Fairchild and the Single Agent Criterion

Journal article

In Heneghan v Manchester Dry Docks Ltd and others [2016] EWCA Civ 86; [2016] 1 W.L.R. 2036, James Heneghan had been exposed to asbestos by multiple employers throughout his working life. At the age of 74, he died of adenocarcinoma of the lung. Between 1961 and 1974, he was employed sequentially by six employers, all of whom were the defendants in the instant case. Although he had worked for other employers prior to 1961, none of these was sued. Mr Heneghan was a smoker, and it is accepted that smoking is a potential cause of the cancer from which he suffered. Nevertheless, the defendants had already conceded liability on the basis that occupational asbestos exposure had increased Heneghan’s risk of developing cancer fivefold during his working life. The only remaining issue for the Court of Appeal, therefore, was whether the Fairchild exception (see Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 A.C. 32), formulated to deal with mesothelioma,should apply to a case involving lung cancer, or whether there is a valid legal distinction to be made between the two conditions. Somewhat counter-intuitively, it was the defendant who was arguing here for the Fairchild exception to apply, despite that principle normally being advantageous to claimants. The claimant’s appeal in turn was based on an argument that the trial judge should have applied the orthodox causal test of material contribution to injury. There is good reason for this: the consequence of applying Fairchild in cases not involving asbestos and mesothelioma is aliquot liability (Barker v Corus [2006] UKHL 20; [2006] 2 A.C. 572; IEG vZurich [2015] UKSC 33; [2016] A.C. 509), as opposed to the joint and several nature of liability reached on orthodox causal grounds. So, on the facts of Heneghan, the application of Fairchild would mean that each defendant would be liable only to the extent of their respective contributions (£61,600 in aggregate, instead of full liability at £175,000). The Court of Appeal affirmed the result reached at trial (by Jay J. [2014] EWHC 4190 (QB)), and did so for very similar reasons, applying the exception to reach a conclusion of aliquot liability.

Authors: Green, S

• Publication status: Published
• Peer review status: Reviewed (other)
• Publisher: Sweet and Maxwell
• Journal: Law Quarterly Review
• Volume: 133
• Pages: 25-31
• Publication date: 2017-01-01
• Acceptance date: 2016-08-23