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Employers' liability for asbestos diseases: House of Lords takes a turn in English law: recent House of Lords decision may indicate a return to the lower "material contribution" causation test and a general lowering of the burden of proof.

PERSONAL injury cases against employers in Britain are made on the basis of breach of duty, whether common law or statutory. The mainstay of liability is that it must involve a breach of duty that is causative of injury. This hurdle is the main stumbling block for claimants in complex industrial disease cases. The interpretation of what proves causation has become one of the most divisive issues in politics and the British courts today.

This has been topically illustrated in the recent case of Fairchild v. Glenhaven Funeral Services Ltd., (1) a Court of Appeal ruling that provoked a Parliamentary debate in January of this year in which the ruling was branded as a "scandal," "shameful," "wrong" and "mocking of victims." (2) In May, the House of Lords dramatically reversed this Court of Appeal decision. (3)

The Court of Appeal in Fairchild, which was one of six cases consolidated for decision on 11 December 2001, held that where a claimant's mesothelioma arose after exposure to asbestos dust in the course of more than one employment, the claimant could not recover damages from any of the employers because he could not establish, on the balance of probabilities, when it was that he inhaled the particular fibre that caused the disease to develop. A common analogy used to explain this is that of the "negligent sportsmen," where two hunters fire their weapons negligently and a person is hit and killed by one of their bullets. It is not possible to prove which of the hunter's bullets was responsible for the fatality. Neither hunter can be found liable as it is a matter of fact that cannot be proved whose bullet hit and therefore who was responsible.

A reasoned judgement as to the basis on which the House of Lords reversed the Court of Appeal ruling was still awaited as of the end of mid-June 2002; it is expected later in the summer. In the meantime, any discussion on the House of Lords' reasoning can be only speculative, but an examination of the role of "causation" and how it has been treated by the courts reveals some useful insights to the general approach taken by the courts as to whether they are ruled primarily by legal principle or endeavour more towards what society would regard as a "just" result--that is, by policy.

HISTORY OF CAUSATION

Claimants must prove on the balance of probabilities an actual causal connection between a defendant's fault and their alleged injury. However, in practice, the determination of causation, particularly in the context of toxic exposures, can be very difficult because the understanding of the pathological processes that link exposure to disease often is incomplete. The common law has been through a long period of development in favour of injured parties when there are difficulties in proof of causation or apportionment of damage.

The courts traditionally had followed a rigorous "but for" test, asking the question: But for the incident or breach having occurred, would the claimant have been injured? However, courts found that the search for forensic probability in cases in which the medical evidence available could not resolve the factual uncertainties was perceived as resulting in undue harshness for claimants. As a result, policy rather than legal principle began to emerge as the arbiter of judicial decisions.

Between the 1950s and 1970s the English courts held--in part, because of an incomplete understanding of the pathogenesis of diseases such as asbestosis, pneumoconiosis and dermatitis--that where there was an exposure to risk of injury, the exposure should be equated with a "material contribution" to any injury.

The doctrine of material contribution was established in the 1950s with Bonnington Castings Ltd. v. Wardlaw (4) and Nicholson v. Atlas Steel Foundry and Engineering Co., (5) both in the House of Lords. The doctrine reached a high point in 1972 in McGhee v. National Coal Board, also in the House of Lords, which was a case concerning dermatitis due to-brick dust, in which Lord Reid stated:
   From a broad and practical viewpoint, I can see no substantial difference
   between saying that what the respondents did materially increased the risk
   of injury to the appellant and saying that what the respondents did made
   the material contribution to his injury. (6)


What constitutes "material contribution" is a question of degree, but any contribution greater than "de minimis" could be deemed to be material. The doctrine of material contribution evades the logical rigour imposed by the "but for" test. In Fitzgerald v. Lane, Nourse, L.J., in the Court of Appeal stated of the doctrine of material contribution that a "benevolent principle smiles on these factual uncertainties and melts them all away." (7)

The approach courts took at this time revealed limited understanding of disease processes and of the consequences of one employer's increased risk of being liable to pay compensation for the whole of the disease contracted by an employee. The approach reflected more a doctrine of social policy and a notion of justice, rather than logical legal argument. It created a situation of uncertainty in the law and potential unfairness to defendants.

