Torts

• Author: International Law Group

The lower court found the following facts. Three employees or their representatives, i.e., Judith Fairchild (suing as widow and administratrix of the estate of Arthur Eric Fairchild, deceased), Doreen Fox (suing as widow and administratrix of the estate of Thomas Fox, deceased), and Edwin Matthews had been working for employers A and B at different periods of time. In each case, there was a known risk of inhaling asbestos dust in the course of their employments. Such inhalation is accepted as a cause of mesothelioma, a usually malignant and fatal tumor.

Under English tort law, both employers A and B had a duty to take reasonable care or all practicable measures to protect all employees from the dangers of inhaling this dust. A and B had breached that duty during the periods the employees were on their jobs and this resulted in each employee contracting a mesothelioma. No other cause of these mesotheliomas has been found other than inhaling asbestos dust in the course of employment.

Under the present scope of scientific knowledge, the workers could not show by a preponderance of the evidence whether their mesotheliomas resulted from breathing in asbestos dust while working for company A or company B or for both companies A and B. On these facts, the legal question became whether the worker could recover damages against either employer or both of them.

The lead House of Lords opinion outlines the etiological problem as follows. "So if [a worker] 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. But [the worker] could have inhaled a single fibre giving rise to his condition during employment by A, in which case his exposure by B will have had no effect on his condition; or he could have inhaled a single fibre giving rise to his condition during his employment by B, in which case his exposure by A will have had no effect on his condition; or he could have inhaled fibres during his employment by A and B which together gave rise to his condition; but medical science cannot support the suggestion that any of these possibilities is to be regarded as more probable than any other." [ 7]. The court of first instance ruled against plaintiffs.

The Court of Appeal (Civil Division) applied the usual "but for" test of tort liability to these unusual facts. It ruled...