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Published online by Cambridge University Press: 02 January 2018
Applying the Fairchild exception in Barker, Lord Hoffmann sought to justify apportionment of liability by reformulating the gist of the negligence action as the risk of mesothelioma rather than the mesothelioma itself. This paper examines the notion of risk to show that it cannot coherently be recognised as damage. By distinguishing risk from the related concept of probability, it is apparent that risk is a forward-looking concept that is incompatible with the role in which it is cast in the backward-looking causation inquiry when mesothelioma is an essential ingredient of liability. This paper goes on to consider whether ‘pure’ risk could form the gist of a negligence action and suggests that it lacks the moral significance to constitute damage. Furthermore, the damage requirement would be subsumed into the breach inquiry, effectively being lost as a distinct element of the negligence inquiry. This is incompatible with the traditional loss-based model of negligence.
I am indebted to Claire McIvor, Donal Nolan, Jose Miola and the anonymous reviewers for their comments on this paper. An earlier version of this paper was presented at the Obligations VI Conference 2012 and I am grateful to participants for their feedback. I am also grateful to the University of Leicester for allowing me a period of study leave during which I carried out the research for this paper.
1. Fairchild v Glenhaven Funeral Services (t/a GH Dovener & Son) [2002] UKHL 22, [2003] 1 AC 32.
2. Barker v Corus (UK) plc [2006] UKHL 20; [2006] 2 AC 572 (HL).
3. Compensation Act 2006, s 3.
4. Barker, above 3, at [43] (Lord Hoffmann). Note, however, that in his dissent Lord Rodger stated that ‘the desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers and their insurers at the expense of claimants is not obvious to me’ [90].
5. Ibid, at [40]–[42] (Lord Hoffman), [109] (Lord Walker), [127] (Baroness Hale).
6. Ibid, at [35].
7. Durham v BAI (Employers' Liability Insurance ‘Trigger’ Litigation) [2012] UKSC 14, [2012] 1 WLR 867.
8. Rothwell v Chemical and Insulating Co Ltd and another [2007] UKHL 39, [2007] 3 WLR 876.
9. A distinction is drawn between damage that is said to be ‘divisible’ or ‘indivisible’. If the harm is divisible, then this means that it is dose-related, so each exposure to the relevant harmful agent increases the severity of the harm. This means that each exposure causes a portion of the total harm. See eg Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA). In contrast, indivisible harm is ‘all-or-nothing’; the severity of the disease is unaffected by the dose of the harmful agent. This means that each causal factor is a cause of the whole loss (although, as between defendants in an action for contribution, we may then divide up responsibility based on blameworthiness, but vis-à-vis the victim each defendant is a cause of the whole of his indivisible disease).
10. The single rogue fibre theory has been largely discredited (see Amaca Pty Ltd v Booth [2011] HCA 53 [19]), but significant scientific uncertainty remains. For a more recent account of the understanding of mesothelioma, see Lord Phillips' speech in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10; [2011] 2 WLR 523 at [19] and annex (providing detailed information obtained from the judgment of Rix LJ in Durham v BAI (Employers' Liability Insurance ‘Trigger’ Litigation) [2010] EWCA Civ 1096, [2011] 1 All ER 605).
11. McGhee v National Coal Board [1973] 1 WLR 1 (HL).
12. Barker, above 3, at [120].
13. Ibid, at [127] (Baroness Hale).
14. Ibid, at [126] (Baroness Hale).
15. Lords Scott and Walker concurred with his decision and the reasons for it, and provided their own reasons in addition.
16. Barker, above 3, at [35] (Lord Hoffmann). Lord Hoffmann has acknowledged extra-judicially that he sought to create a new cause of action in respect of risk, explaining ‘My own proposal to treat Fairchild as creating a special new cause of action, that is, creating a risk of 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’; Hoffmann, Lord ‘ Fairchild and after’ in Burrows, A, Johnston, D and Zimmerman, R (eds) Judge and Jurist: Essays in Memory of Lord Rodger of Earlsferry (Oxford: Oxford University Press, 2013) p 67.Google Scholar
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18. Barker, above 3, at [35] (Lord Hoffmann).
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25. Durham v BAI , above 8.
26. Ibid, at [65].
27. Ibid, at [82].
28. See eg ibid, at [73] (Lord Mance), [88] (Lord Clarke).
29. Ibid, at [116].
30. Ibid, at [130].
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35. Ibid, p 19.
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41. For the purposes of this example it is assumed that these figures are accurate, although McIvor notes that the judge calculated them himself from limited evidence and without the help of epidemiologist expert witnesses; C McIvor ‘Debunking some judicial myths about epidemiology and its relevance to UK tort law’ [2013] 21 Med L R 553 at 572.
42. (4.39/24) × 100 = 18.29.
43. Barker, above 23, at [35] (Lord Hoffmann).
44. Williams v University of Birmingham [2011] EWCA Civ 1242, [2012] PIQR P4.
45. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [64].
46. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [39]–[40], [73].
47. Sienkiewicz, above 41.
48. Williams, above 45, at [19].
49. Ibid, at [19].
50. Ibid, at [31] (Aikens LJ).
51. Ibid.
52. Sienkiewicz, above 41, at [111] (Lord Phillips).
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56. Scherpe, above 32, at 488.
57. Nolan, above 25, p 179.
58. Clearly asbestos exposure is also wrongful because it creates a risk of other asbestos-related illnesses too.
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76. Fairchild, above 2, at [155] (Lord Rodger).
77. Howarth, D ‘Many duties of care – or a duty of care? Notes from the underground’ (2006) 26 Oxford J Legal Stud 449 at 461.CrossRefGoogle Scholar
78. Steele, above 34, p 116.
79. Williams, above 45.
80. (Belcher J) at first instance (unreported) cited in Williams (CA), above 45, at [39].
81. Williams (CA), above 45, at [40] (Aikens LJ).
82. Ibid, at [40].
83. Lord Hoffmann, above 17, p 68.