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Date: Mon, 10 May 2004 11:50:15 +0100 From: Andrew Tettenborn Subject: Fairchild fallout
Causation buffs may be interested in the latest contribution from the English CA. In Fairchild v Glenhaven the HL said that where a plaintiff had mesothelioma after working for serial negligent employers who had allowed him into contact with asbestos, he could sue any or all of them without having strictly to prove causation. His disease was someone's fault: it was unfair to deny him recovery because he couldn't pinpoint whose. In Barker v St Gobain [2004] EWCA Civ 545 there was a nice twist. The plaintiff had worked for serial negligent employees, but had also handled asbestos for 20 years while working as a self-employed plasterer. Given that there was a very substantial chance that nobody else's negligence had made him ill, did this make a difference? No, says the CA. Nor could there be any apportionment to make the employers liable only severally. However, there could be some account taken of this by a finding of contributory negligence. That is, if the plaintiff had negligently exposed himself to the risk of mesothelioma, what was sauce for the goose was sauce for the gander and the defendant could use Fairchild to get over the causation problem. In the event a 20% reduction was applied and upheld. I always had my doubts about Fairchild. I still have them. Barker seems to mean that if I have pottered all my life in my garden shed which, unknown to me, has asbestos in it, I can recover in full provided I can show I was employed for one year in the remote past by a negligent employer. This seems a rum result to me.
Best wishes to all Andrew Andrew
Tettenborn MA LLB Tel:
01392-263189 / +44-392-263189 (international) Snailmail:
School of Law,
[School homepage: http://www.ex.ac.uk/law/
]
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