Fairchild v Glenhaven Funeral Services Ltd and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE |
| Judgment Date | 11 December 2001 |
| Neutral Citation | [2001] EWCA Civ 1881 |
| Docket Number | Case No: B3/2001/0382, B3/2001/0123, B3/2001/0616, B3/2000/2431, B3/2001/0939, B3/2001/1653 and B3/2001/1669 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2001 |
[2001] EWCA Civ 1881
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Curtis J
Judge Bush
Judge Tetlow
Eady J
Judge Mackay
Mitting J
Lord Justice Brooke
Lord Justice Latham and
Lord Justice Kay
Case No: B3/2001/0382, B3/2001/0123, B3/2001/0616, B3/2000/2431, B3/2001/0939, B3/2001/1653 and B3/2001/1669
B3/2001/0382
B3/2001/0123
B3/2001/0616
B3/2000/2431
B3/2001/0939
B3/2001/1653 & 1669
And Five Other Appeals Whose Names Appear On The Following Page
Brian Langstaff QC & Andrew Hogarth (instructed by O H Parsons & Partners for the Appellant)
Stephen Stewart QC & Michael Rawlinson (instructed by Halliwell Landau for Waddingtons plc)
Michael Taylor (instructed by Leeds City Legal Services Department for the Leeds City Council)
B3/2001/0123
David Allan QC & Mark Grenyer (instructed by Lawfords for the Appellants)
Michael Taylor (instructed by Leeds City Legal Services Department for the Respondents)
B3/2001/0616
Michael Taylor (instructed by Praxis Partners for the Appellants)
David Allan QC (instructed by Thompsons for the Respondents)
B3/2000/2431
Edward Faulks QC & Simon Levene (instructed by Vizards Staples & Bannisters for the Appellant)
Richard Nussey (instructed by Greenwoods for the Respondent)
B3/2001/0939
David Allan QC (instructed by John Pickering & Partners for the Appellant)
Nigel Wilkinson QC & William Vandyck (instructed by AMP (UK) Services Legal Department for the Respondent)
B3/2001/1653 and B3/2001/1669
Robert Owen QC & Charles Feeny (instructed by Berrymans Lace Mawer for the Appellant)
David Allan QC (instructed by John Pickering & Partners for the Respondent)
SUMMARY
(This Summary does not form part of the judgment of the court)
In these six appeals the Court of Appeal has decided three different issues which arise in cases where a claimant has suffered, or may suffer, asbestos-induced mesothelioma after being exposed to asbestos dust after working for more than one employer.
In Fairchild, Fox and Matthews the court held that in these circumstances a claimant cannot recover damages. The reason for this is that mesothelioma, unlike asbestosis or pneumoconiosis, is a single indivisible disease (see paras 21–28), and a claimant cannot establish on the balance of probabilities when it was that he inhaled the asbestos fibre, or fibres, which caused a mesothelial cell in his pleura to become malignant (see paras 102–108). The court observed that in these circumstances claimants may have a claim under the Pneumoconiosis (Workers' Compensation) Act 1979, in which event the cost to the exchequer may run into tens of millions of pounds each year. If they do not, it said that these cases have revealed a major injustice crying out to be righted either by statute or by an agreed insurance industry scheme (see para 107).
In Babcock, Fairchild and Dyson the court held that no liability attaches to an occupier of premises whether at common law prior to 1957 or under the Occupiers' Liability Act 1957 from the mere fact that the workmen in these cases were exposed to asbestos dust in premises of which they were the occupiers. The language of section 2(2) of the 1957 Act, which referred to "care … to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there" relates to the static condition of the premises. Any liability in respect of a danger to which the workmen may be exposed as a consequence of activities performed on the premises falls to be determined by the common law (or by a different statute, such as section 63(1) of the Factories Act 1961). In these three cases, where the occupiers engaged competent independent contractors to carry out work on their premises, and where the occupiers did not know of the danger to which the workmen were exposed (even though they ought to have known it, at any rate from 1958 onwards), they were not liable for negligence at common law simply in their capacity as occupiers (see paras 149–155).
