Date: Wed, 26 Jun 2002 15:20:43 +0100

From: James Watthey

Subject: Fairchild Again

NB these are the views of the author alone and not necessarily those of Lovells or any of its partners.

Dear All,

Robert Stevens wrote:

Suppose the victim was employed by D1 for six years during which he is exposed to asbestos. He is then employed for one day by D2. He then develops mesothelioma. Surely on the balance of probabilities the disease was caused by D1? Can a claim still be made against D2 for the full loss? On the distinction between Wilsher and Fairchild adopted by the majority of their Lordships the answer is yes.

Absolutely.

The intuitive reactions are that:

1. surely it is more likely that the disease arose as a result of exposure during employment with D1? and

2. surely it is unfair to hold the Ds jointly and severally liable in these circumstances?

Each of these initial thoughts, however, are answered in the speeches :

1. their Lordships considered that the medical evidence was inconclusive as to

a. whether mesothelioma arose as a result of one "fatal fibre", or as a result of a gradual exposure with one "final straw"; and, in any event

b. whose tortious act had caused or contributed to the mesothelioma.

As a result of this, it would be impossible to say on the balance of probabilities that D1's acts caused the disease, since either the "fatal fibre" or the "last straw" may just as well have been ingested when C was working for D2, notwithstanding that C was only working there for one day.

That might sound implausible, but it seems that deducing probability on a mathematical basis won't work. For example, Mr Matthews, one of the Claimants, only worked for British Uralite for 5-6 weeks in a 22 year career, whereas he worked with asbestos at Blue Circle Industries for four years. In those circumstances (and I appreciate they aren't as extreme as in Robert's example), their Lordships did not feel able to say that the disease arose from the Blue Circle job.

The speech of Lord Rodger recognised that this unsatisfactory position would probably change as and when more was known of the precise aetiology of the disease.

2. The apportionment point was not argued. See, for example, Lord Bingham para 34:

"It is a conclusion which follows even if either A or B is not before the court. It was not suggested in argument that C's entitlement against either A or B should be for any sum less than the full compensation to which C is entitled, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way. No argument on apportionment was addressed to the House."

and cf a Californian case with rather special facts (ibid para 29):

"Sindell v Abbott Laboratories 26 Cal. 3d 588 (1980) was a class action for personal injuries said to have resulted from pre-natal exposure to the anti-miscarriage drug diethylstilbestrol (DES) which had been manufactured by one of a potentially large number of defendants. The plaintiff could not identify which particular defendant had manufactured the drug responsible for her injuries. ...

The court surmounted this problem by adapting the Summers rule so as to apportion liability on the basis of the defendant's market share."

I wonder how the Court would have approached the apportionment argument had it been put, and how it will deal with any contribution claims which may flow from these or related cases (of which, we understand, there are many).

J

James Robertson Watthey
Barrister
Insurance and Reinsurance Group

Lovells
65 Holborn Viaduct
London EC1A 2DY

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