Mesothelioma appeals succeed

Fairchild v Glenhaven Funeral Services Ltd and others and associated cases ([2002] 3 All ER 305 [2002] UKHL 22)

The House of Lords has righted the wrongs inflicted by the Court of Appeal on claimants suffering mesothelioma after exposure to asbestos dust in the course of employment by more than one employer (21 /LL p23). The House of Lords held that in these circumstances an employee is entitled to recover damages against both employers. The overall object of the law of tort is to define cases in which the law could justly hold one party liable to compensate another, and it would be contrary to principle to insist on the application of the rule that appeared to yield unfair results. It is in any event established that, in certain special circumstances, the court may depart from the usual ‘but for’ test of causal connection and treat a lesser degree of causal connection as sufficient, namely that the defendant’s breach of duty had materially contributed to causing the claimant’s disease by materially increasing the risk of the disease being contracted. The conduct of both employers, in exposing the employee to a risk to which he should not have been exposed, made a material contribution to the employee contracting a condition against which it was the duty of both employers to protect him. Although it had not been suggested that the employee’s entitlement against either employer should be for any sum less than the full compensation to which he was entitled, either employer could seek contribution against the other or against any other employer liable in respect of the same damage in the ordinary way.