Asbestos Claims – Malcomson Law – Asbestos Exposure Which employer is liable when you have developed an asbestos related illness such as Asbestosis, Asbestos related Lung Cancer or Mesothelioma? Establishing when, where and how you were exposed to asbestos when you have worked for multiple employers throughout your working life presents a significant challenge. More importantly how do the courts handle a claim of this type?

In Fairchild v. Glenhaven Funeral Services Ltd & Ors (2002) UKHL 22
Mr Fairchild worked for various employers in circumstances where he was negligently exposed to asbestos. Mr Fairchild was diagnosed with pleural mesothelioma and subsequently died. His wife was suing his employers on his behalf for negligence. There were other claimants who had worked in comparable circumstances and were a party to the action.

Asbestos related illnesses or mesothelioma can be triggered by the smallest exposure or inhalation of asbestos fibres. Consequently the risk of contracting an asbestos related illness increases depending on the amount of exposure. Typically there is a long latency period (20 – 50 years) and it is very difficult to ascertain the critical moment when the exposure occurred which caused the asbestos related illness. The problem was that in Mr. Fairchild case it was impossible to identify the specific moment in time and who Mr. Fairchild worked for when he was exposed to asbestos fibres.

The House of Lords ruled that the ‘but for’ test for causation need not apply in mesothelioma claims entered by employees who suffered periods of exposure with more than one employer and where medical science cannot prove who among a number of employers caused the condition. The decision effectively created joint and several liability whereby the claimant will be entitled to recover in full against each defendant.

The House of Lords decision effectively relaxed the burden of proof for causation. Prior to this decision the Court of Appeal in the Fairchild case had held, in agreement with one line of competing High Court Authorities, that where in mesothelioma (and like) cases there are two or more sources of exposure, claimants are unable to recover from either or any defendant. Although the court had sympathy for the claimant, it had held that their position, which required the Court to bridge an evidential gap as to causation of the disease, both defied logic and was susceptible to unjust results.

The claimant’s position, the Court said, “may impose liability for the whole of an insidious disease on an employer with whom the claimant was employed for quite some time in a long working life, when the claimant is unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. The Court considered that were it to accede to the claimant’s arguments, it would be distorting the law to accommodate the exigencies of a very hard case.

The House of Lords was unanimous in reversing this decision although their Lordships differed in their reasoning. They all agreed that, in general, the burden is on the claimant to show that the defendant’s breach of duty caused the injury and to do so by showing that but for the breach the claimant would not have suffered the injury.

This general principle was not in question. The issue was whether in the special circumstances of these cases it should be varied or relaxed.

Their Lordships recognised that there was a clash of policy considerations. On the one hand, as the Court of Appeal had identified, there was a risk of imposing liability on a party who had not been shown, even on the balance of probabilities, to have caused damage. On the other, there was an argument in favour of compensating those who had contracted serious injury in circumstances where employers were in breach of duty to protect them against the very injury contracted and science did not permit the claimant to identify, as between those employers, the precise responsibility for the injury.

In the circumstances of this case, their Lordships decided that the injustice suffered by the claimant who is left without a remedy is greater than that suffered by the party who was in breach but who may not have caused the actual damage. Lord Roger held:

“The men did nothing wrong, whereas all the defendants exposed them to the risk of developing a fatal cancer, a risk that has eventuated in these cases … The defendants, in effect, say that it is because they are all wrongdoers that the claimants have no case”.

The majority of their Lordships agreed that in the particular circumstances of this case, a breach of duty which materially increased the risk that the claimant would contract the disease should be treated as if it had materially contributed to the disease. Accordingly, they held: “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.”

Subsequently in Barker v. Corus (UK) Plc (2006) UKHL 20, where the claimant was exposed to asbestos whilst working for a number of employers, the House of Lords found that the Fairchild exception applied, they however needed to consider that one of the claimants in this case, Mr. Barker, exposed himself to asbestos when working as a self-employed plasterer. Mr Barker had two prior exposures whilst working for two different employers, with one of the employers being insolvent and not having an identified insurer. The House of Lords found that the two employers were jointly and severally liable for causing Mr Barker’s mesothelioma, however, Mr Barker was found contributorily negligent and the damages were reduced by 20%.

The insolvent employer could not contribute its proportion and it therefore needed to be determined whether the solvent employer would only be liable for its proportion of the damages. The House of Lords held that “limited liability proportionate to risk is the better course for the law to take and that employers are only liable in proportion to their own contribution to the claimant’s overall exposure to the risk of harm”. Therefore the solvent employer was only liable to pay its proportion of damage. The above reasoning was subsequently upheld in Sienkiewicz v. Grief

[2011] UKSC 10.

We are receiving an increasing number of enquiries in relation to asbestos claims as a consequence of exposure in the workplace. Women who believe they have had secondary exposure to Asbestos have also contacted us. If you have a query regarding exposure to asbestos in the workplace or secondary exposure please email us at Help@mlaw.ie fill in our enquiry form or phone 01 87 444 22.

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