Lord Dyson held that the appellant’s contention that Bonnington should apply “ignores the fact that there is a fundamental difference between making a material contribution to an injury and materially increasing the risk of an injury” (emphasis added). If we thought that there was any realistic possibility that the Supreme Court would change the law so as to accommodate these cases within the Fairchild exception, we would have regard to … This relaxation is to account for the impossibility of proving as a matter of medical fact which fibres or which exposure actually caused the disease. As I have written elsewhere: "The irony here is that the law has now been rendered even more incoherent than it was in Barker , as the general approach to liability, of risk as damage, is untouched by the Act. They do not constitute legal advice and should not be relied upon as such. As to this, the appellant’s expert accepted that the current understanding of biological mechanisms does not form a basis for the practical attribution and apportionment of particular cancers. In Carl Heneghan (Son & Executor of James Leo Heneghan, Deceased) v Manchester Dry Docks Ltd & Ors [2016] EWCA Civ 86, the claimant was the son and executor of the deceased, Mr Heneghan, and his widow. Fairchild did apply and the claimant was thus successful in establishing causation. 152 Singapore Academy of Law Journal (2007) Essex Area Health Authority7 a number of different agents could have The Court of Appeal found that the question of whether an exposure was de minimis is relevant to the question of whether there has been a breach of duty, because if the exposure is only de minimis, it is hard to see how there could be a breach of duty. The exception reflects the fact that medical science cannot determine which particular asbestos fibre or fibres caused the condition to develop, often decades later. The trial judge had incorrectly formulated the duty owed by the University as "a duty to take all reasonable measures to ensure that [the victim] was not exposed to a material increase in the risk of mesothelioma". the lung cancer had been caused by Mr Heneghan’s exposure to asbestos; the causal connection between the lung cancer and asbestos was established by reason of the cumulative dose; and. The Supreme Court unanimously dismissed the appeal. medical science was not able to determine which (if any) of the defendants was responsible for the exposure which actually caused the cell changes which caused the cancer. The Fairchild exception was developed for mesothelioma cases because of ignorance about the biological cause of the disease. Had the Fairchild exception not been extended, the Claimant would not have recovered any damages at all. The victim had a second period of possible exposure when working as a pilot, but a claim against that other defendant was withdrawn. Fairchild v Glenhaven Funeral Services [2002] UKHL 22. Acknowledgement of the increased material risk of harm test as an exception to the but for test. It remains to be seen how the Courts now interpret this decision and whether the Fairchild enclave is now set to experience a period of rapid expansion but it does appear that, where medical science cannot prove that a defendant has materially contributed to a disease, but can prove that a defendant has materially increased the risk of contracting the disease, the Fairchild exception may be applied to establish the necessary causation, and liability will be proportionate to the increase in risk for which the defendant was responsible. The judge at first instance had accepted that lung cancer was dose related. This meant they were only responsible for 35.2% of the total damages claimed. The decision of Zurich v IEG had a similar aim where insurers only covering part of the exposure period were held to be liable for the entire claim. Introducing PRO ComplianceThe essential resource for in-house professionals. This is because the Fairchild [14] test is difficult to apply to principles of corrective justice, due to the fact that it allows the claimant to recover for only the possibility of causation as opposed to the probability [15]. the Fairchild exception apply only where the victim is exposed to a single injurious agent or can it also apply in multi-agent cases? FAIRCHILD AIR FORCE BASE, Wash. -- Base visitors and personnel may have observed new signs at the installation gates, reading “Firearms Are Prohibited On These Premises, Regardless Of Concealed-Carry Permit,” with an exception effective Apr. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 is a leading case on causation in English tort law.It concerned malignant mesothelioma, a deadly disease caused by breathing asbestos fibres. The decision confirms that the Courts are willing to apply the exceptional principle established in Fairchild to diseases other than mesothelioma provided that the facts of a case are truly analogous to those in Fairchild. Questions? Jay J concluded: “In lung cancer cases, there is no analogue to the gradual accumulation in the lungs of asbestos or cigarette smoke. It went no further than that. He contended, however, that this was a Bonnington scenario because the exposure attributable to each defendant contributed to the disease itself (rather than the risk of contraction). It was not possible to say which factor actually caused the cancer. Barker established