Asbestos
Cases
Fairchild v Glenhaven Funeral Services Ltd & Ors
[2002] UKHL 22 [2002] 3 WLR 89, [2002] UKHL 22, [2003] AC 32,
Lord Bingham
On 16 May 2002 it was announced that these three appeals would be allowed. I now give my reasons for reaching that decision.
The essential question underlying the appeals may be accurately expressed in this way. If
(1) C was employed at different times and for differing periods by both A and B, and
(2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and
(3) both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and
(4) C is found to be suffering from a mesothelioma, and
(5) any cause of C’s mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but
(6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,
is C entitled to recover damages against either A or B or against both A and B? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at [2002] 1 WLR 1052, gave a negative answer. It did so because, applying the conventional “but for” test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation.
……
It has been recognised for very many years, at any rate since the “Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry” by Merewether and Price in 1930 and the making of the Asbestos Industry Regulations 1931, that it is injurious to inhale significant quantities of asbestos dust. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. It is a characteristic of asbestosis that the disease, once initiated, will be influenced by the total amount of dust thereafter inhaled. Thus in the case of asbestosis the following situation may arise. C may contract asbestosis as a result of exposure to asbestos dust while employed by A, but without such exposure involving any breach of duty by A. C may then work for B, and again inhale quantities of asbestos dust which will have the effect of aggravating his asbestosis. If this later exposure does involve a breach of duty by B, C will have no claim against A but will have a claim against B. B will not escape liability by contending that his breach of duty is not shown to have had any causative effect.
From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. In the absence of occupational exposure to asbestos dust it is a very rare tumour indeed, afflicting no more than about one person in a million per year. But the incidence of the tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population, and there are some 1,500 cases reported annually. It is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as 10 years, but it is thought that that is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within 1-2 years of the condition being diagnosed. The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. It is believed by the best medical opinion to involve a multi-stage process, in which 6 or 7 genetic changes occur in a normal cell to render it malignant. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one. It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure. So if C is employed successively by A and B and is exposed to asbestos dust and fibres during each employment and develops a mesothelioma, the very strong probability is that this will have been caused by inhalation of asbestos dust containing fibres. But C could have inhaled a single fibre giving rise to his condition during employment by A, in which case his exposure by B will have had no effect on his condition; or he could have inhaled a single fibre giving rise to his condition during his employment by B, in which case his exposure by A will have had no effect on his condition; or he could have inhaled fibres during his employment by A and B which together gave rise to his condition; but medical science cannot support the suggestion that any of these possibilities is to be regarded as more probable than any other. There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour. It is on this rock of uncertainty, reflecting the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial judges.
Principle
In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.
The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.
In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not “accept that the ‘but for’ (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases” and (at p 516) he added:
“The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ‘gives the result, contrary to common sense, that neither is a cause’: Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury: see, e.g., Chapman vHearse, Baker v Willoughby [1970] AC 467; McGhee v National Coal Board; M’Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.”
In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said:
“The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations.”
McLachlin J, extra-judicially (“Negligence Law – Proving the Connection”, in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern:
“Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.
In recent years, a conflation of factors have caused lawyers, scholars and courts to question anew whether the way tort law has traditionally defined the necessary relationship between tortious acts and injuries is the right way to define it, or at least the only way. This questioning has happened in the United States and in England and has surfaced in Australia. And it is happening in Canada. Why is this happening? Why are courts now asking questions that for decades, indeed centuries, did not pose themselves, or if they did, were of no great urgency? I would suggest that it is because too often the traditional ‘but-for’, all-or-nothing, test denies recovery where our instinctive sense of justice – of what is the right result for the situation – tells us the victim should obtain some compensation.”
My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged a mechanical approach to the issue of causation. In Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29, he said:
“The first point to emphasise is that common sense answers to questions of causation will differ according to the purpose for which the question is asked. Questions of causation often arise for the purpose of attributing responsibility to someone, for example, so as to blame him for something which has happened or to make him guilty of an offence or liable in damages. In such cases, the answer will depend upon the rule by which responsibility is being attributed.”
More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said:
“There is therefore no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation. They are inextricably connected. One is never simply liable; one is always liable for something and the rules which determine what one is liable for are as much part of the substantive law as the rules which determine which acts give rise to liability”.
Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368:
“So in all these cases the real question is, what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly, will be relevant – but it will fall to be viewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant’s duty to guard the claimant? . . . Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant’s responsibility for the loss and damage which the claimant has suffered.”
I do not therefore consider that the House is acting contrary to principle in reviewing the applicability of the conventional test of causation to cases such as the present. Indeed, it would seem to me contrary to principle to insist on application of a rule which appeared, if it did, to yield unfair results. And I think it salutary to bear in mind Lord Mansfield’s aphorism in Blatch v Archer (1774) 1 Cowp 63 at 65, quoted with approval by the Supreme Court of Canada in Snell v Farrell (above):
“It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”
Authority
In Bonnington Castings Ltd v Wardlaw [1956] AC 613, the pursuer contracted pneumoconiosis as a result of inhaling silica dust. The dust came from two sources, a pneumatic hammer and swing grinders, both in the dressing shop where he worked. The dust emanating from the pneumatic hammer involved no breach of duty by the employer, but that from the swing grinders did. In a claim against his employer he succeeded before the Lord Ordinary, Lord Wheatley, and by a majority in the First Division of the Court of Session, the Lord President (Lord Clyde) dissenting. The issue on appeal was whether the employer’s admitted breach of duty in relation to the swing grinders had caused the pursuer’s disease. In his leading opinion, Lord Reid made plain that “the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury” (p. 620). He pointed out that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years (p. 621), and he regarded the real question as “whether the dust from the swing grinders materially contributed to the disease” (p. 621). He considered that any contribution which was not de minimis must be material. The evidence showed that even if more dust came from the pneumatic hammer than from the swing grinders, there was enough dust from the grinders to make a substantial contribution towards the pursuer’s disease (p. 622). The pursuer was accordingly entitled to succeed. With these conclusions, Viscount Simonds, Lord Tucker, Lord Keith of Avonholm and Lord Somervell of Harrow agreed, Lord Keith laying stress at p. 626 on the nature of pneumoconiosis as a disease of gradual incidence and on the cumulative effect of inhalation of dust from the grinders over a period, which might be small in proportion but substantial in total quantity. The case differs from the present in two obvious respects. First, the pursuer had only one relevant employer, who was not legally liable for producing some of the dust which the pursuer inhaled but was potentially liable for the balance. Secondly, pneumoconiosis is, like asbestosis, a condition which is aggravated by the inhalation of increased quantities of dust so that, even if the “innocent” dust had been the first and major cause of the condition, the “guilty” dust, if in significant quantities, could properly be said to have made it worse.
Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variant of Wardlaw’s case. The claim was made by the widow and children of Mr Nicholson, who had worked in the dressing shop of the defenders’ steel foundry, had inhaled dust containing minute siliceous particles while doing so, had contracted pneumoconiosis and had died. The complaints made in the action related not to the creation of dust in the dressing shop but to the defenders’ failure to provide adequate ventilation to extract the dust. It was common ground that the deceased must inevitably have inhaled a quantity, even a large quantity, of noxious particles about which he could have no cause of complaint, and the only question was whether, in addition to those particles, he was, owing to the fault of the defenders in failing to provide adequate ventilation, bound to have inhaled a number of other particles which made a material contribution to his illness (p 616). The Lord Ordinary found for the family, but his decision was reversed by the First Division. In the House the argument centred on the statutory duty to provide proper ventilation imposed by section 4(1) of the Factories Act 1937, and Viscount Simonds said (at p 618):
“. . . . if the statute prescribes a proper system of ventilation by the circulation of fresh air so as to render harmless, so far as practicable, all fumes, dust and other impurities that may be injurious to health, generated in the course of work carried on in the factory, and if it is proved that there is no system or only an inadequate system of ventilation, it requires little further to establish a causal link between that default and the illness, due to noxious dust, of a person employed in the shop. Something is required as was held in Wardlaw’s case. I was a party to that decision and would not in any way resile from it. But it must not be pressed too far. In the present case there was, in my opinion, ample evidence to support the appellants’ case.”
Since the family could not complain of the production of dust, and the deceased had been forced to inhale some noxious particles without having any legal complaint, it was doubly incumbent on the employer to safeguard him against any additional risk (p 616). Viscount Simonds’ conclusion was clearly expressed (at pp 619-620):
“For it appears to me that [the evidence] clearly established that dust containing dangerous particles of silica was emitted into the air by the operation of pneumatic hammers on the castings, that this dust hung about in concentrated form longer than it would have if there had been better ventilation, and that improved roof ventilators were practicable and would have effectively improved the conditions. It follows that owing to the default of the respondents the deceased was exposed to a greater degree of risk than he should have been, and, though it is impossible, even approximately, to quantify the particles which he must, in any event, have inhaled and those which he inhaled but need not have, I cannot regard the excess as something so negligible that the maxim ‘de minimis’ is applicable. Accordingly, following the decision in Wardlaw’s case, I must hold the respondents liable.”
Lord Oaksey and Lord Morton of Henryton agreed. Lord Cohen agreed and said (at p 622):
“Pneumoconiosis is a progressive disease. The longer a workman is exposed to an intense cloud the graver must be the risk of infection. In the present case it is clearly established by the evidence that at any rate down to 1949 the tool with which the deceased was working on dirty castings created a thick cloud of dust which must have necessarily included siliceous particles to an extent which cannot classed as ‘de minimis’. The respondents are admittedly not to blame for the generation of this cloud, but any failure to provide proper ventilation must, I think, lengthen the period during which the cloud remains intense. It seems to me to follow that the respondents’ failure to provide adequate ventilation must increase the risk to which the workmen are exposed. Reading the evidence as a whole, I think it establishes that (to use the language of Lord Reid in Wardlaw’s case) ‘on a balance of probabilities the breach of duty caused or materially contributed to’ the injury.”
Lord Keith of Avonholm regarded it as common sense that better ventilation would have appreciably diminished the dust which was in the air for the deceased to inhale (p 627) and accordingly concluded that his death from pneumoconiosis should be ascribed at least partially to the fault of the defenders. Again the case involved a single employer: but the dust, although “innocent” when first produced became, in effect, “guilty” because of the employer’s conduct in allowing it to remain in the air for an excessive period. It is noteworthy that two members of the House (Viscount Simonds and Lord Cohen) attached significance to the exposure of the deceased to an increased risk.
Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424, another Scottish case, concerned a pursuer who had worked for the defenders for a period of some three months, demolishing buildings, and had contracted dermatitis. In an action against the defenders he claimed that they should have provided him with washing facilities but had failed to do so and that their failure had caused him to suffer from dermatitis. This contention was upheld by the Lord Ordinary (Lord Kilbrandon) who awarded him damages. The defenders did not on appeal challenge the finding of breach but contended that the pursuer had failed to prove any connection between his disease and the work which he had been doing. The First Division accepted this argument and found for the defenders, a decision against which the pursuer appealed. In his leading opinion in the House, Lord Reid considered at some length the conflict of medical evidence at the trial and its treatment by the First Division, and expressed his conclusion (at p 1429):
“In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways. The respondents sought to show, first, that it is negatived by the subsequent course of the disease and, secondly, by suggesting tinea pedis as an equally probable cause of its origin. I have found the case difficult, but on the evidence as it stands I have come to the opinion that they have failed on both points. If the appellant’s disease and consequent loss should be attributed to the work which he was doing in the respondents’ service, it was not argued that they are not liable.”
Lord Cohen and Lord Guest agreed, as did Lord Hodson although with some initial hesitation. Lord Guest described the question as a pure question of fact whether on the balance of probabilities the dermatitis had arisen from the pursuer’s employment (p 1431). The House would seem to have regarded the pursuer as establishing a prime facie case which the defenders had failed to displace.
In the course of the present appeals much argument was directed to the decision of the House in McGhee v National Coal Board [1973] 1 WLR 1. The earlier stages of that case are reported at 1973 SC(HL) 37 and are important in understanding what the House decided. Mr McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The pursuer contended that his dermatitis had been caused by his period of working in the brick kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. There was at the trial a conflict of medical evidence but the Lord Ordinary (Lord Kissen) held that the pursuer had contracted the dermatitis in the course of his work at the brick kiln and as a result of his exposure to dust and ashes when working there (p 39). Counsel for the pursuer accepted at trial that he could not establish a breach of statutory duty nor a breach of common law duty based on a failure to ventilate, but relied on two alleged breaches by the employers: of a duty to take care that the kiln had cooled sufficiently before men went in to work in it and of a duty to take reasonable care to provide adequate showers to enable men to remove dust from their bodies. The Lord Ordinary rejected the first of these complaints on a number of grounds, including the lack of proof that the breach of duty, even if established, had caused or materially contributed to the dermatitis: it was not enough that a reduction of heat would have lessened the risk (p 41). The Lord Ordinary concluded that the employers were at fault in failing to provide showers (p 42) but found against the pursuer on the basis of evidence given by two expert dermatologists, Dr Hannay and Dr Ferguson, called by the pursuer and the employers respectively. He said (at pp 42-43):
“As I have maintained earlier, the pursuer, in order to succeed, must also establish, on a balance of probabilities, that this fault on the part of the defenders ’caused or materially contributed to his injury’, that is to his contracting dermatitis. Dr Hannay’s evidence was that he could not say that the provision of showers would probably have prevented the disease. He said that it would have reduced the risk materially but he would not go further than that. Dr Ferguson said that washing reduces the risk. Pursuer’s counsel maintained that a material increase in the risk of contracting a disease was the same as a material contribution to contracting the disease and that Dr Hannay established this by his evidence. I think that defenders’ counsel was correct when he said that the distinction drawn by Dr Hannay was correct and that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different. A material increase in risk may refer only to possibilities and may not make a possibility into a probability. It may strengthen the possibility but that cannot mean that in all such cases the possibility has become a probability. What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the defenders’ breach of duty. He has to show that this was probable and the degrees of risk have no relevance unless they make the contraction of the disease more probable than not contracting the disease. He cannot succeed if the only inference from the evidence is that lack of shower baths is a possibility as a cause of his having contracted the disease and the provision of shower baths would have increased the possibility but not made it a probability. That is the only inference which I can draw from Dr Hannay’s evidence and that was the best evidence for the pursuer. Causal connection between fault and the contraction of the disease has not been established.”
The pursuer appealed to the First Division against the dismissal of his claim. The medical evidence given at the trial was reviewed in detail, and in particular an exchange between cross-examining counsel and Dr Hannay ( pp 43-44, 47, 50):
“Q. Do I understand you to say you are not in a position to say that the provision of showers would probably have prevented his contracting this skin trouble?
A. No one could say that that would prevent that man developing the condition. It would be likely to reduce the chances.”
In answer to further questions the doctor repeated his opinion that he could only say that the provision of showers would have reduced the chances of the pursuer contracting dermatitis and that that was as far as he was able to go. In the course of his judgment the Lord President, Lord Clyde, considered the pneumoconiosis cases and expressed his conclusion (at p 44):
“But in contrast to the pneumoconiosis cases, the present case is essentially concerned with proof of the causal connection between the fault alleged (i.e. inadequate washing facilities) and the development of dermatitis. Even if the pursuer had established (as he did not) that the absence of washing facilities increased the risk of the pursuer getting dermatitis, that would clearly not prove that the absence of these facilities caused the disease, nor indeed would it go any distance towards proving it. For risk of dermatitis and causation of dermatitis are two quite separate matters.”
Lord Migdale was of the same opinion (at pp 47-48):
“Counsel for the pursuer contended that as it was now accepted that the failure to provide a shower was a breach of the duty which the defenders owed to the pursuer to take reasonable steps for his well-being, the doctors’ evidence that it would have materially reduced the risk of dermatitis is enough to link the failure with the injury. Counsel for the defenders, on the other hand, contended that the test of causal connection between the breach and the injury is whether the provision of a shower would, on a balance of probabilities, have prevented the dermatitis. The Lord Ordinary says an increase in risk does not mean a material contribution to the contracting of the disease. A material increase in risk may refer only to possibilities and it does not make a possibility into a probability. ‘What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the breach of duty’. He has to show this on a balance of probabilities.
In my opinion this is correct. Unless the pursuer can point to evidence that shows that a shower would more probably have avoided the disease than not, he cannot succeed and I do not find that evidence in this case.”
Lord Johnston was more hesitant, but in view of the other opinions did not feel inclined to take the view that the evidence was sufficient to allow him to hold that the test of the balance of probability had been satisfied (p 50).
On appeal to the House counsel for the pursuer faced the problem, as he had at trial and in the First Division, that his own evidence precluded a finding that the absence of a shower had probably caused the pursuer’s dermatitis. Mr Davidson QC accordingly relied on the evidence that provision of a shower would have materially reduced the risk to contend that he had made out a prima facie case. The contrary argument for the employers was advanced by Mr James Mackay QC, as reported at p 51:
“It was accepted that [the provision of washing facilities] would have been a reasonable precaution, but it did not follow that this would have eliminated the risk. The employee might have developed dermatitis in any event. If the precaution would not have prevented the disease, the appellant was not entitled to damages. In the case of pneumoconiosis the inhalation of dangerous dust inevitably created a basis for the disease by accumulation, whereas in the case of dermatitis a particle of grit would cause the disease only if there were an abrasion which opened up the layer below the horny outer layer of the skin. In the case of pneumoconiosis all the particles could be blamed. It was not so in the case of dermatitis. The mere fact that shower baths would have reduced the chances of the contraction of the disease did not mean that what was probable would thereby have been rendered improbable.”
Thus the issue, as presented to the House, was whether the pursuer could succeed despite his inability to show that he would probably not have suffered dermatitis but for the defenders’ failure to provide the showers which they should have provided.
In the House, opinions were given by all five members of the Appellate Committee which heard the appeal and the appeal was allowed: [1973] 1 WLR 1. Lord Reid, giving the first opinion, described the pursuer’s complaint based on the failure to provide shower facilities as raising “a difficult question of law” (p 3). He pointed out that the breach of duty in relation to showers was admitted, and it was admitted that the disease was attributable to the work which the pursuer had performed in the brick kiln, but it was contended that the pursuer had not proved that the defenders’ failure to carry out the admitted duty had caused the onset of the disease (p 3). Lord Reid’s understanding of the evidence, and his view of the proper approach to it, appear from the following passage of his opinion (at pp 4-5):
“In the present case the evidence does not show – perhaps no one knows – just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.
I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved. If it were, then this case would be indistinguishable from Wardlaw’s case. But I think that in cases like this we must take a broader view of causation. The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.”
Lord Wilberforce acknowledged the need for the pursuer to establish both a breach of duty and a causal connection between the default and the disease complained of (p 5), and also the difficulties of proof which the pursuer faced (pp 5-6):
“[The pursuer’s medical expert] could not do more than say that the failure to provide showers materially increased the chance, or risk, that dermatitis might set in.”
