Appeals to the House of Lords: The Pressure Builds
In the countdown to crucial hearings before the House of Lords, asbestos claimants and their legal representatives remain anxious about a decision which could, at a stroke, reverse years of legal precedents. If the lower courts’ judgments are upheld at the UK’s highest judicial forum, civil cases brought by claimants suffering from mesothelioma or lung cancer who experienced significant asbestos exposure from more than one source are doomed to fail. On February 1, 2001, Mr. Justice Curtis, sitting in the High Court, declared himself unable to apportion liability for Arthur Fairchild’s premature death from mesothelioma. Although two defendants admitted exposing the former joiner to "substantial quantities of lagging-derived asbestos containing debris and dust," the judge found it impossible to decide "from which source of exposure came the single asbestos fibre, or if it be the case, the fibres, responsible for the malignant transformation of the pleural cell." According to Spencer Wood, Mrs. Fairchild’s solicitor, the outlook was bleak: "On its face, it will mean that all mesothelioma claims must fail. Evidence can always be brought by employers to show that there was some environmental exposure – on the Tube or even on the street." At the very least, the outcome of cases involving more than one defendant was seriously compromised.
On December 11, 2001, the Court of Appeal handed down its verdict on Fairchild in a judgment which linked two similar cases (Fox and Matthews) to the Fairchild case. These cases were brought on behalf of mesothelioma victims; all of them lost. Upholding the logic espoused by the lower court in Fairchild, the Appeal Court Justices refused damages to claimants on the grounds that mesothelioma "is a single indivisible disease… and a claimant cannot establish on the balance of probabilities when it was he inhaled the asbestos fibre, or fibres, which caused a mesothelial cell in his pleura to become malignant."
The Lords are scheduled to hear these three cases from April 22-24, 2002. One can only hope that the Law Lords will right an injustice which is causing grave concern among victims, their families, asbestos victims’ support groups, trade unionists, health and safety activists, solicitors, barristers and politicians. Scores of MPs have demanded action on the "Fairchild decision" in an Early Day Motion, Adjournment Debates and Written Questions. On March 19, 2001, MP John Robertson (Glasgow, Anniesland) asked Mrs. Helen Liddell, The Secretary of State for Scotland: "What has happened to natural justice?" Robertson continued: "The Court of Appeal’s decision effectively overturned the principle that the courts have applied in such cases for many years. Previously, and in my opinion correctly, defendants were joined and liability was apportioned according to the time for which the person had worked with each employer… thousands of victims of fatal disease have been deprived of compensation… The ruling has left those seeking compensation in limbo."
April 8, 2002
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1 See also: Mesothelioma Plaintiffs Petition the House of Lords and U-Turn in Judicial Logic.
