Barker v Saint Gobain Pipelines Plc

In Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, the House of Lords decided that where an employee had been exposed by different employers during different periods of employment to inhalation of asbestos dust in breach of each employer’s duty to protect him from the risk of contracting mesothelioma and where he did contract the disease, the fact that the medical evidence could not attribute the onset of the disease to any particular or cumulative exposure did not prevent him from successfully bringing a claim against any one or more of the employers provided that the exposure for which that employer was responsible is not insignificant. This appeal raises two matters arising from that decision. The first is an issue expressly left open by the House of Lords because the point had not been argued on the appeal, namely whether an employer is entitled to an apportionment of his liability to reflect the extent of the overall exposure for which he is responsible. The second raises issues as to the application of the decision in a case where apart from periods of employment with others during which exposure to asbestos dust has occurred, there have also been periods of self-employment during which there has been such exposure.

The appeal is an appeal against a decision of Moses J. sitting at Manchester on 23 May 2003 by which he awarded damages to the widow of a man who had died from mesothelioma contracted as a result of exposure to asbestos dust. The damages awarded were £152,000 representing four fifths of the sum agreed as the measure of damages if the claim succeeded in full. The reduction of one fifth was based on a finding of contributory negligence. The defendant was responsible for the liabilities of a former employer of the deceased, who it was accepted had negligently exposed him to asbestos dust. The appeal is brought by the Defendant contending that there should have been no finding of any liability on its part or alternatively that the award should have been lower reflecting an apportionment argument that had been rejected by the judge.

The facts, as agreed or found by the judge, can be related quite shortly since there is no appeal against the judge’s findings of fact. The deceased, Mr Barker, very sadly died from mesothelioma at the age of 57 on 14 June 1996. It was accepted that his condition and his death resulted from exposure to asbestos dust.

Between March 1960 and December 1968, he had worked at the Shotton steelworks in Deeside for John Summers and Sons Limited. The defendant accepts that it is responsible for discharging the liabilities of that company. During this employment, he was exposed to asbestos dust and it was accepted that such exposure constituted a breach of the duty owed to the deceased as an employee and that the breach contributed to the risk that the deceased might contract mesothelioma.

It was further agreed that there were other periods during the deceased’s working life when he was exposed to asbestos dust. These other relevant periods of employment were a six week period in 1958 when he worked for a firm called Graessers Limited (“Graessers”) and a period from December 1968 to April 1989 when he was a self-employed plasterer.

During the first of the three relevant periods of exposure, when he was working for Graessers, throughout the six week period he daily mixed asbestos for pipe laggers and occasionally himself lagged pipes. The exposure was assessed as “heavy, regular, frequent and of medium duration”, which was defined by the expert evidence as more than 20 fibres per millilitre, on a daily basis for more than an hour a day but less than half a day.

During the second of the periods, that in respect of which the defendant was liable, the deceased worked as a labourer in a variety of locations in the plant. The greatest exposure occurred during a six months’ period when he was working as a part of a pool responsible for cleaning up the galvanising section of the works. In that area, there were four furnaces, the insulation for which consisted in part of asbestos in the form of boards, wool and blankets. There were regular leaks which required repair. To discover the location of leaks in the furnaces, the insulation had to be stripped away to provide access to the joints. Clouds of asbestos would escape and large pieces of asbestos broke off. Dust would gather on the floor. The labourers from the pool, of which the deceased was a part, would be required to sweep it up. This exposure was described by the expert evidence as “heavy, regular, frequent and of long duration”.

The third relevant period was the much longer period of over 20 years during which he was self-employed as a plasterer. The judge found that on three distinct occasions during this long period the deceased had had contact with asbestos dust. In 1974, he was involved in cutting asbestos sheets to be fixed to ceilings and to stud partitions. In approximately 1975, he cut asbestos sheets to be fixed to ceilings. In about the same year, he made good loose plaster and pipes lagged with asbestos. The judge accepted that on these occasions there would have been heavy exposure but that on each occasion it was for no more than a short period.