Lord Wilberforce accepted that merely to show that a breach of duty led to an increase of risk was not enough to enable a pursuer to succeed, but continued (at page 6):
“But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail – a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences.”
Having referred to Wardlaw’s and Nicholson’s cases Lord Wilberforce concluded (at page 7):
“The present factual situation has its differences: the default here consisted not in adding a material quantity to the accumulation of injurious particles but by failure to take a step which materially increased the risk that the dust already present would cause injury. And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”
Lord Simon of Glaisdale considered that Wardlaw’s and Nicholson’s cases established a rule (at page 8)
“that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.”
Lord Simon then continued (page 8):
“The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, the failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents’ position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence.”
Lord Simon regarded “material reduction of the risk” and “substantial contribution to the injury” as mirror concepts. Any other conclusion would mean that the defenders were under a legal duty which they could, on the present state of medical knowledge, ignore (page 9).
Lord Kilbrandon appears to have adopted a more orthodox approach to tortious liability. He said (at page 10):
“When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown … In the present case, the pursuer’s body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do.”
In Lord Salmon’s opinion the question before the House was whether the pursuer’s dermatitis was proved to have been caused or materially contributed to by the defenders’ negligence (page 11). He rejected the view, expressed by the Lord President (see paragraph 18 above) that to increase the risk of injury was not, in the circumstances of this case, to cause the injury. In such a case he regarded it as unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing it (pages 11-12). He observed (at page 12):
“I think that the approach by the courts below confuses the balance of probability test with the nature of causation. Moreover, it would mean that in the present state of medical knowledge and in circumstances such as these (which are by no means uncommon) an employer would be permitted by the law to disregard with impunity his duty to take reasonable care for the safety of his employees.”
Lord Salmon’s conclusion (pages 12-13) was expressed in these terms:
“In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.”
This detailed review of McGhee permits certain conclusions to be drawn. First, the House was deciding a question of law. Lord Reid expressly said so (page 3). The other opinions, save perhaps that of Lord Kilbrandon, cannot be read as decisions of fact or as orthodox applications of settled law. Secondly, the question of law was whether, on the facts of the case as found, a pursuer who could not show that the defender’s breach had probably caused the damage of which he complained could nonetheless succeed. Thirdly, it was not open to the House to draw a factual inference that the breach probably had caused the damage: such an inference was expressly contradicted by the medical experts on both sides; and once that evidence had been given the crux of the argument before the Lord Ordinary and the First Division and the House was whether, since the pursuer could not prove that the breach had probably made a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it. Fourthly, it was expressly held by three members of the House (Lord Reid at page 5, Lord Simon at page 8 and Lord Salmon at pages 12-13) that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it. Thus the proposition expressly rejected by the Lord Ordinary, the Lord President and Lord Migdale was expressly accepted by a majority of the House and must be taken to represent the ratio of the decision, closely tied though it was to the special facts on which it was based. Fifthly, recognising that the pursuer faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy for the pursuer, a majority of the House adapted the orthodox test to meet the particular case. The authority is of obvious importance in the present appeal since the medical evidence left open the possibility, as Lord Reid pointed out at page 4, that the pursuer’s dermatitis could have begun with a single abrasion, which might have been caused when he was cycling home, but might equally have been caused when he was working in the brick kiln; in the latter event, the failure to provide showers would have made no difference. In McGhee, however, unlike the present appeals, the case was not complicated by the existence of additional or alternative wrongdoers.
In Wilsher v Essex Area Health Authority a problem of causation arose in a different context. A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. The baby suffered a condition (abbreviated as RLF) of a kind which that breach of duty could have caused, and the breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury. In the Court of Appeal ([1987] QB 730 at 771-772) Mustill LJ concluded a detailed review of McGhee by making this statement of principle:
“If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.”
Omitted from this statement is any reference to condition (5) in the composite question formulated in paragraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-Wilkinson V-C founded his dissenting opinion (at page 779):
“To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intraventicular haemorrhage apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.
The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
On the defendants’ appeal to the House, this passage in the Vice-Chancellor’s judgment was expressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser of Tullybelton, Lord Lowry, Lord Griffiths and Lord Ackner concurred, and the appeal was allowed: [1988] AC 1074,1090-1092. It is plain, in my respectful opinion, that the House was right to allow the defendants’ appeal in Wilsher, for the reasons which the Vice-Chancellor had given and which the House approved. It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage. The decision of the Court of Appeal did indeed involve an extension of the McGhee principle, as Mustill LJ recognised: [1987] QB 730, 771-772. Lord Bridge was also, as I respectfully think, right to describe the observations of Lord Wilberforce on reversal of the burden of proof (see paragraph 20 above) as expressing a “minority opinion” (p 1087), if Lord Wilberforce was suggesting more than that the proof of an increased risk can found a prima facie case which casts an evidential burden on the defendant. But much difficulty is caused by the following passage in Lord Bridge’s opinion in which, having cited the opinions of all members of the House in McGhee, he said (p 1090):
“The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
This is a passage to which the Court of Appeal very properly gave weight ([2002] 1 WLR 1052, 1080, para 103), and in argument on these appeals counsel for the respondents strongly relied on it as authority for their major contention that a claimant can only succeed if he proves on the balance of probabilities that the default of the particular defendant had caused the damage of which he complains. As is apparent from the conclusions expressed in paragraph 21 above, I cannot for my part accept this passage in Lord Bridge’s opinion as accurately reflecting the effect of what the House, or a majority of the House, decided in McGhee, which remains sound authority. I am bound to conclude that this passage should no longer be treated as authoritative.
…….
Policy
The present appeals raise an obvious and inescapable clash of policy considerations. On the one hand are the considerations powerfully put by the Court of Appeal ([2002] 1 WLR 1052 at 1080, para 103) which considered the claimants’ argument to be not only illogical but
“also susceptible of unjust results. It may impose liability for the whole of an insidious disease on an 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. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board [1973] 1WLR 1, and Lord Bridge has told us in Wilsher v Essex Area Health Authority [1988] AC 1074 that McGhee established no new principle of law at all. If we were to accede to the claimants’ arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from 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. In a quite different context Lord Steyn has recently said in Frost v Chief Constable of Yorkshire [1999] 2 AC 455, 491 that our tort system sometimes results in imperfect justice, but it is the best the common law can do.”
The Court of Appeal had in mind that in each of the cases discussed in paras 14-21 above (Wardlaw, Nicholson, Gardiner, McGhee) there was only one employer involved. Thus there was a risk that the defendant might be held liable for acts for which he should not be held legally liable but no risk that he would be held liable for damage which (whether legally liable or not) he had not caused. The crux of cases such as the present, if the appellants’ argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee [1973] 1 WLR 1 at 7, that
“the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”
Conclusion
To the question posed in paragraph 2 of this opinion I would answer that where conditions (1)-(6) are satisfied C is entitled to recover against both A and B. That conclusion is in my opinion consistent with principle, and also with authority (properly understood). Where those conditions are satisfied, it seems to me just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him. I consider that this conclusion is fortified by the wider jurisprudence reviewed above. Policy considerations weigh in favour of such a conclusion. It is a conclusion which follows even if either A or B is not before the court. It was not suggested in argument that C’s entitlement against either A or B should be for any sum less than the full compensation to which C is entitled, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way. No argument on apportionment was addressed to the House. I would in conclusion emphasise that my opinion is directed to cases in which each of the conditions specified in (1) – (6) of paragraph 2 above is satisfied and to no other case. It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise. For the present, I think it unwise to decide more than is necessary to resolve these three appeals which, for all the foregoing reasons, I concluded should be allowed.
For reasons given above, I cannot accept the view (considered in the opinion of my noble and learned friend Lord Hutton) that the decision in McGhee was based on the drawing of a factual inference. Nor, in my opinion, was the decision based on the drawing of a legal inference. Whether, in certain limited and specific circumstances, a legal inference is drawn or a different legal approach is taken to the proof of causation, may not make very much practical difference. But Lord Wilberforce, in one of the passages of his opinion in McGhee quoted in paragraph 20 above, wisely deprecated resort to fictions and it seems to me preferable, in the interests of transparency, that the courts’ response to the special problem presented by cases such as these should be stated explicitly. I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.
Barker v. Corus (UK) Plc
[2006] UKHL 20
LORD HOFFMANN
My Lords,
Fairchild
In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 the House decided that a worker who had contracted mesothelioma after being wrongfully exposed to significant quantities of asbestos dust at different times by more than one employer or occupier of premises could sue any of them, notwithstanding that he could not prove which exposure had caused the disease. All members of the House emphasised the exceptional nature of the liability. The standard rule is that it is not enough to show that the defendant’s conduct increased the likelihood of damage being suffered and may have caused it. It must be proved on a balance of probability that the defendant’s conduct did cause the damage in the sense that it would not otherwise have happened. In Fairchild, the state of scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. A claim against any person responsible for any such exposure would therefore not satisfy the standard causal requirements for liability in tort. But the House considered that, in all the circumstances of the case, that would be an unjust result. It therefore applied an exceptional and less demanding test for the necessary causal link between the defendant’s conduct and the damage.
The issues
These three appeals raise two important questions which were left undecided in Fairchild. First, what are the limits of the exception? In Fairchild the causal agent (asbestos dust) was the same in every case, the claimants had all been exposed in the course of employment, all the exposures which might have caused the disease involved breaches of duty by employers or occupiers and although it was likely that only one breach of duty had been causative, science could not establish which one it was. Must all these factors be present? Secondly, what is the extent of liability? Is any defendant who is liable under the exception deemed to have caused the disease? On orthodox principles, all defendants who have actually caused the damage are jointly and severally liable. Or is the damage caused by a defendant in a Fairchild case the creation of a risk that the claimant will contract the disease? In that case, each defendant will be liable only for his aliquot contribution to the total risk of the claimant contracting the disease – a risk which is known to have materialised.
The three cases
Both of these questions are raised by the appeal in barker v Corus (UK) Plc. Mr barker died of asbestos-related mesothelioma on 14 June 1996. During his working career he had three material exposures to asbestos. The first was for 6 weeks in 1958 while working for a company called Graessers Ltd. The second was between April and October 1962, while working for John Summers Ltd (now Corus (UK) Ltd (“Corus”)). The third was for at least 3 short periods between 1968 and 1975, while working as a self-employed plasterer. The first two exposures were in consequence of breaches of duty by the employers and the last is agreed to have involved a failure by Mr barker to take reasonable care for his own safety. Thus, unlike the facts of Fairchild, not all the exposures which could have caused the disease involved breaches of duty to the claimant or were within the control of a defendant. The first question is whether this takes the case outside the Fairchild exception. If it does not, the second question is whether Corus is liable for all the damage suffered by Mr barker’s estate and dependants or only for its aliquot contribution to the materialised risk that he would contract mesothelioma. Moses J decided that the case was within the Fairchild exception and that Corus was liable jointly and severally with Graessers Ltd, but subject to a 20% reduction for Mr barker’scontributory negligence while he was self-employed. As Graessers Ltd is insolvent and without any identified insurer, Corus is unable to recover any contribution. The Court of Appeal ((Kay, Keene and Wall LJJ) agreed with the judge on both points: see barker v Saint-Gobain Pipelines plc [2004] EWCA Civ 545; [2005] 3 All ER 661.
In the other two appeals, all the exposures to asbestos were in breach of duties owed by employers or occupiers and there was no dispute that the cases fell within the Fairchild exception. The only question was whether liability was joint and several or only several. In Smiths Dock Ltd v Patterson, Mr Patterson, who died of mesothelioma on 3 May 2002 at the age of 93, had been during his working life regularly exposed to asbestos, in breach of duty, by 4 employers: Smiths Dock Ltd, Vickers Armstrong Ltd, Swan Hunter and Hawthorne Leslie. The latter two companies, both of which are insolvent and whose insurers are also insolvent, accounted between them for 83.22% of the period for which exposure took place. The first two were responsible, in roughly equal shares, for the rest. The question was whether they were nevertheless jointly and severally liable for the whole damage. In Murray v BS Hydrodynamics Ltd, Mr Murray, who died of mesothelioma on 19 November 1999 at the age of 75, spent most of his working life in the Tyne shipyards and had been exposed to asbestos, in breach of duty, by a considerable number of employers. The five joined as defendants account for 42.5% of the period of exposure; the others are insolvent and uninsured. Again the question is whether the solvent defendants are jointly and severally liable for the full damage. In both cases the judges and the Court of Appeal followed the decision in barker’s case and decided that they were.
The limits of Fairchild
My Lords, the opinions of all of your Lordships who heard Fairchild expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. It is only natural that, the dyke having been breached, the pressure of a sea of claimants should try to enlarge the gap. Indeed, an attempt to extend the principle of liability for increasing the likelihood of an unfavourable outcome to the whole of medical negligence was narrowly rejected in Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176. But each member of the Committee in Fairchild [2003] 1 AC 32 stated the limits of what he thought the case was deciding in slightly different terms. Thus Lord Bingham of Cornhill at p 40, para 2, formulated the question before the House as follows:
“If (1) C was employed at different times and for differing periods by both A and B, and (2) A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and (3) both A and B were in breach of that duty in relation to C during the periods of C’s employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and (4) C is found to be suffering from a mesothelioma, and (5) any cause of C’s mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but (6) C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together, is C entitled to recover damages against either A or B or against both A and B?
To this question he gave, at p 68, para 34, the answer that C was entitled to recover against both A and B, but emphasised that his opinion was “directed to cases in which each of the conditions specified in (1)-(6)…is satisfied and to no other case.”
Lord Nicholls of Birkenhead, at p 70, para 43, was less prescriptive, saying only that “considerable restraint is called for in any relaxation of the threshold ‘but for’ test of causal connection”, that “policy questions will loom large” and that it was “impossible to be more specific”.
My own opinion, at p 74, para 61, identified five features which were said cumulatively to justify the exception:
“First, we are dealing with a duty specifically intended to protect employees against being unnecessarily exposed to the risk of (among other things) a particular disease. Secondly, the duty is one intended to create a civil right to compensation for injury relevantly connected with its breach. Thirdly, it is established that the greater the exposure to asbestos, the greater the risk of contracting that disease. Fourthly, except in the case in which there has been only one significant exposure to asbestos, medical science cannot prove whose asbestos is more likely than not to have produced the cell mutation which caused the disease. Fifthly, the employee has contracted the disease against which he should have been protected.”
Lord Hutton, who considered that the exception did not impose liability for exposure which merely increased the likelihood that the claimant would contract the disease but defined the circumstances in which a court would, as a matter of law, infer that the exposure had caused (“materially contributed to”) the disease, said, at p 91, para 108, that such an inference should be drawn in:
“cases such as the present ones where the claimant can prove that the employer’s breach of duty materially increased the risk of him contracting a particular disease and the disease occurred, but where in the state of existing medical knowledge he is unable to prove by medical evidence that the breach was a cause of the disease.”
Finally, my noble and learned friend Lord Rodger of Earlsferry said, at pp 118-119, paras 169-170, that he would:
“tentatively suggest that certain conditions are necessary, but may not always be sufficient, for applying the principle. All the criteria are satisfied in the present cases…First, the principle is designed to resolve the difficulty that arises where it is inherently impossible for the claimant to prove exactly how his injury was caused. It applies, therefore, where the claimant has proved all that he possibly can, but the causal link could only ever be established by scientific investigation and the current state of the relevant science leaves it uncertain exactly how the injury was caused and, so, who caused it…Secondly, part of the underlying rationale of the principle is that the defendant’s wrongdoing has materially increased the risk that the claimant will suffer injury. It is therefore essential not just that the defendant’s conduct created a material risk of injury to a class of persons but that it actually created a material risk of injury to the claimant himself. Thirdly, it follows that the defendant’s conduct must have been capable of causing the claimant’s injury. Fourthly, the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant’s wrongdoing…By contrast, the principle does not apply where the claimant has merely proved that his injury could have been caused by a number of different events, only one of which is the eventuation of the risk created by the defendant’s wrongful act or omission…Fifthly, this will usually mean that the claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way. … Sixthly, the principle applies where the other possible source of the claimant’s injury is a similar wrongful act or omission of another person, but it can also apply where… the other possible source of the injury is a similar, but lawful, act or omission of the same defendant. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence.”
The assistance which can be derived from these various formulations is limited. No one expressly adverted to the case in which the claimant was himself responsible for a significant exposure. Lord Bingham’s formulation requires that all possible sources of asbestos should have involved breaches of duty to the claimant; Lord Rodger allowed for a non-tortious exposure by a defendant who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. On the other hand, no one thought that the formulations in Fairchild were the last word on the scope of the exception. Lord Bingham said, at p 68, para 34:
“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise.”
Now such cases have arisen.
The reinterpretation of McGhee
Given that neither of the issues which I have identified arose or was argued in Fairchild, counsel on both sides very sensibly did not place great weight upon a close textual analysis of the way their Lordships formulated the exception. Perhaps more profitable is an examination of what the House said about its earlier decision in McGhee v National Coal Board [1973] 1 WLR 1. The facts of this case are too well known to need detailed repetition.
The House treated McGhee as an application avant la lettre of the Fairchild exception. This came as a surprise to some commentators (see, for example, Tony Weir, Making it More Likely v Making it Happen [2002] CLJ 519) because Lord Bridge of Harwich, speaking for the House in Wilsher v Essex Area Health Authority [1988] AC 1074, 1090D, had said that McGhee demonstrated no more than a “robust and pragmatic” (ie in the teeth of the evidence) inference from the primary facts. In Fairchild, however, only Lord Hutton was willing to accept this interpretation. McGhee must therefore be accepted as an approved application of the Fairchild exception.
For present purposes, the importance of McGhee is that it was a case in which there had been two possible causes of the pursuer’s dermatitis: the brick dust which adhered to his skin while he was working in the brick kilns and the dust which continued to adhere to his skin while he was on his way home. Both risks had been created by his work for the Coal Board but the exposure while working in the kilns was not alleged to involve any breach of duty. The only breach was the failure to provide showers so that he could wash off the dust before cycling home. So one source of risk was tortious but the other was not. The House decided that the Fairchild exception allowed him to recover damages although he could not prove that the persistence of dust after he had left work was more likely to have caused the dermatitis than its original presence on his body while he was working.
It was in order to accommodate this case that Lord Rodger in Fairchild, at p 119, para 116, accepted that the exception could apply “where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant.” Likewise, Mr Stuart-Smith QC, who appeared for the appellants, did not insist that all sources of risk should have been tortious. He allowed for what he called the “McGhee extension” where the risk was created by a similar but lawful act or omission of the same defendant or another tortfeasor.