that, where a person was so responsible, it was not liable for all the damage attributable to the mesothelioma, but only in proportion to its contribution to the risk. This case involved three men who went to their local A&E complaining of stomach pains and vomiting. A nurse reported their complaints by telephone to the duty medical casualty officer who thereupon instructed her to tell the men to go home to bed and call i… The introduction of the Fairchild exception and the Compensation Act had their origins in public policy: ensuring innocent victims are protected by ensuring they have access to compensation. each defendant therefore materially contributed to the contraction of the disease. If the breach of duty is established, the claimant still has to establish causation according to the Fairchild test. The Fairchild-Dornier 328JET is a commuter airliner, based upon the turboprop-powered Dornier 328, developed by the German aircraft manufacturer Dornier Luftfahrt GmbH.It would be the last Dornier-designed aircraft to reach production before the company's collapse during the early 2000s. He had been exposed to asbestos in 1974 when a student studying physics at Birmingham University. He remarked that, if the two were the same thing Fairchild would not have been the ground-breaking decision that it was when it introduced, in the words of Lord Hoffman in Barker, “an exceptional and less demanding test for the necessary causal link between the defendant’s conduct and the damage” than the claimant having to prove that the defendant did in fact cause the damage. The Fairchild Exception. title: is Fairchild a leading case of the Common Law? Under it, a defendant is liable if it materially increases the risk of the claimant contracting mesothelioma. Thus on the facts of this case it was the defendant employers who were arguing for the Fairchild exception on causation to be applied to the claim. The epidemiological evidence enabled the quantification of the contribution to the risk of cancer attributable to an individual defendant. Mr Heneghan had died of lung cancer. The next generation search tool for finding the right lawyer for you. asbestos fibres) part of which is attributable to the breach of duty on the part of the defendant and part of which involves no breach of duty, the defendant is liable on the basis that his breach made a material contribution to the disease (per, If causation cannot be proved in these ways (for example if a disease is indivisible) causation may be proved if the defendant materially increased the risk of the victim contracting the disease (the. Lord Dyson agreed with Jay J’s decision to reject the opinion of the appellant’s medical expert that every period of exposure contributed to the development of Mr Heneghan’s cancer. The issues for the House of Lords were firstly, what were the limits of the exception in Fairchild; secondly what was the extent of liability. The case of Fairchild v Glenhaven Funeral Services Ltd and Others [2002] UKHL 22 is a major development in the area of causation in tort law. It remains to be seen how the Courts now interpret the decision and whether the Fairchild enclave is now set to experience a period of rapid expansion. A famous example of the ‘but for’ test is Barnett v Chelsea & Kensington Hospital . The Fairchild exception is a relaxation of the normal test for causation. As many readers will be aware, in Fairchild , by way of exception … It appears that, where medical science cannot prove that a defendant has materially contributed to a disease, but can prove that a defendant has materially increased the risk of contracting the disease, Fairchild may be applied to establish the necessary causation. Your email address will not be published. 4.1 The Fairchild exception 8 4.2 Barker v Corus UK plc 9 4.3 The Compensation Act 2006 9 4.4 The Financial Services Compensation Scheme 9 4.5 Subsequent case law 10 5. Rather it was an opinion that an inference of causation could be drawn from the epidemiological evidence. Understand your clients’ strategies and the most pressing issues they are facing. If you would like to learn how Lexology can drive your content marketing strategy forward, please email enquiries@lexology.com. Every one of the other elements necessary to establish a claim for breach of a common law duty are unaffected by the "special" mesothelioma jurisprudence and must therefore be established according to normal principles. that the exceptions may apply when establishing the liability of a particular D. Where does this leave clinical negligence claims • Gregg and Scott was post-Fairchild: why did it fail? When Justice Digby kindly invited me to speak on causation I had just concluded an article, which was published earlier this year, entitled "Unnecessary causation" (2015) 89 Australian Law Journal 1. Mr Justice Jay concluded that the causation test established in Fairchild v Glenhaven Funeral Services was applicable, qualified by Barker v Corus. the trial judge found that the Fairchild exception did not apply; however, the Court of Appeal disagreed and first required it to be determined whether the Fairchild exception applied in circumstances where the claimants had a “single exposure” to asbestos by one employer rather than multiple employers, Therefore the position was distinguishable from the multi-employer mesothelioma case where the claimant