Fairchild (suing on her own behalf and on behalf of the Estate of and Dependants of Arthur Eric Fairchild (Deceased)) Fox (Suomg as Widow and Administratric of Thmas Fox (Deceased)) (FC) Matthews (FC) v Associated Portland Cement Manufactureres (1978) Ltd and Others, (2002)



Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Hoffmann Lord Hutton Lord Rodger of Earlsferry

















[2002] UKHL 22


My Lords,

1. On 16 May 2002 it was announced that these three appeals would be allowed. I now give my reasons for reaching that decision.

2. The essential question underlying the appeals may be accurately expressed in this way. If

(1)  C was employed at different times and for differing periods by both A and B, and

(2)  A and B were both subject to a duty to take reasonable care or to take all practicable measures to prevent C inhaling asbestos dust because of the known risk that asbestos dust (if inhaled) might cause a mesothelioma, and

(3)  both A and B were in breach of that duty in relation to C during the periods of C's employment by each of them with the result that during both periods C inhaled excessive quantities of asbestos dust, and

(4)  C is found to be suffering from a mesothelioma, and

(5)  any cause of C's mesothelioma other than the inhalation of asbestos dust at work can be effectively discounted, but

(6)  C cannot (because of the current limits of human science) prove, on the balance of probabilities, that his mesothelioma was the result of his inhaling asbestos dust during his employment by A or during his employment by B or during his employment by A and B taken together,

is C entitled to recover damages against either A or B or against both A and B? To this question (not formulated in these terms) the Court of Appeal (Brooke, Latham and Kay LJJ), in a reserved judgment of the court reported at [2002] 1 WLR 1052, gave a negative answer. It did so because, applying the conventional "but for" test of tortious liability, it could not be held that C had proved against A that his mesothelioma would probably not have occurred but for the breach of duty by A, nor against B that his mesothelioma would probably not have occurred but for the breach of duty by B, nor against A and B that his mesothelioma would probably not have occurred but for the breach of duty by both A and B together. So C failed against both A and B. The crucial issue on appeal is whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation.

3. It is common ground that in each of the three cases under appeal conditions numbered (1) to (5) above effectively obtained. During his working life the late Mr Fairchild worked for an employer (whose successor was wrongly identified as the first-named defendant) who carried out sub-contract work for the Leeds City Council in the early 1960s and may have built packing cases for the transportation of industrial ovens lined with asbestos. He also worked for a builder, in whose employment he cut asbestos sheeting both to repair various roofs and while renovating a factory for Waddingtons plc. In the course of his work Mr Fairchild inhaled substantial quantities of asbestos dust containing asbestos fibre which caused him to suffer a mesothelioma of the pleura, from which he died on 18 September 1996 at the age of 60. Waddingtons plc accepted at trial that it had exposed Mr Fairchild to the inhalation of asbestos fibres by a breach of the duty owed to him under section 63 of the Factories Act 1961. (Waddingtons plc was not an employer, but nothing turns on this distinction with the other cases.) It thereby admitted that he had been exposed to a substantial quantity of dust or had been exposed to dust to such an extent as was likely to be injurious to him. After the death of Mr Fairchild his widow brought this action, originally against three defendants (not including the builder). She discontinued proceedings against the first-named defendant, and on 1 February 2001 Curtis J dismissed her claim against Waddingtons plc and the Leeds City Council. The Court of Appeal dismissed her appeal against that decision in the judgment already referred to, finding it unnecessary (because of its decision on causation) to reach a final decision on all aspects of her common law claim against the Leeds City Council. She challenges that causation decision on appeal to the House.