It seems to me, however, as it did to Moses J, that once one accepts that the exception can operate even though not all the potential causes of damage were tortious, there is no logic in requiring that a non-tortious source of risk should have been created by someone who was also a tortfeasor. Suppose, for the sake of an example, that 1962 was the date upon which it became negligent not to take precautions to protect employees against exposure to asbestos. An employee has worked for the same employer between 1955 and 1980. In 2002 he develops mesothelioma. This would plainly fall within McGhee; the employee has been subjected to both non-tortious and tortious exposure by the same employer but cannot prove which period of exposure caused his disease. Suppose, however, that in 1962 the employer had sold the business to someone else, so that the original employer was responsible only for the non-tortious exposure and his successor only for the tortious exposure. It would not be very creditable to the law to draw a distinction between these two cases, so that the employee’s right of action depended upon whether the 1962 sale had been of the business or the shares in the company which employed him.
It should not therefore matter whether the person who caused the non-tortious exposure happened also to have caused a tortious exposure. The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. For this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself. These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant’s conduct and the claimant’s injury, they should not matter. On this point I am therefore in agreement with Moses J and the Court of Appeal.
Distinguishing Wilsher
If the Fairchild exception does not require that all the potential causes of the injury should be tortious, what are the conditions which mark out its limits? For this purpose, it is necessary to examine the way in which the House distinguished Wilsher v Essex Area Health Authority [1988] AC 1074. Again, the facts are too familiar to need recitation. It had certain features in common with McGhee and Fairchild: first, the excessive oxygen which the negligent doctor had allowed to circulate in the baby’s blood had increased the likelihood that he would suffer retrolental fibroplasia (“RLF”) and might have caused it. Secondly, medical science could not establish whether the excessive oxygen or some other possible source of risk was more likely than not to have been the cause. Thirdly, as in McGhee (but not in Fairchild) the other sources of risk were not created by any breach of duty. These similarities were sufficient for a majority of the Court of Appeal to hold that the principle in McGhee was applicable and the plaintiff entitled to recover. But the decision was reversed by the House of Lords on, as it seems to me, two grounds. The first, which I have already discussed, was that McGhee laid down no principle. It only exemplified a robust handling of the facts. This explanation was rejected by a majority of the House in Fairchild. The second ground of decision was by way of adoption of a passage in the dissenting judgment of Sir Nicolas Browne-Wilkinson V-C in the Court of Appeal ([1987] QB 730, 779):
“To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, eg hypercarbia, intraventricular haemorrhage, apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.
The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”
In Fairchild, Lord Bingham approved this passage as the reason why Wilsher did not fall within the exception. He said, at p 57, para 22:
“It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage.”
Similarly Lord Hutton, at p 95, para 115, said that “where there is only one causative agent” the McGhee principle could apply and went on to approve the passage from the judgment of Sir Nicolas Browne-Wilkinson V-C in Wilsher.
Lord Rodger likewise said, at p 110, para 149, that “the reasoning of the Vice-Chancellor, which the House [in Wilsher] adopted, provided a sound and satisfactory basis for distinguishing McGhee and for allowing the appeal”:
“Mustill LJ’s extension of the approach in McGhee to a situation where there were all kinds of other possible causes of the plaintiff’s condition, resulted in obvious injustice to the defendants. In particular, there was nothing to show that the risk which the defendants’ staff had created—that the plaintiff would develop retrolental fibroplasia because of an unduly highly level of oxygen—had eventuated. That being so, there was no proper basis for applying the principle in McGhee.”
It was only in my own opinion in Fairchild that the reasoning of Sir Nicolas Browne-Wilkinson was not accepted. I said, at p 77, para 72:
“I do not think it is a principled distinction. What if Mr Matthews had been exposed to two different agents—asbestos dust and some other dust—both of which created a material risk of the same cancer and it was equally impossible to say which had caused the fatal cell mutation? I cannot see why this should make a difference.”
This was a minority opinion and, furthermore, I think it was wrong. The question which I raised about different kinds of dust is not so much about the principle that the causative agent should be the same but about what counts as being the same agent. Lord Rodger identified this point when he said, at pp 118-119, para 170:
“The claimant must prove that his injury was caused, if not by exactly the same agency as was involved in the defendant’s wrongdoing, at least by an agency that operated in substantially the same way. A possible example would be where a workman suffered injury from exposure to dusts coming from two sources, the dusts being particles of different substances each of which, however, could have caused his injury in the same way.”
If the distinction between Fairchild and Wilsher does not lie in the fact that in the latter case a number of very different causative agents were in play, I think it would be hard to tell from my Fairchild opinion what I thought the distinction was. In my opinion it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect, as in Lord Rodger’s example of the different kinds of dust, but the mechanism by which it caused the damage, whatever it was, must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent.
Apportionment
The second issue arising in all three appeals is whether under the Fairchild exception a defendant is liable, jointly and severally with any other defendants, for all the damage consequent upon the contraction of mesothelioma by the claimant or whether he is liable only for an aliquot share, apportioned according to the share of the risk created by his breach of duty.
Moses J dealt with the point quite shortly. He said that mesothelioma was an “indivisible injury”. It was not like asbestosis, which can be partly caused by one period of exposure and made worse by another. Such an injury is divisible, each defendant being responsible for his contribution to the disease. But the likelihood is that mesothelioma is caused by a single exposure. The more you are exposed, the more likely you are to get it, in the same way as the more you spin the roulette wheel, the more likely is a given number to come up.
Counsel for the defendant accepted that mesothelioma was an indivisible injury but argued that since liability was being imposed upon a novel basis, the court should adopt a novel solution for the distribution of liability. Moses J said that on authority it was not open to him to do so. This, he said, was:
“a case of concurrent joint tortfeasors, where the actions of either would be sufficient by themselves to produce the consequence.”
The judge referred to the well-known statement by Devlin LJ in Dingle v Associated Newspapers Ltd [1961] 2 QB 162, 188-189 of the rule which requires that in such a case there should be joint and several liability:
“Where injury has been done to the plaintiff and the injury is indivisible, any tortfeasor whose act has been a proximate cause of the injury must compensate for the whole of it. As between the plaintiff and the defendant it is immaterial that there are others whose acts also have been a cause of the injury and it does not matter whether those others have or have not a good defence. These factors would be relevant in a claim between tortfeasors for contribution, but the plaintiff is not concerned with that; he can obtain judgment for total compensation from anyone whose act has been a cause of his injury. If there are more than one of such persons, it is immaterial to the plaintiff whether they are joint tortfeasors or not. If four men, acting severally and not in concert, strike the plaintiff one after another and as a result of his injuries he suffers shock and is detained in hospital and loses a month’s wages, each wrongdoer is liable to compensate for the whole loss of earnings. If there were four distinct physical injuries, each man would be liable only for the consequences peculiar to the injury he inflicted, but in the example I have given the loss of earnings is one injury caused in part by all four defendants. It is essential for this purpose that the loss should be one and indivisible; whether it is so or not is a matter of fact and not a matter of law.”
In fact, of course, barker was not a case of “concurrent joint tortfeasors, where the actions of either would be sufficient by themselves to produce the consequence.” If it had been, there would have been no need to apply the Fairchild exception. The evidence did not establish that the actions of either tortfeasor would by itself have been sufficient to cause mesothelioma. They might have had nothing to do with the onset of the disease. The defendants were held liable because they had each created a material risk that the claimant would contract mesothelioma. But Moses J proceeded on the assumption that, for the purposes of deciding what they should be liable for, each should be deemed to have caused the disease.
Likewise in the Court of Appeal, Kay LJ said, at para 44, that if “normal principles” were applied, there could be no apportionment “on the basis that this was an indivisible injury”. There had to be some “compelling reason” for departing from the normal rule. He could not find any. There might be some hardship to defendants, particularly as time went on and the number of employers remaining solvent and traceable diminished. But joint and several liability was for the protection of the plaintiff, which was also the purpose of the Fairchild rule itself. Keene LJ said, at paras 51-52, that he had been attracted by the argument for apportionment but concluded that there was no need to depart from the “long established principle applicable in the case of an indivisible injury.” Apportionment could lead to the claimant losing part of his damages if one of the defendants became insolvent.
What is the defendant liable for?
My Lords, the reasoning of Moses J and the Court of Appeal would be unanswerable if the House of Lords in Fairchild had proceeded upon the fiction that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. The disease is undoubtedly an indivisible injury and the reasoning of Devlin LJ in Dingle’s case would have been applicable. But only Lord Hutton and Lord Rodger adopted this approach. The other members of the House made it clear that the creation of a material risk of mesothelioma was sufficient for liability. Lord Bingham said, at p 68, para 35:
“Lord Wilberforce, in one of the passages of his opinion in McGhee, wisely deprecated resort to fictions and it seems to me preferable, in the interests of transparency, that the courts’ response to the special problem presented by cases such as these should be stated explicitly.”
Lord Nicholls of Birkenhead likewise said, at p 71, para 45:
“the court is not, by a process of inference, concluding that the ordinary ‘but for’ standard of causation is satisfied. Instead, the court is applying a different and less stringent test. It were best if this were recognised openly.”
And in my own opinion, at p 75, para 65, I said much the same:
“when some members of the House [in McGhee] said that in the circumstances there was no distinction between materially increasing the risk of disease and materially contributing to the disease, what I think they meant was that, in the particular circumstances, a breach of duty which materially increased the risk should be treated as if it had materially contributed to the disease. I would respectfully prefer not resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.”
Lord Hutton, as I have already noted, said that in Fairchild the court was required to infer that exposure by the defendant had materially contributed to the disease and Lord Rodger expressed the exception, at p 118, para 168, in the following terms:
“Following the approach in McGhee I accordingly hold that, by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.”
Creating a risk as damage
Consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance. If that is the right way to characterize the damage, then it does not matter that the disease as such would be indivisible damage. Chances are infinitely divisible and different people can be separately responsible to a greater or lesser degree for the chances of an event happening, in the way that a person who buys a whole book of tickets in a raffle has a separate and larger chance of winning the prize than a person who has bought a single ticket.
Treating the creation of the risk as the damage caused by the defendant would involve having to quantify the likelihood that the damage (which is known to have materialized) was caused by that particular defendant. It will then be possible to determine the share of the damage which should be attributable to him. The quantification of chances is by no means unusual in the courts. For example, in quantifying the damage caused by an indivisible injury, such as a fractured limb, it may be necessary to quantify the chances of future complications. Sometimes the law treats the loss of a chance of a favourable outcome as compensatable damage in itself. The likelihood that the favourable outcome would have happened must then be quantified: see, for example, Chaplin v Hicks [1911] 2 KB 786 and Kitchen v Royal Air Force Association [1958] 1 WLR 563.
These are of course cases in which there is uncertainty as to what will be, or would have been, the outcome of a known event; for example, the consequences of a fractured ankle, a beauty contest or a lawsuit. The present case involves uncertainty as to the cause of a known outcome, namely, the mesothelioma. But in principle I can see no reason why the courts cannot quantify the chances of X having been the cause of Y just as well as the chance of Y being the outcome of X.
Gregg v Scott [2005] 2 AC 176 was a case of uncertainty about the cause of a known event. Although this point was to some extent obscured by the fact that Mr Gregg was making a claim for loss of expectation of life and was still alive at the time when he brought his action, there was no finding of uncertainty about what the outcome would be. The judge found as a fact that his expectation of life was substantially less than it would have been if he had not contracted cancer. His loss of expectation of life was therefore damage which he was taken to have suffered at the time when he made his claim, exactly as if he had suffered a broken leg. If he had subsequently died prematurely, that would only have confirmed that the judge’s finding about his expectations was correct. The uncertainty in the case was over what had been the cause of the reduced expectation of life. Was it the genetics and life style which caused him to contract cancer, or was it the negligent delay in his diagnosis and treatment? The judge found that the delay had increased the chances of a premature death but not enough to enable him to say on a balance of probability that it would not otherwise have happened. The question before the House was whether Mr Gregg could claim that the damage he suffered was the additional chance of a premature death which had been caused by the delay.
Although the House, by a majority, answered this question in the negative, it was not on the ground that there was some conceptual objection to treating the diminution in the chances of a favourable outcome or (putting the same thing in a different way) the increase in the risk of an unfavourable outcome as actionable damage. The reason was that the adoption of such a rule in Gregg v Scott would in effect have extended the Fairchild exception to all cases of medical negligence, if not beyond, and would have been inconsistent with Wilsher, in which the negligent doctor had increased the chances of the baby suffering RLF (or reduced his chances of escaping it). It is plain, at least in my own opinion in the case, at p 197, para 85, that I regarded Fairchild as an example of the very rule which the minority wished to apply. But clearly, if that rule had been applied, Mr Gregg would not have recovered the same damages as if he had proved that Dr Scott had caused his loss of expectation of life. He would have recovered a proportion, related to the extent to which Dr Scott had increased the likelihood that he would suffer a premature death.
Fairness
So far I have been concerned to demonstrate that characterising the damage as the risk of contracting mesothelioma would be in accordance with the basis upon which liability is imposed and would not be inconsistent with the concept of damage in the law of torts. In the end, however, the important question is whether such a characterisation would be fair. The Fairchild exception was created because the alternative of leaving the claimant with no remedy was thought to be unfair. But does fairness require that he should recover in full from any defendant liable under the exception?
Lord Bingham in Fairchild, at p 67, para 33, dealt with the competing policy considerations:
“The crux of cases such as the present, if the appellants’ argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law.”
Lord Rodger, at p 112, para 155, also thought that the balance of fairness came down in favour of liability:
“The principle in McGhee involves an element of rough justice, since it is possible that a defendant may 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 men’s illness. That consideration weighed with the Court of Appeal…It must be faced squarely. The opposing potential injustice to claimants should also be addressed squarely. If defendants are not held liable in such circumstances, then claimants have no claim, even though, similarly, if the matter could be clarified completely, it might turn out that the defendants were indeed the authors of the men’s illnesses.”
In my opinion, the attribution of liability according to the relative degree of contribution to the chance of the disease being contracted would smooth the roughness of the justice which a rule of joint and several liability creates. The defendant was a wrongdoer, it is true, and should not be allowed to escape liability altogether, but he should not be liable for more than the damage which he caused and, since this is a case in which science can deal only in probabilities, the law should accept that position and attribute liability according to probabilities. 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. But when liability is exceptionally imposed because you may have caused harm, the same considerations do not apply and fairness suggests that if more than one person may have been responsible, liability should be divided according to the probability that one or other caused the harm.
An American analogy
Courts in the United States have similarly imposed several liability for the chance that the defendant, among others, was the manufacturer of the drug DES which caused long-delayed injury to the daughters of women who took it during pregnancy. In these cases it was impossible to prove who had been the manufacturer of the particular drug which the mother had ingested (during sales over 24 years, there had been 300 manufacturers in the market) and the courts of California and New York decided to apportion liability according to national market share. That was a way of dealing with the particular form of uncertainty which arose in those cases and it obviously has no application to injury caused by exposure to asbestos. But the similarity lies in the fact that the defendants were held liable for the chance that their drug had caused the injury. In Brown v Superior Court (1988) 751 P 2d 470, 486 the Supreme Court of California, referring to its earlier judgment in Sindell v Abbott Laboratories (1980) 607 P 2d 924, which had created the market share doctrine, decided that the liability of each manufacturer should be several:
“In creating the market share doctrine, this court attempted to fashion a remedy for persons injured by a drug taken by their mothers a generation ago, making identification of the manufacturer impossible in many cases. We realised that in order to provide relief for an injured DES daughter faced with this dilemma, we would have to allow recovery of damages against some defendants which may not have manufactured the drug that caused the damage.…Each defendant would be held liable for the proportion of the judgment represented by its market share, and its overall liability for injuries caused by DES would approximate the injuries caused by the DES it manufactured. A DES manufacturer found liable under this approach would not be held responsible for injuries caused by another producer of the drug. The opinion acknowledged that only an approximation of a manufacturer’s liability could be achieved by this procedure, but underlying our holding was a recognition that such a result was preferable to denying recover altogether to plaintiffs injured by DES.
It is apparent that the imposition of joint liability on defendants in a market share action would be inconsistent with this rationale. Any defendant could be held responsible for the entire judgment even though its market share may have been comparatively insignificant. Liability would in the first instance be measured not by the likelihood of responsibility for the plaintiff’s injuries but by the financial ability of a defendant to undertake payment of the entire judgment or a large portion of it.”
In Hymowitz v Eli Lilly & Co (1989) 539 NE 2d 1069 the Court of Appeals of New York adopted a similar rule, Wachtler CJ said, at p 1078:
“We hold that the liability of DES producers is several only, and should not be inflated when all the participants in the market are not before the court in a particular case. We understand that, as a practical matter, this will prevent some plaintiffs from recovering 100% of their damages. However, we eschewed exculpation to prevent the fortuitous avoidance of liability, and thus, equitably, we decline to unleash the same forces to increase a defendant’s liability beyond its fair share of responsibility.”
Joint tortfeasors and contributory negligence
The effect of the Civil Liability (Contribution) Act 1978 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. Experience in the United States, where, for reasons which I need not examine, the DES rule of several liability has not been applied to indivisible injuries caused by asbestos, suggests that liability will progressively be imposed upon parties who may have had a very small share in exposing the claimant to risk but still happen to be traceable and solvent or insured: see Jane Stapleton, “Two causal fictions at the heart of US asbestos doctrine”, (2006) 122 LQR 189. That would, as I have said, not be unfair in cases in which they did actually cause the injury. It is however unfair in cases in which there is merely a relatively small chance that they did so.
Similarly, if the defendant is deemed to have caused the mesothelioma but the claimant, like Mr barker, was himself responsible for a significant period of exposure, the court may find that he did not take adequate care for his own safety or was in breach of safety regulations and, as Moses J did in the barker case, reduce the damages for contributory negligence. On the other hand, if liability is several, there is no question of contributory negligence any more than of contribution. A defendant is liable for the risk of disease which he himself has created and not for the risks created by others, whether they are defendants, persons not before the court or the claimant himself.
Quantification
Although the Fairchild exception treats the risk of contracting mesothelioma as the damage, it applies only when the disease has actually been contracted. Mr Stuart-Smith QC, who appeared for Corus, was reluctant to characterise the claim as being for causing a risk of the disease because he did not want to suggest that someone could sue for being exposed to a risk which had not materialised. But in cases which fall within the Fairchild exception, that possibility is precluded by the terms of the exception. It applies only when the claimant has contracted the disease against which he should have been protected. And in cases outside the exception, as in Gregg v Scott [2005] 2 AC 176, a risk of damage or loss of a chance is not damage upon which an action can be founded. But when the damage is apportioned among the persons responsible for the exposures to asbestos which created the risk, it is known that those exposures were together sufficient to cause the disease. The damages which would have been awarded against a defendant who had actually caused the disease must be apportioned to the defendants according to their contributions to the risk. It may be that the most practical method of apportionment will be according to the time of exposure for which each defendant is responsible, but allowance may have to be made for the intensity of exposure and the type of asbestos. These questions are not before the House and it is to be hoped that the parties, their insurers and advisers will devise practical and economical criteria for dealing with them.
Disposal
In the barker case I would therefore allow the appeal, but only to the extent of setting aside the award of damages against Corus (UK) Ltd and remitting the case to the High Court to redetermine the damages by reference to the proportion of the risk attributable to the breach of duty by John Summers Ltd. I would likewise allow the appeals in the other two cases and remit them to the County Court to determine the damages by reference to the share of risk attributable to the breaches of duty by the defendants.