In Fairchild the then medical understanding of the etiology of mesothelioma was recorded by Lord Bingham at paragraph 7 (page 43D to E):

“It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probable than any other, and the condition once caused is not aggravated by further exposure.”

The medical position was unchanged by the date of the hearing of this case by Moses J.

Moses J. identified three distinct legal issues that had to be resolved by him. He conveniently set these out in his judgment:

“10.

…. Firstly, can the claimant bring the cause of the deceased's death within the principle of the causal requirements for establishing liability for mesothelioma caused by exposure to asbestos dust, as explained in Fairchild -v- Glenhaven Funeral Services Limited … notwithstanding his exposure to asbestos dust whilst working as a self-employed plasterer?

11.

The defendants contend the fact of such exposure during a period when he was self-employed has the consequence that the claimant cannot bring the cause of the deceased's mesothelioma within the principle in Fairchild, and for that reason the claim should fail. I shall describe this issue as the causation issue.

12.

Secondly, whether, if liability is established, the court should apportion the liability of the defendants to reflect the fact that the deceased was also exposed to asbestos dust which might equally have caused mesothelioma during the period of his employment at Graessers Limited and whilst self-employed. I shall call that issue the apportionment issue.

13.

Thirdly, whether damages fall to be reduced on account of contributory negligence, in that the deceased failed to take any precautions when handling asbestos as a self-employed plasterer.

13a. It is important to record that this third issue is not the same as the first. On the first issue the defendants contend that liability cannot be established, whether the deceased was guilty of contributory negligence or not.”

No issue arises on this appeal on the question of contributory negligence provided liability on the part of the defendant is established. There is an extent to which the availability of a finding of contributory negligence has a bearing on the causation issue but save in this context it will be unnecessary to make further reference to it.

Mr Feeny, on behalf of the defendant, argued that the adapting of the orthodox test of causation by the House of Lords in Fairchild was essentially based upon the premise that the claimants were innocent victims of the negligent acts of their various employers so that there would be a real injustice if they could not recover compensation simply because medically it was impossible to identify which employer or employers were responsible for the fibre or fibres that had led to the mesothelioma. He argued that the same characterisation as an “innocent victim” could not be said to be present in a case where one element of the overall exposure resulted from the claimant’s exposure during a period of self-employment. If the exposure during self-employment resulted from his own fault, he was not “innocent” and in any event he was not necessarily the “victim” of another’s wrongdoing since it was just as likely that he suffered the harm through no fault of any employer.

In order to make good his contention that the claimant’s status as an “innocent victim” was an essential prerequisite of the modified test of causation, Mr Feeny drew attention to a number of passages in Fairchild.

At paragraph 23 (page 58C) Lord Bingham of Cornhill said:

“The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannot show which of several possible candidates (all in breach of duty) is the culprit who has caused him harm is one that has vexed jurists in many parts of the world for many years.”

At paragraphs 41 to 43 (page 70A to F), Lord Nicholls of Birkenhead said:

“41.

The present appeals are another example of such circumstances, where good policy reasons exist for departing from the usual threshold "but for" test of causal connection. Inhalation of asbestos dust carries a risk of mesothelioma. That is one of the very risks from which an employer's duty of care is intended to protect employees. Tragically, each claimant acquired this fatal disease from wrongful exposure to asbestos dust in the course of his employment. A former employee's inability to identify which particular period of wrongful exposure brought about the onset of his disease ought not, in all justice, to preclude recovery of compensation.

42.

So long as it was not insignificant, each employer's wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection. This is sufficient to justify requiring the employer to assume responsibility for causing or materially contributing to the onset of the mesothelioma when, in the present state of medical knowledge, no more exact causal connection is ever capable of being established. Given the present state of medical science, this outcome may cast responsibility on a defendant whose exposure of a claimant to the risk of contracting the disease had in fact no causative effect. But the unattractiveness of casting the net of responsibility as widely as this is far outweighed by the unattractiveness of the alternative outcome.