4. The late Mr Fox was employed as a lagger by Spousal (Midlands) Ltd (then known by a different name) for 1½-2 years between about 1953 and 1955. In the course of this employment he worked at various different premises. Typical lagging work involved the removal of old lagging, the mixing of lagging paste, the cutting of lagging sections and the sweeping up of dust and debris. Asbestos materials were used on a daily basis. The activities of laggers generated high levels of dust containing asbestos. In these circumstances Mr Fox was exposed to large amounts of asbestos dust, often for many hours each day. He was described by a witness as being covered in dust from head to foot. No measures were taken to protect him from such exposure. From 1955-1989 he worked as a docker/holdsman in the Liverpool Docks. Until the late 1960s or early 1970s asbestos fibre was imported into Liverpool Docks in sacks. Mr Fox told his wife that he was regularly involved in moving asbestos cargo and that asbestos was regularly released into his breathing area. The work of handling asbestos cargoes would have exposed Mr Fox to substantial amounts of dust and it is unlikely that any measures would have been taken to protect him from such exposure. But there is no evidence of when and for how long and how frequently Mr Fox handled cargoes containing asbestos, nor of what cargoes he handled, nor of the identity of his employers when he was engaged in handling asbestos. Spousal do not dispute that they were in breach of duty in exposing Mr Fox to substantial amounts of asbestos dust in the course of his employment by them. In 1995 he developed symptoms of mesothelioma and he died on 24 April 1996 at the age of 63. It is accepted that his condition was caused by exposure to asbestos dust. After his death his widow brought these proceedings against Spousal. Her claim was dismissed by Judge Mackay, sitting as a judge of the Queen's Bench Division in Liverpool on 27 March 2001. Her appeal against that decision was dismissed by the Court of Appeal in the judgment already referred to. She challenges that decision on appeal to the House.

5. Mr Matthews was employed by Associated Portland Cement Manufacturers (1978) Ltd from 1973-81 at their factory in Strood, Kent. He was exposed to asbestos during the last four years of this employment when working as a boilerman. Each day he spent some time (up to about an hour) in the boilerhouse where the boiler and ancillary pipework were lagged with asbestos material. On a number of occasions (adding up to about 2 days in all) he was in close proximity to men removing lagging from pipes, and such work created large amounts of asbestos dust. On a daily basis he was exposed to dust and debris from the lagging. He walked across pipework disturbing the lagging. He regularly swept the floor in the boilerhouse, stirring up asbestos dust and debris. No effective measures were taken to protect him from exposure to asbestos dust. For 5-6 weeks in January and February 1973 Mr Matthews was employed by British Uralite plc at their factory in Higham, Kent, where the company manufactured pipes from asbestos material, and Mr Matthews worked on this process. Large amounts of dust containing asbestos fibres were created by the manufacturing process and such dust permeated the atmosphere of the factory. During each working day Mr Matthews had prolonged and substantial exposure to asbestos dust. No measures were taken to protect him against such exposure. Between 1965 and 1967 Mr Matthews was employed by Maidstone Sack and Metal and was again exposed to significant quantities of asbestos dust. For 12 months of this period he operated a scrap metal press and some of the items fed into the press had asbestos linings. For about 2 weeks he worked in a boilerhouse in Chatham Dockyard dismantling a boiler and pipework, during which time he spent a day removing asbestos lagging from the boiler and pipes, which was dusty work. Maidstone Sack and Metal can no longer be sued. Mr Matthews consulted his doctor complaining of chest pain in March 1999. In February 2000 a diagnosis of mesothelioma was made. His condition has continued to deteriorate, and his life expectancy is now measured in months. Associated Portland Cement and British Uralite admit that Mr Matthews' mesothelioma was caused by exposure to asbestos dust, and that each of them exposed Mr Matthews to asbestos dust in breach of duty. Mr Matthews issued proceedings against both these companies in April 2001. On 11 July 2001 Mitting J gave judgment in his favour against both defendants and awarded damages. The defendants appealed against that decision, and the Court of Appeal allowed their appeal and set aside the award in Mr Matthews' favour. He has appealed against that decision. It should be recorded that, before the hearing of his appeal in the House, the defendants agreed to pay Mr Matthews the sum awarded by the judge with interest and costs, without prejudice to the issues in the appeal.

6. It has been recognised for very many years, at any rate since the "Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and...

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