Mesothelioma Plaintiffs Petition the House of Lords
In January, 2002, representatives of aggrieved asbestos claimants sought judicial relief at the UK’s highest court: the House of Lords. The hopes of plaintiffs Judith Fairchild, Edwin Matthews and Doreen Fox had been dashed a month earlier by the Court of Appeal ruling in, what is commonly referred to as, the Fairchild case. During the appeal proceedings, Lord Justices Brooke, Latham and Kay had considered six cases brought on behalf of mesothelioma victims who sought compensation for the negligent exposure to asbestos which caused their illnesses1. The defendants included former employers and occupiers of premises. Upholding the logic espoused by Mr. Justice Curtis in his High Court decision (1 February, 2001) in Fairchild, the Appeal Court Justices refused damages to Fairchild, Fox and Matthews 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 finding that "no liability attaches to an occupier of premises… from the mere fact that the workmen in these cases (Babcock, Fairchild and Dyson) were exposed to asbestos dust in premises of which they (the defendants) were occupiers" closed another door to asbestos claimants.
The 11 December, 2001 Court of Appeal judgment shocked asbestos victims, asbestos victims’ groups, the legal community and politicians by reversing some plaintiffs’ precedents and downplaying others. While insurers broke open the champagne, personal injury specialists were trying to explain the decision to dying men and grieving families. Solicitor Ian McFall, a leading asbestos specialist at Thompsons Solicitors, said:
"The Lords must unravel this mess so that mesothelioma victims and their families can get the compensation they deserve. Is it right that employers can admit negligence, but the result is that the victim and the family gets nothing?"
Nigel Bryson, Director of Health and the Environment for the GMB, represents many trade unionists who have contracted asbestos-related diseases. Bryson commented:
"This appears to be a political decision to save the asbestos companies and insurers money while victims die in poverty and pain. The GMB deplore this decision and we will move heaven and earth to get justice for asbestos citims. Companies must be made to pay for their negligence."
Jubilation by defendants could barely be contained. An article in The Post Magazine, the UK’s largest circulating insurance weekly, triumphed: Asbestos purse closed. Journalist Anthony Gould wrote: "Employers’ liability insurers could escape millions of pounds of disease-related claims in the wake of this week’s landmark Court of Appeal ruling which will leave hundreds of mesothelioma claimants without compensation."
The fall-out from Fairchild began as soon as the Curtis decision was handed down. Amicus Legal Ltd., which provides insurance linked to conditional fee agreements, began refusing to underwrite multi-defendant mesothelioma claims. Plaintiffs’ solicitors were "invited" to discontinue mesothelioma claims by defendants; one solicitor was told that if he refused to withdraw, the defendants would "seek an order that the claimant’s solicitors pay the defendants’ costs personally if the case went ahead and the claimant lost the Fairchild argument." Another plaintiffs’ solicitor has received several demands to discontinue proceedings. In light of the Court of Appeal decision, he has sought to stay two cases which are approaching trial; the defendants oppose the stays arguing that "the cases should proceed to trial and be determined under the existing law as decided by the Court of Appeal." According to a London-based plaintiffs’ solicitor, the Court of Appeal ruling has ensured that: "all multi-defendant mesothelioma cases in the UK have to be placed on hold, pending the outcome."
Asbestos victims aren’t the only ones affected by the Fairchild rulings. On 13 December, 2001, Robin Cook, the Leader of the House, said: "I can see that the implications of the principle contained in the judgment could go much wider than such cases." Solicitor Chris Philips, one of the defense team in the Fairchild Appeal, agrees: "the logic in Fairchild may be applicable to any claim where a single act causes damage - including cancer and asthma - and this is a line of enquiry being actively considered by the same team of solicitors and counsel." Fairchild-type arguments are already being raised in asbestos-related lung cancer cases.
Although the Appeal Court recognised the existence of a "major injustice crying out to be righted either by statute or by an agreed insurance industry scheme," leave to appeal to the House of Lords was denied. The petitions to the Lords are the last chance for these asbestos victims to receive justice in the UK. On 30 January, the House of Lords agreed that the appeals in the Matthews and Fox cases would be heard on 22 and 23 April, 2002. On 31 January, the Lords refused permission to appeal in the Fairchild case.
February 1, 2002