43.

I need hardly add that considerable restraint is called for in any relaxation of the threshold "but for" test of causal connection. The principle applied on these appeals is emphatically not intended to lead to such a relaxation whenever a plaintiff has difficulty, perhaps understandable difficulty, in discharging the burden of proof resting on him. Unless closely confined in its application this principle could become a source of injustice to defendants. There must be good reason for departing from the normal threshold "but for" test. The reason must be sufficiently weighty to justify depriving the defendant of the protection this test normally and rightly affords him, and it must be plain and obvious that this is so. Policy questions will loom large when a court has to decide whether the difficulties of proof confronting the plaintiff justify taking this exceptional course. It is impossible to be more specific.”

Lord Hutton at paragraph 77 (page 78F) made clear that the arguments in that case were based on an acceptance that one or other employer was responsible for the injury and at paragraph 116 (page 95C) he explained why he considered that the appeal should be allowed:

“ … I concluded that the breach of duty by each defendant materially increasing the risk of the onset of mesothelioma in (the claimants) involved a substantial contribution to the disease suffered by them and it was for this reason that I allowed the appeals”.

Mr Feeny places particular reliance on the speech of Lord Rodger of Earlsferry which is summarised in his conclusions at paragraph 170 (page 119B):

“…the principle applies where the other source of the claimant’s injury is a similar wrongful act or omission of another person, but it can apply also where, as in [McGhee v National Coal Board [1973] 1 WLR 1], the other possible source of the injury is a similar, but lawful, act or omission of the same defendant. I reserve my opinion as to whether the principle applies where the other possible source of injury is a similar but lawful act or omission of someone else or a natural occurrence”.

The argument on behalf of the defendant is put succinctly by Mr Feeny when he says “to compensate people who may have injured themselves is to push the boundaries of tort too far”. Before the considerations that led to the modification of the general rule as to causation in Fairchild can operate, it is necessary to establish that the condition does result from the act or omission of some person other than the claimant. The modification of the rule of causation only comes into play once that fundamental hurdle has been crossed and the difficulty then arises that it is not possible to identify which of several possible candidates actually caused the harm. Thus where there is on the evidence an equally likely possibility that the condition may have arisen without fault on the part of some other party during a period of self-employment, the modified approach to the proof of causation cannot be justified.

On behalf of the claimant, Mr David Allan QC argued that the distinction sought to be made on behalf of the defendant was not one that was consistent with the approach of the House of Lords in Fairchild. It would, he submitted, lead to the sort of injustices that the House of Lords was not prepared to countenance and it was inconsistent with the decision of the House of Lords in McGhee, upon which reliance was placed in the reasoning that prevailed in Fairchild.

He submitted that the rationale for the decision in Fairchild was explained by Lord Bingham at paragraph 33 (page 67G):

“I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law.”

At paragraph 62 (page 74E to F) Lord Hoffman said:

“In these circumstances, a rule requiring proof of a link between the - defendants asbestos and the claimant's disease would, with the arbitrary exception of single-employer cases, empty the duty of content. If liability depends upon proof that the conduct of the defendant was a necessary condition of the injury, it cannot effectively exist.”

Mr Allan acknowledged that Lord Bingham at paragraph 2, Lord Hoffman at paragraph 61 and Lord Rodger at paragraph 170 set out criteria to assist in determining whether the modified approach to causation is justified but he submitted that the criteria are not in identical terms and thus cannot be applied rigidly. This had been recognised by Lord Bingham when he said at paragraph 34 (page 68D):

“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development.”

Similarly Lord Hoffman at paragraph 74 (page 77H) said:

“That does not mean that the principle is not capable of development and application in new situations.”

