Date: Thu, 4 May 2006 23:00:48 +0100

From: John Murphy

Subject: Fairchild revisited

I'm not sure why Barker has prompted more debate.

There are several points I'm not clear about.

But let's start with Robert's about why it may or may not make a difference that there is only a single agent (cf Wilsher). I don't really think that Lord Hoffmann made this point as clearly as he thought he had or hoped to do. So, I share Robert's confusion. But maybe the real reason goes like this.

In Fairchild, the Lords have bent the rules in the face of considerable evidential uncertainty. No-one would doubt this. So how does the single agent point figure. Well, maybe it is simply a threshold of convenience designed to do no more than restrain the potential injustice to "innocent" employers. That is, "We're prepared to bend the rules when we know that D1, D2 and D3 exposed P to asbestos dust and it is virtually certain that P's condition was caused by such exposure. But in bending the rules, we recognize that any two of D1, D2 and D3 are probably not responsible for the onset of your condition. With that in mind, we will refuse to bend the rules still further so far as to make all three of D1, D2 and D3 liable where P's condition might equally well have been attributable to agent X as to asbestos dust."

But what is bugging me isn't so much the can of worms associated with treating risk creation as a form of damage, but rather how we have reached the point where we start dividing up the contributions to the risk based on length of exposure. First, just as some public houses are smokier than others, some workplaces are dustier than others. Time, in short, isn't the only factor relevant to the assessing the risk created by any one employer. Secondly, to treat each employer as having caused harm because they contributed to the risk of getting mesothelioma ignores the vagueness of the science. It could be that the first intake of breath at D1's place of work was all it took. Thereafter, it is entirely fictional to say that D2 and D3 contributed to the risk. The truth is we don't know whether D2 and D3 did contribute to the risk. The best we can say is that they have been deemed to contribute to the risk. But as soon as we admit that this is an artificial way of saying that any one of our defendants has contributed to the risk of harm, doesn't it become doubly artificial - and for that reason wrong??? - to say that they have contributed in some kind of precise measure?

On the other hand, I can see that it would be problematic to say that P can claim in full against just one defendant if he suffers the onset of an indivisible disease caused by agent X, but only damages proportionate to responsibility in the case of a divisible disease caused by the same agent X. (Remember Holtby?)

I'm in a hole. Is it one of my own digging? What do others think?

John Murphy

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