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fairchild v glenhaven pdf

INTRODUCTION The facts of Fairchild v Glenhaven Funeral Services Ltd1 are well known. The consequences of these decisions have been widely reported. Abstract. The work of handling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it is unlikely that any measures would have been taken to protect him from such exposure. Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from 1973-81 at their factory in Strood, Kent. 1 KILLING AND CAUSING DEATH IN ROMAN LAW: DIGEST 9.2.51, FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD AND CONTEMPORARY TORT THEORY 1. It is accepted that his condition was caused by exposure to asbestos dust. He regularly swept the floor in the boilerhouse, stirring up asbestos dust and debris. 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. 10. Fairchild v Glenhaven Funeral Services Jonathan Morgan* Introduction Like Matthew Arnold's Oxford, disease litigation is the home of lost causes.1 Over many years, the courts have intervened to ease the frequently formidable factual difficulties of proving causation, in cases of disease. Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services. The dust emanating from the pneumatic hammer involved no breach of duty by the employer, but that from the swing grinders did. 1 0 obj For about 2 weeks he worked in a boilerhouse in Chatham Dockyard dismantling a boiler and pipework, during which time he spent a day removing asbestos lagging from the boiler and pipes, which was dusty work. Jonathan Morgan. Logged in as READCUBE_USER. During each working day Mr Matthews had prolonged and substantial exposure to asbestos dust. The claimants had been exposed to asbestos dust by more than one employer in different periods of … Yes No 24 June 2002 The issues. My noble and learned friend Lord Hoffmann has, on more than one occasion, discouraged a mechanical approach to the issue of causation. 2 Fairchild v Glenhaven Funeral Services Ltd [2003] 1 A.C. 32 at [45], per Lord Nicholls of Birkenhead 3 Stapleton, Cause in fact and the scope of liability for consequences , L.Q.R. The Court of Appeal dismissed her appeal against that decision in the judgment already referred to, finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects of her common law claim against the Leeds City Council. 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. Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services Author(s): Jonathan Morgan Source: The Modern Law Review, Mar., 2003, Vol. Fairchild v Glenhaven Funeral Services [2002] UKHL 22. No effective measures were taken to protect him from exposure to asbestos dust. Fairchild v Glenhaven, House of Lords Share Share Print remove content? The defendants appealed against that decision, and the Court of Appeal allowed their appeal and set aside the award in Mr Matthews' favour. Asbestos materials were used on a daily basis. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. The activities of laggers generated high levels of dust containing asbestos. Essential Cases: Tort Law provides a bridge between course textbooks and key case judgments. He was described by a witness as being covered in dust from head to foot. The document also included … Each day he spent some time (up to about an hour) in the boilerhouse where the boiler and ancillary pipework were lagged with asbestos material. Typical lagging work involved the removal of old lagging, the mixing of lagging paste, the cutting of lagging sections and the sweeping up of dust and debris. 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). 1 (HL) MLB headnote and full text. 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. 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). So C failed against both A and B. Judgement for the case Fairchild v Glenhaven Funeral Services Ltd. Ps had been exposed to asbestos by different employers over different times and they caught a disease from it. It is a characteristic of asbestosis that the disease, once initiated, will be influenced by the total amount of dust thereafter inhaled. 2 pages) Ask a question Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 Toggle Table of Contents Table of Contents. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. The pursuer was accordingly entitled to succeed. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) ���G�ǎ��{�����b������)�� �9��M zU�8�kҽ�8��ʹ�y"��:q�ab �lY�Ab,�c�px��R�!��*�:���>�ș�� W��V�ʝV��h��㨂�. Nicholson v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613 was factually a variant of Wardlaw's case. The decision of the House of Lords in Fairchild v.Glenhaven Funeral Services raises important questions about the compensation of employees for occupational injury. The late Mr Fox was employed as a lagger by Spousal (Midlands) Ltd (then known by a different name) for 1½-2 years between about 1953 and 1955. 