Employers' liability for asbestos diseases: House of Lords takes a turn in English law: recent House of Lords decision may indicate a return to the lower "material contribution" causation test and a general lowering of the burden of proof.

• Author: Burt, Jessica

PERSONAL injury cases against employers in Britain are made on the basis of breach of duty, whether common law or statutory. The mainstay of liability is that it must involve a breach of duty that is causative of injury. This hurdle is the main stumbling block for claimants in complex industrial disease cases. The interpretation of what proves causation has become one of the most divisive issues in politics and the British courts today.

This has been topically illustrated in the recent case of Fairchild v. Glenhaven Funeral Services Ltd., (1) a Court of Appeal ruling that provoked a Parliamentary debate in January of this year in which the ruling was branded as a "scandal," "shameful," "wrong" and "mocking of victims." (2) In May, the House of Lords dramatically reversed this Court of Appeal decision. (3)

The Court of Appeal in Fairchild, which was one of six cases consolidated for decision on 11 December 2001, held that where a claimant's mesothelioma arose after exposure to asbestos dust in the course of more than one employment, the claimant could not recover damages from any of the employers because he could not establish, on the balance of probabilities, when it was that he inhaled the particular fibre that caused the disease to develop. A common analogy used to explain this is that of the "negligent sportsmen," where two hunters fire their weapons negligently and a person is hit and killed by one of their bullets. It is not possible to prove which of the hunter's bullets was responsible for the fatality. Neither hunter can be found liable as it is a matter of fact that cannot be proved whose bullet hit and therefore who was responsible.

A reasoned judgement as to the basis on which the House of Lords reversed the Court of Appeal ruling was still awaited as of the end of mid-June 2002; it is expected later in the summer. In the meantime, any discussion on the House of Lords' reasoning can be only speculative, but an examination of the role of "causation" and how it has been treated by the courts reveals some useful insights to the general approach taken by the courts as to whether they are ruled primarily by legal principle or endeavour more towards what society would regard as a "just" result--that is, by policy.

HISTORY OF CAUSATION

Claimants must prove on the balance of probabilities an actual causal connection between a defendant's fault and their alleged injury. However, in practice, the determination of causation, particularly in the context of toxic exposures, can be very difficult because the understanding of the pathological processes that link exposure to disease often is incomplete. The common law has been through a long period of development in favour of injured parties when there are difficulties in proof of causation or apportionment of damage.

The courts traditionally had followed a rigorous "but for" test, asking the question: But for the incident or breach having occurred, would the claimant have been injured? However, courts found that the search for forensic probability in cases in which the medical evidence available could not resolve the factual uncertainties was perceived as resulting in undue harshness for claimants. As a result, policy rather than legal principle began to emerge as the arbiter of judicial decisions.

Between the 1950s and 1970s the English courts held--in part, because of an incomplete understanding of the pathogenesis of diseases such as asbestosis, pneumoconiosis and dermatitis--that where there was an exposure to risk of injury, the exposure should be equated with a "material contribution" to any injury.

The doctrine of material contribution was established in the 1950s with Bonnington Castings Ltd. v. Wardlaw (4) and Nicholson v. Atlas Steel Foundry and Engineering Co., (5) both in the House of Lords. The doctrine reached a high point in 1972 in McGhee v. National Coal Board, also in the House of Lords, which was a case concerning dermatitis due to-brick dust, in which Lord Reid stated:

From a broad and practical viewpoint, I can see no substantial...