• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

Fairchild v Glenhaven Funeral Services Ltd [2002].

Extracts from this document...


Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2002] 3 WLR 89 HL Summary The three appeals dealt with by the House of Lords involved employees who had been exposed to asbestos at work and had subsequently contracted mesothelioma (a form of cancer caused by asbestos exposure). In each case the employee concerned had been exposed to asbestos by more than one employer during his working life. This made it difficult for the claimants to establish that any particular employer's negligence had caused the mesothelioma, because medical science does not know exactly how asbestos causes the disease. In particular, it is currently impossible to say whether the action of a single asbestos fibre, a few fibres, or the cumulative effect of many fibres causes the disease. It is possible to say, however, that the greater the quantity of fibres inhaled the greater the risk of developing the disease. Given this evidence the Court of Appeal concluded that the claimants were unable to prove on the balance of probabilities that the negligence of the particular employers who they had sued had caused the disease, or made a material contribution to it. The House of Lords, however, held that in the special circumstances of the case it was sufficient for the claimants to prove that the negligence of the particular employers had increased the risk of the employees contracting the disease. Consequently, the House of Lords allowed the appeals and held that the defendant employers were liable for the employees' diseases. Further, the House of Lords held that each employer was liable to compensate each employee in full, even if that employer had only been responsible for a small proportion of the asbestos inhaled by the employee. Comments Lord Nicholls started his brief judgement by explaining that any outcome other than a victory for the claimants would have been "deeply offensive to instinctive notions of what justice requires and fairness demands", and continued that "The real difficulty lies in elucidating in sufficiently specific terms the principle being applied in reaching this conclusion. ...read more.


Thus it seems that so far as the reasons given by the House of Lords justify the "McGhee principle", they operate cumulatively. The scope of the "McGhee principle" (1) Wilsher v Essex Area Health Authority The scope of the "McGhee principle" can best be explored by considering how the members of the House of Lords treated the facts of Wilsher v Essex Area Health Authority [1987] QB 730, [1988] AC 1074. Four of their Lordships in Fairchild (Lord Nicholls being the exception) expressly stated (at paras 22, 70, 118 and 149) that the "McGhee principle" should not be extended to the facts of Wilsher. (As you may recall Wilsher involved a child who developed a serious eye condition (RLF). The defendant had negligently subjected the child to excess oxygen. But the medical evidence was that although excess oxygen could have caused the RLF, the child also suffered from four other conditions implicated as possible causes of RLF, and it could not be said that it was more probable that the excess oxygen had caused the RLF than that some other agent had caused it.) It is worth working out why their Lordships thought that the facts of Wilsher do not fall within the proper scope of the "McGhee principle", because it seems that in Wilsher it would have been impossible for the claimant to have proved any more than that the defendant's negligence increased the risk of RLF. Lord Bingham's explanation is that "It is one thing to treat an increase in 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" (para 22). Lord Hutton offered a similar analysis, but in terms of "risks" rather than "agents" (para 118). Lord Rodger offered a more detailed analysis bridging the language of "risks" and "agents": "the claimant must prove that his injury was caused by the eventuation of the kind of risk created by the defendant's wrongdoing. ...read more.


Further, as we have set out above, the House of Lords defined those limited circumstances narrowly. Consequently, unless a future court relaxes these limits, then - with the exception of the backlog of other mesothelioma claims - the Fairchild decision will only affect a tiny proportion of the tort claims that come before the courts each year. Would a decision in favour of the defendants have been "deeply offensive to instinctive notions of what justice requires and fairness demands"? In our opinion the answer to this question depends on whether one considers tort law as the only method of achieving justice and fairness. We share the sense that it would be grossly unfair if those suffering from mesothelioma were left without medical and financial support. But we are less convinced than Lord Nicholls that it is just to make the few employers who are still in business liable in tort for the full cost of the problem (although we accept that the intricacies of employers' liability insurance mean that the employers will not themselves pick up the bill). We think that a lot could be said in favour of a legislative solution involving a compensation package funded by those industries (mainly the construction industry) which exposed employees to asbestos, those insurers who offered cover against the risks and by the State. Such a package would have the advantages that it could cover victims of mesothelioma who can identify no solvent former employers (including victims of environmental asbestos, such as those living near production facilities, and victims who cannot establish where they were subjected to asbestos), and could be put in place without any distortion of ordinary tort law. It would also avoid some of the costs and delays involved in adversarial legal claims. But the House of Lords clearly had no power to impose a legislative solution. Instead the House of Lords did what it could. And it seems to be widely thought that Fairchild is "a victory for justice and fairness" (as 92 MPs claimed in an Early Day Motion on 16 May). ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. To succeed in a negligence action in tort, the claimant must prove three things

    He knows or has reasonable grounds to believe that the other is in the vicinity of danger concerned or that he may come in to the vicinity of danger c) There is one against which, in all circumstances of the case, he may reasonably be expected to offer the other some protection."

  2. Tort Law Problem Case. The Plaintiff (widow of the deceased) namely Mrs Fogg is ...

    Lord Esher stated "whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that

  1. A Critical Examination of the Concept of Breach of Duty of Care

    Bolton on the head, who was walking nearby. Although she was hurt, the court said she did not have a legitimate claim. 'Reasonable risk' cannot be judged with the benefit of hindsight. As Lord Denning said in Roe v Minister of Health,15 the past should not be viewed through rose coloured spectacles.

  2. `The negligence formula is unfair to claimants as it places too many obstacles in ...

    which held that you must take "reasonable care to avoid acts or omissions that can be reasonably foreseen to result in injury to... any persons who are so closely and directly affected by your act that you ought reasonably to have them in contemplation as being affected when you are

  1. Discuss whether Lucy is liable in negligence to Kim and John, and discuss whether ...

    To succeed in establishing a duty of care the plaintiff must prove that the defendant ought to have foreseen that negligence on part of the defendant could lead to the plaintiff being injured. It has to shown that a reasonable person in the position of the defendant would have foreseen that the situation amounted to a real risk.

  2. Causation may be broken by a supervening act. To what degree does a ...

    Act 1945 will be used. The courts are to use common sense when dealing with them. Negligent acts of 3rd party. Where there are multiple Defendant's, then each will be apportioned a % blame by the judge under the Civil Liability (Contribution)

  1. How do the Courts in England and Wales decide when a duty is owed ...

    do that which may cause personal injury to that other, or may injure his property."7 This was later to become one of the foundational principles upon which a duty of care was to be imposed by the Courts. However, although this may be seen as the seeds being sewn, neither of the above cases resulted in an extension of liability.

  2. McLoughlin v OBrian [1983] AC 410, per Lord Bridge, at 441. Discuss the above ...

    Does it mean there is no close tie of love and affection assumed to exist between them? In fact, it does not require great imagination or great understanding of psychiatry to contemplate that, as a member of a family, might succumb to nervous shock in the event of a serious

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work