From: David Cheifetz <david.cheifetz@rogers.com>
To: Colin Liew <colinliew@gmail.com>
ODG <obligations@uwo.ca>
Date: 31/10/2011 14:00:05 UTC
Subject: Re: ODG - Williams v University of Birmingham
Is this the first reported extension of the Fairchild exception to a case where tortious exposure upon which P sues is in non-employment situation? Exposure during the course of employment was one the requirements in most (all?) of the Fairchild speeches. In Lord Hoffmann's it was [61] "First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease." Barker and Sienkewicz were also employment.
 
If it is the first, shouldn't the panel have at least mentioned that and explained why it was departing from the "course of employment restriction", say on the basis that principle prevented it from being limited to employment? Or left it to the UK SC to lift that restriction? (There's no suggestion that Mr. Williams was acting as an underpaid TA at any time during his exposure.) I doubt that the panel forgot about it.
 
Cheers,
 
David

 
From: Colin Liew <colinliew@gmail.com>
To: ODG <obligations@uwo.ca>
Sent: Monday, October 31, 2011 9:14:07 AM
Subject: Williams v University of Birmingham

Dear all,

Those of you interested in causation might like to note Williams v University of Birmingham [2011] EWCA Civ 1242, where the Court of Appeal was confronted with yet another mesothelioma case, this time arising from the experiments of the deceased, a physics student, conducted in what appears to have been a subterranean asbestos-laden tunnel at the University of Birmingham. The University successfully appealed the first instance finding of liability in negligence, on the basis (among other things) that the trial judge had confused the tests for breach of duty and causation, and Aikens LJ helpfully summarises the leading cases. 

There is perhaps a note of exasperation in Patten LJ's judgment (at [81]) that:

The judge's formulation of the test for breach of duty in terms of a duty to take reasonable measures to avoid exposing Mr Williams to a material increase in the risk of mesothelioma is perfectly understandable in the light of the changes made to the test of causation in such cases. In most cases the common law duty of care is related to the nature of the harm which should have been envisaged and the issues of breach of duty, causation and remoteness are not readily distinguishable in terms of what has to be foreseen. There is therefore a respectable logic in the argument that the changes made to the test of causation should be reflected in the prior issue of breach of duty and an obvious danger that the retention of a test based on the foreseeability of a risk of asbestos related injury may set an inconsistent standard of care.

Kind regards,
Colin