The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on epidemiological evidence. The defendants in each case argued that the Fairchild exception should not have been applied so as to make them liable, since there was only one defendant in each case.
Held: Both appeals failed. The decision in Fairchaild left open what should happen in cases such as these. The Fairchild exception applies in mesothelioma cases where only a single defendant was identified.
There is no rule requiring a claimant to establish that the defendant’s breach of duty doubled the risk of developing the disease. Lord Phillips said: ‘I see no scope for the application of the ‘doubles the risk’ test in cases where two agents have operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applies. Where the disease is indivisible, such as lung cancer, a defendant who has tortiously contributed to the cause of the disease will be liable in full. Where the disease is divisible, such as asbestosis, the tortfeasor will be liable in respect of the share of the disease for which he is responsible.’
Lord Phillips, President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Kerr, Lord Dyson
[2011] 2 WLR 523, [2011] ICR 391, UKSC 2009/0219, [2011] UKSC 10, [2011] 2 AC 229
SC, SC Summary, Bailii, Bailii Summary
Compensation Act 2006 3
England and Wales
Citing:
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Appeal from – Willmore v Knowsley Metropolitan Borough Council CA 19-Nov-2009
The defendant had appealed against the award of damages after alleged exposure of the claimant to airborne asbestos whilst a schoolchild. The Council submitted that the judge’s findings of fact were, in enough respects to undermine his conclusion, . .
Cited – Loveday v Renton and Wellcome Foundation Ltd 1990
Stuart-Smith LJ said that there is no ‘generally accepted standard of scientific proof.’ The court rejected epidemiological evidence presented to it. . .
Cited – Rolls Royce Industrial Power (India) Ltd v Cox CA 22-Nov-2007
The claimant was the widow of a man who died from mesothelioma after alleged asbestos contamination working for the appellant. The defendant appealed on liability saying that there was insufficient evidence of causation since there was little to . .
Cited – XYZ and others v Schering Health QBD 29-Jul-2002
The court heard seven lead claims in group litigation against three drug companies in respect of their combined oral contraceptive products. . .
Cited – Dingley v The Chief Constable, Strathclyde Police 1998
The court was asked whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident. Medical science was not able to demonstrate the connection between the two, and reliance was placed on . .
At first instance – Willmore v Knowsley Metropolitan Borough Council QBD 24-Jul-2009
The claimant sought damages for personal injury, saying that she had now contracted mesolthelioma having been exposed to asbestos whilst a pupil at a school run by the defendant’s predecessors.
Held: The authority was liable. . .
Appeal from – Sienkiewicz v Greif (UK) Ltd CA 6-Nov-2009
The claimant was the daughter of a lady who died of mesothelioma. The defendant appealed saying that the judge had found that the exposure for which it was responsible had increased the risk above the background risk by only 18%, and this was . .
Cited – Bonnington Castings Ltd v Wardlaw HL 1-Mar-1956
The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had . .
Cited – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited – Thompson v Smiths Shiprepairers (North Shields) Ltd QBD 1984
The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation, Re CA 8-Oct-2010
Companies restored to the register, and the personal representatives of former employees, appealed against rejection of their claims from the insurers of the former companies for damages from mesothelioma following exposure to asbestos during . .
Cited – Bryce v Swan Hunter Group plc 1987
The court considered the difficulties of establishing liability in negligence or breach of statutory duty against an employer for exposure to asbestos giving rise to mesothelioma. . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – Jones v Metal Box Ltd 11-Jan-2007
(Cardiff County Court) The court considered a claim for damages from asbestos exposure giving rise to mesothelioma. As to considering medical causation: unless the claimant could show that the risk was doubled by the exposure alleged, then it is . .
Cited – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Shortell v BICAL Construction Ltd QBD 16-May-2008
(Liverpool District Registry) The claimant sought damages in a death caused by lung cancer where the deceased had been a smoker exposed also to asbestos in working for th edefendant.
Held: Applying the Bonnington test of causation, the issue . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Novartis Grimsby Ltd v Cookson CA 29-Nov-2007
The claimant sought damages from his employers for causing him bladder cancer. It is known that bladder cancer is caused by exposure to amines and the claimant had been so exposed from two sources. One was his employment, which wrongfully exposed . .
Cited by:
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.
Personal Injury
Updated: 01 November 2021; Ref: scu.430460