Fairchild v Glenhaven Funeral Services and five related appeals (Court of Appeal) unreported

The campaign to have the disgraceful Court of Appeal ruling on Fairchild overturned has been boosted by the House of Lords granting the petitions for leave to appeal in two of the mesothelioma causation cases, Fox and Matthews. They will be heard in April.

The court's decision to uphold Fairchild last December meant there can be no compensation for victims of the terminal asbestos cancer - mesothelioma - if, as is usually the case, the individual was exposed to the deadly dust by more than one employer.

Although the House of Lords has refused leave to appeal in Fairchild itself, Fox and Matthews are both strong cases which, if overturned by the Lords, will restore the right to compensation.

The six related appeals to the Court of Appeal decided the issues of causation, occupiers liability and provisional damages which arise in mesothelioma cases where the claimant or deceased was exposed to asbestos by two or more employers or where the occupier of the premises rather than the employer was pursued as a defendant. 
In Fairchild, Fox and Matthews the court ruled that it could not be proved which asbestos fibre, or group of fibres, were responsible for causing mesothelioma. Because the development of mesothelioma has nothing to do with the extent or duration of exposure to asbestos, proof of causation could not be established against any of the defendants, despite each of them having admitted substantial and/or negligent exposure.

As a result the court distinguished these appeals from that of Holtby v Brigham & Cowan (Hull) Limited (LELR issue 49, August 2000) which looked at injury resulting from the cumulative effect of negligent exposure by multiple employers.

In the Babcock, Fairchild and Dyson cases the court looked at whether the defendants, who were occupiers of premises on which the claimant's asbestos exposure occurred, were in breach of duty under the Occupiers Liability Act 1957. It was held that the 1957 Act imposes a duty on an occupier only in respect of the static condition of the premises, and not in relation to activities which are carried out on the premises. As the claimants in each case had sustained injury due to asbestos exposure generated by the activities of independent contractors, and not due to the condition of the premises, none of the occupiers were in breach of the 1957 Act. 

And because the occupiers had engaged competent contractors to carry out work on their premises, and had no actual knowledge of the danger to which lawful visitors were exposed, the occupier was not negligent. In terms of common law, it was the duty of the employer to ensure the safety of a worker.

In the Pendleton case the claimant sought an award of provisional damages for his development of asbestos-related pleural plaques. The court considered whether a provisional damages order could contain provision should the claimant develop mesothelioma in the future, even though causation could not be established. The court upheld the claimant's right to an order for provisional damages and that the question of causation only becomes relevant in the future if the condition should materialise.

The Lords have refused the defendants' petition for leave to appeal the Pendleton ruling. It also refused leave to appeal in the occupiers' liability cases. Campaigners now look to the government for legislative changes to ensure that victims of asbestos exposure are fully compensated.