However, in 1988, the House of Lords in Wilsher v. Essex Area Health Authority marked a turning point as it confirmed that the issue of causation was to be determined according to legal principle rather than policy. Lord Bridge observed:
   ... but, whether we like it or not, the law, which only Parliament can
   change, requires proof of fault causing damage as the basis of liability in
   tort. We should do society nothing but disservice if we made the forensic
   process still more unpredictable and hazardous by distorting the law to
   accommodate the exigencies of what may seem hard cases. (8)


CAUSATION AND INDUSTRIAL DISEASE

For legal purposes, diseases can be divided into two types: (1) divisible, which are cumulative diseases that increase in severity with each event of exposure, such as dermatitis, pneumoconiosis, industrial deafness; or (2) indivisible, which are non cumulative diseases that, although the risk of contracting them may increase with multiple exposures to a causative agent, the actual disease is caused by one particular single incident of exposure, such as is the case with mesothelioma, anthrax, legionellosis and tetanus. (9)

A. Asbestos

Asbestos can cause two types of injury:

* Asbestosis--pulmonary fibrosis. This is a cumulative disease; its extent is related to the extent of exposure. Therefore, it is "divisible."

* Mesothelioma--lung disease. By contrast, mesothelioma is "indivisible"; it is believed to be related to a single exposure.

B. Apportionment of Causation

In Holtby v. Brigham and Cowan (Hull) Ltd., (10) decided in May 2000, the claimant, who sought damages for injuries suffered from inhalation of asbestos fibres whilst working for one employer, but who also had worked for other periods for other employers where similar activities had been involved, had the onus to prove causation. The Court of Appeal held that the principle that an employer is liable where the relevant exposure for which that employer is responsible has either materially contributed to causing the injury or has materially increased the risk of injury was only the starting point as to whether there is any liability. If the defendants then argue that their liability should be restricted to the extent of their contribution, it is then for the court to determine whether claimants have proved that the defendant is responsible for the whole or a quantifiable part of their disability.

In Holtby, damages were apportioned so that each employer was liable for the injury only insofar as it had been caused by its breach. Stuart-Smith, L.J., commented that the "court must do the best it can to achieve justice, not only to the claimant but the defendant, and among the defendants."

Holtby was decided in the context of a "divisible" injury of asbestosis, where each exposure has a cumulative effect on the severity of the claimant's condition and each exposure is a separate injury, thus providing a rational basis for apportionment.

C. Fairchild Decision

1. Court of Appeal

The Court of Appeal decision in Fairchild dealt with the fact that mesothelioma is an "indivisible" disease--that is, believed to be caused by a single exposure--meant that it was not possible for the claimant to prove which of several exposures, in the course of different employments, could be said to have caused the disease. In those circumstances, which the court described as an unbridgeable "evidential gap," it was unwilling to guess or assume when the guilty asbestos fibre had been inhaled because this might well produce an unjust result.

The Court of Appeal's reasoning was set out by Brooke, L.J.:
      It may impose liability for the whole of an insidious disease on any
   employer with whom the claimant was employed for quite a short time in a
   long working life, when the claimant is wholly unable to prove on the
   balance of probabilities that that period of employment had any causative
   relationship with the inception of the disease ... we would be yielding to
   a contention that all those who have suffered injury after being exposed to
   a risk of that injury for which someone else should have protected them
   should be able to recover compensation even when they are quite unable to
   prove who was the culprit.


