Hoffmann, Lord

Fairchild and after

Hoffmann, Lord, (2013) "Fairchild and after" from Judge and jurist : essays in memory of Lord Rodger of Earlsferry pp.63-70, Oxford: OUP

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Fairchild and Mter
Lord Hoffmann*

Alan Rodger had the room next to mine on the Law Lords' corridor and I often used to look in to talk about a case, share some gossip (for which he had an insatiable appetite), or tell him a joke I had heard. Our rooms were not large and most of the surfaces in Alan's (including the floor) were covered with heaps of books and papers, leaving him either sitting like an industrious bird at his computer in the window corner, pecking away at the keyboard, or on a chair which formed an island in the sea of paper, deep in conversation with a judicial assistant who was concealed Cherubino-like in an armchair behind the open door. When we received the blue, bound volumes in the pending cause of Fairchild v Glenhaven Funeral Services Ltd,l I went in to talk to Alan about Roman law. We had both taught the Roman Law of Delict for the Oxford School of Jurisprudence and the problem in Fairchild rang a distant bell. Didn't Salvius J ulianus have something to say on a similar question? I had checked my copy of Lawson's Negligence in the Civil Law ('Leonard Hoffmann, The Queen's College, Oxford, March 1955' inscribed on the flyleaf) and found it. Digest 9.2.11.2, Ulpian quoting Julian: if several people strike a slave and one cannot tell whose blow killed him, all are liable to the owner under chapter 1 of the Lex Aquilia for killing. 'Yes of course', said Alan. 'And there is 9.2.51.1 as well; Julian citing the veteres, the Republican jurists. Julian was a great lawyer; a very great lawyer, you know.' This was fun. I had not found such a use for Roman law since I tried unsuccessfully in 1959 to persuade a magistrate in Cape Town that the praetorian edict nautae caupones stabularii imposed strict liability on the owner of a boarding house in Sea Point. 2 Julian made his appearance in Lord Rodger's speech in Fairchild, accompanied by health warnings about how little we knew about the precise situation he had in mind. (A lynching, perhaps?) Furthermore, liability under the lex Aquilia was not

* A former Lord of Appeal in Ordinary. [2002] UKHL 22, [2003] 1 AC 32. Ne;jJly half a century later a judge in Cape Town took a different view, see Gabriel v Enchanted Bed and Breakfast CC2002(6) SA 573(C). But a similar argument in Scotland failed: Drake v Dow and Dow, Sheriff Principal Sir Stephen Young, 19 August 2005 (<http://www.scotcOUftS.gov.uk/ opinions/ sc3704.htmb).
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joint and several. It was cumulative. The statute was penal and payment of the full damages by one defendant did not absolve another. So, as Lord Rodger acknowledged, all that could be gleaned from the Roman texts was that the classical lawyers had thought about the problem of uncertainty about which of several assaifants had struck the crucial blow and come up with an answer. The same inconclusiveness applied to the array of other foreign authorities that Lord Bingham assembled. There were cases from several jurisdictions about shooting parties who had accidentally shot a beater or an innocent passer-by without it being possible to tell which member's shot had caused the injury.3 These were cases ofjoint participation in a potentially dangerous activity: again, rather different from the facts in Fairchild. The foreign authorities were cited in the way courts always use comparative law; as a rhetorical flourish, to lend support to a conclusion reached on independent grounds. The reasoning in Fairchild was simply that we thought it very unfair that an employer should be able to escape any liability for mesothelioma suffered by a worker whom he had negligently exposed to asbestos simply because the worker had also been (negligently or otherwise) exposed to asbestos by someone else. So the Roman texts and foreign cases were used to support this conclusion. The other intellectual prop was the decision of the House of Lords in McGhee v National Coal Board4 which Lord Bridge thought that he had buried as an aberration ('a robust and pragmatic approach') in Wilsher v Essex Area Health Authority 5 but underwent a ghastly exhumation at the hands of all five Law Lords in Fairchild, after which it was declared to be the /ons et origo of the principle we adopted. Exactly what cosmetics were required to enable it to be thus pressed into service is a question to which I shall return. We were very conscious in Fairchild that we were taking a nibble out of the principle that a claimant who sues for negligence has to prove his case and, in particular, has to prove that the defendant's negligent act had the necessary causal connection with his injury. Until Fairchild, that necessary connection was assumed to be that the injury would not otherwise have happened or that the negligent act made a substantial contribution to the cumulative conditions which caused the injury. But the evidence in Fairchild was that mesothelioma was not caused by cumulative conditions. We were told that it could have been caused by a single fatal fibre. 6 The workers in Fairchild could not prove that any given defendant's negligence had any connection whatever with their injury. It might equally have been caused by someone else's asbestos years before or after their employment by the defendant in question. We decided that in the particular circumstances of the