…
LORD RODGER OF EARLSFERRY
My Lords,
In these appeals the House is called on to decide two issues arising out of Fairchild v Glenhaven Funerals Ltd [2003] 1 AC 32. As argued at the hearing, the first relates to the prerequisites for the application of the exceptional rule on causation enunciated in that decision (“the Fairchild exception”), while the second, and by far the more important, relates to the nature of a defendant’s liability where the exception applies.
As my noble and learned friend, Lord Hoffmann, pointed out early in the hearing, the answer to the first issue may well depend, in part at least, on the answer to the second. This is because, in Fairchild, when deciding whether or not to adopt an exceptional approach to causation modelled on McGhee v National Coal Board [1973] 1 WLR 1, the House was concerned to weigh the potential injustices of either course to the defendants and plaintiffs respectively. The House held that, in the circumstances of that case, there would be greater injustice in sticking to the usual test and giving no remedy to the plaintiffs than in applying the exceptional rule and holding the defendants liable. Counsel for the Fairchild defendants did not dispute that, if they were found liable on that basis, their liability would be joint and several (in solidum). In the present case, however, the second issue is whether that is correct or whether, rather, the defendants should be held severally liable to the claimants in proportion to their responsibility for creating the risk to the victims. In order to be in a position to consider the potential injustices to the parties in applying the Fairchild exception to a new situation, the court must know the nature of the defendants’ liability where the exception applies. I therefore begin with the issue of the apportionment of liability.
Apportionment of Liability
Lord Hoffmann describes the issue as being whether the damage caused by a defendant in a Fairchild case is the creation of a risk that the claimant will contract the disease so that each defendant will be liable only for his aliquot contribution to that total risk which has materialised. But, at the hearing, Mr Stuart-Smith QC, on behalf of Corus UK Ltd (“Corus”) was at very considerable pains to say that he was not advancing an argument along those lines. On the contrary, he accepted that in a Fairchild case the defendant was liable for causing the mesothelioma, not for causing the risk of developing mesothelioma: the damage was the mesothelioma, not the risk of developing mesothelioma. He eschewed any suggestion that the “gist” of the tort was creating the risk of harm rather than causing harm to the victim. The approach now adopted by your Lordships is, accordingly, not one advocated by the appellants.
Counsel simply argued that, since the House had adjusted the law of causation to allow for difficulties of proof in this type of situation, equally it should be prepared to make a corresponding adjustment by dividing up the liability for the victim’s death among the defendants. Leaving other objections aside for the moment, counsel’s approach runs into an immovable roadblock. By any reckoning, death brought on by mesothelioma is indivisible, indeed the classically indivisible injury. Viscount Dunedin once said scornfully of a hypothetical case where two dogs had worried a sheep to death, “Would we then have to hold that each dog had half killed the sheep…?”: Arneil v Paterson [1931] AC 560, 565. It is similarly unthinkable that the law would hold that, vis à vis the claimant, defendant A one-fifth killed the victim of mesothelioma, defendant B one-quarter killed him, defendant C forty per cent killed him and so forth.
Lord Hoffmann acknowledges that this objection would be unanswerable if in Fairchild the House had proceeded upon “the fiction” that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. But, on his analysis, the majority of the House proceeded on the simple basis that the creation of a material risk of mesothelioma was sufficient for liability. Hence the damage which the defendant should be regarded as having caused is the creation of such a risk or chance. Since chances are infinitely divisible, the roadblock of the indivisibility of death is removed and the way lies open to attributing liability according to the relative degree of any defendant’s contribution to the chance of the disease being contracted. All that remains is for the first instance judges to redetermine the damages by reference to the share of the risk attributable to the breaches of duty by the relevant defendants.
My Lords, I accept, of course, that the problem in Fairchild can be analysed as Lord Hoffmann now proposes and, indeed, had already suggested in Gregg v Scott [2005] 2 AC 176. But that is quite different from saying that the House actually chose to analyse it in that way. By adopting the proposed analysis your Lordships are not so much reinterpreting as rewriting the key decisions in McGhee [1973] 1 WLR 1 and Fairchild [2003] 1 AC 32.
To see what these cases actually decided, it is first necessary to go back for a moment to Bonnington Castings Ltd v Wardlaw [1956] AC 613. I need not repeat the analysis which I made of this decision in Fairchild, [2003] 1 AC 32, 98-100, paras 127-129. Lord Reid held that the pursuer, who had been exposed to dust from two sources (one being “innocent”), did not require to prove that his pneumoconiosis had been caused solely by the dust which the defenders had negligently failed to intercept when it came from the swing grinders. His Lordship said, [1956] AC 613, 621:
“It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.”
Bonnington Castings soon became established as the classic authority for the proposition that, to succeed and recover damages in full against any defendant, a plaintiff need prove no more than that the defendant’s wrongful act materially contributed to his injury. Since anything above de minimis will do, this means that a claimant can succeed even though the injury would have occurred without the defendant’s act. The “but for” or sine qua non test of causation gives way to this considerably more generous test based on the defendant’s material contribution to the victim’s injury.
The decision in Bonnington Castings was invoked in McGhee v National Coal Board [1973] 1 WLR 1. The pursuer had developed dermatitis as a result of exposure to brick dust in a kiln in the course of his work with the defenders. At the end of his shift he could not wash thoroughly and had to cycle home with dust on his skin because the Board had not provided showers. The Lord Ordinary rejected the allegations that the exposure to dust in the kilns had been delictual, but accepted that the defenders had been at fault in failing to provide showers. In that situation it was impossible for medical science to tell whether the dermatitis had been caused by the effects of the initial lawful exposure rather than by the effects of the dust operating on the pursuer’s skin during the period when, because of the Board’s failure to provide showers, he had to cycle home without first being able to wash thoroughly. The medical evidence showed, however, that the longer the pursuer’s skin was exposed to injury by abrasion by the dust, the greater was his chance of developing dermatitis. The House held that, since the failure to provide the showers had materially increased the risk of the pursuer developing dermatitis, the Board was liable.
Mr McGhee succeeded on his common law case. In terms of his averments on record he had offered to prove that his “dermatitis was caused by the fault and negligence of the defenders” and his first plea-in-law, in standard form, was that, “having sustained loss, injury and damage through the fault and negligence of the defenders, as condescended upon, [the pursuer] is entitled to reparation therefor.” There was no mention of the pursuer suffering damage in the form of a risk that he would develop dermatitis. His pleadings remained unamended when the House allowed his appeal and found the Board liable. It follows that the defenders can have been found liable only on the basis that Mr McGhee had proved that his dermatitis had been caused by their fault and negligence.
This is indeed what Lord Reid held when, invoking the approach in Bonnington Castings, he said, [1973] 1 WLR 1, 5B: “From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.” Similarly, Lord Simon of Glaisdale said, at p 8E, that in his view “a failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury.” Lord Salmon too proceeded, at pp 11H-12A, on the basis that “In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury.” He concluded, at pp 12H-13A:
“In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.”
In Fairchild, [2003] 1 AC 32, 55F, para 21, Lord Bingham of Cornhill summarised the position by saying that Lord Reid, Lord Simon and Lord Salmon had expressly held that “in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it.”
Lord Wilberforce, [1973] 1 WLR 1, 7E-F, wrapped up his conclusion in less distinct language, but nevertheless seems to be describing a similar approach:
“But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”
By “the cases quoted” Lord Wilberforce must have been referring to Bonnington Castings Ltd v Wardlaw [1956] AC 613, Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 and Gardiner v Motherwell Machinery and Scrap Co Ltd [1961] 1 WLR 1424. In all of them the pursuer was held to have proved that the wrongful act of the defenders in exposing him to conditions liable to injure him had materially contributed to his injuries and so had “caused” them.
The radical step which this House took in McGhee was accordingly to hold that, in the particular circumstances, by proving that the defenders had materially increased the risk of injury, the pursuer had proved that they had materially contributed to his injury.
In Fairchild, [2003] 1 AC 32, 75H, para 65, Lord Hoffmann commented on the approach of the members of the House in McGhee:
“So when some members of the House said that in the circumstances there was no distinction between materially increasing the risk of disease and materially contributing to the disease, what I think they meant was that, in the particular circumstances, a breach of duty which materially increased the risk should be treated as if it had materially contributed to the disease. I would respectfully prefer not to resort to legal fictions and to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability.”
The passage begins by acknowledging that in McGhee the members of the House did actually say that in the circumstances there was no distinction between materially increasing the risk of disease and materially contributing to the disease. Lord Hoffmann then goes on to explain that, in his view, their Lordships meant that in those circumstances a breach of duty which materially increased the risk should be treated as if it had materially contributed to the disease. I see no reason to quarrel with that. He then respectfully declines to resort to legal fictions, preferring to say that the House treated a material increase in risk as sufficient in the circumstances to satisfy the causal requirements for liability. This is more difficult if it means resorting to a fiction that the members of the House did not link proof that the defenders had materially increased the risk of injury to the pursuer with proof that the defenders had materially contributed to his injury. I would respectfully prefer not to resort to such legal fictions but to recognise what their Lordships actually said and did in McGhee [1973] 1 WLR 1.
Before looking at the speeches in Fairchild, it is likewise worth recalling what the three plaintiffs had to prove. In two of the cases the victims of mesothelioma were dead and the actions were brought by their widows under the Fatal Accidents Act 1976. In terms of section 1(1) defendants are liable to widows “if death is caused by any wrongful act, neglect or default which is such as would (if death had not ensued) have entitled the person injured to maintain an action and recover damages in respect thereof….” Therefore, Mrs Fairchild and Mrs Fox had to prove that their husbands’ deaths had been caused by the defendants’ wrongful act towards their husbands. In her statement of claim Mrs Fox, for example, began her Particulars of Injury by saying that the deceased suffered a malignant mesothelioma of the pleura and she ended them by referring to his lingering and exquisitely painful death. Similarly, Mr Matthews gave as the Particulars of Injury: “Malignant mesothelioma”. His claim was brought at common law rather than under statute, but he too set out to prove that his mesothelioma had been caused by the defendants’ wrongful act. In each case, proving that the defendants’ wrongful act had materially contributed to the victims developing mesothelioma would have been sufficient, of course. In none of the cases did the plaintiff claim damages for the creation of a risk or chance that the victim would develop mesothelioma.
Lord Hoffmann suggests that in Fairchild the majority did not proceed on the basis that a defendant who had created a material risk of mesothelioma was deemed to have caused or materially contributed to the contraction of the disease. That may well be true of his own speech, given the interpretation which he had sought to place on the speeches in McGhee. In my view, however, it is not true of the speech of Lord Bingham who referred to six conditions and said, [2003] 1 AC 32, 68B, para 34:
“Where those conditions are satisfied, it seems to me just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him.”
That is an exact transposition of the reasoning of Lord Reid to the circumstances of Fairchild. And Lord Bingham is indeed saying that in these circumstances someone who exposes the victim to a risk to which he should not have been exposed is to be treated as making a material contribution to the victim’s contraction of the condition against which it was his duty to protect him. It was on this basis that Lord Bingham concluded that the appeals should be allowed – because the plaintiffs had proved that the defendants had caused the men’s death or injury. This is scarcely surprising since the plaintiffs’ appeals were argued on exactly that basis.
Lord Nicholls of Birkenhead puts the point somewhat differently, at p 70B-C, para 42:
“So long as it was not insignificant, each employer’s wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established.”
For Lord Nicholls, proof that an employer wrongfully exposed his employee to the risk of contracting mesothelioma should be regarded as a sufficient degree of causal connexion to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of mesothelioma. He does not go on to adopt the formula of equating materially contributing to the risk of the illness with materially contributing to the contraction of the illness. On the other hand, there is nothing to suggest that he considered that the damage which the defendants should be regarded as having caused was the creation of a risk that the victim would develop mesothelioma.
Lord Hutton adopted an entirely traditional analysis, but felt able to infer, as a matter of fact, that the defendants had materially contributed to the victims’ mesothelioma. For my own part, in the passage from para 168 of my speech which Lord Hoffmann quotes, I was doing nothing more than applying the approach in McGhee and, quite openly, making the connexion between proof that the defendants had increased the risk of the victims developing mesothelioma and proof that the defendants had materially contributed to their illness. Naïvely – as your Lordships’ speeches must now convince me – I had thought that, whether under the Fatal Accidents Act 1976 or at common law, this was a necessary step in the chain of reasoning if the appeals were to be allowed on the basis of McGhee.
Given the terms of Lord Bingham’s speech, with which I agreed, and given the terms of my own speech, it respectfully appears to me to be impossible to say that in Fairchild the majority of the House decided the case simply on the basis that the creation of a material risk of mesothelioma “would suffice” for liability. That is to ignore the further stage in the reasoning – derived fair and square from the reasoning of the majority in McGhee – that in cases of this kind there is, in Lord Bingham’s words, at p 55F-G, para 21, “no distinction” between making a material contribution to causing the disease and materially increasing the risk of the victim contracting it. When that stage was included, by proving that the defendants had materially increased the risk of the victim contracting mesothelioma, the plaintiffs had proved that the defendants had made a material contribution to causing the disease and were accordingly liable for causing it. Reading the speeches as though they were saying something different is unlikely to make an already difficult topic any easier.
In para 36 of his speech today Lord Hoffmann says:
“consistency of approach would suggest that if the basis of liability is the wrongful creation of a risk or chance of causing the disease, the damage which the defendant should be regarded as having caused is the creation of such a risk or chance.”
That may well be so if the dominant aim is to secure internal consistency between the basis of liability and the nature of the damage. But the reasoning in McGhee [1973] 1 WLR 1 and Fairchild [2003] 1 AC 32 indicates that the House was primarily concerned to maintain a consistency of approach with the main body of law on personal injuries. Under that law victims recover damages because the defendants’ wrongful act has materially contributed to them becoming ill, not because it has created a risk that they will become ill. By reasoning as they did, the members of the House minimised the disruption to this long-settled aspect of the law.
The new analysis which the House is adopting will tend to maximise the inconsistencies in the law by turning the Fairchild exception into an enclave where a number of rules apply which have been rejected for use elsewhere in the law of personal injuries. Inside the enclave victims recover damages for suffering the increased risk of developing mesothelioma (or suffering the loss of a chance of not developing mesothelioma) while, just outside, patients cannot recover damages for suffering the increased risk of an unfavourable outcome to medical treatment (or suffering the loss of a chance of a favourable outcome to medical treatment). On the other hand, if such a claim had been recognised outside the enclave, the patient would have been entitled to recover damages for the increased likelihood that he would suffer a premature death, whereas inside the enclave a victim who suffers an increased risk of developing mesothelioma cannot recover damages unless he actually develops it. Inside the enclave claimants whose husbands die of mesothelioma receive only, say, 60% of their damages if the court considers that there is a 60% chance that the defendant caused the death and no other wrongdoer is solvent or insured. Outside the enclave, claimants whose husbands are killed in an accident for which the only solvent defendant is, say, 5% to blame recover the whole of their damages from that defendant.
Why, then, is the House spontaneously embarking upon this adventure of redefining the nature of the damage suffered by the victims? The majority are not just on a mission to tidy up the reasoning in McGhee and Fairchild. Their aim is to open the way to making each defendant severally liable for a share of the damages, rather than liable in solidum for the whole of the damages. This is said to be a preferable, fairer, solution when the defendants are found liable for creating the risk of illness rather than for causing it.
Certainly, as a matter of legal logic, it would be open to the House to hold that since on the reasoning in McGhee and Fairchild the defendants are ultimately held liable for materially contributing to the victims’ mesothelioma, they should be held liable in solidum like any other concurrent tortfeasors whose separate wrongful acts combine to produce indivisible harm. That was indeed one of the main submissions for the claimants – and I would accept it. Mr Stuart-Smith countered by arguing that, since the Fairchild exception involved adjusting the rules on causation, so equally the House should be prepared to adjust the rules on liability and apportion it among the defendants. That would be a powerful argument indeed if there were actually any logical or otherwise compelling connexion between the Fairchild exception and the introduction of several liablity which the defendants seek. In truth, there is not.
So long as all the defendants and possible defendants are solvent or insured, the application of liability in solidum causes them no problems and makes life simple for the claimant. A defendant or insurer who pays the claimant’s damages can recover the appropriate contribution from the other defendants and their insurers under the Civil Liability (Contribution) Act 1978. In asbestosis cases insurers have been operating such a system among themselves for decades, with contributions being based on the plaintiff or pursuer’s periods of work with various employers. And, following the judgment of the House in Fairchild which, in the absence of argument, provided for joint and several liability, insurers introduced a somewhat similar scheme for mesothelioma cases in England and Wales in their Guidelines for Apportioning and Handling Employers’ Liability Mesothelioma Claims.
As Mr Gore QC rightly emphasised on behalf of Mr Patterson, the real reason why the defendants want to get rid of liability in solidum is that quite a number of the potential defendants and their insurers in the field of mesothelioma claims are insolvent. So, if held liable in solidum, solvent defendants or, more particularly, their insurers will often find that they have to pay the whole of the claimant’s damages without in fact being able to obtain a contribution from the other wrongdoers or their insurers, if any. So their only hope of minimising the amount they have to pay out by way of damages is to have liability to the claimant apportioned among the wrongdoers. Therefore they are asking for the introduction of apportionment because of this entirely contingent aspect of the situation regarding mesothelioma claims. If Fairchild-exception claims had first arisen in an area where the wrongdoers and their insurers were in good financial heart, matters could have been resolved satisfactorily for all concerned on the basis of liability in solidum and the use of the Civil Liability (Contribution) Act 1978.
Of course, it may seem hard if a defendant is held liable in solidum even though all that can be shown is that he made a material contribution to the risk that the victim would develop mesothelioma. But it is also hard – and settled law – that a defendant is held liable in solidum even though all that can be shown is that he made a material, say 5%, contribution to the claimant’s indivisible injury. That is a form of rough justice which the law has not hitherto sought to smooth, preferring instead, as a matter of policy, to place the risk of the insolvency of a wrongdoer or his insurer on the other wrongdoers and their insurers. Now the House is deciding that, in this particular enclave of the law, the risk of the insolvency of a wrongdoer or his insurer is to bypass the other wrongdoers and their insurers and to be shouldered entirely by the innocent claimant. As a result, claimants will often end up with only a small proportion of the damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me.
Nor do I find useful guidance for the position in this country in the examples of several liability from the United States. When introducing comparative fault legislation – similar to the Law Reform (Contributory Negligence) Act 1945 – some states have thought it necessary or desirable to depart from a system of joint and several liability. Parliament made no such change in this country. Jury awards of punitive damages and the multitude of suits by persons suffering no symptoms of mesothelioma are special factors which help to explain why insurers in the United States have been engulfed by a crisis for which various forms of several liability may afford some relief. I am prepared to assume that insurers in this country are also faced with problems arising out of the post-Fairchild mesothelioma awards, even though, quite properly, the House was given no specific information about the scale of these difficulties. That information would, of course, be very relevant if Parliament were being asked to legislate to assist the insurers at the expense of the victims of mesothelioma and their relatives. In the meantime, however, I would adhere to the usual rule of liability in solidum which applies generally to defendants who are held to have made a material contribution to indivisible injuries such as mesothelioma.
