Date: Robert Stevens

From: Wed, 14 Feb 2007 17:51:32 +0000

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

The assumption in Fairchild upon which everyone proceeded was that the mesothelioma was (very) probably caused by only one of the defendants. That was why it was different from a cumulative condition such as asbestosis. The claimants could not prove which one. Fairchild is on all fours with Cook v Lewis.

Well, I don't think it was for the reasons I explained.

Additionally, in Fairchild there were multiple defendants (ie multiple people firing into the woods) not just two, and so the solution of reversing the burden of proof would not succeed in Fairchild, when it would in Cook v Lewis. So if D is employed by 5 employers for a period of 6 months each, if the exposure to asbestos dust is constant, each defendant employer can show on the balance of probabilities it was not him who was responsible for the outcome. It was not possible for either hunter in Cook to demonstrate this.

If you want to characterise the wrong committed by each defendant employer as a breach of contract, you still have to prove the causal connection to get beyond nominal damages for the breach (and there is still a concurrent tortious obligation to address).

True, but it is hornbook law that damages for loss of a chance, here the lost chance of avoiding mesothelioma, are available where the claimant bases his claim upon breach of contract: Chaplin v Hicks. Following Barker v Corus, that was what the victims were awarded.

For myself, I cannot see what other right the claimants could successfully have concurrently relied upon as against the employer. There was no concurrent liability question here as we do not have rights good against everyone not to lose the chance of avoiding harm. So, if a chemical factory leaks, increasing the number of cancer victims in a given population from 100 to 150, unless it can be identified who the additional cancer victims are, none have a claim. If the increase is from 100 to 201, all 201 have a claim, here for the total loss not just the lost chance of not developing cancer. What is sauce for the defendant goose is sauce for the claimant gander.

And in any event, even that analysis will not work for the claims brought against the negligent occupiers who were not employers.

True, which is why I was careful to confine my comments to the claim against employers. As against the occupier (Waddingtons?) I think the claim should also have succeeded because occupiers assume responsibility towards those they have invited on to their premises, again placing them in a different position from the plaintiff in Cook v Lewis. Thee relationship was equivalent to contract if you like. That is a much more difficult argument however, although see Lord Lloyd in Spring v Guardian Assurance.

Put another way, it is very important that we separate out the questions (1) what is the underlying right upon which the claim is based? and (2) what consequential loss can the claimant show he has suffered as a result of the violation of this right?

Robert Stevens
Barrister
University of Oxford

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