3 See the cases from Germany, France, Spain, California, and Canada cited by Lord Bingham in his speech in Fairchild: [2002] UKHL 22, [2003] 1 AC 32, at [25]-[27]. The absence of such a case in England or Scotland may be a tribute to British marksmanship. 4 [1973] 1 WLR 1. 5 [1988] AC 1074,1090. 6 The current view is mat ramer more is needed, perhaps several fibres causing successive cell mutations (see the Annex ro the judgment of Lord Phillips in Sienkiewicz v Greif(UK) Ltd [2011] UKSC 10, [2011] 2 AC 229). Bur the point remains the same.

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case, it was enough that the negligent exposure made it statistically more likely that the worker would contract an asbestos-related disease. But what were the particular circumstances of the case? Identifying them in a way which would preserve the general rule was a serious problem. We could not say that the new exception should apply only to cases of mesothelioma. Lord Bingham came close to doing so, saying that his opinion was directed to a case in which the claimant contracted mesothelioma after negligent exposure to asbestos by more than one employer 'and to no other case'.? But he said that 'it would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development'.8 We could not simply enact a rule with arbitrary limitations. Parliament can do that, but judges are not in the business of laying down arbitrary rules based on general considerations of fairness and public policy. They are supposed to declare the principles of the common law. However good the cause might be, was it possible to make the Fairchild exception part of a coherent principle? Lord Nicholls thought this essential: 9
To be acceptable the law must be coherent. It must be principled. The basis on which one case or one type of case, is distinguished from another should be transparent and capable of identification. When a decision departs from principles normally applied, the basis for doing so must be rational and justifiable if the decision is to avoid the reproach that hard cases make bad law.

In retrospect, I think we failed this test quite badly. We tried to nail down the exception as tightly as possible. We emphasized the fact that science was unable to answer the question of whose asbestos fibres had caused the mesothelioma. Lord Bingham called this the 'rock of uncertainty' 10 on which the appellant's claim had foundered in the Court of Appeal. The phrase seems to have caught on. But scientific uncertainty is not unusual in clinical negligence cases. In Wilsher v Essex Area Health Authority, 11 science could not say which of several factors had caused a baby to go blind. In Hotson v East Berkshire Area Health Authority, 12 science could not say whether the trauma to the hip had destroyed any chance of saving the boy's hip joint. Lord Brown-whose judgment at first instance in Hotson, trying to deal with the matter by giving the claimant a discounted portion of his total damage, had been reversed in the House of Lords-may have had the case in mind when he said in Sienkiewicz v Greif (UK) Ltd 13 that 'the courts are faced with comparable rocks of uncertainty in a wide variety of other situations too'. So in Gregg v Scott 14 Lord Nicholls thought that, logically, the Fairchild exception should apply to all cases of clinical negligence, or at any rate those in which

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[2002] [2002] [2002] [2002] [1988] [1987] [2011] [2005]

UKHL 22, [2003] 1 AC 32, at [34]. UKHL 22, [2003] 1 AC 32, at [34]. UKHL 22, [2003] 1 AC 32, at [36]. UKHL 22, [2003] 1 AC 32, at [7]. AC 1074. AC 750. UKSC 10, [2011] 2 AC 229, at [186]. UKHL 2, [2005] 2 AC 176, at [49].

