Fairchild v Glenhaven Funeral Services Ltd & Ors

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    Judgments - Fairchild (suing on her own behalf) etc. v. Glenhaven Funeral Services Ltd and others etc.

    HOUSE OF LORDS
    Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry
    OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
    IN THE CAUSE
    FAIRCHILD (SUING ON HER OWN BEHALF AND ON BEHALF OF THE ESTATE OF AND DEPENDANTS OF ARTHUR ERIC FAIRCHILD (DECEASED)) (APPELLANT) v GLENHAVEN FUNERAL SERVICES LIMITED AND OTHERS (RESPONDENTS) FOX (SUING AS WIDOW AND ADMINISTRATRIX OF THOMAS FOX (DECEASED)) (FC) (APPELLANT) v SPOUSAL (MIDLANDS) LIMITED (RESPONDENTS
    MATTHEWS (FC) (APPELLANT)
    v
    ASSOCIATED PORTLAND CEMENT MANUFACTURERS (1978) LIMITED AND OTHERS (RESPONDENTS)
    ORAL JUDGMENT: 16 MAY 2002
    REASONS: 20 JUNE 2002
    [2002] UKHL 22
    LORD BINGHAM OF CORNHILL
    My Lords,
  1. On 16 May 2002 it was announced that these three appeals would be allowed. I now give my reasons for reaching that decision.

  2. The essential question underlying the appeals may be accurately expressed in this way. If

    3. (1) C was employed at different times and for differing periods by both A and B, and
    (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and
    (3) both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and
    (4) C is found to be suffering from a mesothelioma, and
    (5) any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but
    (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,
    is C entitled to recover damages against either A or B or against both A and B? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at [2002] 1 WLR 1052, gave a negative answer. It did so because, applying the conventional "but for" test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or…
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[2002] UKHL 22
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