Mr Allan argued that the defendant’s contention that the Fairchild approach is only justified in the case of “innocent victims” ignores the fact that even if any exposure during self-employment is not negligent, the victims will still be unable to show that the condition was not contracted as a result of the fault of some other party and hence cannot succeed. Such a person would be an “innocent victim”, who was deprived of a remedy. Where, on the other hand, there is negligence on the part of the claimant in taking precautions for his own protection during the periods of self-employment, the proper solution to the problems arising comes by way of a finding of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. Where such an issue arises, Mr Allan accepted that a defendant could take advantage of the Fairchild approach to causation to establish contributory negligence.

At paragraph 43 (set out in full above), Lord Nicholls had made clear that policy questions “loom large” when the taking of “the exceptional course” falls to be considered. Mr Allan contended that the defendant had failed to advance any policy consideration for placing a claimant who has a period of relevant self-employment at such a disadvantage to those who have been exposed only in the course of employment with others. There was, he suggested, no good reason why the defendant should escape liability when it was right to hold the defendants in Fairchild liable.

Mr Allan further submitted that to adopt the defendant’s approach would be inconsistent with the approach in McGhee. In that case part of the exposure to brick dust for which the defendant was responsible was “innocent” in the sense that it was without any unlawful act or omission, and part was in breach of duty. The House of Lords nonetheless felt compelled to modify the orthodox approach to causation in those circumstances in a way that did not distinguish between the two types of conduct.

Mr Feeny’s second argument was that, even if liability was established, there ought to have been an apportionment of the responsibility for the damage suffered to reflect his other periods of exposure in different employment. He acknowledged that, on the medical evidence, there was a single indivisible injury and that the normal approach to such an injury where there were two concurrent tortfeasors was for each to be jointly and severally liable in accordance with the principle explained by Devlin LJ in Dingle v Associated Newspapers [1961] 2 QB 162 at pages 188 to 189 and adopted by Laws LJ in Rahman v Arearose Ltd [ 2001] QB 351 at pages 361 to 362, paragraphs 17 and 18. However, the modification of the rule as to causation in Fairchild required a modification to the approach to apportionment in such cases if injustice was not to result. Mr Feeny contended that it was accepted in Fairchild that modification of the rule as to causation would create situations in which some defendants would have to accept liability when the defendant was not responsible in fact for the harm suffered. When the rule is repeatedly applied in claim after claim, the inevitable consequence is that those employers who remain available to compensate claimants because they have not become insolvent or untraceable with the inevitable passage of time involved in this condition will have to shoulder a greater liability at law than their true factual responsibility for the harm that they have caused. This, it is argued, can only be considered as an injustice.

Mr Feeny drew attention to the observations of Laws LJ in Rahman at paragraph 33 (page 368A):

“Novus actus interveniens, the eggshell skull, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any defendant’s responsibility for the loss and damage which the claimant has suffered.”

He submitted that the use of any tool or mechanism has to be adapted for the task in hand. If the court addressed the full complexities of multiple mesothelioma litigation, then the just solution involved an apportionment as suggested. Mr Feeny further submitted that the application of the Fairchild principle to different factual situations would be more straightforward if an approach based on apportionment was adopted.

Mr Allan contended that the concession made by leading counsel for the defendants in Fairchild that mesothelioma had to be considered an indivisible injury was undoubtedly correctly made. Dingle and Rahman clearly established that for such an injury any tortfeasor who contributed to a single injury is liable for the whole loss. In the absence of any compelling policy reason to modify this rule, it clearly had to be applied and there is no such compelling reason. If another tortfeasor had contributed to the risk of a claimant contracting mesothelioma, a defendant could seek contribution under the provisions of the Civil Liability (Contribution) Act 1978. If the victim had contributed to the asbestos exposure by his own fault damages can be reduced on the basis of contributory negligence.