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there was 'a significant degree of medical uncertainty'. It should be sufficient in such cases to prove that negligence had reduced the chances of a favourable outcome (or increased the chances of an unfavourable one). The logic cannot be faulted; the only possible criticism is that it did not go far enough. Why stop at clinical negligence? The only answer was to admit that there was nothing logical about Fairchild and that if logiC got the upper hand, the established law on the causal requirements of the tort of negligence would be entirely swept away. Gregg v Scott was a very close call. Another fence we tried to erect around Fairchild was to say that it applied only when the other candidates for causing the injury involved 'the same agent'asbestos, or dust (as in McGhee), but not asbestos and smoking, or the various malfunctions which may have caused the child's blindness in Wilsher. At first, I could not see how this distinction could be based on any principle, and said so in Fairchild itself. In Barker v Corus (UK) PIc,I5 I withdrew my objection, but very much faute de mieux: somewhat ruefully I said that 'if the distinction between Fairchild and Wilsher does not lie in the fact that in the latter case a number of very different causative agents were in play, I think it would be hard ,to tell from my Fairchild opinion what I thought the distinction was.'16 I went on to formulate the rule: 17
It is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect ... but the mechanism must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent.

The inadequacy of this distinction was exposed by Smith L] in Novartis Grimsby Ltd v Cookson. 18 The claimant alleged that his bladder cancer had been caused by negligent exposure to carcinogenic aromatic amines in the azo dyes with which he had worked in the defendant's factory. The defendant said it was just as likely to have been caused by smoking. Smith L] pointed out that 'the evidence was that the amines in cigarette smoke act on the body in the same way as the amines in the occupational exposure'. 19 Therefore the test I had formulated in Barker v Corus was satisfied. I am sure that Smith L] was quite right, but that liability should depend upon this interesting biochemical fact shows how absurd the test is. Lord Brown said as much, more politely, in Sienkiewicz v Grei/20

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[2006] [2006] [2006] [2007] [2007J [2011J

UKHL 20, [2006] 2 AC 572. UKHL 20, [2006] 2 AC 572, at [24]. UKHL 20, [2006J 2 AC 572, at [24J. EWCA Civ 1261. EWCA Civ 1261, at [72J. UKSC 10, [2011J 2 AC 229, at [187].

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In Fairchild, we were not asked to decide whether liability of several defendants under the Fairchild exception was several or joint and several. That may have been unfortunate, because it would probably have been better to look at the whole thing in the round. Ifit appeared that liability had to be joint and several, so that a person responsible for even a small exposure to asbestos compared with others would, if they were insolvent, find himself liable for the whole injury, we might have had second thoughts about whether to create such a rule. In Sienkiewicz v Greif,21 Lord Brown thought we might not have done so. At any rate, when the question did come up in Barker v Corus, there was a distinct feeling among the majority that to impose joint and several liability, where previously there would have been no liability at all, was going a step too far. Lord Rodger dissented on the ground that the way most of us had formulated the exception in Fairchild, and in particular the interpretation we had given to McGhee, was to treat a person who had increased the risk of injury as if he had caused the injury. From that it followed that liability had to be joint and several, because a plurality of people who each cause the same injury are jointly and severally liable. My own proposal to treat Fairchild as creating a special new cause of action, that is, creating a risk of an injury which has subsequently eventuated, could not be found in any opinion in Fairchild, except possibly my own, and certainly not in McGhee. I was rewriting history. All this is true, but there is nothing unusual about some judicious rewriting of history. On any view, we were rewriting McGhee, which (so far as any ratio decidendi can be discerned) was based on a crude equiparation between materially contributing to the cumulative causes of the injury (as in Bonnington Castings Ltd v Wardlaw 22 ) and increasing the risk of occurrence of the injury. 23 If this reasoning had been fully adopted, McGhee would not merely have been a narrowly circumscribed exception: it would have swallowed up the whole rule. It would certainly have supported Lord Nicholls's opinion in Gregg v Scott. 24 Some reconstruction was therefore needed before it could be presented as the antecedent of Fairchild and I felt entitled to make it fit into a theory of liability which, since no other parties were involved in McGhee, had not been discussed in the case. Lord Rodger had the satisfaction of seeing the majority opinion in Barker v Corus reversed and his own view adopted by Parliament within three weeks of the decision, catching the coat-tails of a Compensation Bill that happened to be passing through at the time. 25 That must be something of a record. But he lived long enough to be a party to Sienkiewicz v Greif,26 in which Lord Brown delivered what