In Pendleton the court held that on the proper construction of section 51(1) of the County Courts Act 1984 it was open to a court in a case like this to make an order for provisional damages to cover the risk of the claimant contracting mesothelioma or lung carcinoma at some future date as a consequence of his exposure to asbestos dust even though he would not be able to recover damages today in respect of such diseases in the present state of medical science and the law (see para 166).
Contents
| Part No | Para No | |||
| 1. | Introduction | 1 | ||
| 2. | The Facts: | |||
| (i) Arthur Fairchild | 4 | |||
| (ii) Thomas Fox | 8 | |||
| (iii) Edwin Matthews | 10 | |||
| (iv) John Hussey | 14 | |||
| (v) Lawrence Twohey | 16 | |||
| (vi) Robert Pendleton | 18 | |||
| 3. Mesothelioma and asbestosis: | ||||
| (i) Mesothelioma | 21 | |||
| (ii) Asbestosis | 27 | |||
| 4. | The causation caselaw: | |||
| (i) Bonnington Castings, Nicholson and Gardiner | 29 | |||
| (ii) McGhee | 37 | |||
| (iii) Thompson, Bryce and Wilsher | 52 | |||
| (iv) Some Commonwealth cases | 64 | |||
| (v) Holtby | 68 | |||
| 5. | The judgments on causation in the courts below: | |||
| (i) Fairchild | 72 | |||
| (ii) Fox | 75 | |||
| (iii) Matthews | 76 | |||
| 6. | Causation: the arguments | 78 | ||
| 7. | Conclusion: Causation | 102 | ||
| 8. | Occupiers' liability: the law | |||
| (i) Three different issues of law | 109 | |||
| (ii) Section 63(1) of the Factories Act 1961 | 111 | |||
| (iii) The common law liability of an occupier before 1957 | 113 | |||
| (iv) The Occupiers' Liability Act 1957 and common law liabilities since 1957 | 122 | |||
| 9. | Occupiers' Liability: The judgments. | |||
| (i) Babcock | 134 | |||
| (ii) Dyson | 138 | |||
| (iii) Fairchild | 143 | |||
| 10. | Occupiers' Liability: Conclusions | 149 | ||
| 11. | Pendleton: Provisional Damages | 156 | ||
| 12 | The result of these appeals | 167 |
This is the judgment of the court.
Introduction
These six appeals were heard together. They raise two important points. The first is whether a claimant suffering from mesothelioma can recover compensation from anyone who negligently exposed him to significant amounts of asbestos dust if he did not remain in the same employment throughout the period of exposure. The second is whether, in the event that he cannot identify any relevant employer who is still viable and/or insured, he can recover compensation from the occupiers of the premises where he was exposed to asbestos dust in significant amounts. One appeal, Pendleton v Stone & Webster Engineering Ltd, raises a particular issue about the appropriateness of an order for provisional damages in a mesothelioma case where there has been more than one period of negligent exposure to asbestos dust.
We will refer to the different appeals by the names of the different claimants. They fall into three categories. Fairchild, Fox and Matthews fall into the first category, Fairchild, Babcock and Dyson into the second and Pendleton into the third. The cases in the first category raise what we will call "the causation issue". In the "occupiers' liability" cases in the second category the judges ruled consistently in favour of the defendant occupiers. In one of them, Babcock, the judge said that if he was wrong about this, he would have apportioned liability as to 100% against the negligent employers as opposed to the occupiers of the premises in which the dust arose. Pendleton raises, as we have said, the provisional damages issue, on which the judge ruled in favour of the claimant. We will describe the facts of these six cases in paragraphs 4–20 below, and summarise the effect of the different judges' rulings in paragraphs 72–77, 134–148 and 156–164 below.
When opening the Fairchild appeal Mr Langstaff QC described the perceived merits of asbestos. It is a mineral silicate which is very useful for insulation purposes. It is fireproof, acid proof, and resistant to alkalis and moisture. It is also very easy to shape and to apply. Sadly, its dust possesses qualities that have proved to be very injurious to human health; and awareness of the damage it did was very slow to percolate among those who profited from its benefits. The six histories we are about to set out have been replicated many, many times in asbestos litigation all over the world in the last 30 years.
The Facts: (i) Arthur Fairchild
Arthur...
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