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. %PDF-1.5 Causation – material increase in risk – Wilsher -v- Essex Area Health Authority – mesothelioma. 5. ... View Enhanced PDF Access article on Wiley Online Library (HTML view) Download PDF for offline viewing. In February 2000 a diagnosis of mesothelioma was made. Lord Cohen agreed and said (at p 622): 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. Mesothelioma can be caused by a single fibre of asbestos. Fairchild v Glenhaven Funeral Services (HL transcript) | Practical Law In our judgment, this leap over the evidential gap not only defies logic but is also susceptible of unjust results. Are you sure you want to remove this item from you pinned content? 1. Fairchild v Glenhaven Funeral Services Limited On 11 December 2001, the Court of Appeal gave its decision in Fairchild and five other related cases. Mr Matthews issued proceedings against both these companies in April 2001. Shareable Link. For 5-6 weeks in January and February 1973 Mr Matthews was employed by British Uralite plc at their factory in Higham, Kent, where the company manufactured pipes from asbestos material, and Mr Matthews worked on this process. 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. 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. He was exposed to asbestos during the last four years of this employment when working as a boilerman. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Case summary last updated at 15/01/2020 19:03 by the Oxbridge Notes in-house law team. 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. II Tort law: Fairchild v. Glenhaven Funeral Services Ltd. Fairchild v Glenhaven Funeral Services Ltd and Others: HL 20 Jun 2002 The claimants suffered mesothelioma after contact with asbestos while at work. Between 1965 and 1967 Mr Matthews was employed by Maidstone Sack and Metal and was again exposed to significant quantities of asbestos dust. This note is concerned with the latest installment in this saga: International Energy Group Ltd v Zurich Insurance Plc UK Branch. He walked across pipework disturbing the lagging. In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. Search for more papers by this author. It is only natural that, the dyke having been breached, the Why Fairchild v Glenhaven Funeral Services is important. This important decision lays down significant rules regarding the liability of insurers of Fairchild defendants. (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. After his death his widow brought these proceedings against Spousal. Fairchild v Glenhaven Funeral Services Ltd . Her appeal against that decision was dismissed by the Court of Appeal in the judgment already referred to. 103. 2. 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. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the condition. 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. No measures were taken to protect him from such exposure. 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. Following the decision of the Court of Appeal ([2001] EWCA Civ 1881, [2002] 1 W.L.R. �Z��hJ��EK{:f:��B��ls��w\ ��n�u鱗��/��0�A���������|���Km�+�|���~ a��(�>��K��Sp�g^Q�R�-y}y.>�5�K�c�a-� ]64�yIR!�[jS�����1����߃*�N��ӏ�kT��N����5P5aE\�m[w+��q�yE/t�� ;}� ��(޶CF�����x����M�ɫg��� �k�\IOE6�?����c����碄>���a$���=������/X*Y��p��s�N:@���� ��Բ�?��V�L�� v��}R9�xB���ޟu�p���@.���g�@����2��XX���#��:B0������B9�"�p�5c�)�w�(�]��� �B���C���64�i��j�FU�R�@.�lTo�b4AaO��"�P]����9�+�Z�*�B/_�T��@y��kǍDLem����H��$��a���Y�f)�>ޚn�kD�-*�(h��yJ�j���j����2��P���@�hi�5p���I�H�Ej���zZ��Ɍep[�&�7;�� ��?��|�T�U��.�%�r ��hz��ņ�ժ,V e:���+z=�,�`7߃dD� ��)Xe5��X�O3,��Q�`?g(U��S��L���� She challenges that causation decision on appeal to the House. From 1955-1989 he worked as a docker/holdsman in the Liverpool Docks. 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. In Fairchild, the principal issue was whether an employee could recover where he could prove negligently inflicted injury, but, having worked for more than one employer, not the identity of the person who caused the injury. 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. No measures were taken to protect him against such exposure. In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said: 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: 12. 6. A and B owed C a duty to protect C against a risk of a particular and very serious kind. Three separate claimants contracted lung cancer (malignant mesothelioma) as a result of their exposure to asbestos during their various courses of employment with varying employers. The mechanism by which a normal mesothelial cell is transformed into a mesothelioma cell is not known. On 11 July 2001 Mitting J gave judgment in his favour against both defendants and awarded damages. 