Comment: FURTHER DEVELOPMENTS TO THE FAIRCHILD EXCEPTION AND EXTENT OF NEGLIGENCE LIABILITY

• Date: 01 December 2007
• Citation: (2007) 19 SAcLJ 148
• Published date: 01 December 2007
• Author: TER Kah Leng LLM (Bristol); Barrister (Lincoln’s Inn); Advocate & Solicitor (Singapore); Associate Professor, NUS Business School, National University of Singapore.

The difficulty of establishing a causal link between wrongful exposures to an injury causing agent by successive employers and the eventual injury has, in the interests of justice, led to a radical departure from the ordinary requirement as to causation. The problem is exacerbated in a situation where some of the exposures were in consequence of breaches of duty while the other exposures did not involve any breaches of duty. Does the Fairchild exception to the general rule extend to such a situation? If it does, is the Fairchild type of defendant to be made responsible for the whole loss? This is of crucial importance when some of the defendant employers or insurers are insolvent. These and other issues are considered below.

I. Introduction

1 Fairchild v Glenhaven Funeral Services Ltd and associated appeals1 represents a radical departure from the ordinary requirement of proof that the defendant’s breach caused the claimant’s loss. It explicitly established or affirmed a new principle2 allowing victims who have been tortiously exposed to a single noxious agent by successive employers or occupiers to be compensated, notwithstanding that it could not be proven, using the current medical knowledge, which of the tortious exposures had actually caused the ensuing injury. The application of a different and less demanding test of causation is a policy decision. It represents a pragmatic judicial response to what would otherwise have been an unfair denial of redress to the victim. In coming to this conclusion, the House of Lords weighed the potential injustices to the claimants and defendants respectively and tipped the balance in favour of

the claimants.3 The result is that defendants are made liable even though they may not have caused the damage at all, simply because their breach of duty has materially increased the risk of the eventual injury. All members of the House emphasised the exceptional nature of the liability and were concerned that the new exception should not be allowed to “swallow up” the ordinary rule. They called for considerable restraint in any relaxation of the conventional test of causation and recognised that the Fairchild principle would be subject to “incremental and analogical development” as new cases arose. No one expected Fairchild to be the last word on the matter.

2 The opportunity to further define the nature and limits of Fairchild arose in Barker v Corus (UK) plc and associated appeals.4 These three appeals raised important issues that were left undecided in Fairchild: first, the limits of the exception; second and by far the more important, what each defendant is liable for.

3 This article explores these issues and the bearing that these have on how far the boundaries of the exception will be extended.

II. The Limits of Fairchild

A Tortious exposures to a single noxious agent

4 The Fairchild principle was formulated in the following context: (a) exposure to a single noxious causative agent (asbestos dust) (b) all the employers (including occupiers) were in breach of duty (tortious exposure) (c) the exposure materially increased the risk of injury attributable to that agent (d) the risk materialised in injury (mesothelioma) and (d) the impossibility to identify, by any known medical science, which employer(s) actually caused the injury. Is the application of the exception restricted to the particular facts of the case? In distinguishing from multi-agent cases, Lord Walker restricted the principle to mesothelioma induced by a single causative agent and to other conditions having the same distinctive aetiology and prognosis such as dermatitis caused by brick dust as in McGhee.5 A variation to the Fairchild facts presented itself in Barker.

B. Tortious and non-tortious exposures to a single noxious agent

5 Unlike Fairchild, not all the exposures in the first appeal were tortious. Barker was exposed to the noxious agent in part during his employment and in part while being self-employed. He suffered three wrongful exposures to asbestos: the first while he was employed by Corus, the second while working for Graessers Ltd and on the third occasion while he was self-employed. The question arose as to whether Fairchild applied to render the defendant employers liable. If it did apply, the second question was whether they were jointly and severally liable or only for an aliquot contribution to the materialised risk. Moses J, affirmed by the Court of Appeal, held that the Fairchild exception applied and that the defendants were jointly and severally liable but subject to a 20% reduction for Barker’s contributory negligence while he was self-employed. The result was that Corus had to bear the full damages as it could not obtain contribution from Graessers Ltd which was insolvent.

6 In the other two appeals, all the exposures to asbestos were in breach of duties owed by the employers. It was not disputed that the cases fell within the Fairchild exception. The only question was with regard to the extent of liability, since there were insolvent employers in each of the cases of Paterson v Smiths Dock Ltd and Murray v British Shipbuilders (Hydrodynamics) Ltd. The judges and the Court of Appeal held that the solvent defendants were jointly and severally liable for the full damages.

7 The Fairchild principle was formulated mainly in the context of tortious exposures and the claimant’s responsibility for a significant exposure did not arise for consideration. In order to make the defendants liable in a situation where the claimant himself was also at fault, it was necessary to draw an analogy with McGhee. The case involved two possible causes of the disease contracted during employment with the same employer. One involved a tortious exposure (the failure to provide showers to remove the brick dust after work) while the other did not (the exposure to brick dust while working in the brick kilns was held not to be a breach of duty). Notwithstanding the impossibility to prove which source of risk was more likely to have caused the dermatitis, the House of Lords allowed the pursuer to recover damages. McGhee has been accepted as an approved application of the Fairchild principle6 in a situation where not all the exposures were tortious. Once that was accepted, Lord Hoffman found no logic in requiring that the non-tortious risk

should have been created by a tortfeasor or by a person who should also have caused a tortious exposure. Bearing in mind that the Fairchild exception is to enable recovery against a defendant who has materially increased the risk of injury and may have caused it, but cannot be shown by medical science to have actually done so, it should be irrelevant in relation to causation, whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself. However, these distinctions may be relevant to whether and to whom responsibility can also be attributed.

8 Lord Scott agreed with Lord Hoffman. On the basis that the Fairchild defendants were held liable for having materially contributed to the risk of the eventual disease, it can make no difference to liability, save as to quantum, whether there are periods of lawful exposure, or periods during which the victim had been self-employed. This does not detract from the...