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Case Study

Fairchild, Fox and Matthews case

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.


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. andFieldfisherpartner 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 Fieldfisher 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."

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