#19875 - Fairchild V Glenhaven Funeral Services Casenotes - Tort Law

Fairchild v Glenhaven Funeral Services Casenotes

Wier

Mesothelioma is likely to be caused by breathing in a single fibre. The more you breathe in, the more likely that single fibre. But it’s impossible to know when since the symptoms take up to 40 years to reveal themselves.

Full liability on all employers even though one of them could have been responsible. Lord Bingham and Lord Rodger (and Lord Hoffmann, but slightly differently) lay out requirements for generalising the rule on relaxing standard causation. It’s when a claimant cant possibly prove a single defendant’s breach of duty caused the harm suffered.

Judges seemed to think if they couldn’t sue in tort, the claimant would get nothing at all. In reality, they would have been entitled to industrial disablement benefit.

Lord Bridge in 1988 in Wilsher v Essex Area HA said the law on causation requires proof of fault. We should do society a disservice if we made the forensic process still more unpredictable and hazardous by distorting the law to accommodate the exigencies of what may seem hard cases. This seems to have been rejected in Fairchild.

Morgan

Court of Appeal applied the standard approach and dismissed the claims. HL said enough to show an increased risk by each employer’s negligence. All four speeches used the premise that causation is a normative phenomenon. Lord Nicholls: ‘the extent to which the law requires a defendant to assume responsibility for loss following upon his wrongful conduct always involves a value judgement’. This might also involve limiting liability when D’s conduct is a but for cause. Lord Hoffmann: ‘the relevance of a causal connection depends upon the purpose of the inquiry’.

Reconciling Wilsher v Essex Area Health Authority and McGhee v National Coal Board? In Wilsher, HL said you need to prove causation where the precise cause of C’s injury couldn’t be discerned. McGhee didn’t need to prove a but-for connection. Lord Bridge in Wilsher wanted to dismiss McGhee saying it added nothing new to law. HL in Fairchild said no, McGhee is new law. Don’t like Wisher.

But where does the Fairchild exception apply generally? Gave justification of policy, but this was vague and doesn’t provide much guidance. Lord Bingham essentially said the injured claimants should be allowed to recover, and we cant apply that to every case with difficulties in proving causation. Policy reasoning looks dangerously thin.

Coherency v results in the law. Judging an ‘educated reflex to facts’ (Lord Bingham in Fairchild). Lord Hoffmann in Frost v CC South Yorkshire Police says law can’t be a matter of ‘incommunicable judicial instinct’.

Does Fairchild apply to cases other than mesothelioma?

Yes

Lord Dyson in the Court of Appeal in Carl Heneghan v Manchester Dry Docks summarised three ways causation could be established in disease cases:

1. But for D’s negligence, C would not have suffered the disease

2. If the disease is caused by a cumulative effect, part of which is attributable to D’s negligence and part of it not, D is liable on the basis his breach made a material contribution to the disease (Bonnington Castings v Wardlaw)

3. If these fail – like the disease not being caused by a cumulative effect – causation is proved if D materially increased the risk of C catching the disease (Fairchild)

As per Lord Hoffmann in Barker v Corus, the Fairchild exception was ‘an exceptional and less demanding test for the necessary causal link between D’s conduct and the damage’.

Hoffmann, extrajudicially

Hoffmann thinks Fairchild was a sham. McGhee was pressed into service – they rewrote history. How to generalise Fairchild? Hoffmann thinks they couldn’t say it only applied to mesothelioma. Lord Bingham did, though, saying it applied to facts like these ‘and to no other case’.

Lord Nicholls thought judges are supposed to declare principles of the common law. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable, else hard cases make bad law. Hoffmann thinks they failed this test badly.

Lord Brown was a judge in Hoston v East Berkshire Area HA. In that case, science couldn’t say whether the trauma to the hip had destroyed any chance of saving the hip joint. Brown couldn’t bypass normal causation – in Sienkiewicz v Greif he criticised Fairchild on...