U Turn in Judicial Logic
The Fairchild Ruling
On 1 February, 2001, a "perverse and absurd" High Court judgment threw into doubt the viability of a huge proportion of UK mesothelioma cases. Mr. Justice Curtis’ ruling in the Fairchild case created blind panic amongst insurers, solicitors and plaintiffs. In a nutshell, Curtis declared himself unable to apportion liability for Arthur Fairchild’s premature death from mesothelioma. Although two defendants admitted having exposed the former joiner to "substantial quantities of lagging-derived asbestos containing debris and dust," the judge found it impossible to decide "from which source of exposure came the single asbestos fibre, or if it be the case, the fibres, responsible for the malignant transformation of the pleural cell. It follows the exposure causing the disease could be at either of the named premises or in combination – and none are more likely than the other." Trashing some plaintiffs’ precedents and relegating others to "an inference of fact," this judgment has been greeted with disbelief. According to Spencer Wood, Mrs. Fairchild’s solicitor, the outlook is bleak: "On its face, it will mean that all mesothelioma claims must fail. Evidence can always be brought by employers to show that there was some environmental exposure – on the Tube or even on the street. One asbestos fibre can cause mesothelioma and it is never possible to prove which fibre caused the disease." At the very least, the outcome of cases involving more than one defendant has been seriously compromised.
Within a fortnight of the Fairchild verdict, Amicus Legal Ltd., which provides insurance linked to conditional fee agreements, began refusing to underwrite multi-defendant mesothelioma claims. Solicitor Gareth Wheeler, whose Southampton-based firm has handled over one thousand cases arising from exposure at local shipyards, building and construction companies, is concerned: "Obviously the withdrawal of insurance cover for this category of claims means that the majority of claimants will not have the resources or willingness to pursue these actions because of the potential liability to pay defendants’ legal fees." Amicus has issued precise instructions on how solicitors should proceed in multi-defendant cases: where a Certificate of Insurance has been issued, written authority from Amicus must be obtained before proceedings are commenced; where proceedings have been served, solicitors should expend "the minimum work levels required to keep the case live pending a decision of the Court of Appeal."
Post-Fairchild Decisions - The Good News
The day after the Fairchild judgment was issued in the High Court, the Court of Appeal (2 February, 2001) upheld the original ruling in a case brought by the widows of two other mesothelioma victims. In February 2000, Deputy High Court Judge R.D. Machell Q.C. had found for the plaintiffs, Betty Irene Jeromson and Ruth Mary Dawson, in their action against Shell Tankers UK and Cherry Tree Machine Co. Ltd. Both defendants appealed alleging that the Asbestos Industry Regulations 1931 were specific to the asbestos industry and were not relevant to "the incidental use of asbestos in other industries." Appeal Court Justices Lord Mantell, Hale and Cresswell were unequivocal: "The regulation in this case is quite clear: the obligation to provide an exhaust is absolute unless it is not practicable to do so. There is no question of reasonable practicability. In any event, the known danger was dust and the required precaution was both known and practicable. The judge was clearly right to hold that if the regulation applied it had been broken in this case."
Another favourable result in a mesothelioma case was reached on 8th February with an out-of-court settlement of £275,000 in Leonard Leslie Humber v W.S. Shuttleworth (Slough) Ltd. Between 1967-1975, the plaintiff was occupationally exposed to asbestos while preparing asbestos sheets for delivery to customers and working in the vicinity of colleagues sawing these sheets. In 1999, he became unwell and was subsequently diagnosed with malignant mesothelioma. Mr. Humber was represented by a solicitor from the London law firm of Field Fisher Waterhouse; the firm’s Asbestos Newsletter can be viewed on the website located at: www.ffwlaw.com The Spring 2001 issue lists successful actions against defendants such as: Elders & Fyffes Ltd., Hessle Foam Products Co. Ltd., Smith & Partners Ltd. (formerly Smith Insulations Ltd.), Cape Darlington Ltd., Expandite Contract Services Ltd., Turmag (Great Britain) Ltd. (formerly Mitchell Brothers, Sons & Co. Ltd.), Watkin Heating Co. Ltd., Barrett & Wright (London) Ltd., Cape Building Products Ltd. and the British Waterways Board (formerly the British Transport Commission). Of particular interest is the settlement achieved in the John Johnson case. Although a post mortem examination established the presence of pleural plaques, no evidence of asbestosis was found in Mr. Johnson’s lungs. In addition, the deceased had smoked 20 cigarettes daily over a period of thirty-five years. Citing the Helsinki report (1997) which held that "asbestosis was not a necessary condition for the causation of lung cancer by asbestos" and presenting expert evidence from Dr Robin Rudd and Professor Douglas Henderson encouraged the defendant’s insurers to make an offer equivalent to two thirds of the agreed value of the claim.
