234 Chapter 8The tort of negligence
Section 3 of the Compensation Act 2006 provides that in mesothelioma cases, where it is
impossible to identify which defendant caused the disease, a claimant can claim full dam-
ages from any employer who negligently exposed him to asbestos or other causal agent. The
employer who is liable can seek a contribution from other employers who were negligent.Foreseeability
In order for damages to be claimed for a loss, the loss must have been a type of loss or injury
which was a foreseeable consequence of the defendant’s breach of duty. The extent of the
loss does not need to be foreseeable, nor does the precise way in which it arose.HeldThe defendants were liable in negligence. A defendant is liable to a claimant if his
breach of duty caused, or materially contributed to, the claimant’s injury. This was the case
even if there were other factors which contributed to the injury. If the court found that the
defendant’s breach of duty had materially increased the risk of injury, this amounted to a
finding that the breach had materially contributed to the injury (unless the defendant could
positively prove otherwise).Fairchild vGlenhaven Funeral Services Ltd (2002) (House of Lords)The case was brought by several claimants who had contracted mesothelioma, a type of
lung cancer which is always fatal. Mesothelioma is caused by inhaling a single strand of
asbestos dust. It is not caused by cumulative exposure and once it has been contracted
further exposure will not make it worse. The claimants had been employed at different
times, and at different places, by various employers who had negligently exposed them
to the risk of inhaling asbestos dust. However, none of the claimants could prove, on a
balance of probabilities, that they had inhaled the strand of asbestos dust while working for
any particular employer. Furthermore, some of the employers could not be sued as they
had ceased to carry on business.
HeldThe claimants could succeed, and recover full damages, against any of the employers
who had been negligent. The employer who had to pay the damages could gain a contribu-
tion from the other employers. To apply the ‘but for’ test would yield unfair results.
CommentThe principle set out in this case applies: (a) where there is a causal agent such
as fabric dust or asbestos; and (b) it is scientifically impossible to identify whether it was
the defendant’s breach which led to the exposure to the causal agent which actually
caused the injury in the ‘but for’ sense.The Wagon Mound (Overseas Tankship (UK) Ltd vMorts Dock &
Engineering Co Ltd) (1961) (Privy Council)The defendants negligently spilt a large quantity of furnace oil into Sydney harbour. The
claimants’ wharf was about 600 feet away, but the oil soon spread there. The oil was lying
on top of the water and so the claimants were advised to stop welding on their wharf. The
claimants later carried on welding when they were advised that this was safe. A spark from