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 rule, so that the defendants could be liable for all the losses despite the fact that others who may have contributed were not being sued.
Held: The defendants were not liable jointly and severally with other possible defendants, but only in aliquot proportion to their contribution to the injury suffered. ‘The effect of the [1978 Act] is that if each defendant is treated as having caused the mesothelioma as an indivisible injury and pays the damages in full, he will be able to recover contribution to the extent that he has paid more than his fair share of the responsibility from such other tortfeasors as are traceable and solvent. But he will in effect be a guarantor of the liability of those who are not traceable or solvent and, as time passes, the number of these will grow larger.’
Lord Scott of Foscote: As to Fairchild: ‘liability was not imposed on any of the defendant employers on the ground that the employer’s breach of duty had caused the mesothelioma that its former employee had contracted. That causative link had not been proved against any of them. It was imposed because each, by its breach of duty, had materially increased the risk that the employee would contract mesothelioma. That, coupled with the fact that mesothelioma had been contracted and that it was not possible to tell when the fatal inhalation had taken place, justified, in their Lordships’ view, the imposition of liability on each employer who had contributed to the risk.’ and ‘That brings me to the third question. It is a well established principle in the law of tort that if more than one tortfeasor causes the damage of which complaint is made, and if it is not possible to attribute specific parts of the damage to a specific tortfeasor or tortfeasors in exoneration, as to those parts of the damage, of the other tortfeasors, the tortfeasors are jointly and severally liable for the whole damage. A pedestrian on the pavement injured by a collision between two cars both of whose drivers were driving negligently can hold either driver liable for his or her injuries. The apportionment of liability between the two negligent drivers is no concern of the victim.’
Baroness Hale of Richmond: ‘the damage which is the ‘gist’ of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma. ‘ and ‘while the borderline between a divisible and an indivisible injury may be debateable, mesothelioma is an indivisible injury. What makes it an indivisible injury, and thus different from asbestosis or industrial deafness or any of the other dose-related cumulative diseases, is that it may be caused by a single fibre.’
Lord Hoffmann said: ‘The justification for the joint and several liability rule is that if you caused harm, there is no reason why your liability should be reduced because someone else also caused the same harm.’
Judges:
Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond
Citations:
[2006] UKHL 20, Times 04-May-2006, [2006] 2 WLR 1027, [2006] 2 AC 572
Links:
Statutes:
Civil Liability (Contribution) Act 1978
Jurisdiction:
England and Wales
Citing:
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 – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Appeal from – Barker v Saint Gobain Pipelines Plc CA 5-May-2004
. .
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 – 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 – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Hymowitz v Eli Lilly and Co 1989
(Court of Appeals of New York) The court considered the market share doctrine for apportioning responsibility between tortfeasors: ‘We hold that the liability of DES producers is several only, and should not be inflated when all the participants in . .
Cited – Brown v Superior Court 1988
(Supreme Court of California) The court considered the ‘market share doctrine’ for apportioning liability between tortfeasors: ‘In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by . .
Cited – Dingle v Associated Newspapers CA 1961
A defamation of the claimant had been published and then repeated by others.
Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: ‘Where injury has been done to the plaintiff and the injury . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Sutherland v Hatton; Barber v Somerset County Council and similar CA 5-Feb-2002
Defendant employers appealed findings of liability for personal injuries consisting of an employee’s psychiatric illness caused by stress at work.
Held: Employers have a duty to take reasonable care for the safety of their employees. There are . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
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 by:
Cited – Cape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
Cited – Brett v University of Reading CA 14-Feb-2007
The deceased’s personal representative sought damages after the death from mesothelioma after working for the defendant for many years. . .
Cited – Sanderson v Hull CA 5-Nov-2008
Insufficient proof of cause of infection
The claimant worked as a turkey plucker. She caught an infection (campylobacter enteritis) at work, and the employer now appealed against a finding of liability. The employer said that the only necessary protection was regular washing of hands. The . .
Cited – Wootton v J Docter Ltd and Another CA 19-Dec-2008
The claimant sought damages saying that the contraceptive pill dispensed by the defendant was not the one prescribed by her doctor, and that she had become pregnant and suffered the losses claimed namely care, expenses and loss of earnings flowing . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
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 . .
Cited – London Borough of Hackney v Sivanandan and Others EAT 27-May-2011
EAT RACE DISCRIMINATION – Compensation
SEX DISCRIMINATION – Compensation
APPEAL
Council and a charity both supplied members to a recruitment panel which victimised the Claimant – Tribunal makes . .
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, Health and Safety
Updated: 06 July 2022; Ref: scu.241415
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