Application of Fairchild
This issue arises only in the case concerning the death of Mr barker. As Lord Hoffmann has explained, on the facts found by Moses J, Mr barker was exposed to asbestos dust during three periods. The first was when he worked for Graessers Ltd for six weeks in 1958. The judge found that the company were at fault, since they should have known of the risks and should have taken precautions. The second period was between April and October 1962, while he was working for Corus. Corus accept that they were at fault. The third was during a period when he was a self-employed plasterer between 1968 and 1975. In particular, the judge found that he was exposed to asbestos dust on three occasions in about 1974 and 1975: when he cut asbestos sheets at the builders Neville Wood, when he did the same for other builders, Hedley Greenslade, and when he worked for Roger Williams on pipes lagged with asbestos at Courtauld’s.
Before Moses J and the Court of Appeal, counsel for Corus argued that the fact that Mr barker was self-employed when exposed to the dust was sufficient to take the case outside the scope of the decision in Fairchild, which should not be construed as applying to cases where the deceased may have inhaled asbestos dust without a breach of duty by anyone. The judge rejected that argument, as did the Court of Appeal. They held that justice was best served by applying the Fairchild exception but reducing the damages to be awarded by 20% to reflect Mr barker’s failure to take proper precautions for his own safety in 1974 and 1975.
In the hearing before the House Mr Stuart-Smith for Corus emphasised that the key factor was not whether a victim had been self-employed when an exposure occurred but whether there had been a period when he, and no-one else, had been responsible for his exposure to asbestos dust. For instance, duties under the Asbestos Regulations 1969 (SI 1969/690) could be owed to self-employed persons hired to carry out a particular process, just as much as to an employee. In that situation the Fairchild principle would apply in full measure. If, on the other hand, for example, someone pulled down an old shed in his garden which had been lined with asbestos boards, he and he alone might be responsible for his exposure to the asbestos dust and, if the exposure could be regarded as material, the Fairchild exception would not apply.
There is no evidence about the exact nature of Mr barker’s work on the three occasions in 1974 and 1975. Although the point was not explored before the House, it seems at least possible that, if Mr barker was at fault in failing to take the necessary precautions, as the judge found, those for whom he cut asbestos sheets or worked on asbestos-lagged pipes may also have been at fault under the Asbestos Regulations 1969. In that eventuality, the proper analysis would be that his exposure was partly due to the fault of those for whom he worked and partly due to his own contributory fault. That would bring the case squarely within the scope of Fairchild, but some allowance would have to be made for the deceased’s fault in relation to those incidents.
I therefore respectfully share the doubts of my noble and learned friend, Lord Walker of Gestingthorpe, about the claimant’s concession. Assuming, however – as is conceded – that Mr barker was solely at fault, how does that affect the position? Discussion ranged fairly widely. Since the decision in Fairchild had been based on McGhee, it was, nevertheless, common ground that Fairchild must apply in cases where the claimant has been exposed to asbestos by a number of employers or occupiers, all of whom were at fault, but one or more of whom may also have exposed him lawfully to asbestos dust. I had suggested as much in Fairchild, [2003] 1 AC 32, 119, para 170.
Starting from “the McGhee extension”, counsel considered whether Fairchild would apply where one or more of the sources of exposure to asbestos dust had been lawful but unconnected with any wrongdoer. For instance, the victim had been employed for a period before the dangers of exposure to asbestos dust should have been known in the industry and there had been no fault on the part of the employer. Having reserved my opinion on the point in Fairchild, I would now hold that the rule should apply in that situation.
The Fairchild problem arises because the victim has been exposed to asbestos dust while working for a number of employers and, in the present state of scientific knowledge, it is impossible to say which employer was responsible for the fibre which led to the mesothelioma. So, if the usual test for proof of causation is applied, the claimant will be unable to obtain damages. In deciding whether or not to apply a more relaxed rule relating to causation, the House was concerned to recognise and to weigh the potential injustices to the claimant and defendants respectively. In the circumstances of those three cases, the House held that there would be greater injustice in sticking to the usual test and giving no remedy to the claimant than in applying a more relaxed standard and holding the defendants liable. The result was that a defendant was held liable to pay damages even though the unlawful act of one of the other wrongdoers might have been the actual cause of the victim’s mesothelioma.
Assume for the sake of argument, however, that one of several periods of exposure to asbestos dust occurred before the risks should have been appreciated in the industry. That is, of course, a conclusive reason for not holding the relevant employer liable. If the Fairchild exception applies in that situation, a wrongdoer may be held liable even though the victim was injured either by another employer’s wrongful act or by another employer’s lawful act. Putting the point differently, the claimant may recover even though the victim’s illness may not have been caused by any tort at all. But the McGhee extension already shows that the exception can apply in such circumstances. And, weighing the potential injustices, it seems right to apply it in this case too. An employer may well feel aggrieved because, under the Fairchild exception, he is held liable, even though not his, but some other employer’s, wrongful exposure may have caused the victim’s injury. But he can scarcely claim to feel more aggrieved just because one of the other employers was acting lawfully when he may have caused the victim’s injury. In that sense, as between the victim and a wrongdoing employer, the lawfulness or unlawfulness of the exposure by any other employer is irrelevant. The balance of potential injustice between the victim and the wrongdoers in applying the rule remains in favour of the victim. I agree with your Lordships on this point.
Different factors are in play, however, where – and such cases are likely to be extremely rare – the victim was himself solely responsible for a material exposure to asbestos dust. In that situation, in weighing the potential injustices, as between the victim and the wrongdoing defendants, of sticking to the usual test for proof of causation or applying the Fairchild exception, the fact that the victim may have caused his own injury cannot be irrelevant – especially if, as here, the victim was at fault. Applying the Fairchild exception in such a case would involve tipping the balance even further in the victim’s favour.
If the defendants’ liability under the Fairchild exception had been in solidum, in my view the potential injustice to a defendant in applying the exception in a case where the victim was solely responsible for a material exposure to asbestos dust would have been too great. On that basis I would have favoured applying the normal rule for proof of causation. The majority conclusion is, however, that a defendant’s liability is to be several only. This involves such a major reduction in the scope of the defendants’ liability that, on that basis, I too would conclude that the balance of potential injustices favours applying the Fairchild exception.
For these reasons, in respectful disagreement with your Lordships, I would have dismissed the defendants’ appeals on the question of apportionment. But, having regard to the majority conclusion that the defendants’ liability is to be several, I would dismiss the appeal by Corus in the barker case and hold them liable on the basis of the Fairchild exception.
Lubbe and Others and Cape Plc. and Related Appeals
[2000] UKHL 41 [2000] 1 WLR 1545, [2000] UKHL 41, [2000] 4 All ER 268, [2000] WLR 1545
LORD BINGHAM OF CORNHILL
“….
The present cases
The issues in the present cases fall into two segments. The first segment concerns the responsibility of the defendant as a parent company for ensuring the observance of proper standards of health and safety by its overseas subsidiaries. Resolution of this issue will be likely to involve an inquiry into what part the defendant played in controlling the operations of the group, what its directors and employees knew or ought to have known, what action was taken and not taken, whether the defendant owed a duty of care to employees of group companies overseas and whether, if so, that duty was broken. Much of the evidence material to this inquiry would, in the ordinary way, be documentary and much of it would be found in the offices of the parent company, including minutes of meetings, reports by directors and employees on visits overseas and correspondence.
The second segment of the cases involves the personal injury issues relevant to each individual: diagnosis, prognosis, causation (including the contribution made to a plaintiff’s condition by any sources of contamination for which the defendant was not responsible) and special damage. Investigation of these issues would necessarily involve the evidence and medical examination of each plaintiff and an inquiry into the conditions in which that plaintiff worked or lived and the period for which he did so. Where the claim is made on behalf of a deceased person the inquiry would be essentially the same, although probably more difficult.
In his review of the Lubbe case, which was alone before him, Mr. Kallipetis considered that the convenience of trying the personal injury issues in South Africa outweighed any benefit there might be in trying the parent company responsibility issue here. That was in my opinion a tenable though not an inevitable conclusion on the case as then presented. The two reasons given by the first Court of Appeal for disturbing that exercise of judgment are not to my mind convincing. Mr. Kallipetis’ judgment does not suggest that he overlooked the way in which the plaintiffs put their case, although he did not express it very clearly (perhaps because the pleading was not very clear). The first Court of Appeal thought it undermined the defendant’s application for a stay that the South African forum only became available as a result of the defendant’s undertaking to submit, but for reasons given by my noble and learned friend Lord Hope of Craighead (with which I fully agree) this was not a factor which should have weighed in the balance either way. I would not accept the argument advanced by the plaintiffs on this point. I question whether the first Court of Appeal was justified in disturbing Mr. Kallipetis’ conclusion and substituting its own. But its own assessment of the balance between the parent company responsibility issue and the personal injury issues is not shown to be unreasonable or wrong. On the case as then presented there was room for the view that South Africa was not shown to be a clearly more appropriate forum. This is a field in which differing conclusions can be reached by different tribunals without either being susceptible to legal challenge. The jurisdiction to stay is liable to be perverted if parties litigate the issue at different levels of the judicial hierarchy in the hope of persuading a higher court to strike a different balance in the factors pointing for and against a foreign forum.
The emergence of over 3,000 new plaintiffs following the decision of the first Court of Appeal had an obvious and significant effect on the balance of the proceedings. While the parent company responsibility issue remained very much what it had always been, the personal injury issues assumed very much greater significance. To investigate, prepare and resolve these issues, in relation to each of the plaintiffs, would plainly involve a careful, detailed and cumbersome factual inquiry and, at least potentially, a very large body of expert evidence. In this changed situation Buckley J., applying the first stage of the Spiliada test, regarded South Africa as clearly the more appropriate forum for trial of the group action and the second Court of Appeal agreed. Both courts were in my view plainly correct. The enhanced significance of the personal injury issues tipped the balance very clearly in favour of South Africa at the first stage of the Spiliada exercise, and no effective criticism has been made of that conclusion. The brunt of the plaintiffs’ argument on these appeals to the House has been directed not against the decisions of Buckley J. and the second Court of Appeal on the first stage of the Spiliada test but against their conclusion that the plaintiffs had not shown that substantial justice would not be done in the more appropriate South African forum.
Funding
The plaintiffs submitted that legal aid in South Africa had been withdrawn for personal injury claims, that there was no reasonable likelihood of any lawyer or group of lawyers being able or willing to fund proceedings of this weight and complexity under the contingency fee arrangements permitted in South Africa since April 1999 and that there was no other available source of funding open to the plaintiffs. These were, they argued, proceedings which could not be effectively prosecuted without legal representation and adequate funding. To stay proceedings in England, where legal representation and adequate funding are available, in favour of the South African forum where they are not would accordingly deny the plaintiffs any realistic prospect of pursuing their claims to trial.
The defendant roundly challenged these assertions. Reliance was placed on the facts that the plaintiffs had not applied for legal aid in South Africa before its withdrawal and had made no determined effort to obtain funding in South Africa. Even if legal aid was no longer available in South Africa, contingency fee agreements were now permissible and it was unrealistic to suppose that South African counsel and attorneys would be any less ready to act than English counsel and solicitors if the claims were judged to have a reasonable prospect of success. If contingency fee arrangements could not be made in South Africa because South African counsel and attorneys did not judge the claims to have a reasonable prospect of success, that did not involve a denial of justice to the plaintiffs. In any event there were other potential sources of assistance available to the plaintiffs in South Africa.
The material placed before the House (and the lower courts) relevant to these issues is very extensive and cannot conveniently be summarised. The following conclusions are in my opinion to be drawn from it:
1) The proceedings as now constituted can only be handled efficiently, cost-effectively and expeditiously on a group basis. It is impossible at this stage to predict with accuracy what procedural directions might on that basis be given in future (although the directions could only relate to the conduct of proceedings in England). Obvious possibilities include the trial of a preliminary issue on the parent company responsibility question and the trial of selected lead cases to test the outcome in different factual situations. It would be very highly desirable, if possible, to avoid determination of these claims on a plaintiff by plaintiff basis.
2) The plaintiffs’ claims raise a serious legal issue concerning the duty of the defendant as a parent company, and it would be necessary to decide whether that duty was governed by English or South African law. If a duty were held to exist, there would be a serious factual issue whether the defendant was in breach of it. If the plaintiffs were successful on these questions, the personal injury issues would have, even in the context of a group action, to be investigated, prepared and quantified. This would be a heavy and difficult task. It could only be done by, or under the supervision of, professional lawyers. It would call for high quality expert advice and evidence, certainly on medical and industrial issues, very possibly on other issues also. I see no reason to question the judgment of a South African attorney instructed by the defendant who swore:
“The magnitude and complexity of both the factual and legal issues will require the application in South Africa of considerable financial resources and manpower, if there is to be any reasonable prospect of addressing the plaintiffs’ allegations meaningfully.”
It is significant that Professor Unterhalter, an independent expert approached by the defendant, observed:
“Detailed expert evidence would be required on a number of aspects of the matter. Without agreement between the parties as to how the issues might be limited, I would venture no opinion as to the length and magnitude of this litigation, save to say that it is likely to be drawn out and complex, and would almost certainly come before the Supreme Court of Appeal in due course.”
3) A possibility must exist that the proceedings may culminate in settlement. The plaintiffs confidently predict such an outcome if they succeed on the parent company responsibility issue. But the defendant has given no indication that the claims will not be fully contested. In the Spiliada case Staughton J. thought it right to decide the stay application on the assumption that there would be a trial, and it would seem to me wrong in principle to reject a submission that justice will not be done in a foreign forum on the basis of a speculative assumption that, if a stay is granted, proceedings in the foreign forum will culminate in a just settlement without the need for a trial.
4) In a letter dated 20 September 1999 to Leigh, Day and Company representing some of the plaintiffs, the Legal Aid Board of South Africa wrote:
“It will however be of interest to you to note that on 13 September 1999 the Legal Aid Board resolved, because of the financial crisis faced by it, as per the attached letter to the Minister of Justice, to exclude from the operation of the legal aid scheme operated by the South African Legal Aid Board with effect from 1 November 1999 funding in respect of personal injury claims and all other claims sounding in the money.”
Other material before the House makes plain that before this decision the Legal Aid Board had experienced a period of extreme financial stringency. Despite suggestions to the contrary there is no convincing evidence to suggest that legal aid might be made available in South Africa to fund this potentially protracted and expensive litigation. Written submissions on behalf of the Republic of South Africa contain no hint that public funds might, exceptionally, be made available to fund it.
5) The South African Contingency Fees Act (No. 66 of 1997) sanctioned a new regime similar (although not identical) to that governing conditional fees in this country. It enables counsel and attorneys to undertake work for plaintiffs on the basis that if the claim is successful they will receive a fee in excess of that ordinarily chargeable, and that they receive nothing if the claim fails. This regime does not apply to the fees of expert witnesses, who may not be engaged on the basis that they are paid only if the plaintiff by whom they are called is successful. The defendant referred to an affidavit sworn by very experienced South African counsel who deposed:
“In my view, if a firm of attorneys with a reasonable infra-structure is of the view that the claims of the present Plaintiffs are good, this would mean that the firm would be able to earn very substantial sums of money by way of fees. At the same time, one should not lose sight of the fact that this case is likely to have a very high profile and that the Plaintiffs’ attorney/s would be accorded a great deal of positive publicity in the media. This would be a further inducement to take on a case of this nature. There is every reason to believe that there would be no shortage of firms of attorneys who would be desirous of taking on such a case if they believed that it had good prospects of success.
“Accordingly, if there are attorneys in South Africa who are as positive about the prospects of success as [the plaintiffs’ solicitor] is (as conveyed in his affidavit), I feel sure that there will be no lack of attorneys in South Africa prepared to represent these plaintiffs under Contingency Fee arrangements.”
This very general assertion of belief by a member of the Bar was flatly contradicted by a number of other equally distinguished counsel who provided sworn statements to the plaintiffs, and counsel for the defendant indicated that he placed no reliance on it. More significantly, it received no support from any practising attorney, and it would be attorneys who would be required, if these proceedings were undertaken for the plaintiffs on a contingency fee basis, to finance the investigation of the claims, the obtaining and calling of evidence and the conduct of the trial during a period which would inevitably last for months and, very much more probably, years. The clear, strong and unchallenged view of the attorneys who provided statements to the plaintiffs was that no firm of South African attorneys with expertise in this field had the means or would undertake the risk of conducting these proceedings on a contingency fee basis. The defendant suggested that financial support and professional assistance might be given to the plaintiffs by the Legal Resources Centre, but this suggestion was authoritatively contradicted. In a recent affidavit the possibility was raised that assistance might be forthcoming from the European Union Foundation for Human Rights in South Africa, but the evidence did not support the possibility of assistance on the scale necessary to fund this litigation.
6) If these proceedings were stayed in favour of the more appropriate forum in South Africa the probability is that the plaintiffs would have no means of obtaining the professional representation and the expert evidence which would be essential if these claims were to be justly decided. This would amount to a denial of justice. In the special and unusual circumstances of these proceedings, lack of the means, in South Africa, to prosecute these claims to a conclusion provides a compelling ground, at the second stage of the Spiliada test, for refusing to stay the proceedings here.
7) The conclusions on the funding issue reached by the second Court of Appeal did not in my opinion take account of the evidence, which did not permit the finding which the court made.
The plaintiffs, as a ground for challenging the appropriateness of the South African forum, relied on the absence of established procedures in South Africa for handling group actions such as the present. They compared that situation with the procedural situation here, where the conduct of group actions is governed by a recently-developed but now tried and established framework of rules, practice directions and subordinate legislation. I do not regard this objection, standing alone, as compelling. It involves the kind of procedural comparison which the English court should be careful to eschew (Spiliada, page 482: Connelly, page 872), and the evidence is clear that South African courts have inherent jurisdiction to adopt procedures appropriate to the cases they are called upon to handle. There is force in the observations of Pill L.J. ([2000] 1 Lloyd’s Rep. 139 at 162):
“I am entirely unpersuaded by arguments that the South African High Court would be unable to handle these actions efficiently either on the ground that there are territorial divisions within South Africa or because there is at present no procedure expressly providing for group actions. It is common ground that the law potentially to be applied is the same throughout South Africa.
“In England, there has been a vast amount of litigation by victims of asbestos dust without resort to group actions. Whether by a form of group action or otherwise, I have no doubt that the High Court of South Africa will be able to devise and adopt suitable procedures for the efficient despatch of business such as this. None of the evidence or submissions on behalf of the plaintiffs suggests any significant obstacle to that efficient despatch by the Court of cases before it.”
