Date: Thu, 4 May 2006 19:03:13 -0400

From: David Cheifetz

Subject: Fairchild revisited

This isn't intended as a reply to John's note. That requires some thinking. Rather, it's just some immediate thoughts about Barker, both specifically about the contents of the speeches and more broadly about what Fairchild might mean to the law in places like Canada.

I found it interesting that the HL said nothing about Holtby or Allen. I've no idea (yet) what it might mean that they didn't, just that it is interesting, and can't have been accidental. Does anyone know, off hand, whether any of the defendants sought leave to appeal in either case from the HL?

What I found equally intriguing was that none of the HL mentioned Afshar. Let's assume that somehow Holtby and Allen slipped their minds because they never got to the HL. Afshar did. The analysis the HL did to arrive at its justification for proportional liability seems to apply equally to the logic that resulted in liability in Afshar. One would think the same fairness analysis would apply in the decision-causation cases if the physician is held liable even though it cannot be said the failure to inform was a probable cause of the injury, but is liable nonetheless for other policy reasons.

Do we stoop to suggesting the justification for a distinction would be that the doctor's duty to properly inform is a more important duty than that owed by the employers, so the sanction for breach has to be more severe? I'm not quite hinting (yet) at extending Lord Hoffman's comments in Kuwait Airways about duty and causation to the consequences of causation.

Another curiosity: Vaughan has mentioned to me that the Lords didn't use "policy" anywhere in the speeches, except once in a quotation from Fairchild.

From the Canadian perspective, Barker should make Fairchild meaningless except as an indication of the flexibility of the common law in appropriate circumstances (whatever those might be). In my view, it eliminates an intellectually honest use of anything Fairchild actually says or logically implies in support of an argument (in Canada) that material contribution is a test of general application. Of course, one might also suggest that intellectual honesty is not always the hallmark of causation jurisprudence.

David

----- Original Message -----
From: "John Murphy"
Sent: Thursday, May 04, 2006 6:00 PM
Subject: ODG: 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?

<<<< Previous Message  ~  Index  ~  Next Message >>>>>