From: David Cheifetz <david.cheifetz@rogers.com>
To: obligations@uwo.ca
Date: 01/11/2011 00:46:50 UTC
Subject: Re: ODG - Williams v University of Birmingham
Dear All,
 
Donald is correct about Ms. Wllmore's exposure in Knowsley. It was as pupil in secondary school. I missed that. The employment-exposure allegation was first made against another defendant [123].
 
Robert and James are correct about Fairchild, too, but it's a neat point.
 
Lord Bingham did make the statement James quotes (albeit in parentheses) but I it seems to me the point that Lord Bingham was making was that it didn't matter that F was there in the course of employment for somebody else, not that course of employment did not matter at all.  Mr. Fairchild was Waddingtons as an employee of his own employer [3] "He also worked for a builder, in whose employment he cut asbestos sheeting both to repair various roofs and while renovating a factory for Waddingtons plc". Given Lord Bingham's conditions in [2], he clearly thought employment exposure was central. 
 
Also, I think it's perhaps stretching things to suggest that the formal course of employment requirement by a defendant wasn't perceived to be part of the preconditions that Fairchild was taken to have stated for the application of the exception, at least before Sienkiewicz. (I'd have to go back and check but I believe it's specifically list in Jane Stapleton's "Lords a-leaping" comment, albeit I think she also suggested that this was one of the conditions that might disappear.)
 
The employment status was part of Lord Nichol's conclusions [41], Lord Hoffmann's [65], Lord Hutton's description [75], [77] - [75] has "conditions in which they worked" so he was dodging the not employed by Waddingtons issue, assuming the Committee say that as an issue, but [77] is employee v employer, Lord Rodger [119], [123]
 
And, in Barker, one of the issues was whether it mattered that one his exposures  wasn't a tortious course of his employment exposure - not a tortious "conditions in which he worked" situation borrowing from Lord Hutton. I think the course of employment requirement was taken for granted. It's part of Lord Hoffman's description of his speech in Fairchild - see [8], [16] - but it's not part of [17] when he deals with the significance of the non-tortious exposure. The employment status seems  part of Lord Scott's conclusions [59]. Lord Rodger doesn't really deal with the issue, accepting that the Fairchild exception applied given that liability would be several [102]. Baroness Hale's speech doesn't restrict to employment related situations: [127].  Lord Walker may, though, at [115-116. He might have been adverting to the Fairchild-Waddington situation at [116]
 
[115] The other issue which your Lordships have to decide is the effect (in the barker appeal) of the deceased's period of self-employment, during which he was exposed to asbestos. Moses J and the Court of Appeal treated this as contributory negligence reducing the value of the claim by 20%. Mrs barker does not challenge that finding before your Lordships. Nevertheless it raises an important issue of principle, since it involves applying the Fairchild principle in a situation in which the court cannot be sure that Mr barker's fatal disease was caused by breach of duty on the part of any one of his employers.
  
[116]  Before addressing this general issue I would interpose a word of caution as to the concession made by the claimant in barker. Moses J made some findings about Mr barker's period of self-employment (they are set out in para 30 of his judgment), but they are not very detailed, no doubt because there simply was not the evidential material on which to make more detailed findings. I would be slow to accept that the owner or occupier of industrial or public buildings does not owe a duty of care to workers engaged on the refitting, repair or modification of those buildings even if the workers are labour-only subcontractors rather than employees in the strict sense. Lord Bingham appears to have accepted this in Fairchild (para 3) and no one expressed a different view. So while accepting the concession for the purposes of deciding the point of principle, I think it is a matter which may have to be looked at more closely at some future time.
 
So perhaps that's another problem that the UKSC elided in Sienkiewicz in affirming Ms. Willmore's award, on the other hand, it appears that the Borough didn't make the argument, probably believing if it did it would lose that point.
 
Cheers,
 
David

From: James Lee <j.s.f.lee@bham.ac.uk>
To: Robert Stevens <robert.stevens@ucl.ac.uk>; "obligations@uwo.ca" <obligations@uwo.ca>
Sent: Monday, October 31, 2011 7:08:16 PM
Subject: RE: ODG - Williams v University of Birmingham

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