Dear All,

Robert is correct that the Fairchild appeal itself was not actually an employment relationship - see Lord Bingham at [3] "Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases."

Although displaying perhaps more developed reasoning in the light of Sienkiewicz, Williams correctly reiterates the point made even more briefly in Brett v University of Reading [2007] EWCA Civ 88 http://www.bailii.org/ew/cases/EWCA/Civ/2007/88.html, that the Fairchild exception does not relieve the claimant of the need to establish breach (Brett is also, I believe, the first case to have cited s 3 of the Compensation Act 2006).

Best wishes,

James

--
James Lee
Lecturer and Director of Careers
Academic Fellow of the Inner Temple
Birmingham Law School
University of Birmingham
Edgbaston
Birmingham
B15 2TT, United Kingdom

Tel: +44 (0)121 414 3629
E-mail: j.s.f.lee@bham.ac.uk

Web: http://www.birmingham.ac.uk/staff/profiles/law/lee-james.aspx
________________________________________
From: Robert Stevens [robert.stevens@ucl.ac.uk]
Sent: 01 November 2011 02:49
To: David Cheifetz
Cc: Colin Liew; ODG
Subject: Re: ODG - Williams v University of Birmingham

(i) From memory, no. There was no employer/ee relationship in Fairchild
between Fairchild himself and Waddingtons (he was an invitee, in old
money).

(ii) It is a very careful decision by Aikens LJ, blessedly as brief as
humanly now possible, and correct I think. Whilst he is correct when he
says [28]

"There is nothing in either Fairchild or S v G to suggest that either the
House of Lords or the Supreme Court has altered the "breach of duty" test
in mesothelioma cases so that a claimant only has to demonstrate that the
defendant failed to take reasonable steps to ensure that the claimant or
victim was not exposed to a "material increase in the risk of
mesothelioma"."

This is not true of Barker v Corus where Lord Hoffmann had said (at [35])

"if the basis of liability is the wrongful creation of a risk or chance of
causing the disease, the damage which the defendant should be regarded as
having caused is the creation of such a risk or chance."

As I have said on here before, I think the subsequent decision of
Sienkiewicz v Grief is inconsistent with Barker v Corus. If the
justification for the Fairchild exception is, as we are now told, the
"rock of uncertainty" created by medical science's inability to pinpoint
the crucial link between the fibres inhaled and the mesothelioma, then
this rock should certainly prevent the assessment, for purposes of
apportionment, of the degree of risk created by each defendant.

Given the inconsistency between Barker and Sienkiewicz, the court of
appeal were right to follow the latest musings from our ultimate appellate
court. So the negligence must be in relation to mesothelioma, not the
increase in the risk of mesothelioma.
Rob

> 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


--
Robert Stevens
Professor of Commercial Law
University College London