cannot prove that each defendant materially contributed to the disease itself because of the indivisible nature of mesothelioma, including that its severity does not increase with exposure. "I have enjoyed receiving the Lexology newsfeeds over the last few months and in general find the articles of good quality and relevant. The Fairchild exception may collapse breach of duty and causation altogether. all the defendants admitted breach of duty; all the defendants increased the risk that Mr Heneghan would contract lung cancer; all exposed Mr Heneghan to the same agency (asbestos fibres) that was implicated in the causation; but. The Court of Appeal has recently decided that the Fairchild causation exception applies in a lung cancer case. All three Appeals before the Lords were brought in respect of exposure to asbestos bringing about mesothelioma. The Court of Appeal, however, had misread the Compensation Act as creating a statutory rule of causation. Causation will be established if, but for the defendant’s negligence, the claimant would not have suffered the disease. In Wilsher v . The articles published on this website, current at the dates of publication set out above, are for reference purposes only. In Heneghan v Manchester Dry Docks Ltd & Ors [2016] EWCA Civ 86, the Court of Appeal considered whether the Fairchild exception should be applied in a case of multiple exposures to asbestos leading to lung cancer.Like mesothelioma, lung cancer is regarded as an “indivisible” disease – the severity does not depend upon the exposure to asbestos. decision in Fairchild v Glenhaven Services Ltd [2002] UKHL 22; [2003] 1 A.C. 32 (noted (2004) 120 L.Q.R. Three separate claimants contracted lung cancer (malignant mesothelioma) as a result of their exposure to asbestos during their various courses of employment with varying employers. Somewhat counter-intuitively, it was the defendant who was arguing here for the Fairchild exception to apply, despite that principle normally being advantageous to claimants. The risk of the disease eventuating is proportionate to the quantum of exposure, but that is a statistical judgment, not an assessment which may be linked to the physical presence of deposits of dust in the lung.”. Yet these two cases highlight exactly why the Sienkiewicz principle represents a step too far. It would therefore typically be applicable to divisible injuries such as silicosis, where the severity of the disease was proportionate to the amount of exposure. A mesothelioma victim is able to prove that a particular exposure to asbestos caused the mesothelioma by proving that the exposure was such as to create a "material increase in risk" of the victim contracting the disease. British Constructional Steelwork Assoc Ltd, High Court revisits the question of the breach of duty of care in relation to mesothelioma, Sienkiewicz: another decision about the UK’s “special” mesothelioma jurisprudence, Court of Appeal decision demonstrates the wide applicability of the "Fairchild" exception for mesothelioma claims, Toward a Defense of Mesothelioma Cases on Causation: Low Doses and Genetics, High Court clears the way for mesothelioma cases. The Court re-affirmed that in relation to the common law duty of employers, the standard of conduct expected is that of a reasonable and prudent employer at the time, but taking into account the developing knowledge about the particular danger concerned. The decision. • Fairchild was cited as an exception: Lord Hoffmann stated that it proved the general rule Legal Aid, Sente ncing and Punishment of … Allied Maples v Simmons & Simmons (1995) Exception to but-for: loss of chance The defendant solicitors had been acting for the claimant in a takeover of the Gillow group of companies. Fairchild concerned mesothelioma, and the Court had found that causation could be established for the purposes of liability for mesothelioma if a defendant employer had materially increased the risk that a victim would contract the disease. 233), and throws up a few new ones. This post is part of the following categories: The Court of Appeal has recently decided that the Fairchild causation exception applies in a lung cancer case. Practically, if I were advising someone, that would be my judgment. Even in a mesothelioma case to which the special Fairchild principle applies, the court must apply the normal rules for establishing whether there has been a breach of duty. Your email address will not be published. However, evidence could establish by how much the exposure by each defendant had increased the risk that he would contract the disease. It is the task of the courts to apply the law as it presently stands. The House refused to apply the principle (as the principle in McGhee, as it was then known) to a situation where the defendant's breach of duty had contributed one out of five possible causes of the claimant's injury. the asbestos from each defendant was likely to have been inhaled and distributed in the lungs in a similar way; the fibres from each source were likely to have played a part in the carcinogenic process; and. To be "material" the increase in risk must be more than minimal and so the exposure must be more than de minimis. The Court found that, on the facts of the case, the University was not in breach of its duty of care as it was not reasonably foreseeable to a body in the position of this University in 1974 that the level of asbestos in the tunnel during the short period in 1974 exposed the victim to an unacceptable risk of asbestos-related injury. February 24, 2016. