Lost Causes in the House of Lords: Fairchild v Glenhaven Funeral Services
Like Matthew Arnold's Oxford, disease litigation is the home of lost causes.1 Over many years, the courts have intervened to ease the frequently formidable factual difficulties of proving causation, in cases of disease. The House of Lords in Fairchild v Glenhaven Funeral Services has carried that process of relaxation to its furthest point yet, in a decision of far-reaching importance.2 The case concerned claimants who had contracted mesothelioma (a lung tumour) through exposure to asbestos, over a lifetime of work for different employers. All the employers were admittedly in breach of the relevant duties of care. However, the medical evidence on the aetiology of the disease indicated that it did not necessarily build up gradually but might be triggered suddenly, through one individual fibre causing a single cell in the lung to become malignant, or possibly by a number of such fibres. Accordingly, while each successive employer, and indeed each day of exposure to asbestos, increased the risk of mesothelioma, none could actually be said to have been a contributory cause of the disease. Even if the background risk could be dismissed, it could not be shown which employer(s) were responsible for the possibly solitary fatal fibre(s). This is by way of contrast to the lung disease asbestosis, which becomes incrementally more severe with increased duration of exposure, and to which any exposure to asbestos could, accordingly, be said to have contributed.3 For these reasons, the Court of Appeal concluded that the claimants were unable to prove which of the defendants had caused their mesothelioma, and dismissed their claims.4 The House of Lords however, allowed the appeal on the basis that, in this exceptional case, it was sufficient for the claimants to show an increased risk of the disease consequent upon the defendants' negligence, even though actual causal contribution was impossible to prove. At the heart of four of the speeches was the conception of causation in law as a nollllative phenomenon. An elementary principle, Lord Nicholls said, is that 'the extent to which the law requires a defendant to assume responsibility for loss following upon his wrongful conduct always involves a value judgment', and this could mean both limiting liability when the defendant's conduct was a cause but