Date: Tue, 25 Jun 2002 12:32:52 +0100

From: James Watthey

Subject: Fairchild Discussion

Dear Colleagues,

Vaughan Black wrote:

Now if they could just stop saying "causation is a matter of policy", which, since they hardly ever explain quite what they mean by "policy", is an equally silly statement, then we might start to get somewhere.

In fact I think we are all very clear what they mean by "policy" in this case. The policy is that:

Where it is impossible to prove or disprove a causal link because of the current state of knowledge, the negative consequences of this will fall upon:

(a) the "bad guy" and/or
(b) the party with insurance.

Point (a) is very clearly expressed. The policy is that employers should not be allowed knowingly to expose their employees to carcinogens and "get off on a technicality". For example, Lord Bingham, says at para.33:

I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law

and, even more clearly, at paras 41 - 42:

41. The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold 'but for' test of causal connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks from which an employer's duty of care is intended to protect employees. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. A former employee's inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation.

42. So long as it was not insignificant, each employer's wrongful exposure of its 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. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established. Given the present state of medical science, this outcome may cast responsibility on a defendant whose exposure of a claimant to the risk of contracting the disease had in fact no causative effect. But the unattractiveness of casting the net of responsibility as widely as this is far outweighed by the unattractiveness of the alternative outcome

Point (b) is never expressly spelt out. In fact, no variant of the word "insure" appears in the speeches. But commercially aware judges never can ignore the fact that any unfairness to an employer will almost always be passed on the insurers, and then spread amongst reinsurers and retrocessionaires. It can only have been on this basis that their Lordships were so comfortable in saying that unfairness to D is so clearly better than unfairness to C. Many will think that their Lordships were correct to bear this feature in mind, whilst appreciating that expressly giving it weight would have been a step too far

Jason Neyers wrote:

The problem with some of the Lords is that they seem to treat statements of doctors who are basing their premises on scientific measures of knowledge (i.e. near certainty) as if they controlled the law's separate approach to the matter (balance of probabilities).

This is a little unfair. Their Lordships are quite clear in recognising that the medical evidence is inconclusive as to the precise aetiology of mesothelioma and therefore whether each employer's default played a part in the development of the disease or if it must have been contracted as a result of exposure in only one job. Lord Rodger deals with the point as follows (the point is summarised at para 124, but it is worth quoting at length for those who have yet to see a transcript):

120. ... Mesothelioma arises when one of the mesothelial cells in the pleura is damaged and undergoes a malignant transformation. While it is certain that asbestos fibres play a role in triggering this transformation, it is not known whether the triggering mechanism involves a single asbestos fibre or multiple asbestos fibres. In the state of medical knowledge today, the one is as likely as the other. Once the malignant transformation has been triggered, the malignancy develops in a process that may involve some six or seven genetic changes. Asbestos may have a role to play at one or more of these stages, but again there is no evidence that the action of asbestos is more or less likely at one stage than at another. ..

122. Equally importantly, however, "the risk that mesothelioma will occur increases in relation to the total dose of asbestos received" ([2002] 1 WLR 1052, 1064A, para 25). Why this should be so is not known. It may be because the build-up of asbestos progressively weakens and eventually overwhelms the body's defences, with the result that a mesothelioma then develops. But this is now thought to be unlikely. The alternative explanation would seem to be that the greater the number of asbestos fibres taken into the body, the greater are the chances that one of them will trigger a malignant transformation. Whatever may be the reason for the increase in risk, since all the defendants exposed the men concerned to an atmosphere containing a substantial amount of asbestos dust, they all increased the risk that the men would develop mesothelioma.

124. Because of the current state of medical knowledge about the aetiology of mesothelioma, it was impossible for the claimants to prove on the balance of probabilities that the men's illness had been triggered by a fibre or fibres inhaled while working with any particular employer and, more especially, while working with the particular defendants whom they had sued. For that reason the Court of Appeal rejected their claims. The claimants thus failed because of the particular stage which medical science has reached. Research has gone far enough for scientists to be able to see, at a microscopic level, what the possible mechanisms may be, but not far enough for them to determine which is the one that actually operates. In future more may be known. As Mr Stewart rightly observed, in the course of submissions that were both helpful and sensitive, this may change the way in which the law treats such cases. But the House must deal with these appeals on the basis of the evidence as to medical knowledge today and leave the problems of the future to be resolved in the future.

So their Lordships are not using the doctors as a crutch; nor are they allowing the expert evidence to distort the law. Rather, the speeches on this point are simply saying that current medical evidence does not allow the parties to prove or disprove causation on the balance of probabilities, and reiterating that one party has to suffer the consequences of this.

J

NB : The views in this email are those of the author and not necessarily those of Lovells or any of its partners.

James Robertson Watthey
Barrister
Insurance and Reinsurance Group

Lovells
65 Holborn Viaduct
London EC1A 2DY

<<<< Previous Message  ~  Index  ~  Next Message >>>>>