Date: Tue, 11 May 2004 09:43:41 -0400

From: David Cheifetz

Subject: Fairchild fallout

Andrew and colleagues:

Andrew writes: "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."

Subject to any reduction for contributory fault, doesn't that inevitably follow from findings that the employer's wrongful conduct is a legal cause of the injury, that the injury is indivisible, and in solidum liability (or the modern term joint liability) among concurrent wrongdoers?

I wonder if any of our UK colleagues know if the trial decision in Barker is reported and, if so where? I checked on the BAILII site but it isn't there (that I could find) and the C.A. reasons don't mention a trial citation. I'm curious as to how the trial judge arrived at 20% and why that would be contributory fault. In what way did Barker fail to take reasonable care for his own safety, bearing in mind the state of knowledge available to the average person about asbestos-related lung diseases during the period of his employment, or self employment? It may be, according to what is quoted in the CA reasons [see para 33 quoting para 62 of the trial reasons] there was trial evidence that on a few occasions Barker didn't wear protective equipment provided to him; but how did that translate to 20%? The CA reasons don't deal with that at all.

It's also puzzling, I think, that the CA did not mention its prior decisions in Holtby v. Brigham & Cowan (Hull) Ltd., [2000] EWCA Civ 111 and Allen v. British Rail Engineering Ltd., [2001] EWCA Civ 242. I appreciate that, in both cases, the courts decided to treat the injury as if it was divisible; however, that, in my view, was just a bit of a sham. Is Barker to be seen as an indication Holtby and Allen are to be treated as fact-based aberrations?

My immediate impression is that the Barker situation is the McGhee situation - more exposure than just through the employment - but I'll have to go back and look at McGhee to be certain of that.

Regards,

David

David Cheifetz
Bennett Best Burn LLP
Toronto, Canada

----- Original Message -----
From: Andrew Tettenborn
Sent: Monday, May 10, 2004 6:50 AM
Subject: ODG: 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.

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