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Session 2001- 02
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Judgments

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

(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 policy requires or justifies a modified approach to proof of causation.

    3. It is common ground that in each of the three cases under appeal conditions numbered (1) to (5) above effectively obtained. During his working life the late Mr Fairchild worked for an employer (whose successor was wrongly identified as the first-named defendant) who carried out sub-contract work for the Leeds City Council in the early 1960s and may have built packing cases for the transportation of industrial ovens lined with asbestos. He also worked for a builder, in whose employment he cut asbestos sheeting both to repair various roofs and while renovating a factory for Waddingtons plc. In the course of his work Mr Fairchild inhaled substantial quantities of asbestos dust containing asbestos fibre which caused him to suffer a mesothelioma of the pleura, from which he died on 18 September 1996 at the age of 60. Waddingtons plc accepted at trial that it had exposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him under section 63 of the Factories Act 1961. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. After the death of Mr Fairchild his widow brought this action, originally against three defendants (not including the builder). She discontinued proceedings against the first-named defendant, and on 1 February 2001 Curtis J dismissed her claim against Waddingtons plc and the Leeds City Council. The Court of Appeal dismissed her appeal against that decision in the judgment already referred to, finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects of her common law claim against the Leeds City Council. She challenges that causation decision on appeal to the House.

    4. The late Mr Fox was employed as a lagger by Spousal (Midlands) Ltd (then known by a different name) for 1½-2 years between about 1953 and 1955. In the course of this employment he worked at various different premises. Typical lagging work involved the removal of old lagging, the mixing of lagging paste, the cutting of lagging sections and the sweeping up of dust and debris. Asbestos materials were used on a daily basis. The activities of laggers generated high levels of dust containing asbestos. In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. He was described by a witness as being covered in dust from head to foot. No measures were taken to protect him from such exposure. From 1955-1989 he worked as a docker/holdsman in the Liverpool Docks. Until the late 1960s or early 1970s asbestos fibre was imported into Liverpool Docks in sacks. Mr Fox told his wife that he was regularly involved in moving asbestos cargo and that asbestos was regularly released into his breathing area. The work of handling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it is unlikely that any measures would have been taken to protect him from such exposure. But there is no evidence of when and for how long and how frequently Mr Fox handled cargoes containing asbestos, nor of what cargoes he handled, nor of the identity of his employers when he was engaged in handling asbestos. Spousal do not dispute that they were in breach of duty in exposing Mr Fox to substantial amounts of asbestos dust in the course of his employment by them. In 1995 he developed symptoms of mesothelioma and he died on 24 April 1996 at the age of 63. It is accepted that his condition was caused by exposure to asbestos dust. After his death his widow brought these proceedings against Spousal. Her claim was dismissed by Judge Mackay, sitting as a judge of the Queen's Bench Division in Liverpool on 27 March 2001. Her appeal against that decision was dismissed by the Court of Appeal in the judgment already referred to. She challenges that decision on appeal to the House.

    5. Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from 1973-81 at their factory in Strood, Kent. He was exposed to asbestos during the last four years of this employment when working as a boilerman. Each day he spent some time (up to about an hour) in the boilerhouse where the boiler and ancillary pipework were lagged with asbestos material. On a number of occasions (adding up to about 2 days in all) he was in close proximity to men removing lagging from pipes, and such work created large amounts of asbestos dust. On a daily basis he was exposed to dust and debris from the lagging. He walked across pipework disturbing the lagging. He regularly swept the floor in the boilerhouse, stirring up asbestos dust and debris. No effective measures were taken to protect him from exposure to asbestos dust. For 5-6 weeks in January and February 1973 Mr Matthews was employed by British Uralite plc at their factory in Higham, Kent, where the company manufactured pipes from asbestos material, and Mr Matthews worked on this process. Large amounts of dust containing asbestos fibres were created by the manufacturing process and such dust permeated the atmosphere of the factory. During each working day Mr Matthews had prolonged and substantial exposure to asbestos dust. No measures were taken to protect him against such exposure. Between 1965 and 1967 Mr Matthews was employed by Maidstone Sack and Metal and was again exposed to significant quantities of asbestos dust. For 12 months of this period he operated a scrap metal press and some of the items fed into the press had asbestos linings. For about 2 weeks he worked in a boilerhouse in Chatham Dockyard dismantling a boiler and pipework, during which time he spent a day removing asbestos lagging from the boiler and pipes, which was dusty work. Maidstone Sack and Metal can no longer be sued. Mr Matthews consulted his doctor complaining of chest pain in March 1999. In February 2000 a diagnosis of mesothelioma was made. His condition has continued to deteriorate, and his life expectancy is now measured in months. Associated Portland Cement and British Uralite admit that Mr Matthews' mesothelioma was caused by exposure to asbestos dust, and that each of them exposed Mr Matthews to asbestos dust in breach of duty. Mr Matthews issued proceedings against both these companies in April 2001. On 11 July 2001 Mitting J gave judgment in his favour against both defendants and awarded damages. The defendants appealed against that decision, and the Court of Appeal allowed their appeal and set aside the award in Mr Matthews' favour. He has appealed against that decision. It should be recorded that, before the hearing of his appeal in the House, the defendants agreed to pay Mr Matthews the sum awarded by the judge with interest and costs, without prejudice to the issues in the appeal.