Mr Allan accepted that if an additional tortfeasor can no longer be sued and if no insurer could be identified, a defendant may be unable to obtain a contribution. However, in such circumstances there was no compelling policy reason why the defendant should only be liable for part of the loss. He is a tortfeasor in breach of his duty who in law is deemed to have contributed to an injury that in this and many cases will result in death. Mr Allan posed the question:

“Why in those circumstances should there be a special rule for such a tortfeasor which has the effect of depriving the innocent victim who has suffered a single devastating injury of part of his or her damages? It is through no fault of the claimant that another tortfeasor can no longer be sued.”

Mr Allan argued that in a case where mesothelioma is attributable to exposure by a solvent wrongdoer and an insolvent wrongdoer, it would be unfair to transfer the risks of insolvency from the solvent wrongdoer to the blameless claimant.

Moses J. resolved each of these issues in favour of the claimant. Mr Allan placed reliance upon and adopted the judge’s reasoning for his conclusion on the Causation Issue. It is perhaps, therefore helpful to set it out in detail:

“60.

I should reiterate that the defendant's submission does not depend upon any proof that the deceased was himself to blame. It seems to me that that is a significant and necessary feature of the defendant's argument. If the submission depended upon the fact that the deceased was himself at fault, it would be difficult to sustain. If the deceased was at fault, it is difficult to see why the defendant should escape liability altogether. Justice can be met by reducing the extent of the damage in proportion to the extent of the deceased's responsibility in accordance with conventional principles under the Law Reform (Contributory Negligence) Act 1945.

61.

It is difficult to see why, if the deceased was in part to blame for materially adding to the risk, but only partly to blame, he should receive no compensation whatever. If one supposes that a deceased through his own fault was exposed to asbestos during a very short period of self- employment, but for most of his working life suffered such exposure due to breaches of duty on the part of a number of employers, I can discern no justice in depriving him of compensation altogether.

62.

In the case of one who has been employed throughout his working life and exposed to asbestos dust, but who on a few occasions was guilty of contributory negligence in failing to use protective equipment with which, say, on one occasion he was provided, the claimant would recover, subject to a reduction. I cannot see why the position of a claimant should be any different because he was on occasions self- employed and to some extent at fault, rather than employed, but to some extent at fault. On the contrary, it seems to me that both cases are analogous. Both should be treated in the same way, and both should be at risk not of complete loss, but rather of a reduction of damages.

63.

It was no doubt with that difficulty in mind that the defendant's submission was developed in the way that it was, to include both cases where a deceased was at fault and where he was not. If his submission was confined to cases where the deceased was at fault, a comparison would arise between a negligent self-employed worker and a negligent employee. The defendant would not be able to demonstrate why justice could not be met by the application of traditional principles of contributory negligence.

64.

Those principles would, it was accepted, have to accommodate the principle of causation in Fairchild. A defendant has to do no more than establish that the deceased's own failures materially increase the risk.

65.

But it is at this stage that the defendant's argument begins to unravel. Once it is accepted that in cases where a deceased is at fault, the rules permitting reduction of damages afford a measure of justice to a defendant who has materially increased the risk, it is difficult to see why justice demands that an innocent sufferer whose mesothelioma may be the result of exposure during a period of self-employment should not be able to recover.

66.

In McGhee -v National Coal Board (1973) 1 WLR 1, the House of Lords was faced with the stark choice of imposing liability or not, even though the dermatitis may have been caused without any fault on the part of the employer or depriving the employee of any redress.

67.

I can identify no greater injustice in fixing an employer in breach of duty with liability, even though the mesothelioma may have been caused during a period of self-employment. The source of the problem is the same in all these cases; the impossibility of attributing precise responsibility.

68.

Faced with that impossibility, the law imposes liability on those who were responsible for materially increasing risk which later materialised, even though others were also responsible for increasing the risk. If one of those sharing responsibility turns out to be the deceased, the law provides a measure, but not total relief for a defendant, by a reduction of damages.

