Dear Colleagues:

In response to my comments that "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)".

James Watthey noted: "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."

I should have been more clear that what I was referring to was not their Lordships treatment of the facts in Fairchild but some of their Lordships (I don't have the judgment in front of me so I can't name names) use of expert testimony from McGhee to impeach Lord Bridge's reassessment of that case in Wilsher. To my mind, it seemed that they were relying on scientific statements (with different standards of proof) to undermine what was essentially Lord Bridge's legal point regarding a permissible inference. I hope this makes my point clearer.

Jason