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. endobj It is invariably fatal, and death usually occurs within 1-2 years of the condition being diagnosed. 2. 66, No. The case differs from the present in two obvious respects. ����q�ޯҌQ_�i� sQB��}1{FͻBfҜ�OWY�o��H�ؚ))1���m���[:��p=�c.c(Y��g�>t���!��3.�[C�q�lvF 8��1H�X>���N�U�&�1H�D�u�>��0z��\� *�����]A}14M��> The essential question underlying the appeals may be accurately expressed in this way. Explore the site for more case summaries, law lecture notes and quizzes. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 ... IEG v Zurich ‘The relaxation of the causal requirement in mesothelioma claims emerged from the conjoined appeals in Fairchild precisely because the insurers were hoping that such claims would founder on the rock of uncertainty created by the inability to satisfy the “but for 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. 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. In Fairchild, the principal issue was whether an employee could recover where he could prove negligently inflicted injury, but, having worked for more than one employer, not the identity of the person who caused the injury. 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. 3 0 obj In Environment Agency (formerly National Rivers Authority) v Empress Car Co. (Abertillery) Ltd [1999] 2 AC 22 at 29, he said: More recently, in Kuwait Airways Corporation v Iraqi Airways Co (Nos 4 and 5) [2002] 2 WLR 1353, p 1388, para 128, he said: Laws LJ was reflecting this approach when he said in Rahman v Arearose Ltd [2001] QB 351 at 367-368: 13. Asbestos acts in at least one of those stages and may (but this is uncertain) act in more than one. For 12 months of this period he operated a scrap metal press and some of the items fed into the press had asbestos linings. The … At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases. 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). 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. Spousal do not dispute that they were in breach of duty in exposing Mr Fox to substantial amounts of asbestos dust in the course of his employment by them. Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 Lord Nicholls “The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold “but for” test of causal connection.” Tort 1 - Negligence - Factual Causation 2018 75 They failed to perform that duty. is C entitled to recover damages against either A or B or against both A and B? 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. ��/03!7yy$�j�l N�l1�xp-r��^c1}�Wt T�W�J�G BG��wP4�Gu��zsB��5�X�ѭTvník��E�5&D+o [2���5x�u��j([�.�k Both employers breached their duty of care for him by exposing him to asbestos, but it cannot be determined which breach actually led to the poisoning, or if they both did. Waddingtons plc accepted at trial that it had exposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him under section 63 of the Factories Act 1961. 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 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. � �g���R�� <> Statute reference: This case concerns common law. <>/ExtGState<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 595.32 841.92] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Use the link below to share a full-text version of this article with your friends and colleagues. Search for more papers by this author. 1. Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 Practical Law Case Page D-009-7173 (Approx. The decision of the House of Lords in Fairchild v. Glenhaven Funeral Services raises important questions about the compensation of employees for occupational injury. 2 0 obj B will not escape liability by contending that his breach of duty is not shown to have had any causative effect. Her claim was dismissed by Judge Mackay, sitting as a judge of the Queen's Bench Division in Liverpool on 27 March 2001. He also worked for a builder, in whose employment he cut asbestos sheeting both to repair various roofs and while renovating a factory for Waddingtons plc. Jonathan Morgan. It is common ground that in each of the three cases under appeal conditions numbered (1) to (5) above effectively obtained. 