[2011] UKSC 10, [2011] 2 AC 229, at [179]. [1956] AC 613. 23 In Sienkiewicz v Greif [2011] UKSC 10, [2011] 2 AC 229, at [24], Lord Phillips said, 'In Bonnington it was possible to say that the inhalation of the silica attributable to breach of duty had contributed to causing the plaintiff's pneumoconiosis. In McGhee it was not possible to say whether or not the lack of a shower had in fact contributed ro rhe contraction of rhe dermaritis ... ' 24 [2005] UKHL 2, [2005] 2 AC 176. 25 Compensation Act 2006, s 3. 26 [2011] UKSC 10, [2011] 2 AC 229, at [187].
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seems to me a well-judged tirade against those who 'tamper with the "bur for" test of causation'. 27 Would the problems created by Fairchild have been any fewer if Lord Rodger's view in Barker v Corus had prevailed?28 I doubt it. It would only have 'produced immediately the situation which was afterwards enacted by Parliament. In Sienkiewicz, Lord Brown said that Lord Rodger's opinion had been that when the victim himself had been responsible for 'a material exposure', he would not have applied the Fairchild exception at al1. 29 I have had some difficulty in finding the relevant passage in Lord Rodger's speech and, in any case, I do not see how such a rule could be consistent with the passage in my own speech in Barker v CoruS3 with which Lord Rodger said in Sienkowicz31 all members of the committee agreed:
The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. For this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself.

The majority judgment in Barker v Corus was intended, as Lord Rodger noted at the time and others have since observed, to take some of the sting for defendants out of the Fairchild exception. What, in my view, was wrong with the majority decision in Barker v Corus was not that it misinterpreted the basis of the decision in Fairchild or was a rewriting of history, but that the House should have felt obliged, on pragmatic grounds, to tinker with the boundaries of the arbitrary exception established in Fairchild. That should not be the function of the judiciary. It is interesting to speculate upon how we might have decided Fairchild ifwe had thought that a contrary decision would have stirred Parliament into immediate action. After all, if the Government came under such pressure from the trade unions to intervene when the House of Lords decided that liability should not be joint and several, what would it have done if the House had decided in Fairchild that there was no liability at all? In retrospect, I think the most satisfactory outcome would have been for their Lordships in their judicial capacity to have adhered to established principle, wrung their hands about the unfairness of the outcome in the particular case, and recommended to the Government that it pass appropriate legislation. Then judiciary and legislature would each have been functioning within its proper sphere: the judges not creating confusion in the common law by trying to legislate for special cases and Parliament amending the common law where fairness and the public interest appeared to demand it.

[2011J UKSC 10, [20llJ 2 AC 22, at [186J. In Durham v EAl (Run Off) Ltd [2012] UKSC 14, [2012] 1 WLR 867, at [130J, Lord Phillips said that he had some sympathy with Lord Rodger's position. 29 [2011] UKSC 10, [2011] 2 AC 229, at [182J. 30 [2006] UKHL 20, [2006] 2 AC 572, at [17]. 31 [2011J UKSC 10, [2011] 2 AC 229, at [160].
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In Sienkowicz, Lady Hale touched upon the question of whether the Supreme Court should overrule Fairchild. She said, 'Even if we thought it right to do so, Parliament would soon reverse us.'32 But that, in my view, would be the best reason in favour of overruling Fairchild. Parliament would then have to consider the basis of a mesothelioma exception to the common law 'but for' requirement and make a policy decision on whether it should include cases like Sienkowicz. Meanwhile, the common law would be rid of an arbitrary rule masquerading as a principled decision, capable of causing endless difficulties as to the limits of its application. Section 3 of the Compensation Act 2006, on the other hand, says straightforwardly that it applies only to mesothelioma. That is something which Parliament can do without causing any difficulties at all. The development of the law is not solely the province of one branch of government but ought to be a partnership between all three. There is a tendency for the judiciary to think that their decisions are the end of the road and that it is up to them, by hook or by crook, to produce not only a principled but a pragmatically just solution. In Secretary ofState for the Home Department v AF (No 3),33 I said:
I think that the decision of the ECtHR [European Court of Human Rights] was wrong and that it may well destroy the system of control orders which is a significant part of this country's defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(l)(a) of the Human Rights Act 1998 requires us only to 'take into account' decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention.