Solace can be found in the lack of support for Curtis evinced by Mr Justice Leveson and Judge Macduff QC. Critall Windows Ltd. and Others, defendants in an action which commenced before Leveson in Court 5 of the Royal Courts of Justice on 12 March, 2001, were disappointed by his refusal to grant an adjournment pending the Fairchild appeal. Leveson said: "I am not contesting (the judgment of) Curtis J (in the Fairchild case) but I have to say in thirty years’ experience it causes me to raise my eyebrows." For twenty years, the deceased had worked in the same premises. During Mr Bond’s employment, corporate reorganizations occurred which enabled the defence to argue that exposure had been caused by multiple defendants. Not so said the judge: "the Deceased, giving long service with what he thought was one entity, has now lost his life as a result of that." The defendants agreed to pay damages of £120,000: the full value of the claim plus costs. This outcome compares favourably to an earlier defence offer which included a deduction for litigation risk on the Fairchild point. Also relying on Fairchild, the defendants in Durant v Parnall & Sons Ltd. were optimistic that multiple occupational exposures would get them off the hook. While the most substantial asbestos exposure experienced by the deceased had occurred during his employment with them, he had also experienced exposure from non-parties to the action. Having heard some lay evidence, Judge Macduff asked the defendants what their position would be if he ruled them the predominant exposer. Although they responded that they would dispute causation, twenty minutes later they agreed to pay £140,000: the full damages and costs. According to an expert witness present during the hearing, Judge Macduff QC, having agreed to judgment by consent, commented that he "preferred the approach in McGhee (a 1973 precedent) to that of Judge Curtis." As in the Bond case, the accepted settlement in Durant was a substantial improvement on a discounted offer made previously. Allan Gore, the plaintiffs’ barrister in both cases, argues that "both the result and reasoning in Fairchild is incorrect in law and that the case had been wrongly decided such that it should not be followed." He recommends that solicitors: transfer Fairchild-type cases to the High Court "to avoid any suggestion that the county court is bound by the decision of Curtis J," not settle at a discount any case in which a majority exposer is sued, litigate multiple exposer cases by arguing that Fairchild was "incorrectly decided."
Although defence solicitors initially denied the "alleged" exposure, contested the income dependency claim, mounted a limitation defence and pleaded the Fairchild point because of subsequent occupational exposure, the case brought by the family of Robert Kirk succeeded. In June, 2001 the sum of £240,000 was awarded for the mesothelioma death of Robert Kirk, a heating engineer with fifteen years employment in the central heating and engineering industry. According to solicitor Louise Morgan, thirty-nine year old Mr. Kirk, who died in 1997, was: "the youngest victim of this terrible disease that we know of." The case against Hallamshire Heating Company Ltd., the Sheffield-based company which employed Mr. Kirk as a trainee heating engineer from 1974-1980, was complicated by the defendant’s liquidation. The company’s insurers were traced after legal action had been taken against former company directors.
Post-Fairchild Decisions - The Bad News
Following the path trodden one month previously by Mr. Justice Curtis, His Honour Judge Mackay cited the Fairchild reasoning in his 27th March, 2001 judgment in the case of Doreen Fox v Spousal (Midlands) Ltd. Mrs. Fox’s husband died in 1996 from mesothelioma. The deceased had worked as a pipe lagger for the defendants from 1953-1955; from 1955-1989 he worked in Liverpool Docks as a stevedore/holdsman. Judge Mackay concluded: "the claimant cannot prove that these (Spousal) particular defendants… were the relevant employers at the time when this disease was started. I reject the claimant’s assertion in this particular case that that proof is apparent or can be established in the manner which the claimant puts forward, or indeed, can be established in the manner which was put before Mr. Justice Curtis in the case which he heard, Fairchild-v-Leeds City Council." Permission to appeal has been granted and the Fox case will be included amongst several to be heard in the Fairchild appeal on 12 November, 2001.