69.

If the risk was materially increased without fault, I can identify no just basis for affording complete relief from liability to those who, in breach of duty, themselves increased the risk. To adopt the words of Lord Hoffman at page 63, as between an employer who has contributed to a period of exposure to risk and an innocent self-employed man who has similarly contributed to a period of exposure, I regard it as inconsistent with the policy of law to deprive that innocent self-employed person of any redress at all in respect of the period when he was employed by an employer in breach of duty.”

As to the Apportionment Issue, Moses J. concluded that, in the light of Dingle and Rahman, since this was an indivisible injury, it was not open to him to adopt the course suggested on behalf of the defendant. In any event he would have declined the opportunity to limit the amount of the recoverable damages by reference to the extent to which the defendant materially increased the risk even if it was capable of calculation. He said:

“82.

It may be that only one defendant's breach of duty in fact resulted in the mesothelioma. If mesothelioma can be caused by many fibres, it may be that a number of the defendants are responsible.

83.

In such a state of uncertainty, the concept of apportioning blame cannot be rooted in any scientifically provable fact. For reasons of justice and fairness, the law imposes liability on those who are responsible for increasing the risk. It is also readily understandable that as between defendants there should be apportionment on the sensible basis that the greater the exposure, the greater the risk, the third of the five features to which Lord Hoffman drew attention at paragraph 61 of his speech.

84.

On the same basis, contributory negligence may lead to a reduction, but in cases where there is no contributory negligence, I can see no just basis for a reduction in damages merely on the basis that someone else may have been responsible.

85.

The rationale for relaxation of the orthodox rule does not, in my view, carry with it justification for altering the traditional liability of a concurrent tortfeasor. Indeed, the justification for the rule as to concurrent tortfeasors as explained by Laws L.J. in Rahman, bears a striking similarity to the justification for the rule as to causation as explained by the House of Lords in Fairchild. If a claimant is not to be deprived of all redress for want of proof of causation, equally it seems to me his damages ought not, as between him and a tortfeasor, be reduced for want of proof of causation.”

For my part, having reflected on the competing arguments, I find myself in complete agreement with the approach of Moses J. to each of these two issues. I can think of no approach to the problems that arise in a case such as this that would achieve a more just solution if consistently applied.

It seems clear to me that at the very heart of the decision in Fairchild were policy questions to determine which of two competing arguments should prevail. Each ran an inevitable risk that there might be some injustice to one or other of the parties. The law had to take an objective view as to which would lead to greater injustice or potential injustice and formulate rules accordingly.

This was explained by Lord Bingham at paragraph 33 (page 67D to G) of Fairchild, to which reference has already been made but it is perhaps important to set out the observations more fully:

“The crux of cases such as the present, if the appellants' argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee (I973) 1 WLR 1, 7 that:

"the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default."”

The consideration suggested by Lord Bingham that the employment of those who had already been exposed to asbestos by other employers would offer a means of immunity against liability for mesothelioma would apply equally to those whose exposure was as a result of self-employment as to those employed by others.

Mr Feeny pointed to a situation where 99% of the exposure was during periods of self-employment but there was no negligence on the part of the claimant. In such circumstances, if the period of self-employment was not a bar to the claimant succeeding, he would recover in full from the defendant who was only responsible for 1% of the exposure since there would be no contributory negligence. This, he submitted, could not be right.

Unsurprisingly Mr Allan countered with the reverse situation where the employer was responsible for 99% of the exposure and the self-employment counted for only 1% with no fault on the claimant’s part. For such a claimant to recover nothing when he would have recovered in full, or at worst to the extent of 99% if the apportionment argument succeeded if he had been employed by a third party rather than self-employed, would be manifestly unjust.

