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'Fairchild' exception confirmed (UK Supreme Court)

9 March 2011, London (Sienkiweicz v. Greif & Knowsley Metropolitan Bureau Council v. Willmore). The Supreme Court dismissed two appeals from awards of damages to descendants of persons who died from asbestos exposure (mesothelioma). In the process it confirmed the Fairchild exception and dismissed appellants' claims that the asbestos exposure at least doubled the risk of the victim developing mesothelioma.

One court action was instituted by the heirs of a Mrs Costello, who died of mesothelioma aged 74. She had worked in an office at a factory premises. The exposure to asbestos was 'very light' but calculated by the trial judge to have increased her total level of exposure, over the general environmental exposure, by 18%. The second court action was instituted by the husband of a Mrs Willmore, who died of mesothelioma aged 49. She was found to have been exposed to asbestos at her secondary school. 

The Fairchild exception (so called after the decision of the House of Lords Fairchild v. Glenhaven Funeral Services Ltd 2002 UKHL 22) provides that defendants whose breaches of their duty of care 'materially increase the risk' of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does in fact develop. This rule relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendant's breach. This exception reflects the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later.

Appellant defendants submitted, amongst other things, that liability should only be established if the claimant can prove on the balance of probability that the exposure to asbestos more than doubled the chances of developing mesothelioma.

The Court ruled, amongst other things, that there was no justification for adopting the test proposed (doubling of risk) as a benchmark. Whether the exposure was too insignificant to be taken into account, having regard to the overall exposure, was a matter for the judge to decide, based on the facts of the particular case.

 

To access the judgement click here