Defendants, keen to take advantage of loopholes, have been inviting plaintiffs’ firms to discontinue mesothelioma claims or face an application for wasted costs. One solicitor was told that if he refused to withdraw, the defendants would "seek an order that the claimant’s solicitors pay the defendants’ costs personally if the case went ahead and the claimant lost the Fairchild argument."
An application to set aside an order for judgment in a mesothelioma case illustrates the determination of defendants to maximize the judicial advantage of Fairchild. Although agreement had been reached in the case of Kenneth Taylor v East Riding of Yorkshire Council and South Humber Health Authority NHS Trust at a case management conference held on January 30, 2001, the Fairchild loop-hole encouraged the defendants to seek release from this arrangement. The May, 2001 ruling of the Sheffield County Court upheld the original consent judgment entered into by all parties.
"The English Defence"
The fall-out from Fairchild has been far-reaching, arriving in the Scottish courts within months of the original ruling. The case of Patrick Gilbride had been ongoing since January, 2000 when a legal action for his 1998 mesothelioma death was initiated by his sons. Liquidation proceedings of Chester Street Insurance Holdings Ltd., formerly Iron Trades Holdings Ltd., the company which had insured five of the six defendants had delayed the trial long enough for the implications of Fairchild to be exploited. On 12th April, 2001 defendants Blythswood Shipbuilding Co. Ltd. and Others moved the Edinburgh Court of Session to allow a late defence on the grounds it may be necessary to determine "the real question of controversy between the parties." Their late defence, now called the "English defence," was based on the Fairchild reasoning. Miller’s Insulation, the only defendant not insured by Chester Street, did not endorse the factual or legal arguments set out in the new arrangements. Frank Maguire, one of the Solicitor Advocates representing all three plaintiffs, objected to these legal manoeuvres; quoting extensively from Lord Reid (as in the Matthews’ case), Maguire maintained that this defence had no basis in law. Maguire and his colleague, Thomas Marshall, also urged the court to adopt a common sense approach; should it choose a purely scientific view of causation, asbestos victims would be penalized and defendants would escape liability. Lord Carloway reluctantly agreed to consider the new evidence "in the interests of justice, to reach a correct decision in this case." Hope that the Scottish court may disregard the Fairchild precedent can be found in section 13 of his opinion: "In the present case, for example, the issue may well turn on whether it can be said that the more asbestos fibres introduced into the lungs, the more likely it is that the disease will be contracted. If that were so, there would certainly appear to be room for the view that each person who has contributed to the totality of the fibres will be liable." The judge admitted that his decision will cause a delay of at least six months to the resolution of the Gilbride action and two associated cases.
During the Fairchild appeal, the Court of Appeal will also consider four other cases; one of them is the action brought by Edwin Matthews, a fifty-four year old mesothelioma victim, against Associated Portland Cement and British Uralite PLC. Geraldine Coombs, Mr. Matthews’ solicitor, believes that the 11th July, 2001 verdict handed down by Mr. Justice Mitting reaffirms the accepted practice pre-Fairchild: "all exposures to asbestos more than 10 years prior to the development of the disease should be considered causative." The testimony relating to Mr. Matthews’ exposure is appalling in its graphic description of the working conditions prevalent during the years of his employment. His duties at British Uralite were explained as follows: "I took the wet asbestos paste and formed collars and pipes around moulds, using my hands. Once I had done this, the moulds were stacked up and placed into an oven… Although I worked with the wet asbestos paste bits of the asbestos paste fell onto the floor and fell onto my work station. The asbestos paste dried off very quickly. When dry it was asbestos dust. There was asbestos dust on my work station and dust all over the floor. I walked on it, raising, dust… Part of my job was to remove the cooked asbestos pipes from the oven and stack them. Once cooked they were dusty. Removing them from the oven and handling them as I stacked them, I disturbed more asbestos dust."
