13. 1 (HL) MLB headnote and full text. The Limits Of Fairchild v Glenhaven Funeral Services Ltd [5] My Lords, the opinions of all of your Lordships who heard Fairchild v Glenhaven Funeral Services Ltd expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. 9. To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at [2002] 1 WLR 1052, gave a negative answer. This case document summarizes the facts and decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. For 5-6 weeks in January and February 1973 Mr Matthews was employed by British Uralite plc at their factory in Higham, Kent, where the company manufactured pipes from asbestos material, and Mr Matthews worked on this process. Secondly, pneumoconiosis is, like asbestosis, a condition which is aggravated by the inhalation of increased quantities of dust so that, even if the "innocent" dust had been the first and major cause of the condition, the "guilty" dust, if in significant quantities, could properly be said to have made it worse. My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged a mechanical approach to the issue of causation. And I think it salutary to bear in mind Lord Mansfield's aphorism in Blatch v Archer (1774) 1 Cowp 63 at 65, quoted with approval by the Supreme Court of Canada in Snell v Farrell (above): 14. Each day he spent some time (up to about an hour) in the boilerhouse where the boiler and ancillary pipework were lagged with asbestos material. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. In Fairchild, the principal issue was whether an employee could recover where he could prove negligently inflicted injury, but, having worked for more than one employer, not the identity of the person who caused the injury. The principle is a radical exception to the normal ‘but for’ rule and ought to be restricted. During his working life the late Mr Fairchild worked for an employer (whose successor was wrongly identified as the first-named defendant) who carried out sub-contract work for the Leeds City Council in the early 1960s and may have built packing cases for the transportation of industrial ovens lined with asbestos. Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variant of Wardlaw's case. The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. It is submitted that the trial judge was wrong to apply the principle outlined in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 to an occupational stress case. On a daily basis he was exposed to dust and debris from the lagging. It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. Fairchild Estate v. Glenhaven Funeral (2002), 293 N.R. The decision of the House of Lords in Fairchild v.Glenhaven Funeral Services raises important questions about the compensation of employees for occupational injury. Fairchild v Glenhaven Funeral Services Limited On 11 December 2001, the Court of Appeal gave its decision in Fairchild and five other related cases. Fairchild v Glenhaven Funeral Services Ltd . Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry, ASSOCIATED PORTLAND CEMENT MANUFACTURERS (1978) LIMITED AND OTHERS (RESPONDENTS). It is invariably fatal, and death usually occurs within 1-2 years of the condition being diagnosed. Search for more papers by this author. Explore the site for more case summaries, law lecture notes and quizzes. From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. A and B owed C a duty to protect C against a risk of a particular and very serious kind. 2 (Mar., 2003), pp. 3 Judith Fairchild v. Glenhaven Funeral Services Ltd, Waddingtons plc and Leeds City Council [2001] EWCA Civ 1881. Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. Causation – material increase in risk – Wilsher -v- Essex Area Health Authority – mesothelioma. Again the case involved a single employer: but the dust, although "innocent" when first produced became, in effect, "guilty" because of the employer's conduct in allowing it to remain in the air for an excessive period. Facts. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA; Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA. So C failed against both A and B. The claimants were either the former employees of the defendants or, where the employees themselves had died, fairchild (suing on her own behalf and on behalf of the estate of and dependants of arthur eric fairchild (deceased)) (appellant) v glenhaven funeral services limited and others (respondents) fox (suing as widow and administratrix of thomas fox (deceased)) (fc) (appellant) v … She challenges that decision on appeal to the House. Fairchild v Glenhaven Funeral Services (HL transcript) | Practical Law It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. The pursuer was accordingly entitled to succeed. The dust came from two sources, a pneumatic hammer and swing grinders, both in the dressing shop where he worked. The claimants had been exposed to asbestos dust by more than one employer in different periods of … The essential question underlying the appeals may be accurately expressed in this way. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Case summary last updated at 15/01/2020 19:03 by the Oxbridge Notes in-house law team. No measures were taken to protect him from such exposure. Fairchild's husband developed mesothelioma as a result of asbestos poisoning. �M�]֥���7����a��&>J���z���!m�e�(�l=-�M���H���: i��d��*�#���j�"s�TE���lN�[U��gi�k}��N���L+�I~�ꅔ��F�I�rP�y�2���lf�u��>���ќJĞ�{m�ui-i��k4-ż"����s�)Pl4�1��I�� On 11 July 2001 Mitting J gave judgment in his favour against both defendants and awarded damages. The complaints made in the action related not to the creation of dust in the dressing shop but to the defenders' failure to provide adequate ventilation to extract the dust. Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424, another Scottish case, concerned a pursuer who had worked for the defenders for a period of some three months, demolishing buildings, and had contracted dermatitis. For 12 months of this period he operated a scrap metal press and some of the items fed into the press had asbestos linings. Search for more papers by this author. Keywords: compensation for mesothelioma; more than one employer. In the absence of occupational exposure to asbestos dust it is a very rare tumour indeed, afflicting no more than about one person in a million per year. Both employers breached their duty of care for him by exposing him to asbestos, but it cannot be determined which breach actually led to the poisoning, or if they both did. The Lord Ordinary found for the family, but his decision was reversed by the First Division. He was exposed to asbestos during the last four years of this employment when working as a boilerman. 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