On 12 November, 2001 the Court of Appeal began hearing Fairchild and the four related cases, as reported in issue 44 (British Asbestos Newsletter: http://www.lkaz.demon.co.uk). Caroline Pinfold of Field Fisher Waterhouse attended as a keen observer. On the first day one of the judges said that he was "sympathetic to the idea that one should not end up in a situation where someone who is clearly negligently exposed to asbestos and ends up with mesothelioma is deprived of compensation. But there is a big problem here." The "big problem" has been discussed in previous newsletters (see also issues 42 and 43). In Fairchild, Curtis J found as a fact, on the agreed medical evidence, that it was just as likely that one asbestos fibre had caused the mesothelioma as a cumulative exposure to many fibres, and it was impossible to identify the source of the relevant fibre or fibres . He therefore distinguished the case from McGhee v NCB 1973 WLR (HL).
During the Appeal it was submitted on behalf of the Fairchild family that the facts in this case are indistinguishable from the factual basis on which the House of Lords came to the decision that it did in McGhee. It was argued that the cause is cumulative in the sense that the longer a person is exposed, the greater the chance of injury, and if that exposure has been caused by a breach of duty then the exposer is liable for any exposure which is more than minimal. Various Australian cases were also cited as authority for adopting a common sense view of causation on the medical evidence.
To illustrate the injustice that would result if Curtis J was upheld and no exposer was found liable, the Court was told of a case where the defendants are denying liability on the basis of Fairchild even though the man had worked for the same company all his working life but the employer had changed its name several times during that period, resulting in employers who are technically different in law. It was also submitted that where there had been more than one exposer, liability should be apportioned on a time weighted average.
The Court requested details of the 1979 Pneumoconiosis etc (Workers’ Compensation) Act which it was thought would apply to claims if Fairchild is upheld. The information handed up to them included the scales of compensation and it is to be hoped that they will appreciate the substantial differenc between the amounts under that Act and any civil claim. The reserved decision is expected to be given before Christmas.
November 26, 2001