Mr. Matthews worked at the British Uralite factory in Higham, Kent for six weeks at the beginning of 1973. From there he went to the Martin Earles Works in Strood, Kent; these premises belonged to Blue Circle Enterprises, the company which became Associated Portland Cement Manufacturers Ltd. (APCM). The latter period of employment lasted eight years; during the second half, the plaintiff was in frequent contact with asbestos: "I estimate that I spent about forty-five minutes to one hour every day in the boiler house throughout these four years 1977-1981. The boiler house was in a confined space and the air in there was poor quality. The asbestos dust hung in the air. I swept up using a sweeping brush and shovel in the boiler house about once a week… Sweeping it up stirred the asbestos dust in the air." Mr. Matthews described occasions when he worked in close proximity to fitters stripping asbestos lagging by hand or with hand tools. Large asbestos-lagged pipes, which were above ground level, were used as walkways. Two experts produced divergent estimates of the quantities of exposure caused by each defendant with the plaintiff’s witness claiming 61% (later increased to 72.6%) of the exposure occurred at British Uralite and 5.5% (later reduced to under 5%) at APCM while Uralite’s expert alleged that the exposure by Uralite accounted for 40% and that by APCM 27%. Addressing causation, Mr. Justice Mitting cited the House of Lords’ decisions in McGhee and Wilsher. From the former, the judge quoted Lord Reid’s finding that: "the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury." Challenging the Fairchild decision head-on, Justice Mitting concluded: "the claimant’s exposure to asbestos fibres in the employment of the two defendants, did materially contribute to, and so cause his mesothelioma… They owed him statutory and common law duties to take steps to minimise the risk. They failed to do so… It seems to me wholly artificial to require a claimant to prove which fibre, or fibres, inhaled in whose employment in precisely what circumstances, caused or set off or contributed to the process by which one or more mesothelial cells became malignant." Damages were apportioned equally between the first and second defendants and leave to appeal was given.
During the four-day Fairchild appeal, the Pendleton decision, being challenged by the defendants, and the Twohey and Fox verdicts, being challenged by the claimants, will be heard along with the Matthews case. In the Pendleton judgment, His Honour Judge Tetlow ruled on the construction of section 51, subsection (1) of the County Courts Act 1984 finding that the court is entitled to "make an order for provisional damages in respect of the risk of mesothelioma and lung carcinoma," even though under Fairchild it would not be possible to establish "which of the defendants exposed him (Pendleton) to the putative fibre or fibres that caused the onset of the condition." Lawrence Twohey died of mesothelioma in 1989, aged fifty-nine. As a foreman plumber and heating engineer, Mr. Twohey had been employed from 1954-1968 by J Lindley & Company Limited, a Leeds-based firm which undertook contract work repairing boilers for Leeds City Council. Mr. Twohey removed asbestos lagging using a chipping hammer at various Leeds schools; he also mixed asbestos with water and applied it to boilers and pipes. No precautions were taken. The case was brought by Mr. Twohey’s executors against Leeds City Council which, as the occupiers of these buildings, should have "kept abreast of their duties under the statutory (asbestos-related) provisions." Although Judge Bush found: "that by the end of 1958 the Defendants should have been aware from the available literature of the risk of asbestosis and cancer from exposure to asbestos dust and fibres in the process of stripping asbestos insulated heating boilers and pipes and from mixing asbestos and reapplying it to boilers and pipes," he maintained that Leeds City Council was "entitled to regard Lindleys as competent to do the work on which the Defendants engaged them." The resolution of the case hinged on whether Mr. Twohey’s presence on the Leeds sites constituted "special circumstances" within the meaning of the Occupiers’ Liability Act of 1957; a positive finding would make the Council liable as a joint tortfeasor. Resting on the judgment of Mr Justice Eady in Babcock International Limited v National Grid Company, one of the cases being appealed with Fairchild, Bush concluded: "it was not reasonable to expect the Defendants to supervise the Lindleys’ activities in order to ensure that they discharged their duty to their own employees."
Until the Court of Appeal ruling is known, solicitors and their mesothelioma clients will remain in a state of limbo. Difficulties in obtaining insurance linked to conditional fee agreements continue to deter asbestos victims and solicitors from bringing meritorious cases.
September 6, 2001