This decision has been portrayed as unfair and unduly supporting of commercial interests. The main concern has been of the perceived arbitrariness: that now it would depend on whether a claimant exposed to asbestos developed asbestosis or mesothelioma as to whether the claimant would receive compensation. However, the judgement was based on sound legal principle and an understanding of medical science, as opposed to social policy, which is far more likely to create an atmosphere of uncertainty and inconsistency. Relying on the courts to contort legal argument to compensate claimants is no substitute for the political process of introducing a more favourable disability payment scheme.

2. House of Lords

Much of the legal argument before the House of Lords centered on whether the concept of material contribution to risk should apply. The House of Lords was urged to adopt a non-traditional approach to causation for situations such as exists in mesothelioma cases, where the state of medical and scientific knowledge means that there is no practical and realistic prospect of a claimant proving the causal link required by the established legal approach. The House of Lords was invited to find in favour of mesothelioma sufferers when the former employers either admitted or it was proved that they had negligently exposed the former worker to asbestos--on the basis that the employer's breach of duty had materially contributed to a greater risk of the disease developing.

It appears likely that the House of Lords has accepted that reasoning, although whether it did so without qualification will not emerge until such time as the judgment is formally handed down later this summer.

D. Effect of Fairchild

The ruling by the House of Lords in favour of compensating the claimants marks a U-turn by the courts. The cases of Wilshere, Holtby, the Court of Appeal ruling in Fairchild and the recent Court of Appeal case, Sutherland v. Hatton, (11) which redefined the guidelines under which employees can claim damages for stress, had indicated a general balancing of the interests of employee claimants and employers. This is now jeopardised by the House of Lords reversal.

Fairchild is a landmark decision in that it represents a significant move away from the traditional strict legal approach to causation and dramatically lowers the evidential burden on claimants in relevant cases. This may in due course have far-reaching ramifications for other negligence and product liability claims where proof is inherently difficult to obtain. This is in addition to the estimated 500 active but pending claims and several thousand more potential mesothelioma claims expected to be pursued in Britain in the light of Fairchild.

Subject to careful reading of the full judgment of the House of Lords in Fairchild, the courts' approach is likely to be increasingly that liability will be imposed as a matter of public policy on any defendant who can be shown to have materially increased risk of harm for a disease such as mesothelioma, for however short a period of time, and may be deemed to have caused the harm. If there is more than one defendant, then each would be likely to be deemed liable for a share of the loss with the other defendants.

This could open the way for the development in Britain of novel "market-share" type arguments. This outcome would have obvious relevance, for example, to blood product cases where hepatitis or HIV infection followed a series of blood transfusions. Other examples of "indivisible" diseases are those caused by biological agents (for example, anthrax, brucellosis, chlamydiosis, legionellosis, leptospirosis, lyme disease, tetanus and tuberculosis) or from lung or other organ damage from work involving breathing gases at increased pressure (for example, decompression illness and barotrauma).

CONCLUSION

The House of Lords' reversal of the Court of Appeal ruling in Fairchild appears to go against both orthodox legal principle and medical science and could have far-reaching ramifications for other employers' liability and product liability claims. It seems likely that where the evidence of causation is incomplete the courts may resort to some fiction, presumption or reversal of the burden of proof to bridge the "evidential gap" the lower courts had exposed in this case.

The detailed reasoning behind the judgment of the House of Lords will need to be studied carefully in due course to determine to what extent the principle of causation has been undermined and whether that radical development is likely to spread to other situations where claimants will always find it difficult to prove a case using the traditional legal approach.

ADDENDUM

The full speeches of the five Law Lords--Lord Bingham, Lord Nicholls, Lord Hoffmann, Lord Hutton and Lord Rodger--who heard the appeal in Fairchild v. Glenhaven Funeral Services Ltd., were handed down on 20 June 2002, after this article had been completed. (12) What is unusual and potentially far-reaching in this case is the emphasis their Lordships placed on the supremacy of achieving a just outcome over what they saw as dogmatic adherence to conventional legal rules.

