Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services

AuthorJonathan Morgan
Publication Date01 March 2003
Lost Causes in the House of Lords:
Fairchild vGlenhaven Funeral Services
Jonathan Morgan
Like Matthew Arnold’s Oxford, disease litigation is the home of lost causes.
many years, the courts have intervened to ease the frequently formidable factual
difficulties of proving causation, in cases of disease. The House of Lords in
Fairchild vGlenhaven Funeral Services has carried that process of relaxation to its
furthest point yet, in a decision of far-reaching importance.
The case concerned claimants who had contracted mesothelioma (a lung
tumour) through exposure to asbestos, over a lifetime of work for different
employers. All the employers were admittedly in breach of the relevant duties of
care. However, the medical evidence on the aetiology of the disease indicated that
it did not necessarily build up gradually but might be triggered suddenly, through
one individual fibre causing a single cell in the lung to become malignant, or
possibly by a number of such fibres. Accordingly, while each successive employer,
and indeed each day of exposure to asbestos, increased the risk of mesothelioma,
none could actually be said to have been a contributory cause of the disease. Even
if the background risk could be dismissed, it could not be shown which
employer(s) were responsible for the – possibly solitary - fatal fibre(s). This is by
way of contrast to the lung disease asbestosis, which becomes incrementally more
severe with increased duration of exposure, and to which any exposure to asbestos
could, accordingly, be said to have contributed.
For these reasons, the Court of
Appeal concluded that the claimants were unable to prove which of the defendants
had caused their mesothelioma, and dismissed their claims.
The House of Lords,
however, allowed the appeal on the basis that, in this exceptional case, it was
sufficient for the claimants to show an increased risk of the disease consequent
upon the defendants’ negligence, even though actual causal contribution was
impossible to prove.
At the heart of four of the speeches was the conception of causation in law as a
normative phenomenon. An elementary principle, Lord Nicholls said, is that ‘the
extent to which the law requires a defendant to assume responsibility for loss
following upon his wrongful conduct always involves a value judgment’, and this
could mean both limiting liability when the defendant’s conduct was a cause but
Corpus Christi College, Cambridge. I am most grateful for the suggestions of Benjamin Parker
Esq, Fellow of St John’s College, without which this note would have contained further errors and
1 See J. Stapleton, Disease and the Compensation Debate (Oxford: Clarendon Press, 1986), ch 3.
2 [2002] UKHL 22; [2002] 3 WLR 89. See J. Stapleton, ‘Lords A-Leaping Evidentiary Gaps’ (2002)
10 Torts LJ 276.
3 See the lucid explanation of the factual difficulties by Brooke LJ in the Court of Appeal, [2002] 1
WLR 1052, 1063–1064.
rThe Modern Law Review Limited 2003 (MLR 66:2, March). Published by Blackwell Publishing Ltd.,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA. 277

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