In a lecture in 2011, Lord Irvine criticized this passage, saying that judges should not involve themselves in international relations. 34 It was one thing, in a case of ambiguity, to prefer a construction which complied with our international obligations. The courts have been doing that for a long time. It was quite another to say that in a case in which we had complied with our statutory obligation to take account of a decision of the Strasbourg Court but nevertheless come to the conclusion it was wrong, we should decide differently because otherwise the Government might have problems with the Council of Europe. We should leave the Government and Parliament to sort that out. Our function was to apply what we considered to be the law. I find what Lord Irvine said convincing and I think this was a fair criticism. The reversal of a judicial decision by legislation does not necessarily mean that Parliament thought the case was wrongly decided. There used to be a judicial school of
[2011] UKSC 10, [2011] 2 AC 229, at [167]. [2009] UKHL 28, [2010] 2 AC 269, at [70]. 34 'A British Interpretation of Convention Rights' [2012] Public Law 237. The lecture was delivered under the auspices of the Bingham Centre for the Rule of Law on 14 December 2011.
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In Sienkowicz, Lady Hale touched upon the question of whether the Supreme Court should overrule Fairchild. She said, 'Even if we thought it right to do so, Parliament would soon reverse us.'32 But that, in my view, would be the best reason in favour of overruling Fairchild. Parliament would then have to consider the basis of a mesothelioma exception to the common law 'but for' requirement and make a policy decision on whether it should include cases like Sienkowicz. Meanwhile, the common law would be rid of an arbitrary rule masquerading as a principled decision, capable of causing endless difficulties as to the limits of its application. Section 3 of the Compensation Act 2006, on the other hand, says straightforwardly that it applies only to mesothelioma. That is something which Parliament can do without causing any difficulties at all. The development of the law is not solely the province of one branch of government but ought to be a partnership between all three. There is a tendency for the judiciary to think that their decisions are the end of the road and that it is up to them, by hook or by crook, to produce not only a principled but a pragmatically just solution. In Secretary ofState for the Home Department v AF (No 3),33 I said:
I think that the decision of the ECtHR [European Court of Human Rights] was wrong and that it may well destroy the system of control orders which is a significant part of this country's defences against terrorism. Nevertheless, I think that your Lordships have no choice but to submit. It is true that section 2(l)(a) of the Human Rights Act 1998 requires us only to 'take into account' decisions of the ECtHR. As a matter of our domestic law, we could take the decision in A v United Kingdom into account but nevertheless prefer our own view. But the United Kingdom is bound by the Convention, as a matter of international law, to accept the decisions of the ECtHR on its interpretation. To reject such a decision would almost certainly put this country in breach of the international obligation which it accepted when it acceded to the Convention.

In a lecture in 2011, Lord Irvine criticized this passage, saying that judges should not involve themselves in international relations. 34 It was one thing, in a case of ambiguity, to prefer a construction which complied with our international obligations. The courts have been doing that for a long time. It was quite another to say that in a case in which we had complied with our statutory obligation to take account of a decision of the Strasbourg Court but nevenheless come to the conclusion it was wrong, we should decide differently because otherwise the Government might have problems with the Council of Europe. We should leave the Government and Parliament to son that out. Our function was to apply what we considered to be the law. I find what Lord Irvine said convincing and I think this was a fair criticism. The reversal of a judicial decision by legislation does not necessarily mean that Parliament thought the case was wrongly decided. There used to be a judicial school of
[2011] UKSC 10, [2011] 2 AC 229, at [167]. [2009] UKHL 28, [2010] 2 AC 269, at [70]. 34 'A British Interpretation of Convention Rights' [2012] Public Law 237. The lecture was delivered under the auspices of the Bingham Centre for the Rule of Law on 14 December 2011.
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thought which held that the common law represented absolute perfection and that any change by legislation was bound to be for the worse. But Parliament is not concerned to decide the correct interpretation of the common law. It is there to legislate in the public interest, which may be a different matter altogether. What has happened since Fairchild is a classic demonstration of the need to keep these functions distinct.