    6. It has been recognised for very many years, at any rate since the "Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and Price in 1930 and the making of the Asbestos Industry Regulations 1931, that it is injurious to inhale significant quantities of asbestos dust. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. It is a characteristic of asbestosis that the disease, once initiated, will be influenced by the total amount of dust thereafter inhaled. Thus in the case of asbestosis the following situation may arise. C may contract asbestosis as a result of exposure to asbestos dust while employed by A, but without such exposure involving any breach of duty by A. C may then work for B, and again inhale quantities of asbestos dust which will have the effect of aggravating his asbestosis. If this later exposure does involve a breach of duty by B, C will have no claim against A but will have a claim against B. B will not escape liability by contending that his breach of duty is not shown to have had any causative effect.

    7. From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. In the absence of occupational exposure to asbestos dust it is a very rare tumour indeed, afflicting no more than about one person in a million per year. But the incidence of the tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population, and there are some 1,500 cases reported annually. It is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as 10 years, but it is thought that that is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within 1-2 years of the condition being diagnosed. The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. It is believed by the best medical opinion to involve a multi-stage process, in which 6 or 7 genetic changes occur in a normal cell to render it malignant. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one. It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure. So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres. But C could have inhaled a single fibre giving rise to his condition during employment by A, in which case his exposure by B will have had no effect on his condition; or he could have inhaled a single fibre giving rise to his condition during his employment by B, in which case his exposure by A will have had no effect on his condition; or he could have inhaled fibres during his employment by A and B which together gave rise to his condition; but medical science cannot support the suggestion that any of these possibilities is to be regarded as more probable than any other. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. It is on this rock of uncertainty, reflecting the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial judges.

Principle

    8. In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.

    9. The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.

    10. In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not "accept that the 'but for' (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases" and (at p 516) he added:

    "The 'but for' test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff's injury. The application of the test 'gives the result, contrary to common sense, that neither is a cause': Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff's injury: see, e.g., Chapman v Hearse, Baker v Willoughby [1970] AC 467; McGhee v National Coal Board; M'Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations."

    11. In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said:

    "The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations."

McLachlin J, extra-judicially ("Negligence Law - Proving the Connection", in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern:

    "Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.

    In recent years, a conflation of factors have caused lawyers, scholars and courts to question anew whether the way tort law has traditionally defined the necessary relationship between tortious acts and injuries is the right way to define it, or at least the only way. This questioning has happened in the United States and in England and has surfaced in Australia. And it is happening in Canada. Why is this happening? Why are courts now asking questions that for decades, indeed centuries, did not pose themselves, or if they did, were of no great urgency? I would suggest that it is because too often the traditional 'but-for', all-or-nothing, test denies recovery where our instinctive sense of justice - of what is the right result for the situation - tells us the victim should obtain some compensation."

    12. My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged a mechanical approach to the issue of causation. In Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29, he said:

    "The first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened or to make him guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which responsibility is being attributed."

More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said:

    "There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability".

Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368:

    "So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant - but it will fall to be viewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant's duty to guard the claimant? . . . Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant's responsibility for the loss and damage which the claimant has suffered."

    13. I do not therefore consider that the House is acting contrary to principle in reviewing the applicability of the conventional test of causation to cases such as the present. Indeed, it would seem to me contrary to principle to insist on application of a rule which appeared, if it did, to yield unfair results. And I think it salutary to bear in mind Lord Mansfield's aphorism in Blatch v Archer (1774) 1 Cowp 63 at 65, quoted with approval by the Supreme Court of Canada in Snell v Farrell (above):

    "It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."