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard. The Compensation Act 2006 was not applicable in this case because the relevant part of the Act applies only to mesothelioma claims and hence the pro-rata allocation of damages in this case. A mesothelioma victim is able to prove that a particular exposure to asbestos caused the mesothelioma by proving that the exposure was such as to create a “material increase in risk” of the victim contracting the disease. Lord Dyson introduced his analysis with a helpful recap of the three ways in which causation could be established in disease cases: It was accepted by the appellant that the “but for” test was not satisfied. In order to try to answer that question, we need to have a working definition of what it might mean to be a leading case. The Fairchild exception is a relaxation of the normal test for causation. The Court emphasised that the relaxation of normal principles of proof in relation to mesothelioma claims, laid down by the House of Lords in the Fairchild case (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22), apply only to the need to prove causation. That s… In 2006, another asbestos-related case came before the House of Lords and required it to rule on how liability should be divided if one of the employers responsible for materially increasing the risk of harm had gone insolvent. When considering causation, as standard the courts will apply the ‘but for’ test. The correct formulation of the duty of care was to take reasonable care (including measures if necessary) to ensure that the employee was not exposed to a foreseeable risk of injury. Third Parties (Rights Against Insurers) Act 2010, Modern slavery and Human Trafficking Statement. The exception is for personnel who are authorized to carry a concealed weapon under the Law Enforcement Officer’s Safety Act. That is, ‘but for’ the defendants conduct, would the claimant have suffered the damage? His damages would be reduced under the Law Reform (Contributory Negligence) Act 1945 to reflect the periods where he exposed himself to risk during the course of his self-employment. Causation – material increase in risk – Wilsher -v- Essex Area Health Authority – mesothelioma. exception to mesothelioma cases and making it clear that any litigant who tried to apply it outside of that context will get short shrift ([187]). The others were insolvent and uninsured. McGhee v National Coal Board must be accepted as an approved application of the Fairchild exception. Herbert Smith Freehills LLP is authorised and regulated by the Solicitors Regulation Authority. The House of Lords here decided that in a case where employees had contracted mesothelioma due to asbestos exposure throughout the course of their employment, but where science could not determine which of those employers was the sole cause of … He had conducted experiments in an underground tunnel linking two University buildings. The original judge found that the victim had been in the tunnel for a total of between 52 and 72 hours over an eight-week period. She died on 15 October 2009 at the age of 49, just a day after the Court of Appeal upheld the trial judge’s decision to apply the Fairchild exception and award her £240,000 in damages. The Fairchild exception is based on justice and policy considerations, as those considerations should apply regardless of the circumstances. Accordingly he dismissed the appeal. Where scientific evidence does not enable the Court to determine whether the exposure has in fact contributed to the injury, the law has responded by applying the Fairchild test so as to avoid an unfair result. He referred to the recent decision of the Supreme Court in International Energy Group v Zurich Insurance Plc UK in which Lords Neuberger and Reed said that the Fairchild exception is “applicable to any disease which has the unusual features of mesothelioma”. The Court of Appeal found that this incorrectly brought the Fairchild relaxed test for causation into the prior questions of the nature of the duty and what constitutes a breach of it. 17. Please contact customerservices@lexology.com. formulated to deal with mesothelioma, should apply to a case involving lung cancer, or whether there is a valid legal distinction to be made between the two conditions. The victim died of mesothelioma aged 54. My central thesis is that the metaphysical concept of causation (the core causation enquiry is metaphysical, not factual) should be understood only in one sense. Section 3 merely … Applying these principles, Jay J awarded damages against each defendant that were proportional to the increase in risk for which it was responsible. Lord Dyson was satisfied that all the factors required for the application of the Fairchild solution were satisfied, namely that: He therefore saw no reason not to apply the Fairchild exception to this lung cancer case and, indeed, commented that to not apply the case would make the law in this area “inconsistent and incoherent”. The same principle applies whether it is a case of single exposure or multiple exposure. Specific legal advice about your specific circumstances should always be sought separately before taking any action. My presentation today