In December 2001, the Court of Appeal gave judgment in the cases
of Mrs Fairchild and Mrs Fox, widows of mesothelioma victims, and of Mr Matthews, who was
dying of mesothelioma.
The Court held that, where a mesothelioma sufferer had worked
with asbestos for two or more employers,
he or his widow were unable to recover damages because they could
not show in which employment the fatal fibre(s) had been
inhaled.
Field Fisher Waterhouse LLP
In January 2002, John Pickering & Partners, the Manchester
firm of solicitors acting on behalf of Mrs Fox and Mr Matthews,
invited Sir Sydney Kentridge Q.C. and FFW partner Rodney Nelson-Jones to join their legal team for
the appeal to the House of Lords. This was fixed for hearing on 22
April.
Rodney worked intensively on the vital case, producing five
major briefing papers for Counsel, assisted by contributions from
the rest of the FFW asbestos claims lawyers.
House of Lords Hearing
The full hearing took place before the House of Lords on 7, 8
and 9 May 2002. Sir Sydney Kentridge Q.C., the famous South African
human rights barrister, presented the case on behalf of the
Appellants to Lord Bingham, Lord Nicholls, Lord Hoffman, Lord
Hutton and Lord Rodger.
House of Lords Decision
The House of Lords announced their decision on 16 May 2002.
The five Law Lords unanimously decided that all three appeals
succeeded in full.
Rodney Nelson-Jones observed at the
time that “this just and enlightened decision marks the end of a
legal nightmare for mesothelioma victims and their families”.
Intervening Period
Despite their Lordships’ clear and unanimous decision, insurers
still refused to settle multi-defendant mesothelioma cases. They
insisted on waiting for the full judgment.
House of Lords Judgment
The House of Lords Judgment became available this morning in an
111 page document containing speeches by all five Law Lords. As the
following quotations show, their Lordships considered that the
balance of justice in such cases lay overwhelmingly on the side of
the injured victims:
Lord Bingham
“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.”
Lord Nicholls
“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.”
Lord Hoffman
“as between the employer in breach of duty and the employee who
has lost his life in consequence of a period of exposure to risk to
which that employer has contributed, I think it would be both
inconsistent with the policy of the law imposing the duty and
morally wrong for your Lordships to impose causal requirements
which exclude liability”.
Lord Hutton
“In these circumstances I have no doubt that justice is better
served by requiring an employer, who has been in breach of duty and
who has materially increased the risk of its innocent employee
incurring the disease, to pay damages than by ruling that the
employee who has sustained a grievous disease can recover
nothing."
Lord Rodger
“if the law did indeed impose a standard of proof that no
pursuer could ever satisfy, then, so far as the civil law is
concerned, employers could with impunity negligently expose their
workmen to the risk of dermatitis – or, far worse, of mesothelioma.
The substantive duty of care would be emptied of all practical
content so far as victims are concerned."
Proportionate Liability
Noting that the Defendants had not argued for proportionate
liability before them, their Lordships held that each Defendant who
had significantly exposed a sufferer to asbestos was liable to pay
the entirety of the damages. Where there are two or more defendants
that are sued, they will share the damages between them. Where only
one significant asbestos employer can be sued, because the others
are insolvent and uninsured, that defendant must pay the whole
value of the claim.
Rodney Nelson-Jones comments:
"The House of Lords is to be congratulated for the manner in
which they have placed justice at the centre of their legal
concerns and for the fair and balanced way in which there Lordships
have achieved this. Sufferers from this terrible disease of
mesothelioma will be grateful not only for their decision but also
for the exemplary speed with which they have dealt with the
case."
For further information or if you believe you have a mesothelioma and asbestos claim, please
contact
Peter Williams, partner on
020 7861 4825 or email peter.williams@ffw.com
You can discuss your mesothelioma compensation claim with any
member of our mesothelioma claims
team by calling freephone 0800 358 3848, email
personalinjury@ffw.com
or complete our short enquiry form.