Fairchild v Glenhaven Funeral Services Ltd

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). In each case the employee concerned had been exposed to asbestos by more than one employer during his working life. This made it difficult for the claimants to establish that any particular employer's negligence had caused the mesothelioma, because medical science does not know exactly how asbestos causes the disease.

In particular, it is currently impossible to say whether the action of a single asbestos fibre, a few fibres, or the cumulative effect of many fibres causes the disease. It is possible to say, however, that the greater the quantity of fibres inhaled the greater the risk of developing the disease. Given this evidence the Court of Appeal concluded that the claimants were unable to prove on the balance of probabilities that the negligence of the particular employers who they had sued had caused the disease, or made a material contribution to it.

The House of Lords, however, held that in the special circumstances of the case it was sufficient for the claimants to prove that the negligence of the particular employers had increased the risk of the employees contracting the disease. Consequently, the House of Lords allowed the appeals and held that the defendant employers were liable for the employees' diseases. Further, the House of Lords held that each employer was liable to compensate each employee in full, even if that employer had only been responsible for a small proportion of the asbestos inhaled by the employee.

Comments Lord Nicholls started his brief judgement by explaining that any outcome other than a victory for the claimants would have been "deeply offensive to instinctive notions of what justice requires and fairness demands", and continued that "The real difficulty lies in elucidating in sufficiently specific terms the principle being applied in reaching this conclusion. To be acceptable the law must be coherent. It must be principled. …

When a decision departs from the principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law" (para. 36). We will explain at the end of this comment why we feel uneasier than Lord Nicholls about the justice of the claimants' victory does. But we wholeheartedly agree with his opinion that the House of Lords' decision should be judged by asking whether it provides a "rational and justifiable" and "sufficiently specific" principle which can be applied to solve future cases.

Unfortunately, it is easier to identify the principle, which the majority House of Lords applied, and their reasons for applying it, than to find clear guidance on the scope of the principle. The exceptional principle applied: the "McGhee principle" The House of Lords accepted in Fairchild that in a negligence claim the claimant must in most cases prove on the balance of probabilities that the defendant's negligence either caused or materially contributed to the claimant's injury or damage. (Thus Fairchild has not displaced most of the previous law discussed in McBride and Bagshaw, Tort Law, pp 468-490.

) The House of Lords also accepted that the claimants in the Fairchild case could not prove on the balance of probabilities that the negligence of the defendants had either caused or materially contributed to the mesothelioma. A majority of the House of Lords concluded, however, that in certain circumstances claimants could rely on an exceptional principle, which treats proof that the defendants' negligence materially increased the risk of a claimant suffering a particular disease as sufficient to establish a claim. The main authority relied on in support of this exceptional principle was McGhee v National Coal Board [1973] 1 WLR 1.

Indeed counsel for the defendants conceded that if McGhee was authority for an exceptional principle then that principle governed the case and the appeals would have to be allowed (para 151). As you may recall McGhee involved a claim by an employee who had developed dermatitis after working in a hot brick kiln. He failed to establish that the employer was at fault in sending him in to clean the kilns before they had cooled further. But the court concluded that the employer was at fault in not providing showers to enable McGhee to wash the abrasive brick dust off his body before cycling home.

The issue then became whether this fault had caused McGhee's dermatitis. The House of Lords found that the defendant was liable. But in McBride and Bagshaw, Tort Law, pp 483-5, we state that the "decision [in McGhee] is very difficult to explain" and offer four possible interpretations of it. The majority of the House of Lords in Fairchild, however, interprets McGhee in a fifth way, as authority for an exceptional principle. (The fifth way is closest to what is presented in McBride and Bagshaw, Tort Law, p 484, as the second way of understanding McGhee.

Lord Hutton differed from the majority in Fairchild and understood McGhee in what is presented in McBride and Bagshaw, Tort Law, pp 484-5, as the fourth way. ) In McGhee, as in Fairchild, difficulty was caused by the medical evidence about how the disease was caused. It was accepted that the greater the number of abrasions the more likely an employee would be to develop dermatitis. But it was unclear whether "an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or …

the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence" ([1973] 1 WLR 1, 4 per Lord Reid). In Fairchild Lord Bingham treated the majority of the House of Lords in McGhee as having decided, as a matter of law, "that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the [employee] contracting it" (para 21).

And Lord Bingham regarded the facts of Fairchild as suitable for application of the same principle: "it seems to me just and in accordance with common sense to treat the conduct of [the employers] in exposing [the employee] to a risk to which he should not have been exposed as making a material contribution to the contracting by [the employee] of a condition against which it was the duty of [the employers] to protect him" (para 34).

Lords Nicholls, Hoffmann and Rodger also relied on a very similar principle (paras 42, 67 and 168 respectively) and understood the ratio of McGhee as being the same (paras 44, 65 and 168 respectively): "So long as it was not insignificant, each employer's wrongful exposure of the employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection" (para 42 per Lord Nicholls); "[In McGhee] …

the House decided that materially increasing the risk that the disease would occur was sufficient to satisfy the causal requirements for liability… For present purposes, the McGhee principle is sufficient" (paras 65, 74 per Lord Hoffmann); "Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness" (para 168 per Lord Rodger).

The justifications for the "McGhee principle" We think that the House of Lords in Fairchild identified four (overlapping) reasons for adopting the exceptional "McGhee principle". Below we list these four (overlapping) reasons, then offer a brief assessment of them. (1) Impossibility A strong argument in favour of the "McGhee principle" was that to have insisted on the ordinary requirement of proof of causation on the balance of probabilities would have been to have insisted that the claimant do what is scientifically impossible.

In the particular circumstances, where the claimants could prove that the employees had been injured by the negligence of one or more of their negligent employers, it seemed particularly harsh to insist that the claimants should lose because the limits of scientific knowledge prevented them from establishing which negligent employer in particular was responsible.

Lord Rodger expressly referred (at paras 155 and 170) to the fact that the "McGhee principle" went no further than relieving the claimant from the need to prove the impossible: instead the claimant was required to prove the most that he or she possibly could (i. e. that the defendant's negligence increased the risk of the harm being suffered).