draws heavily from that article, although some arguments are refined. This was not a medical opinion. However, unlike pneumoconiosis where the greater the accumulation of dust in the lungs, the greater the damage being caused to the lung tissue, in the case of lung cancer and asbestos the greater the exposure to asbestos fibres, the greater the risk that lung cancer may result. It might seem obvious to you what a leading case ... by lawyers whose skill lay in working out how to apply … The claimant appealed against the decision at first instance. It was also accepted that biological evidence could not establish which of the exposures, if any, triggered the cell changes in his body which led to the cancer. Lord Dyson, giving the leading judgment in the Court of Appeal, accepted the following: He did not, however, accept the following arguments made by the appellant: The appellant's arguments would have allowed a recovery in full from six defendant employers even though they were only responsible for 35.2% of the total exposure to which Mr Heneghan was subjected. That tunnel was found to have contained blue, brown and white asbestos, apparently from asbestos lagging around water pipes running through it. Claimants other than employees 11 6. Post was not sent - check your email addresses! Facts. The issues. The Fairchild exception is a relaxation of the normal test for causation. It made clear that there is nothing in Fairchild or the recent Supreme Court decision in Sienkiewicz v Greif [2011] UKSC 10 (please see our blog on this decision here) altering the test for whether there had been a breach of duty. Become your target audience’s go-to resource for today’s hottest topics. Keep a step ahead of your key competitors and benchmark against them. The question for the Court was how it should deal with causation (and therefore apportionment of damages) in these circumstances. ", © Copyright 2006 - 2020 Law Business Research. Sorry, your blog cannot share posts by email. Power up your legal research with modern workflow tools, AI conceptual search and premium content sets that leverage Lexology's archive of 900,000+ articles contributed by the world's leading law firms. Herbert Smith Freehills LLP United Kingdom February 24 2016 The Court of Appeal has recently decided that the Fairchild causation exception applies in a lung cancer case. The appellant contended that there was evidence to show that each of the defendants had materially contributed to Mr Heneghan’s lung cancer, rather than just the risk of its contraction. Required fields are marked *, You may use these HTML tags and attributes:
. The Court of Appeal reiterated that before a court approaches the question of causation, it must first establish whether there has been a breach of the duty of care by the defendant. The underlying theme for today’s conference is causation. ... [1987] 1 A.C. 1074. the asbestos acted in multiple ways to promote carcinogenesis at cellular level. A mesothelioma victim is able to prove that a particular exposure to asbestos caused the … Other employers who had exposed Mr Heneghan to asbestos were not sued in these proceedings. The Courts will not, however, apply Bonnington unless there is medical evidence to prove that a defendant has materially contributed to the disease itself. In Williams v University of Birmingham [2011] EWCA Civ 1242 the Court of Appeal analysed the correct approach to proving liability in a mesothelioma case. Enid Costello had meanwhile been wrongly exposed to asbestos at a factory where she worked in an office. 15. The facts. It has been heavily emphasised that Fairchild v Glenhaven Funeral Services [20] and Barker v Corus [21] helped ‘open the way’ [22] for the adoption of a special rule in Sienkiewicz. The case is significant in that to date the Fairchild exception has only been applied to mesothelioma claims, and this is the first time the Court of Appeal has been asked to consider its application to a lung cancer case. lung cancer considered analagous to the mesothelioma so Fairchild exception ould apply. Where the disease is caused by the cumulative effect of an agency (e.g. It was common ground that his lung cancer was caused by exposure to asbestos fibres. It was in order to accommodate this case that Lord Rodger in Fairchild, at p 119, para 116, accepted that the exception could apply "where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant." Epidemiology could not, however, establish whether the fibres to which Mr Heneghan was exposed by each defendant actually caused the fatal disease. The effect of applying the Fairchild exception was that the claimant was unable to recover from the six defendant employers any more than their pro-rata proportion (totalling 35.2%) of the damages claimed. I like the fact that the email contains a short indication of the subject matter of the articles, which allows me to skim the newsfeed very quickly and decide which articles to read in more detail. The Bonnington test was to be applied where the Court is satisfied on scientific evidence that the exposure for which the defendant is responsible has in fact contributed to the injury. He had been exposed to asbestos in the course of his employment with each of the six defendants. Above, are for reference purposes only a factory where she worked in underground... 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