I do, however, think that the absence, as yet, of developed procedures for handling group actions in South Africa reinforces the submissions made by the plaintiffs on the funding issue. It is one thing to embark on and fund a heavy group action where the procedures governing the conduct of the proceedings are known to and understood by experienced judges and practitioners. It may be quite another where the exercise is novel and untried. There must then be an increased likelihood of interlocutory decisions which are contentious, with the likelihood of appeals and delay. It cannot be assumed that all judges will respond to this new procedural challenge in the same innovative spirit. The exercise of jurisdiction by the South African High Court through separate territorial divisions, while not a potent obstacle in itself, could contribute to delay, uncertainty and cost. The procedural novelty of these proceedings, if pursued in South Africa, must in my view act as a further disincentive to any person or body considering whether or not to finance the proceedings.
Third Parties
Both before Buckley J. and the second Court of Appeal it was contended by the defendant and accepted as a factor pointing towards the appropriateness of the South African forum that the defendant, if sued there, could make and enforce claims against third parties who could be shown to have contributed to the plaintiffs’ condition, whereas it might be difficult to join such parties and enforce judgments if the actions were pursued here. The plaintiffs have sought to meet this point by questioning whether, in truth, the defendant has disclosed any potential claim against an identified third party with assets or insurance sufficient to meet any significant claim; by relying on Court of Appeal authority (Holtby v. Brigham & Cowan (Hull) Ltd., unreported, 6 April 2000) for the proposition that a defendant is only liable for such proportion of a plaintiff’s damage as he is shown to have caused; and by formally undertaking, in asbestos (but not mesothelioma) cases, to limit their claim to compensation for loss and damage for asbestos-related disease to such sum as would reflect the proportion of a plaintiff’s total asbestos exposure as was shown to be the defendant’s responsibility. The courts below were in my judgment right to treat the third party consideration as one strengthening the appropriateness of the South African forum, but I am persuaded by the plaintiffs’ response that the refusal of a stay will not expose the defendant to a significant risk of prejudice so long as any new claimants are admitted to the group only upon their binding themselves by the undertaking of the present plaintiffs.
Article 6 of the European Convention on Human Rights
The plaintiffs submitted that to stay these proceedings in favour of the South African forum would violate the plaintiffs’ rights guaranteed by Article 6 of the European Convention since it would, because of the lack of funding and legal representation in South Africa, deny them a fair trial on terms of litigious equality with the defendant. For reasons already given, I have concluded that a stay would lead to a denial of justice to the plaintiffs. Since, as Spiliada makes clear, a stay will not be granted where it is established by cogent evidence that the plaintiff will not obtain justice in the foreign forum, I cannot conceive that the court would grant a stay in any case where adequate funding and legal representation of the plaintiff were judged to be necessary to the doing of justice and these were clearly shown to be unavailable in the foreign forum although available here. I do not think Article 6 supports any conclusion which is not already reached on application of Spiliada principles. I cannot, however, accept the view of the second Court of Appeal that it would be right to decline jurisdiction in favour of South Africa even if legal representation were not available there.
Public Interest
Both the plaintiffs and the defendant placed reliance on public interest considerations as strengthening their contentions that these proceedings should be tried in the forum for which they respectively contended. I agree with my noble and learned friend Lord Hope of Craighead, for the reasons which he gives, that public interest considerations not related to the private interests of the parties and the ends of justice have no bearing on the decision which the court has to make. Where a catastrophe has occurred in a particular place, the facts that numerous victims live in that place, that the relevant evidence is to be found there and that site inspections are most conveniently and inexpensively carried out there will provide factors connecting any ensuing litigation with the court exercising jurisdiction in that place. These are matters of which the Spiliada test takes full account. It is important that the focus should remain on the principle so clearly stated by Lord Kinnear: in applying this principle questions of judicial amour propre and political interest or responsibility have no part to play.
Article 2 of the Brussels Convention
The House received and heard erudite argument on the applicability of Article 2 of the Brussels Convention to a case such as the present. The plaintiffs submitted that the court was precluded by Article 2 from granting a stay. The defendant argued that the jurisdiction of the court to grant a stay in favour of a forum in a non-contracting state was unaffected by Article 2. The correctness of the Court of Appeal decision in In re Harrods (Buenos Aires) Ltd. [1992] Ch. 72 was in issue. Both parties argued that the answer for which they respectively contended was clearly correct. If it was not, the plaintiffs invited the House to seek a ruling from the European Court of Justice, a course which the defendant resisted.
For reasons already given, I am unwilling to stay the plaintiffs’ proceedings in this country. It is accordingly unnecessary to decide whether the effect of Article 2 is to deprive the English court of jurisdiction to grant a stay in a case such as this. Had it been necessary to resolve that question, I would have thought it necessary to seek a ruling on the applicability on Article 2 from the European Court of Justice, since I do not consider the answer to that question to be clear.
Conclusion
I would dismiss the defendant’s appeal against the decision of the first Court of Appeal. I would allow the plaintiffs’ appeal against the decision of the second Court of Appeal and remove the stay which that court upheld. The defendant must bear the costs of both appeals, and also the costs of the proceedings before Buckley J. and the second Court of Appeal.”
Fletcher v. Commissioner of Public Works
[2003] IESC 13 [2003] 1 IR 465, [2003] 2 ILRM 94
Keane CJ
The nature of the “personal injury” suffered by the plaintiff.
17. It is clear that, if the risk of contracting mesothelioma to which the plaintiff was subjected was associated with some existing physical injury which the plaintiff had suffered as a result of the defendant’s negligence, he would be entitled to damages in respect of that risk, just as a plaintiff who suffers a fracture of a limb giving rise to the risk of arthritis in the future is entitled to be compensated for that risk.
18. Section 2 of the Civil Liability Act 1961 provides that
” ‘Personal Injury’ includes any disease and any impairment of a person’s physical or mental condition and ‘injured’ shall be construed accordingly.”
19. In this case, as Professor Clancy’s evidence made clear, the plaintiff’s physical condition was not impaired by his exposure to the asbestos dust. It is true that, having regard to the use of the word “includes”, the statutory definition may not have been intended to be exhaustive and that, at common law, the plaintiff might have been regarded as having suffered a “personal injury”, in the sense that, as a result of his employer’s acts and omissions, he had inhaled asbestos fibres, some of which at least had probably remained within his system.
20. It is, however, the fact that not only did Professor Clancy say that the plaintiff was not manifesting any physical symptoms of ill health resulting from his exposure to the asbestos dust: he considered the risk of his contracting mesothelioma as “very remote”. He was not invited to quantify the extent of the risk in any way and it is difficult to see how, in those circumstances, the trial judge could have embarked on an assessment of damages in respect of that risk. It is, of course, quite common in personal injuries cases where, for example, a claim is made that the plaintiff has been exposed to a risk of suffering epilepsy in later life as a result of his physical injuries for evidence to be led as to the quantification of the risk, i.e., 5%, 10% or as the case may be.
21. In the present case, there was no such evidence and the trial judge confined his assessment of damages to those which, in his view, sufficiently compensated the plaintiff for the psychiatric injury from which he suffered, consequent upon his being informed that he was exposed to the risk of contracting mesothelioma. I am, accordingly, satisfied that the case should also be approached on that basis in this court.
22. The issue, accordingly, which this court has to resolve is whether the plaintiff was entitled to recover damages for the impairment of his “mental condition” which, according to the evidence of the psychiatrist, has resulted from his exposure to the risk of contracting mesothelioma, a risk which, it is beyond argument, was created by the failure of the defendants to take the precautions which a reasonable employer would have taken to ensure that he was not exposed to any such risk.
23. That in turn depends, initially at least, on whether the consequences which have ensued for the plaintiff ought reasonably to have been foreseen by the defendants. (It is unnecessary , in my view, to arrive at any conclusion as to whether this is so because, if the personal injury was not foreseeable, liability in negligence cannot arise or because, if it was not foreseeable, the damage was too remote. In either case, reasonable foreseeability is a precondition to liability. )The question as to whether those consequences were reasonably foreseeable cannot, of course, be answered by assessing the state of knowledge of the defendants at the material time. The test is an objective one, i.e., as to whether a reasonable person would have foreseen that the consequences suffered by the plaintiff might be the result of the defendant’s want of care. Moreover, as Lord Bridge of Harwich pointed out in McLoughlin –v- O’Brian (1983) AC 410 at p433, the court must assume in applying this test that the hypothetical reasonable person would be properly informed as to the real, painful and disabling nature of psychiatric illness and would not dismiss the possibility of the plaintiff becoming subject to a similar illness simply because it is less susceptible to precise medical diagnosis and treatment than at least some purely physical disorders.
Recovery of damages for psychiatric illness.
24. However, the fact that it is reasonably foreseeable that particular acts or omissions will cause loss or injury to another person does not, of itself, give rise to liability in negligence. There must also be what judges have called, as the law has evolved, a relationship of “proximity” between the plaintiff and the defendant which gave rise to the legal duty to take care that the foreseeable consequence was avoided. That, of itself, does not present any difficulty for the plaintiff: if this were a case in which the injuries sustained by him were purely physical, then, given that they were the foreseeable consequence of the actions or omissions of the defendants as his employer there would, of course, be not the slightest difficulty in concluding that the latter were liable in negligence.
25. Nor is the fact that the injury of which the plaintiff complains, is purely psychiatric sufficient of itself to relieve the defendants from the consequences of their actions and omissions in the present case: since Bell & Another –v- The Great Northern Railway Company of Ireland(1890) 26 LR (Ir) 428 (following the earlier unreported decision of Byrne –v- Great Southern and Western Railway Company), it has been the law in Ireland that a plaintiff who sustains what has usually been described as “nervous shock”, even where unaccompanied by physical injury can recover damages, where the other ingredients of negligence are established. It was undoubtedly the law that damages were not recoverable for grief or sorrow alone: no degree of mental anguish arising from the wrongful acts or omissions of another was compensatable at common law. But nervous shock, even where there was no physical injury or even fear of such injury, was compensatable when caused by the negligence of the defendant.
26. The circumstances in which damages for nervous shock are recoverable were set out as follows by Hamilton CJ in Kelly –v- Hennessy:
“1.The plaintiff must establish that he/she actually suffered ‘nervous shock’. This term has been used to describe ‘any recognisable psychiatric illness’ and a plaintiff must prove that he/she suffered a recognisable psychiatric illness if he/she is to recover damages for ‘nervous shock’.
2. A plaintiff must establish that his/her reasonable psychiatric illness was ‘shock induced’…
3. A plaintiff must prove that the nervous shock was caused by a defendant’s act or omission…
4. The nervous shock sustained by a plaintiff must be by reason of actual or apprehended physical injury to the plaintiff or a person other than the plaintiff…
5. If a plaintiff wishes to recover damages for negligently inflicted nervous shock he must show that the defendant owed him/her a duty of care not to cause him a reasonably foreseeable injury in the form of nervous shock”.
27. In the present case we are not concerned with the difficulties that have arisen in the United Kingdom in determining, subsequent to the decision of the House of Lords in McLoughlin –v-O’Brian, the boundary, if any, that should be drawn in allowing plaintiffs to recover damages for nervous shock where the plaintiff himself is not affected by such nervous shock because of his direct involvement in the accident or event brought about by the defendant’s negligence, as was the case in Byrne –v Great Southern and Western Railway Company of Ireland and Bell & Another –v- The Great Northern Railway Company of Ireland. In particular, we are not, in my view, concerned with the distinction drawn in such cases between what have been described as “primary victims” and “secondary victims”.
28. The plaintiff in Kelly –v- Hennessy had not been present at the car accident which gave rise to the proceedings and which had been caused by the negligence of the defendant. Her husband and two daughters were, however, victims of the accident and the plaintiff, having been informed of this by telephone, went to the hospital and saw them suffering from grievous injuries which had resulted in each case in permanent brain damage. As a result of that experience, she suffered from a recognizable psychiatric disorder. The plaintiff thus belonged to what in the subsequent English decisions was described as a category of “secondary victims” and this court, unanimously upholding the decision of the High Court, concluded that the fact that she was not a “primary victim” as were the members of her family, did not preclude her from recovering damages, provided the conditions which I have cited from the judgment of Hamilton CJ were met. (The distinction indeed is not referred to in the judgment of the learned Chief Justice, although it is mentioned in the judgment of Denham J.)
29. It had been made clear by Lord Wilberforce in his speech in McLoughlin -v- O’Brian that, in such cases, the law would have to place some limitations on the extent of admissible claims and the subsequent decisions of the same tribunal in Alcock & Others -v- Chief Constable of South Yorkshire Police (1992) I AC 310 and White -v- Chief Constable of South Yorkshire Police (1999) 2 AC 455 reflect a cautious and pragmatic approach in the case of such so called “secondary victims”, whose relationship to the primary victims might, on one view, be regarded as not so close or intimate as to justify compensation or whose “nervous shock” was not the result of a sufficiently direct or immediate perception of the events in question, as where they were seen on television in the case of a football stadium disaster.
30. In the present case, the plaintiff was not in any sense a “secondary victim” in my view: the psychiatric condition was the consequence of his exposure to the risk of mesothelioma and he was thus the only victim of the defendants’ want of care. Accordingly, while there are observations in some of the speeches in Alcock and White which are of assistance in this case, the general issue as to where, if at all, the boundary is to be drawn in affording compensation to “secondary victims” suffering from nervous shock does not, in my view, arise for consideration in the present case. That “nervous shock” suffered by an employee who does not have to be characterised as a “primary” or “secondary” victim of negligence in the workplace is properly compensatable where it is the result of such negligence is admirably demonstrated by the Circuit Court decision of Judge Bryan McMahon in Curran -v- Cadbury (Ireland) Limited [2000] 2 ILRM 343, where the legal issues are analyzed with his customary erudition.
Forseeability of psychiatric injury.
31. That it was reasonably foreseeable that the plaintiff would be exposed to the risk of contracting mesothelioma as a result of the defendant’s negligence is not in dispute. But it does not necessarily follow that it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder, on being informed that there was a risk, albeit a very remote one, that he would contract the disease.
32. It appears to have been generally accepted at one time by the English courts that for liability for psychiatric illness to arise, it must have been reasonably foreseeable. Foreseeability of physical injury was not enough. But that has no longer been the law in that jurisdiction since the decision of the House of Lords in Page –v- Smith 1996 AC 155. The law prior to that case was stated as follows by Viscount Simonds when giving the advice of the privy council in Overseas Tankship (UK) Limited –v- Morts Dock and Engineering Company Limited (The Wagon Mound (1) (1961) AC 388, 426.
“We have come back to the plain common sense stated by Lord Russell of Killowen in Bourhill –v- Young (1942) AC 92, 101. As Denning LJ in King –v- Phillips (1953) 1 QB 429, 441 said:
“There can be no doubt… that the test of liability for shock is foreseeablity of injury by shock.”
33. However, in Page –v- Smith, a majority of the law lords took a different view. That case arose out of a collision between the plaintiff’s and the defendant’s cars. The plaintiff suffered no physical injury, but three hours after the accident he felt exhausted and the exhaustion had continued. For twenty years prior to the accident, he had suffered from a condition, one description of which was “chronic fatigue syndrome”. He instituted proceedings claiming that this condition had now become chronic and permanent and was the result of the defendant’s negligence. He succeeded at first instance, but the Court of Appeal allowed an appeal on the ground that the plaintiff’s injury was not reasonably foreseeable. In the House of Lords, the majority (Lord Ackner, Lord Browne-Wilkinson, and Lord Lloyd of Berwick) allowed the plaintiff’s appeal, Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting. The impact in that case was described by the trial judge as one of “moderate severity”, but no one involved sustained any bodily injuries. The majority were of the view, however, that once it was reasonably foreseeable that personal injury would occur as a result of the defendant’s negligence, it was immaterial whether the injury actually sustained was psychiatric as distinct from physical.
34. In arriving at that conclusion the majority emphasised that the plaintiff was properly regarded as a “primary victim” of the defendants’ negligence, adopting the classification first adopted by Lord Oliver in his speech in Alcock. The plaintiff in Page –v- Smith, having been directly involved in the accident, was a “primary victim”, in contrast to the relatives of those injured or killed as a result of the defendants’ negligence in McLoughlin –v O’Brian, Kelly –v- Hennessy and Alcock, who were categorised as “secondary victims”. In his speech in Page –v- Smith, Lord Lloyd said:
“Foreseeability of psychiatric injury remains a crucial ingredient when the plaintiff is the secondary victim, for the very reason that the secondary victim is almost always outside the area of physical impact, and therefore outside the range of foreseeable physical injury. But where the plaintiff is the primary victim of the defendant’s negligence, the nervous shock cases, by which I mean the cases following on from Bourhill –v- Young, are not in point. Since the defendant was admittedly under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.”
35. That approach was severely criticised by Lord Goff of Chieveley in his dissenting opinion in White. That case, which like Alcock, arose out of the Hillsborough Football Stadium disaster, was also largely concerned, like Alcock, with “secondary victims”, although since they were police officers, their claims were also advanced on the basis that they were owed a duty as employees and that, to the extent that they were involved in rescuing the primary victims of the disaster, they were also not in the same category as conventional “secondary victims”.
36. Lord Goff’s initial criticism of Page –v- White was that it was inconsistent with the earlier authorities culminating in the Wagon Mound in England and with a number of Australian decisions. He was also critical of the view of Lord Lloyd that hindsight was not a relevant factor where the plaintiff was a primary victim. Lord Lloyd, while accepting that in the case of a secondary victim it was necessary to look at the circumstances as they actually occurred and consider whether the hypothetical reasonable man would have foreseen that the plaintiff might have suffered an identifiable psychiatric illness, was of the view that this did not apply in the ordinary running down case, where it was sufficient that the defendant ought reasonably to have foreseen that an impact would result in some form of personal injury, even if in the event no direct physical injury was sustained. Finally, Lord Goff questioned whether Lord Lloyd was justified in omitting from the test in the case of a primary victim what might be described as the “reasonable fortitude” factor, i.e., whether the defendant, in a case such as Page –v- Smith, ought reasonably to have foreseen that the plaintiff would have suffered a particular psychiatric reaction which would not have followed in the case of a person endowed with “normal fortitude” or “ordinary phlegm”. In the case of a primary victim, Lord Lloyd thought, the defendant must take the victim as he finds him. In this context, Lord Lloyd cited with approval the dictum of Geoffrey Lane J, as he then was, in Malcolm –v- Broadhurst (1970) 2 All ER 508 that there was no distinction between an “eggshell” skull and an “eggshell” personality. Lord Goff, however, considered that, in so concluding, Lord Lloyd had erroneously taken an exceptional rule – the eggshell principle – relating to compensation, and treated it as being of general application, thereby, as he put it, “creating a wider principle of liability”.
37. However, Lord Goff’s concerns as to the innovative features of Page –v- Smith were not shared to any notable degree by the other law lords in White. It is relevant to note that Lord Goff expressed particular disquiet at an inference which the defendants had sought to draw from Lord Lloyd’s speech i.e., that in the case of both primary and secondary victims the defendant would be liable only where the victim who suffered psychiatric injury was within the range of foreseeable injury, a test that was met, of course, in Page –v- Smith, but not by the plaintiffs in White.