Such arguments to my mind only serve to highlight the policy element inherent in developing the law to provide the most equitable solution to the problems inherent in a situation such as this. This was the approach of the House of Lords in Fairchild and I believe that it has to be the approach to the first issue in this appeal. It seems to me inevitable that whatever solution the law finds it will always be possible to suggest an extreme situation in which the answer may not seem to be entirely fair to one or other party. The policy decision has to be made on the basis of the generality looking for the fairest solution when the matter is considered in the round.

If that approach is adopted, then the answer given by Moses J. seems to me to be entirely consistent with the reasoning of the House of Lords in Fairchild and the most likely to achieve the proper objective of the law. Where there is fault on the part of the claimant, this will be reflected by a finding of contributory negligence. Mr Feeny suggested that this was to confuse two distinct principles but I cannot agree with him. In framing policy in respect of the issue being considered, it is perfectly proper, and indeed I consider necessary, to look at all the consequences of such a policy. If possible hardship can be ameliorated by the application of some other principle, it is right to take that into account in the exercise.

In the case of a person whose exposure outside his employment with the defendant is during a period of self-employment, the application of the Fairchild approach will give rise to no greater degree of injustice or potential injustice to the defendant than would be the case where the other exposure was during employment with a third party. In contrast, exclusion of all liability because there has been a degree of exposure during a period of self-employment, however limited that exposure, provided it was not so insignificant as to be disregarded, would be to run the risk of manifest unfairness to a claimant on precisely the same basis that the House of Lords thought demanded a modified approach in the case of multiple employment. For these reasons, I would respectfully adopt the approach of Moses J. on this issue.

The issue of apportionment clearly raises equally difficult considerations. Mr Feeny has recognised that if the normal principles are applied there will be no apportionment on the basis that this was an indivisible injury. He argued that the modification of the causation rules on policy grounds demands a modification of the apportionment rules to take the altered approach into account. It seems to me that it is, therefore, necessary to demonstrate some compelling reason to depart from the accepted rule in the circumstances. In this respect I accept the arguments advanced by Mr Allan. Mr Feeny is quite right in his analysis of the consequences for those employers who remain solvent and traceable. Inevitably it follows that a diminishing number of employers become liable for the totality of the consequences. Looked at exclusively from a defendant’s point of view, this might suggest a different approach is needed but the rule is essentially one for the protection of the person to whom the wrong has been done and consideration from the claimant’s angle inevitably introduces further factors. Moses J. commented upon the “striking similarity” of the approach between the rule as to concurrent tortfeasors as explained by Laws LJ in Rahman and the rule of causation as explained in Fairchild. I consider that this is the result of very similar policy considerations arising in each case. I have, therefore, concluded that there is no sufficient justification demonstrated to alter the normal rule against apportionment in the circumstances of this case.

For these reasons I would reject each of the arguments advanced by Mr Feeny and dismiss this appeal. I would not wish, however, to leave the case without expressing my considerable gratitude to both Mr Feeny and to Mr Allan for the very clear, helpful and economical way in which the case has been argued before us.

I agree. On the causation issue, emphasis has been placed by the defendant on the fact that the present case does not meet all the criteria identified in Fairchild for liability to arise. In particular, it is said by Mr Feeny that it was crucial to that decision that there had been a breach of duty owed to the claimant by someone, with the result that there was undoubtedly a tortfeasor in existence. Reference is made to the way the issue was described by Lord Bingham of Cornhill at paragraph 23, where he said:

“The problem of attributing legal responsibility where a victim has suffered a legal wrong but cannot show which of several possible candidates (all in breach of duty) is the culprit who has caused him harm is one that has vexed jurists in many parts of the world for many years.”

If the injury may have resulted from the injured party’s own actions while self-employed, then contends Mr Feeny one does not know that anyone has been in breach of duty owed to the injured party. There need be no tortfeasor in existence.