"ROUGH JUSTICE" FOR DEFENDANTS

The judgment goes back to first principles of tort and asks for what purpose the rules were first developed--namely, to ensure that those who are under a duty of care are protected. The two consequences of each possible judgement were then examined. On the one side, the lack of causative evidence, as it is commonly understood, leading from the injury to a particular tortfeasor, would mean that it would be possible for a defendant to be found liable when, if science permitted the matter to be clarified completely, it would turn out that the defendant's wrongdoing did not in fact lead to the claimant's illness. However, this is balanced against the potential injustice to injured claimants who are not able to recover for their injuries the risk of which was materially increased by the defendants.

It was unanimously decided by the Law Lords that the gravity of the potential injustice to the claimants justified a lowering of the burden of proof for them.

In arriving at this decision in Fairchild, the House of Lords turned the clock back to the high point of the material contribution test in 1973 in McGhee v. National Coal Board and beyond. (13) The creator of the risk must bear the consequences of that risk coming to fruition in cases where medical and scientific knowledge is unable to prove the causative link. Where there is doubt, that doubt should be resolved in favour of the claimant.

The Law Lords stated that unlike Lord Wilberforce's dissenting judgement in McGhee, this procedure was not a reversal of the burden of proof but a common sense outcome that created a fair conclusion, although "rough justice" for innocent defendants was acknowledged. The "unbridgeable evidential gap" caused by the "but for" test was surmounted by the judgment by their Lordships questioning the purpose of the test itself and actively construing the lack of evidence against defendants who are perceived to be morally "in the wrong."

UNCERTAINTY WILL REIGN

The inevitable consequence of this powerful precedent is uncertainty. While the House of Lords stressed that their decision in Fairchild must be viewed in the context of its particular facts, it formulated a six-stage test for similar cases and openly anticipated further developments and extensions to the law of negligence in the future. This will be of particular relevance to those concerned with industrial and occupational disease cases, but it also will have consequences of general application in matters where the factual matrix is complex and the evidential basis imperfect.

(1.) [2001] 1 W.L.R. 1052. Available at http:// porch.ccta.gov.uk/courtser/judgements. nsf/5cbcc578c01a9c02802567170061b8c6/ 28b6a0fed411810380256b1f0033453e/$FILE/Fairchild_v_Glenhaven+.htm.

(2.) 378 Hansard, Part No. 81, cols. 71WH-91WH. Available at http://www.parliament.the-stationery-office. co.uk/pa/cm200102/cmhansrd/cm020116/ hallindx/20116-x.htm

(3.) On 16 May 2002, Lord Bingham handed down an outline judgement, but no reasoned judgement has yet been handed down.

(4.) [1956] A.C. 613.

(5.) [1957] 1 W.L.R. 613.

(6.) [1972] 3 All E.R. 1008, 1011 (H.L.).

(7.) [1987] 2 All E.R. 455, 464 (C.A.).

(8.) [1988] 1 All E.R. 871, 883 (H.L.).

(9.) For digests of decisions in this area of English law, see http://www.lawteacher.net/Tort/Negligence %20Causation%20Cases.htm.

(10.) [2000] 3 All E.R. 421 (C.A.).

(11.) [2002] EWCA Civ. 76 (C.A.).

(12.) [2002] UKHL 22. Available at http:// www.parliament.the-stationery-office.co.uk/pa/ ld200102/ldjudgmt/jd020620/fchild-1.htm.

(13.) [1973] 1 W.L.R. 1. Their Lordships also cited for earlier proceeding in McGhee, 1973 SC(HL) 37.

Jessica Burt is a member of CMS Cameron McKenna's Health, Safety & Products Group in London. She is a graduate of Durham University and completed her legal training at City University, London.
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Author:Burt, Jessica
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Geographic Code:4EUUK
Date:Jul 1, 2002
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