• The case of Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 concerned the use of the ‘materially increased risk’ of harm test in lieu of the ‘but for’ test to ensure a remedy was awarded and justices was given to the claimants; if material increase of risk can be proved, there is an entitlement to full compensation from that employer.

Facts of Fairchild v Glenhaven Funeral Services [2003] 1 AC 32

  • Due to exposure to asbestos in the course of employment with a variety of employers, three claimants had contracted lung cancer
  • A single incident of exposure to asbestos is required for cancer
  • The claimants were exposed to asbestos under every employer and so it was uncertain which term of employability was the most probable source of the exposure to asbestos which had caused the cancer
  • The Court of Appeal had rejected the claims for all three claimants as it could not be established on a balance of probabilities which exposure under each employer had caused them to develop lung cancer
  • The claimants appealed this decision to the House of Lords, seeking compensation for the harm they suffered

Issues in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32

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

Held by the House of Lords

  • Appeal allowed. All of the employers were liable in negligence, and the claimants were entitled to sue all of those who had exposed them to asbestos.

Lord Nicholls

Lord Nicholls, in agreement with the other Lords hearing the case, allowed the appeal believing that disallowing it would be unjust – the difficulty being how they reach this

  • “I have no hesitation in agreeing with all your Lordships that these appeals should be allowed. Any other outcome would be deeply offensive to instinctive notions of what justice requires and fairness demands. The real difficulty lies is elucidating in sufficiently specific terms the principle being applied in reaching this conclusion. To be acceptable the law must be coherent. It must be principled.” [36]

The ‘but for’ test would be inappropriate to use here as it should not trump the harm suffered by the claimants where it cannot be proved under which employer the cancer was caused

  • “good policy reasons exist for departing from the usual threshold “but for” test of causal connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks from which an employer’s duty of care is intended to protect employees. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. A former employee’s inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation.” [41]

It did not have to be proved how one employer caused the harm, their tortious negligence was enough to show the material increase of risk employees were put through

  • “So long as it was not insignificant, each employer’s wrongful exposure of its employee to asbestos dust and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established” [42]

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