38. It is also true that the majority decision in Page –v- Smyth has been severely criticised by academic commentators as being in conflict with a significant body of existing case law in the United Kingdom and Australia and as also drawing distinctions between primary and secondary victims, in terms of the foreseeability of psychiatric damage, the implications of which for a wide range of cases had not been sufficiently considered.( Mullany, ,’Psychiatric damage in the House of Lords – Fourth time unlucky – Page v Smith ‘, 3 Journal of Law and Medicine (Aus) 112; Handford, ‘ A new chapter in the foresight saga : psychiatric damage in the House of Lords’ , 1964 Tort Law Review (Aus ) 6 ; Trinidade’ Nervous shock and negligent conduct ‘, 112 LQR, 22. )
39. No doubt it can be said that there was no reason in principle why a driver who ought to have foreseen that his negligent driving would cause the plaintiff to sustain personal injury should be relieved from liability simply because, in what was obviously an unusual case, the victim suffered psychiatric consequences, unaccompanied by any physical trauma. But it seems to me that, in the present case, it is unnecessary to consider the wider implications of the majority decision in Page –v- Smyth, because we are here solely concerned with the foreseeability of psychiatric injury flowing from the negligence of a defendant in a specific context, i.e., the failure of an employer to take reasonable precautions for the health and safety of his employees.
40. I see little difficulty in arriving at a conclusion that, in a case such as the present, it was reasonably foreseeable that the plaintiff would suffer a recognisable psychiatric disorder as a result of his taking medical advice and being informed that he was at risk of contracting the disease of mesothelioma, even though at the time of the proceedings he had not actually contracted that disease. Moreover, that result should also follow, irrespective of the extent of the risk. If, for example, the advice of Professor Clancy had been that as a matter of probability he would contract the disease and the plaintiff had, in the result, suffered the psychiatric disorder of which he now complains, it would seem to me unjust and anomalous that the defendants should escape liability. The fact that the advice he received was that he was at no more than a very remote risk of contracting the disease would not be a reason, in principle, for relieving the defendants of liability in limine. If they ought to have foreseen that the plaintiff would be at risk of contracting mesothelioma and, as a result, might also suffer psychiatric injury, the fact that the psychiatric injury would not have been suffered by a person of ‘ordinary fortitude’ is not material: the general principle that the wrongdoer must take his victim as he finds him should, in the absence of other considerations, apply.
41. I do not agree in this context with the view of the learned trial judge that the plaintiff’s reaction should be regarded as that of a person of ordinary fortitude. I think that such a person, on being informed that there was no more than a minimal risk of his contracting the disease, would not have permitted so remote a contingency to disrupt his family, working and social life, any more than he would have allowed all the risks to which we are subject at every turn of our lives, including the tobacco smoke pollution in much of our environment, have a similar effect. Such a person is not properly described, in my view, as a person of abnormal fortitude.
42. I recognise that it may be, on one view, questionable whether the law should apply the ‘eggshell skull ‘test in cases of psychiatric illness. Lord Goff may be right in saying that, in cases where there is no physical injury, this is to translate a rule relating to compensation into a general principle of liability. The fact remains that the test is applied routinely in personal injury cases in our courts: one is well familiar with minor soft tissue injuries which have, according to medical evidence, caused the plaintiff acute psychiatric injury which, one is assured, is of real significance to the plaintiff, however surprising his or her reaction is to the objective finder of fact. It seems to me that logically the same considerations should apply where there is no physical injury. In a case such as the present the question of liability must be resolved, not by the exclusion of the eggshell skull principle, but by determining whether the absence of physical injury is fatal to the plaintiff’s claim. That in turn depends on whether it falls within the category of ‘ nervous shock ‘ cases and, if not, whether liability can still arise in what may be generically called ‘ fear of disease ‘ cases.
Is this a “nervous shock” case?
43. The central issue in this case, accordingly, is not whether the defendants ought to have foreseen that the plaintiff would suffer psychiatric injury. It is whether the claim by the plaintiff comes within the category of “nervous shock” cases in which the courts have awarded damages for such psychiatric injury, even in the absence of any physical injury, and, if not, whether the plaintiff was nonetheless entitled to recover damages in respect of the reasonably foreseeable psychiatric illness which was the consequence of his having been negligently exposed to the risk of contracting mesothelioma. That further inquiry is necessary because of the care with which the courts have approached claims for psychiatric illness, unaccompanied by physical injury, arising out of alleged negligence: the reasons for that cautious approach are considered at a later point in this judgment.
44. “Nervous shock” would probably be regarded by medical experts today as an inexact expression, to put it no more strongly. The authorities, however, use it to define a set of circumstances which, when they give rise to a specific psychiatric disorder unaccompanied by physical injury that was the reasonably foreseeable consequence of a breach of duty on the part of the defendant, may lead to a finding of liability, provided the conditions laid down by Hamilton CJ in Kelly –v- Hennessy are met.
45. In considering what circumstances will amount to nervous shock in that context, one can begin by recalling that Brennan J, as he then was, in Jaensch –v- Coffey 155 CLR 549 said that psychiatric illness which was not induced by shock but by the experience of having to cope with bereavement did not entitle the injured person to damages. He gave the examples of the spouse worn down by caring for an injured wife or husband or the parent rendered distraught by the wayward conduct of a brain damaged child and who suffered psychiatric illness as a result. Even though the injury to spouse or child may have been the result of a tort, the affected spouse or parent will have no action in damages against the wrongdoer.
46. In Alcock, Lord Ackner said:
“Even though the risk of psychiatric illness is reasonably foreseeable, the law gives no damages if the psychiatric injury was not induced by shock. Psychiatric illnesses caused in other ways such as the experience of having to cope with the deprivation consequent upon the death of a loved one attracts no damages…
“Shock, in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system”
47. The plaintiffs in Kelly –v- Hennessy, and McLoughlin –v- O’Brian each sustained “nervous shock” in the sense indicated by Lord Ackner and were held entitled to recover because the resultant psychiatric illness was the foreseeable consequence of the wrongdoing which brought about the shock. In the present case, there was no shock of that nature: no sudden perception of a frightening event or its immediate aftermath, disturbing the mind of the witness to such an extent that a recognisable psychiatric illness supervened. If the plaintiff is entitled to recover damages, it must be because such damages can be recovered in respect of a psychiatric disorder brought about otherwise than by “nervous shock”: in this case, by a combination of anger and anxiety which was the result of the plaintiff having been informed of his exposure to the risk of contracting mesothelioma because of his employers’ negligence.
48. This, as Geoghegan J points out, is uncharted territory for our courts. It has been argued in this case that there is no reason in principle why the law should differentiate between a psychiatric illness which is induced by nervous shock and one such as the plaintiff in the present case has suffered, where both are the foreseeable result of the wrongdoing of the defendants. That issue must be resolved by determining whether or not the extension of the law to permit the recovery of damages in cases such as the present should be excluded on policy grounds.
49. I would have no hesitation in rejecting the proposition that, in considering whether particular categories of negligence which have not hitherto been recognised by judicial decision should be so recognised, policy decisions should play no part. That doctrine, in its most extreme form, is to be found in the speech of Lord Scarman in McLoughlin –v- O’Brian. However, as the speech of Lord Edmund-Davies in the same case demonstrated, judges have for long invoked policy considerations in determining where the boundaries of legal liability for negligence should be fixed. Thus, in principle it would have been possible to extend liability for negligence far beyond the traditional ambit of wrongs causing personal injuries or physical damage to property: the ground for not extending liability to all forms of economic loss (save where caused by negligent misstatement) is the undesirability of courts extending the range of possible liability in so uncontrolled and indeterminate a manner without any legislative intervention. Thus, if Irish courts were to adopt the same approach to the law of tort in cases of economic loss as the English courts have more recently adopted, it would be because of policy considerations which outweigh what otherwise be seen as a principled development of the existing law. (As the decision of this court in Glencar Exploration Plc –v- Mayo County Council (2002) 1 ILRM 481 made clear, the question as to whether economic loss is recoverable in cases other than those of negligent misstatement and within the categories laid down in Siney –v- Dublin Corporation (1980) IR 400 and Ward –v- McMaster (1988) IR 337 still awaits authoritative resolution.)
The policy issues.
50. Before considering the policy arguments that arise in the present case, it is right to say that although, as I have already pointed out, the courts have for long approached cases of psychiatric disorder on the basis that illness of that nature can be as real, painful and disabling as physical injuries, that is not to say that there are not special considerations applicable to such cases which must be borne in mind when the broader policy arguments are being considered.
51. Thus, as I have already noted, the law, while recognising that damage in the form of a recognisable psychiatric disorder is compensatable, does not permit the recovery of damages for mental anguish or grief which results from a bereavement or injury to a member of one’s family caused by another’s wrong. It is clear, however, that grief or mental anguish of that nature can result in recognisable psychiatric illnesses such as a reactive depression, and, in the light of developments in psychiatric medicine in recent decades, it must surely be questionable whether the inflexible boundary drawn by the law between recognisable psychiatric conditions which are compensatable and grief or mental anguish, which is not, is entirely logical. The fact that the latter category is not compensatable is because the courts have adopted a pragmatic approach and have left it to the legislature to determine when, and to what extent, such undoubted suffering should be the subject of an award of damages.( As under s49 of the Civil Liability Act, 1961)
52. Secondly, it is an inescapable fact that, because psychiatric illness is frequently less susceptible to precise diagnosis, the courts may have to adopt a more circumspect approach to such cases. Thirdly, the phenomenon, familiar to all judges and practitioners who have been concerned in personal injury cases, that the prospect of compensation at a subtle and subconscious level does nothing to assist a plaintiff’s recovery from physical injury and may positively impede it, can arise even more acutely in cases of alleged psychiatric illness.
53. Again, as pointed out by Lord Steyn in his instructive discussion of the problem in White, the abolition or relaxation of the special rules governing the recovery of damages for psychiatric harm would greatly increase the class of person who can recover damages in tort and may result in a burden of liability on defendants disproportionate to the wrongful conduct involved. He cites the example of motorcar accidents with may involve a momentary lapse of concentration.
54. However, the policy arguments in the present case against a finding of liability for psychiatric injury are not confined to those factors or the so called “floodgates” factors, i.e., the possibility of the courts being swamped with trivial and unmeritorious claims, imposing particular strains on the legal system and making severe demands on judges who have to segregate serious claims from the trivial or even fraudulent. That is not to say that such considerations may not be important, but, in my view, there are specific policy considerations which, in the case of what can be conveniently catagorised as “fear of disease” cases, such as the present, argue even more powerfully against the imposition of liability.
55. There is first the undesirability of awarding damages to plaintiffs who have suffered no physical injury and whose psychiatric condition is solely due to an unfounded fear of contracting a particular disease. A person who prefers to rely on the ill informed comments of friends or acquaintances or inaccurate and sensational media reports rather than the considered view of an experienced physician should not be awarded damages by the law of tort. As McNulty J put it, delivering the judgment of the Appellate Court of Illinois in Majca –v- Beekil 682 NE 2D 253:
“Where hysterical fear of disease is sufficiently widespread, and popular knowledge concerning its etiology is limited, a plaintiff may foreseeably experience severe emotional distress without medically verifiable evidence of a substantially increased risk of contracting the disease. Most courts have held that recovery for fear of disease should not extend to such foreseeable fears, because, as commentators have noted, such broad recovery rewards ignorance about the disease and its causes.”
56. The second policy argument is closely related to that first consideration. It relates to the implications for the health care field of a more relaxed rule as to recovery for psychiatric illness which were summarised as follows by Baxter J giving the opinion of the majority of the Californian Supreme Court in Potter and Others –v- Firestone Tyre and Rubber Company 25 Cal Rptr 2d 550:
“Access to prescription drugs is likely to be impeded by allowing recovery of ‘fear of cancer’ damages in negligence cases without the imposition of a heightened threshold. To wit, thousands of drugs having no known harmful effects are currently being prescribed and utilised. New data about potentially harmful effects may not develop for years. If and when negative data are discovered and made public, however, one can expect numerous law suits to be filed by patients who currently have no physical injury or illness but who nonetheless fear the risk of adverse effects from the drugs they used. Unless meaningful restrictions are placed on this potential plaintiff class, the threat of numerous large, adverse monetary awards, coupled with the added cost of insuring against such liability (assuming insurance would be available) could diminish the availability of new, beneficial drugs or increase their price beyond the reach of those who need them most.”
57. It was also pointed out that there would also be serious implications for medical negligence cases grounded on the fear of the plaintiffs having contracted a disease as the result of having been prescribed a particular drug.
58. At an earlier point in this judgment, I expressed the view that the law would be in an unjust and anomalous state if a plaintiff who was medically advised that he would probably suffer from mesothelioma as a result of his negligent exposure to asbestos could not recover damages for a recognisable psychiatric illness which was the result of his being so informed. I am also satisfied, however, that in cases where there is no more than a very remote risk that he will contract the disease, recovery should not be allowed for such a psychiatric illness. That is because the policy considerations which I have summarised point clearly to the necessity for imposing some limitation on the number of potential claims which might otherwise come into being.
59. Claims for emotional distress arising out of exposure to asbestos came before the United States Supreme Court in Consolidated Rail Corporation –v- Gottshall 512 US 532, and Metro North Commuter Railroad Company –v- Michael Buckley 117 SCT 2113. In both cases, a majority of the court concluded that it was an essential precondition to the recovery of damages for emotional distress under the Federal Employers Liability Act that the plaintiff should have sustained a “physical impact” and that the plaintiff’s contact in each case with asbestos laden insulation dust did not constitute such a “physical impact”. Again, the majority of the court rested their conclusions on policy considerations, Breyer J observing in the latter case that:
“…the common law in this area does not examine the genuineness of emotional harm case by case. Rather, it has developed recovery permitting categories the contours of which more distantly reflect this, and other, abstract general policy concerns. The point of such categorisation is to deny courts the authority to undertake a case by case examination.”
60. A similar approach was adopted by the Supreme Court of Texas in Temple – Inland Forest Products Corporation –v- Carter and Another 993 SWR 2D. Delivering the unanimous judgment of the Court, Hecht J, having referred to Buckley, went on to say
“A person exposed to asbestos can certainly develop serious health problems, but he or she also may not. The difficulty in predicting whether exposure will cause any disease and if so, what disease and the long latency period characteristic of asbestos related diseases, make it very difficult for judges and juries to evaluate which exposure claims are serious and which are not. This difficulty in turn makes liability unpredictable, with some claims resulting in significant recovery while virtually indistinguishable claims are denied altogether. Some claimants would inevitably be over- compensated, when, in the course of time, it happens that they never develop the disease they feared, and others would be under compensated when it turns out that they developed a disease more serious even than they feared. Also, claims for exposure could proliferate because in our society, as the Supreme Court observed, ‘contacts, even extensive contacts, with serious carcinogens are common.’ Indeed, most Americans are daily subjected to toxic substances in the air they breathe and the food they eat. Suits for mental anguish damages caused by exposure that has not resulted in disease would compete with suits for manifest diseases for the legal system’s limited resources. If recovery were allowed in the absence of present disease, individuals might feel obliged to bring suit for such recovery prophylactically, against the possibility of future consequences from what is now an inchoate risk. This would exacerbate not only the multiplicity of suits but the unpredictability of results”.
Conclusions.
61. I am, accordingly, satisfied that the law in this jurisdiction should not be extended by the courts so as to allow the recovery by plaintiffs of damages for psychiatric injury resulting from an irrational fear of contracting a disease because of their negligent exposure to health risks by their employers, where the risk is characterised by their medical advisors as very remote.
62. I would add two final observations. First, we are not in this case concerned with the question as to whether an employer should be held liable where it is reasonably foreseeable that an employee might suffer a nervous breakdown because of the stress and pressures of his workload, an issue resolved in favour of the plaintiff by the English High Court in Walker –v- Northumberland County Council (1995) 1 All ER 737. Secondly, the claim of the plaintiff in the present case was grounded on breach of statutory duty in addition to common law negligence. It is clear, that in the absence of any specific statutory provision entitling the plaintiff to recover damages for psychiatric injury, the same principles as to liability must apply.
63. I would allow the appeal and substitute for the order of the High Court an order dismissing the plaintiff’s claim”
Geoghegan J.
“….
129. It is against that background of the case law which I have reviewed that this court must decide as a matter of policy and of reasonableness whether claims for damages for psychiatric injury only and resulting from fear of asbestos related diseases of a degree which is objectively irrational are recoverable. Traditionally, courts do not always use the actual word “policy”. They may attempt to draw artificial limits to what can be regarded as being reasonably foreseeable or they may in considering proximity or other questions in relation to the existence of a duty of care invoke the concept of reasonableness so that a duty of care will not in fact be imposed if the court considers it unreasonable to do so. The third control mechanism which the court may impose is in relation to particular heads of damage or finally, they may expressly deny a claim on grounds of public policy.
130. I am quite satisfied that for the kind of reasons adumbrated in the American cases and also by reason of the objective irrationality of the fears of these respondents that they will contract asbestos related diseases, the appeal should be allowed. As I have already pointed out, the learned trial judge in this case considered that the psychiatric condition was reasonably foreseeable even when applying the “person of reasonable fortitude” standard. In relation to the issue of reasonable foreseeability I would not attach significance to the irrationality aspect. There has been such alarming treatment by the media about asbestos that it would be reasonably foreseeable that a person of normal fortitude might seriously suffer from irrational fears of contracting the diseases. But that is quite different from saying that the irrationality is irrelevant to the questions at issue on this appeal. In my view it would be unreasonable to impose a duty of care on employers whether they be State or non-State (there being no known justification for making any distinction) insured or uninsured to take precautions not merely that their employees will not contract disease but that they will not contract so serious a fear of contracting a disease however irrational that they develop a psychiatric overlay. The court should not permit compensation for irrationality in that way. It is quite different from the case of a plaintiff who suffers from traumatic neurasthenia linked with physical illness directly resulting from an accident. Furthermore, there would be an element of unfairness of the kind adverted to by Lord Hoffman as between employees exposed to such asbestos who may in fact suffer from great anxiety for the remainder of their lives but not such as could be characterised as psychiatric injury on the one hand and those who suffer from such anxiety which can be characterised as psychiatric injury on the other. Is it just that a worrier who has to take medication for his worry receives sums in the order of €50,000 or more whereas worriers who do not have to take such medication get nothing? I think not.
131. As I have reviewed the case law at some length with the result that my own views on the legal principles involved which I have expressed as they arose at different points in the judgment are in danger of becoming somewhat buried, I think it useful to gather together the more important principles which I perceive as applying. They are as follows:
1. Reasonable foreseeability is not the only determining factor in establishing a duty of care. “Proximity” which is given an elastic definition in the decided cases, the reasonableness of the imposition of a duty of care and questions of public policy can be additional determining factors.