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). I now give my reasons for reaching that decision. Fairchild v Glenhaven [2002] 3 WLR 89 House of Lords This was a conjoined appeal involving three claimants who contracted mesothelioma, a form of lung cancer contracted by exposure to asbestos. It should be recorded that, before the hearing of his appeal in the House, the defendants agreed to pay Mr Matthews the sum awarded by the judge with interest and costs, without prejudice to the issues in the appeal. Mr Fox told his wife that he was regularly involved in moving asbestos cargo and that asbestos was regularly released into his breathing area. The House of Lords approved the test of "materially increasing risk" of harm, as a deviation in some circumstances from the ordinary "balance of probabilities" test under the "but for" standard. Keywords: compensation for mesothelioma; more than one employer. Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA; Fairchild and others v Glenhaven Funeral Services Ltd and others (2001) The Times, 13 December, CA. The House of Lords in Fairchild suing on her own behalf and on behalf of the Estate of and dependants of Arthur Eric Fairchild (deceased) (appellant) v. Acknowledgement of the increased material risk of harm test as an exception to the but for test. 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. 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. %���� x��]oo�8�_�߁/�C��")J�"@�n���������pl9�E����^��33�d��\L�@cY�8�?3��f_؇��|����Kv���������/�4g>S��D�"ɽ8`e��ݿ������޿���Kϗ�n����g:��@2�"�dwK(��W��P5{�oQ����ヘ>-WY:���������||.FkV��X���rT��f�����%�|����ʫ���Ov���w� k�z��m Learn more. endobj 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. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. 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. The Lord Ordinary found for the family, but his decision was reversed by the First Division. Large amounts of dust containing asbestos fibres were created by the manufacturing process and such dust permeated the atmosphere of the factory. 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. stream 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): 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). It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. Mr Matthews consulted his doctor complaining of chest pain in March 1999. Fairchild's husband developed mesothelioma as a result of asbestos poisoning. 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. The claimants were either the former employees of the defendants or, where the employees themselves had died, After the death of Mr Fairchild his widow brought this action, originally against three defendants (not including the builder). 4. On a number of occasions (adding up to about 2 days in all) he was in close proximity to men removing lagging from pipes, and such work created large amounts of asbestos dust. Glenhaven was successful in the lower courts which Fairchild appealed.,,,, 4 0 obj This case document summarizes the facts and decision in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32. Maidstone Sack and Metal can no longer be sued. The Limits Of Fairchild v Glenhaven Funeral Services Ltd [5] My Lords, the opinions of all of your Lordships who heard Fairchild v Glenhaven Funeral Services Ltd expressed concern, in varying degrees, that the new exception should not be allowed to swallow up the rule. Legal updates on this case; Viscount Simonds' conclusion was clearly expressed (at pp 619-620): Lord Oaksey and Lord Morton of Henryton agreed. endobj Nothing turns on this distinction with the other cases. party liable to compensate.... The manufacturing process and such dust permeated the atmosphere of the House of Lords decision Fairchild... Is now measured in months condition has continued to deteriorate, and death usually within! Unjust results decisions have been widely reported the consequences of these decisions have been widely.. V Wardlaw [ 1956 ] AC 613, the pursuer contracted pneumoconiosis as a result of poisoning! Normal ‘ but for ’ rule and ought to be restricted thereafter inhaled occurs! Are you sure you want to remove this item from you pinned content Lords Fairchild... His asbestosis dust from head to foot Ask a question Fairchild v Glenhaven Services... And British Uralite plc QBD 11.07.01 his breach of duty is not shown have... Asbestos fibre was imported into Liverpool Docks this leap over the evidential gap only... Is also susceptible of unjust results consulted his doctor complaining of chest pain in March.... For more case summaries, law lecture notes and quizzes v Glenhaven Funeral Services Ltd CONTEMPORARY! 2001 ] EWCA Civ 1881 in Strood, Kent two obvious respects the material. Tumour, usually of the condition being diagnosed daily basis he was regularly involved moving... Was described by a witness as being covered in dust from head to foot protect from. Glenhaven Funeral Services Ltd [ 2003 ] 1 AC 32 Atlas Steel Foundry and Engineering Co Ltd [ 2002 UKHL! In at least one of those stages and may ( but this is uncertain ) act in more one. 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