Fairchild v Glenhaven Funeral Services [2003] 1 AC 32

Workers developed mesothelioma after wrongful asbestos exposure during employment with different employers. Medical science could not identify which particular exposure had initiated the disease. Each employer could therefore argue that ordinary proof had not shown its own exposure was the cause. The employees or their representatives sought compensation despite that evidential obstacle. The appeals required the House of Lords to decide whether, in this specific setting, materially increasing the risk through wrongful exposure could establish the necessary causal connection. The disease was mesothelioma, not an undifferentiated claim for all forms of lung cancer.

• Which (if any) of the employers were the claimants entitled to sue for compensation for negligence in exposing employees to asbestos and causing harm?

The House of Lords allowed the appeals and recognised an exceptional route to establishing causation. Where the relevant conditions were met, an employer's wrongful exposure which materially increased the risk of mesothelioma was sufficient. The scientific inability to identify the causative exposure did not require every claim to fail. This did not establish that each exposure had medically caused the disease, nor did it replace ordinary causation rules across negligence. The decision addressed the particular evidential problem associated with the disease and the risk against which the employers' duty protected. Questions concerning apportionment and recovery were subsequently affected by Barker and the Compensation Act 2006.

In the exceptional mesothelioma setting, wrongful asbestos exposure materially increasing the risk may satisfy the causal requirement despite inability to identify which exposure caused the disease. This is a legal exception to ordinary causal proof, not proof that each exposure actually caused the injury.

Fairchild is central to understanding the distinction between material contribution to injury and material increase in risk. Barker later adopted proportionate liability, but section 3 of the Compensation Act 2006 provides whole-damage and joint-and-several liability for qualifying mesothelioma claims. Those developments must be separated from the original causal holding. The exception should not be extended to an unrelated disease or ordinary medical uncertainty without authority establishing that the relevant conditions are met.