2. The learned High Court judge after hearing submissions on the English case law in relation to secondary victims and bearing in mind the submission by counsel for the defendant that this was a claim by a “secondary victim” held that if he was bound to apply the standard of “a person of normal fortitude”, he considered it was reasonably foreseeable that such a person might develop an irrational worry that he would contract such disease notwithstanding the advice of his doctors and the consequent psychiatric condition. I am of opinion that it was open to the trial judge to take that view.
3. Mr. Gleeson argued on the appeal before this court that the respondent was a “secondary victim” in that, the respondent did not develop the worry and consequent psychiatric illness directly from the exposure to asbestos but rather from subsequent media information etc. There was some limited judicial support in the English case law for that extended meaning of “secondary victim”. Having regard to the view I have taken as to O’Neill J’s finding I do not find it necessary to express any final opinion on this matter not least because the primary/secondary distinction has been criticised (see for instance the judgment of Judge McMahon in Curran v. Cadbury (Ireland) Ltd. [2000] 1ILRM 343).
4. Having regard to factors to which I have referred in this judgment and indeed the factors also referred to in the judgment of the Chief Justice I take the view that it would be unreasonable to impose a duty of care on employers to guard against mere fear of a disease even if such fear might lead to a psychiatric condition.
5. I have deliberately refrained from expressing any view as to whether the implantation of fibres into the lung (which did occur in this case) or the development of pleural plaques (which did not occur) and in neither case involving any immediate symptoms could be described as a physical injury especially having regard to the definition of injury in the Civil Liability Acts. At the hearing of this appeal it was accepted that the damages were awarded for psychiatric injury only and I am approaching the case on that basis.”
Johnston v. NEI International Combustion Ltd
[2007] UKHL 39 [2008] AC 281, [2007] 3 WLR 877, [2008] 1 AC 281
LORD HOFFMANN
” The question is whether someone who has been negligently exposed to asbestos in the course of his employment can sue his employer for damages on the ground that he has developed pleural plaques. These are areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very exceptional cases, they cause no symptoms. Nor do they cause other asbestos-related diseases. But they signal the presence in the lungs and pleura of asbestos fibres which may independently cause life-threatening or fatal diseases such as asbestosis or mesothelioma. In consequence, a diagnosis of pleural plaques may cause the patient to contemplate his future with anxiety or even suffer clinical depression.
Proof of damage is an essential element in a claim in negligence and in my opinion the symptomless plaques are not compensatable damage. Neither do the risk of future illness or anxiety about the possibility of that risk materialising amount to damage for the purpose of creating a cause of action, although the law allows both to be taken into account in computing the loss suffered by someone who has actually suffered some compensatable physical injury and therefore has a cause of action. In the absence of such compensatable injury, however, there is no cause of action under which damages may be claimed and therefore no computation of loss in which the risk and anxiety may be taken into account. It follows that in my opinion the development of pleural plaques, whether or not associated with the risk of future disease and anxiety about the future, is not actionable injury. The same is true even if the anxiety causes a recognised psychiatric illness such as clinical depression. The right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person because of apprehension that he may suffer a tortious injury. The risk of the future disease is not actionable and neither is a psychiatric illness caused by contemplation of that risk…..
Are pleural plaques actionable damage?
Holland J found that the plaques in themselves were not damage which could found a cause of action. He said (at para 80a):
“I start by rejecting any notion that pleural plaques per se can found a cause of action. I am not satisfied that for forensic purposes they can be categorised as a ‘disease’ nor as an ‘impairment of physical condition’. This whole forensic exercise arises because for practical purposes there is no disease, nor is there any impairment of physical condition. If I am wrong, then, the expert evidence as to their significance points (as is in effect, conceded) to them being disregarded as ‘de minimis’. I do not think that that status can be enhanced by associating with such, the risk of onset of asbestos related symptomatic conditions as arise not from the plaques per se but from the history starting with the initial exposure – still less do I think that that status can be altered by invoking anxiety arising out of the now articulated risks.”
This finding of fact is in my opinion unassailable. As the judge noted, the point was conceded by the claimants, who preferred to rely upon the aggregation theory adopted by Simon Brown J in Patterson v Ministry of Defence. The same concession was made in the Court of Appeal but withdrawn in the House of Lords. If the case lay on the borderline, I would have thought that the judge’s finding was open to him on the evidence and should not be disturbed. But this was not a borderline case and I do not see how it was open to the judge, on the evidence, to come to any other conclusion. It was not merely that the plaques caused no immediate symptoms. That was also the case in Cartledge v E Jopling & Sons Ltd [1963] AC 758. The important point was that, save in the most exceptional case, the plaques would never cause any symptoms, did not increase the susceptibility of the claimants to other diseases or shorten their expectation of life. They had no effect upon their health at all. As the judge put it at para 64:
“the identification of pleural plaques has an ‘evidential’ rather than a ‘substantive’ significance. Thus, their existence confirms the significant permanent physical penetration by asbestos fibres but does not add in any way to the resultant disabilities, actual or prospective. It is with that confirmation to hand that the physician is able to make risk assessments that are based upon the level of exposure and the history – risk assessments that do not stem from, nor are influenced by the plaques but which flow from the now evidenced initial exposure. Further, it is not the plaques per se that engender anxiety (save to the unforeseeably irrational); it is again the now evidenced internal presence of asbestos and the risk assessments arising from such.”
The aggregation theory
If the pleural plaques are not in themselves damage, do they become damage when aggregated with the risk which they evidence or the anxiety which that risk causes? In principle, neither the risk of future injury nor anxiety at the prospect of future injury is actionable. These propositions are established by the decisions of the House in Gregg vScott [2005] 2 AC 176 and Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65 respectively. How then can they be relied upon to create a cause of action which would not otherwise exist?
The appellants’ argument is based upon the common law rule that if a claimant has suffered actionable personal injury as a result of the defendant’s breach of duty, he can and must claim damages in the same action for all the damage which he has suffered or will suffer in consequence of that breach of duty. As Bowen LJ said in Brunsden v Humphrey (1884) 14 QBD 141, 148:
“Nobody can doubt that if the plaintiff had recovered any damages for injury to his person, he could not have maintained a further action for fresh bodily injuries caused by the same act of negligence, merely because they had been discovered or developed subsequently.”
This “single action rule” is very old and for the protection of defendants. Coke said that it was based upon the maxim interest rei publicae ut sit finis litium, “otherwise great oppression might be done under colour and pretence of law”: see Bowen LJ at p 147. A defendant should not have to answer more than once for the consequences of the same act. A corollary of the rule is that if a claimant does have a cause of action, he may recover damages for the risk that he may suffer further injury in consequence of the same act of negligence, even though (under the principle in Gregg v Scott), such risk would not be independently actionable. There are also cases which suggest that he may be able to recover damages for anxiety consequent upon an actionable injury. But recovery is predicated upon the existence of actionable injury. There is nothing to suggest that a claimant can rely upon the single action rule to sue in circumstances in which he does not have a cause of action in the first place.
The rule was modified for personal injury actions by section 32A of the Supreme Court Act 1981, inserted by section 6(1) of the Administration of Justice Act 1982:
“32A. — (1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some … time in the future the injured person will, as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.
(2) …as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person
(a) damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and
(b) further damages at a future date if he develops the disease or suffers the deterioration.”
This provision allows a claimant to elect for an award of provisional damages for the injury which he has already suffered and enables him to avoid having to quantify his damages for the chance of developing further injury in the future; a calculation which is likely to result in his being either undercompensated (if the injury occurs) or overcompensated (if it does not). Most (though not all) of the claimants in these proceedings elected for provisional damages. But the statute does not support the aggregation theory. On the contrary, its insistence that provisional damages can be obtained only when there is a chance that a serious disease will develop “as a result of the act or omission which gave rise to the cause of action” makes it clear that it applies only where the claimant has a cause of action.
The judgment of the Court of Appeal
For these reasons I would reject the aggregation theory. The majority in the Court of Appeal, who also rejected it, placed some emphasis upon policy arguments of a consequentialist nature, based upon predictions of how people would behave if they could sue for pleural plaques. I am bound to say that some of these seemed to me rather speculative and I am inclined to agree with Smith LJ who said in her dissenting judgment ([2006] ICR 1458, 1492, para 112) that “the question can and should be answered by the application of established legal principle to a new factual situation”. But I respectfully disagree with Smith LJ about that principle, which is, in my opinion, that in order to sue for personal injury you need a cause of action and that symptomless bodily changes with no foreseeable consequences, the risk of a disease which is not consequent upon those changes and anxiety about that risk are not, individually or collectively, damage giving rise to a cause of action.
Smith LJ said that pleural plaques amounted to “an injury”. She gave two reasons: first, in rare cases plaques might (on account of the position in which they developed) cause symptoms. In such a case the symptoms are not the injury. It is the plaque. That shows that the plaque is an injury and it must be an injury whether it causes symptoms or not. Similarly, the plaque is a lesion to the pleura. A lesion to the body, for example, a disfiguring scar, would be a compensatable injury. That shows that a lesion is an injury.
It seems to me, with respect, that Smith LJ asked herself the wrong question. One is not concerned with whether the plaque is in some sense “injury” or (as she went on to decide) a “disease”. The question is whether the claimant has suffered damage. That means: is he appreciably worse off on account of having plaques? The rare victim whose plaques are causing symptoms is worse off on that account. Likewise, the man with the disfiguring lesion is worse off because he is disfigured. In the usual case, however (including those of all the claimants in these proceedings) the plaques have no effect. They have not caused damage.
Smith LJ also found support for the aggregation theory in section 32A of the Supreme Court Act 1981, to which I have already referred. She said (at p 1497, para 133):
“In my view, the wording of section 32A is consistent only with the proposition that a claimant has only one cause of action for all personal injury consequences of a wrongful act or omission. The wording of the section is not consistent with the notion that the same exposure to asbestos can and does give rise to separate torts in respect of each consequence. Because he has only one cause of action, as soon as the claimant knows that he has one personal injury consequence, he must sue for all such possible consequences. Under section 32A, he is able to defer the assessment of that part of his damages which relate to future risks, instead of having to accept them now, imperfectly assessed, as he was required to do at common law. Whether he chooses a provisional or final award is a matter for him”.
That seems to me undoubtedly correct. But she then went on to say:
“The important point is that, because he has only one cause of action, his damage must include the risks that other serious conditions might eventuate. Therefore, both the existing condition and the future risks must be brought into account when the judge is considering whether the damage is more than minimal.”
It is the last “therefore” that seems to me, with respect, to precede a non sequitur. It is true that if he has a cause of action, his damage must include the risks that other serious conditions might eventuate. But that does not mean that such risks are taken into account in deciding whether he has a cause of action, that is to say, whether he has suffered (and not merely may suffer) more than minimal damage.
Psychiatric illness
I would, for the reasons so far discussed, dismiss the appeals of all the claimants except Mr Grieves. His case is different because he suffered not merely anxiety but clinical depression, a recognised psychiatric illness, in consequence of being told that his pleural plaques indicated a significant exposure to asbestos and the risk of future disease. Unlike the kind of anxiety considered in Hicks v Chief Constable of the South Yorkshire Police [1992] 2 All ER 65, psychiatric illness does constitute damage for the purpose of founding an action in negligence. So the question in Mr Grieves’s case is a different one: not whether he suffered damage, but whether the defendants owed him a duty of care in respect of psychiatric illness caused by his anxiety at the risk of a future illness.
Mr Grieves is suing two defendants: a company by whom he was employed as a maintenance engineer between 1961 and 1964 and another by which he was employed between 1964 and 1969. Both admit that they negligently exposed him to asbestos dust. He developed his psychiatric illness as a result of an X-ray examination in 2000. The question of whether he was owed a duty of care in respect of that illness must in my opinion by answered by reference to the principles stated by Hale LJ in her lucid and comprehensive judgment in Hatton v Sutherland [2002] ICR 613, which were approved by this House in Barber v Somerset County Council [2004] 1 WLR 1089. The judgment was concerned with psychiatric injury caused by subjecting an employee to occupational stress, but the general principles are in my opinion applicable to psychiatric injury caused by any breach of duty on the part of the employer.
Hale LJ said (at p 624, para 23) that “the threshold question is whether this kind of harm to this particular employee was reasonably foreseeable.” She rejected the general applicability of the test of whether psychiatric injury was foreseeable in a person of “ordinary fortitude” because an employer’s duty was owed to each individual employee and not an undifferentiated member of the public. An employer may know (or it may be that he should know) of a particular vulnerability in an employee. In that case, he has a duty to treat him with appropriate care. On the other hand, in the absence of some particular problem or vulnerability, the employer was entitled to assume (in a case of occupational stress) that the employee is “up to the normal pressures of the job”. Applied to the broader question of psychiatric illness, that means that in the absence of contrary information, the employer is entitled to assume that his employees are persons of ordinary fortitude.
In the present case, the employer would be unlikely to have any specific knowledge of how a particular employee was likely to react to the risk of asbestos-related illness more than 30 years after he had left his employment. An assumption of ordinary fortitude is therefore inevitable.
The Court of Appeal noted (at p 1482, para 76) that the judge had made no finding that Mr Grieves’s psychiatric injury was reasonably foreseeable and said that “there is no material which would enable us to make such a finding.” Dr Menon, one of the expert witnesses, said that over 6 years he had assessed nearly 80 men with asbestos-related diseases and suspected mental health problems. Of these, about half were suffering from diagnosable mental disorders. But his evidence did not distinguish between mental problems suffered by actual victims of asbestos-related diseases and those caused simply by the fear of developing such diseases. Nor did he say what proportion of actual or potential victims suffered such problems. As the Court of Appeal said (at p 1483, para 76) it was impossible to deduce from his report:
“whether employees of reasonable fortitude are liable to suffer psychiatric injury on learning, whether as a result of developing pleural plaques or otherwise, that their exposure to asbestos carries with it a risk of developing mesothelioma, lung cancer or other serious disorder.”
Of course the test of whether it is foreseeable that the employee of reasonable fortitude would suffer psychiatric injury does not depend entirely upon the statistical evidence. In McLoughlin v O’Brian [1983] 1 AC 410, 432 Lord Bridge of Harwich pointed out that foreseeability did not depend on “the evidence of psychiatrists as to the degree of probability that the particular cause would produce the particular effect” but on whether the judge “as fairly representative of…the educated layman…[formed the]… view from the primary facts [that]…the proven chain of cause and effect was reasonably foreseeable.” But this test restricts rather than enlarges the foreseeability of psychiatric illness. It allows for the fact that expert knowledge of cause and effect may not be available to the educated layman. It does not mean that the judge should give effect to speculation or urban legends unsupported by evidence.
The answers to a test of foreseeability will vary according to, first, the precise description of what should have been foreseen and, secondly, the degree of probability which makes it foreseeable. Lord Reid’s opinion in Hughes v Lord Advocate [1963] AC 387 shows how much depends upon the level of generality at which you describe the event which must have been foreseen. (See also Jolley v Sutton London Borough Council [2000] 1 WLR 1082). And Lord Reid’s well-known dictum in Overseas Tankship (UK) Ltd v Miller Steamship Co (The Wagon Mound (No 2)) [1967] 1 AC 617, 643-644 shows that the degree of probability which counts as foreseeability may vary according to other factors in the case:
“If a real risk is one which would occur to the mind of a reasonable man in the position of the defendant’s servant and which he would not brush aside as far-fetched, and if the criterion is to be what that reasonable man would have done in the circumstances, then surely he would not neglect such a risk if action to eliminate it presented no difficulty, involved no disadvantage, and required no expense.”
In the case of psychiatric illness, the standard description of what should have been foreseen, namely that the event which actually happened would have caused psychiatric illness to a person of “sufficient fortitude” or “customary phlegm”, has been part of the law since the speech of Lord Porter in Bourhill v Young [1943] AC 92, 117. It was plainly intended to make the test more difficult to satisfy than whether it was foreseeable that something might happen which would cause someone (or even a person of reasonable fortitude) to suffer psychiatric injury. The latter test would not be hard to satisfy, as is evidenced by the opinion of the majority of the House in Page v Smith [1996] AC 155. But in my opinion the latter test was applicable only in the special circumstances of that case, to which I shall in due course return. The general rule still requires one to decide whether it was reasonably foreseeable that the event which actually happened (in this case, the creation of a risk of an asbestos-related disease) would cause psychiatric illness to a person of reasonable fortitude. I think that the Court of Appeal was right to say that there was no basis for such a finding.
Page v Smith
Counsel for Mr Grieves submits that even if his psychiatric illness was not foreseeable, the decision of the majority of the House in Page v Smith [1996] AC 155 makes such foreseeability unnecessary. It is enough that his employer ought to have foreseen that exposure to asbestos might cause him physical injury, namely, an asbestos-related disease. In Page v Smith it was held to be sufficient that the defendant should have foreseen that his negligent driving might cause some physical injury. It did not matter that he could not have foreseen that the event which actually happened, namely a minor collision, would cause psychiatric injury.
Counsel for the defendant invited the House to depart from the decision in Page v Smith on the ground that it was wrongly decided. It has certainly had no shortage of critics, chief of whom was Lord Goff of Chieveley in Frost v Chief Constable of South Yorkshire Police [1999] 2 AC 455, supported by a host of academic writers. But I do not think that it would be right to depart from Page v Smith. It does not appear to have caused any practical difficulties and is not, I think, likely to do so if confined to the kind of situation which the majority in that case had in mind. That was a foreseeable event (a collision) which, viewed in prospect, was such as might cause physical injury or psychiatric injury or both. Where such an event has in fact happened and caused psychiatric injury, the House decided that it is unnecessary to ask whether it was foreseeable that what actually happened would have that consequence. Either form of injury is recoverable.
In the present case, the foreseeable event was that the claimant would contract an asbestos-related disease. If that event occurred, it could no doubt cause psychiatric as well as physical injury. But the event has not occurred. The psychiatric illness has been caused by apprehension that the event may occur. The creation of such a risk is, as I have said, not in itself actionable. I think it would be an unwarranted extension of the principle in Page v Smith to apply it to psychiatric illness caused by apprehension of the possibility of an unfavourable event which had not actually happened.
In Creuzfeldt-Jakob Disease Litigation Group B Plaintiffs v Medical Research Council [2000] Lloyd’s Rep Med 161, 165 Morland J observed that if Page v Smith were given the wide interpretation for which counsel for Mr Grieves argues, psychiatric injury caused by the apprehension of illness related to exposure to asbestos, radiation, or contaminated food would become actionable, even though the claimants had actually suffered no physical injury. Whether such liability would have the disastrous consequences for society which the judge predicted may be debatable, but it would involve an extension of the principle to cases which I do not think were contemplated by the House. I do not think it would be right to do so and I would therefore also dismiss Mr Grieves’s appeal.
The defendants cross-appealed against the quantum of damages which the Court of Appeal said they would have awarded if the claimants had been successful. As the appeals are to be dismissed, the cross-appeal does not arise and I say nothing about it.”