Authority

    14. In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the pursuer contracted pneumoconiosis as a result of inhaling silica dust. The dust came from two sources, a pneumatic hammer and swing grinders, both in the dressing shop where he worked. The dust emanating from the pneumatic hammer involved no breach of duty by the employer, but that from the swing grinders did. In a claim against his employer he succeeded before the Lord Ordinary, Lord Wheatley, and by a majority in the First Division of the Court of Session, the Lord President (Lord Clyde) dissenting. The issue on appeal was whether the employer's admitted breach of duty in relation to the swing grinders had caused the pursuer's disease. In his leading opinion, Lord Reid made plain that "the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury" (p. 620). He pointed out that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years (p. 621), and he regarded the real question as "whether the dust from the swing grinders materially contributed to the disease" (p. 621). He considered that any contribution which was not de minimis must be material. The evidence showed that even if more dust came from the pneumatic hammer than from the swing grinders, there was enough dust from the grinders to make a substantial contribution towards the pursuer's disease (p. 622). The pursuer was accordingly entitled to succeed. With these conclusions, Viscount Simonds, Lord Tucker, Lord Keith of Avonholm and Lord Somervell of Harrow agreed, Lord Keith laying stress at p. 626 on the nature of pneumoconiosis as a disease of gradual incidence and on the cumulative effect of inhalation of dust from the grinders over a period, which might be small in proportion but substantial in total quantity. The case differs from the present in two obvious respects. First, the pursuer had only one relevant employer, who was not legally liable for producing some of the dust which the pursuer inhaled but was potentially liable for the balance. Secondly, pneumoconiosis is, like asbestosis, a condition which is aggravated by the inhalation of increased quantities of dust so that, even if the "innocent" dust had been the first and major cause of the condition, the "guilty" dust, if in significant quantities, could properly be said to have made it worse.

    15. Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variant of Wardlaw's case. The claim was made by the widow and children of Mr Nicholson, who had worked in the dressing shop of the defenders' steel foundry, had inhaled dust containing minute siliceous particles while doing so, had contracted pneumoconiosis and had died. The complaints made in the action related not to the creation of dust in the dressing shop but to the defenders' failure to provide adequate ventilation to extract the dust. It was common ground that the deceased must inevitably have inhaled a quantity, even a large quantity, of noxious particles about which he could have no cause of complaint, and the only question was whether, in addition to those particles, he was, owing to the fault of the defenders in failing to provide adequate ventilation, bound to have inhaled a number of other particles which made a material contribution to his illness (p 616). The Lord Ordinary found for the family, but his decision was reversed by the First Division. In the House the argument centred on the statutory duty to provide proper ventilation imposed by section 4(1) of the Factories Act 1937, and Viscount Simonds said (at p 618):

    ". . . . if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw's case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants' case."

Since the family could not complain of the production of dust, and the deceased had been forced to inhale some noxious particles without having any legal complaint, it was doubly incumbent on the employer to safeguard him against any additional risk (p 616). Viscount Simonds' conclusion was clearly expressed (at pp 619-620):

    "For it appears to me that [the evidence] clearly established that dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim 'de minimis' is applicable. Accordingly, following the decision in Wardlaw's case, I must hold the respondents liable."

Lord Oaksey and Lord Morton of Henryton agreed. Lord Cohen agreed and said (at p 622):

    "Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection. In the present case it is clearly established by the evidence that at any rate down to 1949 the tool with which the deceased was working on dirty castings created a thick cloud of dust which must have necessarily included siliceous particles to an extent which cannot classed as 'de minimis'. The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents' failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw's case) 'on a balance of probabilities the breach of duty caused or materially contributed to' the injury."

Lord Keith of Avonholm regarded it as common sense that better ventilation would have appreciably diminished the dust which was in the air for the deceased to inhale (p 627) and accordingly concluded that his death from pneumoconiosis should be ascribed at least partially to the fault of the defenders. Again the case involved a single employer: but the dust, although "innocent" when first produced became, in effect, "guilty" because of the employer's conduct in allowing it to remain in the air for an excessive period. It is noteworthy that two members of the House (Viscount Simonds and Lord Cohen) attached significance to the exposure of the deceased to an increased risk.

 
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