It would have been much better if the court had simply said that the appeal was allowed because the judge had failed to apply the plain words of section 3 of the Compensation Act and left it at that. I think section 3 is a foolish provision but the words are quite clear.

Instead of quickly resolving a very easy case we get hostages to fortune arising from the lengthy discussion of what Barker and Fairchild mean, a discussion which was wholly unnecessary.

Perhaps the worst example is the statement that Fairchild created a 'new tort of exposing to risk of injury.'

In this case, as in Barker and Fairchild, there was no doubt at all that the claimants were the victims of a wrong- the breach of the contractual duty to provide a safe system of work and of the concurrent statutory duty. The issue correctly analysed was the quantification of loss suffered as a result of the wrong suffered. Following Barker this is (correctly) quantified as the lost chance of avoiding the disease. Lost chances consequent upon wrongs are actione (eg my lost chance of winning a beauty contest if you negligently scar my face). We don't however commit torts merely by exposing other people to the risk of injury.

Section 3 (which is very narrow in application) allows the claimant to recover a loss he cannot prove is a result of the wrong suffered. That is unprincipled but the common law is not. Other litigants will have to pay to get all this clarified.

RS

-----Original Message-----

From: "Morgan P." <Phillip.Morgan@soton.ac.uk>

To: "obligations@uwo.ca" <obligations@uwo.ca>

Sent: 06/11/09 15:51

Subject: Causation and the Fairchild Exception

Dear List Members,

Those interested in causation and asbestos litigation may be interested in the following decision handed down today by the English Court of Appeal.

Karen Sienkiewicz (Administratrix of the Estate of Enid Costello Deceased) v Greif (UK) Ltd [2009] EWCA Civ 1159, (http://www.bailii.org/ew/cases/EWCA/Civ/2009/1159.html) is the first mesothelioma case in which the Court of Appeal has been asked to consider together the decisions in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32, Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572, and the terms of Section 3 of the Compensation Act 2006.  The case dealt with the scope of the Fairchild exception.

Mrs Costello died of mesothelioma in January 2006 at the age of 74.  She had been exposed to asbestos dust during the course of her employment with the respondent's predecessors in title between 1966 and 1984.  This was a tortious exposure caused by the respondent's breach of a duty of care or statutory duty owed to all its employees, including Mrs Costello.  Mrs Costello had not been exposed to asbestos dust during any other employment but she had been exposed to a low level of asbestos dust in the general atmosphere.  It was held that the tortious exposure materially increased the risk of Mrs Costello contracting mesothelioma in the sense that the risk was more than minimal, but the total tortious exposure was modest compared with the total environmental exposure, and increased the risk due to the environment by only 18 per cent, further it was held that the tortious exposure had not more than doubled the risk from non-tortious exposure.

The Court of Appeal noted ([23] Smith LJ): "saving the expression of a different view by the Supreme Court, in a case of multiple potential causes, a claimant can demonstrate causation in a case by showing that the tortious exposure has at least doubled the risk arising from the non-tortious cause or causes."

The question in the appeal related to the scope of Fairchild and Barker, whether, in a mesothelioma case, where there is more than one source of asbestos exposure, the claimant can be required to show that the risk arising from the tortious exposure is more than twice the risk arising from the non-tortious cause or causes. Or is it sufficient, in the light of Fairchild and Barker, that he need only show a material (more than minimal) increase in risk [24].

The Court of Appeal allowed the appeal and held that the Claimant need only show a material (more than minimal) increase in risk.

The routes by which this was achieved differed between the Judges.

Lady Justice Smith achieved this by a statutory construction of Section 3 of the Compensation Act.  She noted [26]: "It seems to me that there is considerable force in Mr Stuart-Smith's submission. It is true that, in Fairchild, the House of Lords was concerned with cases in which the claimants could not possibly prove causation on ordinary principles. No one suggested to the House that, in some mesothelioma cases, it might be possible to prove causation on the balance of probabilities by reference to a more than twofold doubling of risk. On hypothetical consideration, I could not rule out the possibility that, if the House had been asked to consider that issue, it might have limited the exception to the rule to cases in which such an assessment was impossible. However, it is now idle to speculate as to what the House would have said if that argument had arisen. Also, it is not now possible for this Court to consider whether, at common law, the Fairchild exception should be limited in application to cases in which it is quite impossible for a claimant to prove causation by reference to a more than twofold increase in risk. That is because Parliament has intervened by enacting section 3 of the Compensation Act 2006 so that the common law simpliciter no longer governs claims for damages in mesothelioma cases."

At [33]-[35] she stated:

33.     It may well be that, in enacting section 3(1) as it did, Parliament intended to require that, before the benefit of section 3(2) took effect, the claimant would have to establish liability at common law. It seems to me that Parliament was setting out, as conditions, those matters which would have to be proved for common law liability. In Fairchild the House of Lords had said that causation could be proved in a mesothelioma case by the demonstration of a material increase in risk. However, it is obvious that, in some cases, a claimant might be able to prove causation by some other means - for example, in a simple case of heavy tortious exposure by only one employer, by proving causation on the balance of probabilities.

34.     It seems to me that, in section 3(1)(d), Parliament was saying that the claimant had to prove the causation element of common law liability by any available method, which included showing a mat