Why Fairchild v Glenhaven Funeral Services is important
In Fairchild v Glenhaven Funeral Services, the HL held that where a claimant is unable to prove the but-for cause of their injuries due to insufficient medical knowledge, it is sufficient to show the defendant materially contributed to the risk of harm for the purposes of causation in the tort of negligence.
The House of Lords faced multiple separate cases all with the same fact pattern: the claimants had each been exposed to asbestos dust whilst working for multiple employees, which resulted in mesothelioma (a form of cancer).
In each case, it was accepted that the claimants were only exposed to the asbestos dust whilst in the course of their employment. However, due to the contemporary limits of science the claimants could not show, on the balance of probabilities, during which employment the exposure to asbestos dust caused the mesothelioma (either individually or combined).
The employees brought a claim for damages in the tort of negligence against their employers. It was accepted that the employers breached their duty to take reasonable care by exposing the claimants to the asbestos dust. The important question was whether the defendants caused the mesothelioma for the purposes of the tort.
The Court of Appeal rejected the claim. Applying the conventional ‘but-for’ causation test, the Court concluded that the claimants had failed to show that ‘but-for’ each employers’ breach of their duty, either individually or together, they would not have suffered from mesothelioma. The claimants appealed this decision to the House of Lords.
The House of Lords allowed the claimant’s appeal, concluding that the employers’ breach of duty caused the claimants’ mesothelioma. The employers were each held fully liable for the damage caused.
There were two important factors in the House of Lords’ decision.
Their Lordships all spoke in terms of fairness and justice. They highlighted it would be unfair if the claimants were denied compensation only because contemporary medical knowledge didn’t allow them to prove with certainty the but-for cause of their harm, even if they could show the damage was caused by at least one, if not both, of the defendants. In the words of Lord Nicholls, “[a]ny other outcome would be deeply offensive to instinctive notions of what justice requires and fairness demands.”
Lord Bingham highlighted that rejecting the appeal would lead to claimants with multiple employers being worse off than claimants with only one negligent employer:
Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. 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.
Their Lordships approved the earlier decision by the House of Lords in McGhee v National Coal Board. They confirmed that the House of Lords in McGhee had made a decision as a matter of law, specifically that there was no distinction between the material contribution to causing a disease and materially increasing the risk of the claimant contracting a disease.
Application to Fairchild v Glenhaven Funeral Services
Their Lordships warned against relaxing the rules of causation simply for reasons of policy, concluding the decision must be based on a logical principle. They concluded that the principle from McGhee extended to the facts of these cases, even though the fact pattern was slightly different.
In McGhee, whilst the claimant could show that their dermatitis was caused by dust from the brick kiln, they could not show that the condition was caused by their employer’s negligence. This is because the claimant might have already contracted dermatitis by the end of their shift, and the defendant was only in breach of their duty for not providing showers for the claimant to use after their shift (therefore the breach may not have been a but-for cause of the injury). By contrast, in Fairchild v Glenhaven Funeral Services it was always the case that the claimant’s injuries were caused by another’s negligence; the difference was the claimant could not show which defendant (or defendants) was the but-for cause of the injury.
Nevertheless, the House held that the cases were covered by the same principle: where a claimant is unable to prove the but-for cause of their injuries due to insufficient medical knowledge, it is sufficient to show the defendant materially contributed to the risk of harm for the purposes of causation in the tort of negligence.
As Lord Roger explained:
The important point is that in both cases the state of scientific knowledge makes it impossible for the victim to prove on the balance of probabilities that his injury was caused by the defenders’ or defendants’ wrongdoing rather than by events of a similar nature which would not constitute wrongdoing on their part. Therefore, if the principle applies to permit the pursuer to recover in McGhee, it should similarly apply to allow the claimants to recover in these cases.