It is of course obvious that there is that factual distinction between Fairchild and the present case. That in itself does not indicate that Moses J. was wrong in his conclusion on this issue. As Lord Bingham made clear at paragraph 34 of Fairchild:

“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise. For the present, I think it unwise to decide more than is necessary to resolve these three appeals. ”

The law of tort operates within a social context and its development must reflect that. This court must, as Lord Justice Kay has said, have regard to the policy considerations which underlay the decisions in Fairchild when one comes to resolve the present issue. To deny a claimant any remedy in a situation such as the present merely because his injury may have resulted from his own activities is redolent of the days when contributory negligence on the part of a claimant would operate as a complete bar to his recovery of damages.

Moreover, I find helpful guidance in the case of McGhee, which was very influential in Fairchild. In McGhee, the injury suffered may have been caused by the lawful, non-tortious acts of the defendant. Nonetheless the defendant was held liable because it had tortiously exposed the claimant to the risk of contracting dermatitis, and such exposure may have led to him contracting the disease. In other words, the injury may have been caused by something other than tortious conduct on the part of someone. It is to be noted that this was recognized by Lord Rodger of Earlsferry in Fairchild, where at paragraph 170 he stated:

“… the principle applies where the other possible source of the claimant’s injury is a similar wrongful act or omission of another person but it can also apply where, as in McGhee, the other possible source of the injury is a similar, but lawful, act or omission of the same defendant.”

Lord Rodger went on to reserve his opinion as to whether the same approach applied where the other possible source of injury is a similar but lawful act or omission of someone other than the defendant or a natural occurrence. But it seems to me that McGhee illustrates that a sufficient causal link may exist even where it cannot be established that anyone’s tortious act caused the injury. Mr Feeny’s argument that the injury must be shown to have been the result of someone’s breach of duty cannot be sustained.

Indeed, Mr Feeny was prepared to take the Fairchild approach beyond the facts of that case, because he recognized the difficulty of confining the approach to those facts. He conceded in the course of argument that if a claimant had been exposed to the risk of mesothelioma during his employment by each of three employers in succession but one of the three had not acted negligently, then the other two would still be liable under the principle established in Fairchild for his contracting the disease. That liability would arise, even though it was possible that the injury may not have been caused by anyone’s tortious conduct.

I conclude, therefore, on the causation issue that there is no reason for the defendant to escape liability in cases such as the present merely because the claimant’s injury may have resulted from exposure during the time when he was self-employed. It is not a pre-condition of liability under the principle in Fairchild that the injury must have been caused by someone’s tortious act, so long as it is established that the defendant in breach of its duty to the claimant exposed him to the risk of contracting mesothelioma and that risk eventuated.

On the issue of apportionment, I was for a time attracted by the defendant’s argument that if one is dealing with an exceptional or novel situation, as is the position in these mesothelioma cases in the current state of medical knowledge, then one should be prepared to develop the law in a new direction to achieve a just result, even if it meant departing from the concept of liability for indivisible injuries. It would seem right that the claimant’s own conduct in exposing himself to the risk of the disease should be reflected by some mechanism, in the same way that one tortfeasor would usually have the right to claim contribution from another concurrent tortfeasor who has caused the same injury.

However, on reflection I accept the argument advanced on behalf of the claimant that there is no need to depart from the long-established principle applicable in the case of an indivisible injury. If apportionment were generally to be seen as appropriate in mesothelioma cases, it would be difficult to reconcile with a defendant’s right to contribution from a concurrent tortfeasor and could lead to a situation where a claimant would lose part of his damages if there had been an apportionment of liability between the previous employers and one of those previous employers then became insolvent. This simply illustrates the problems which could arise if one were to depart from the established approach to liability for indivisible injuries. If there has been any blameworthiness on the part of a claimant in exposing himself to the risk of the disease, then that is something which can be adequately and more appropriately catered for by applying the principles of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. Those principles were indeed applied in the present case.

For these reasons, I agree that Moses J. was right in the conclusions which he reached. I too would dismiss this appeal.

I also agree