From: Sarah Green <>
Date: 25/05/2015 19:00:55 UTC
Subject: RE: ODG: Zurich Insurance v IEG

Dear Jane,


My point, in agreement with your last para, is that Fairchild was justified on its particular facts.  It should not have been extended beyond a situation in which the situation was a stark choice between allowing recurrent claimants to recover nothing, or imposing liability on duty-breaching defendants who, whilst could not be proved to have been a cause, could equally not be proved to have been uninvolved.  On the facts as accepted by the courts, it could also be said that the meso was caused by a duty-breaching employer, whether before the court or not.  So, a last resort and the best of a bad situation, but only that.  And I still think it was the lesser of two evils.


It’s not quite Sindell, though, is it?  I mean, in Sindell (which I admit I can’t remember as well), was it not a situation in which the claimants were unable in practice to provide the requisite evidence to prove causation against a particular defendant on the facts of their case?  I read the rock of uncertainty limitation as applying to situations in which proof is a theoretical impossibility, so that even with “full” evidence, a claimant could still not get home.







From: Stapleton, Jane []
Sent: 24 May 2015 02:07
To: Sarah Green
Subject: Re: ODG: Zurich Insurance v IEG


Dear Sarah,

Just a quick question. You say that in Fairchild the "meso was definitely caused by at least one defendant". That's not how I read Lord Bingham's statement at [33]. 


        [33] ...The crux of cases such as the present, if the appellants' argument is             upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House...


As he goes on to point out, it's highly unlikely all potentially liable actors will be before the court in an asbestos case like these. Since we do not know the mechanism these non-joined actors might have been the cause and none of the defendants. 


Of course if we knew or assumed all potentially liable actors WERE before the court Fairchild would have been a slight variation of a Cook v Lewis type case and far less of a challenge (though even here as the numbers increase beyond 2 the solution in Cook becomes more problematic).  


In Fairchild the Lords seemed to proceed on the assumption that all exposures were wrongful  (they certainly discount non-work exposures …[2]) yet by acknowledging that not all potentially liable actors were  before the court, the case falls into the same category as Sindell. It's true that, if THESE assumptions had remained the boundary lines of the new doctrine, it might have attained some coherence (though see what has happened to the market share doctrine in the US!). The number of cases qualifying would have been small unless we make the heroic assumption that all environmental exposure is in breach of someone's duty. 

The instability stems from [i] the extension in Barker to case s where it is accepted that one period of the victim's exposure might not be associated with anyone's breach and [ii] the Act (see below).

Best from



As I recently wrote...

        ​"The impact of this state of affairs will be felt most by government and            through it by taxpayers. This is because it will commonly be the case that a           mesothelioma victim will be able to point to a period of exposure for which   an emanation of the state was responsible… So long as breach can be established and the Fairchild doctrine extended to the ‘damage’ issue, such a claim will succeed against the exposer who will be jointly and severally liable for the mesothelioma. Unlike private defendants the state does not go out of business and so it will be the preferred defendant. The defendant in the claim relating to Mrs Willmore was her state-run school at which she had been   exposed to a very slight amount of asbestos compared to the volume in the   background environment: again, it was the state alone (in the form of the Borough Council) that was sued and against which the full tort damages were extracted…. Did the common law courts along with Parliament in the shape of s.3 of the Compensation Act in effect, but unwittingly, create for most  mesothelioma victims a taxpayer-funded compensation system with tort  level damages?" [Uncertain Causation in Tort Law: CUP]




From: Sarah Green <>
Sent: 21 May 2015 04:22
To: Robert Stevens;;
Subject: RE: ODG: Zurich Insurance v IEG


The material increase in risk variation was the best thing to do on the precise facts of Fairchild.  It should never have been extended, however, beyond the situation where (on the facts as accepted) the meso was definitely caused by at least one defendant. 

Where the choice is as stark as allowing the loss to fall on claimants as a class as opposed to defendants as class where we know the latter caused the former’s injury, I think the Fairchild principle is defensible.  Its subsequent mutations are not.




From: Robert Stevens []
Sent: 21 May 2015 10:10
Subject: Re: ODG: Zurich Insurance v IEG


If you cannot prove on the balance of probabilities that the defendant injured you, the correct response is indeed for a court to refuse any claim that the defendant wrongfully injured you.


Most of these claimants did suffer a wrong: the defendants were in breach of their contractual duties to provide A safe place of work. They also suffered consequential loss: the lost chance of avoiding the disease. But this, perfectly good claim, was for most of them time barred.


So yes, if we think these claimants were deserving of compensation, that should have been left to the legislature. Fairchild is a salutary lesson for the judiciary.


(McGhee is, I now think, perfectly correct, the supposed problem having been created by the ingenious but deceptive presentation of the facts by counsel for the defendant.)




------ Original message------

From: Gerard Sadlier

Date: Thu, 21 May 2015 09:40

To: Neil Foster;


Subject:Re: ODG: Zurich Insurance v IEG


Dear Neil, all,

With respect what is the alternative? Is it to say to the injured
employee "you are entitled to no damages at law and can only hope that
Parliament may choose to assist"? (Emphasis on the "may".)

Remember, the UK Parliament could have chosen to over-rule Fairchild
but did not do so. It could have considered and addressed all the
potential complications of Fairchild, including the insurance issues
addressed in Zurich above (issues which were entirely foreseeable) -
with the exception of the question of whether liability should be
joint or several, it has not done so.

If the only alternative is to leave the injured victims to the
vagueries of whether Parliament may or may not choose to act, then
Fairchild, with all its difficulties and complications remains the
right solution for me, essentially for the reasons which the Court
then gave.

Kind regards


On 5/21/15, Neil Foster <> wrote:
> Dear Colleagues;
> Thanks to James Lee for the heads-up on the Zurich case, [2015] UKSC 33,, another
> in the saga of mesothelioma claims following Fairchild. Not being an
> insurance lawyer I found most of it made my brain hurt, but I thought it was
> worth comment on one aspect.
> Almost every member of the Court, in fact I think all of them, do their best
> to make a decision on the common law as it relates to asbestos victims,
> exposed over a long period time, and the complexities created by different
> employers, different insurance companies, some of both being either solvent
> or insolvent, employers being insured or uninsured- while regretting that
> most of the difficulties are created because of the initial decision in
> Fairchild to create special rules of causation for what were seen to be hard
> cases. Fairchild has not been accepted as good law in Australia by our High
> Court yet, and if ever there were a series of good reasons for the HCA to
> say, “no thanks”, they are seen here. The judges here refer to the fact that
> there is now a “Fairchild enclave”, within which, once the usual rules of
> causation have been abandoned, new rules have to be crafted, which connect
> with other rules relating to apportionment between joint tortfeasors,
> insurance law, and principles of contribution at common law and equity.
> Some quotes: Lord Mance (for the majority here)- [39] “it has proven
> difficult to work through the implications of the special rule in
> Fairchild”;  later when developing the law of contribution and responding to
> an argument that the solution he prefers is not consistent with previous
> cases, at [66]: “if the common law always depended on precedent, Fairchild
> [and arguably McGhee] should never have been decided as it was”.
> Lord Hodge at [98] “the courts continue to grapple with the consequences of
> departing from the “but for” test of causation”; [102] “But we are where we
> are. The law has tampered with the “but for” test of causation at its
> peril”; [111] it could be argued that “having dug a hole, the courts should
> not keep on digging”.
> Lord Sumption (in the minority) [187]: “The whole recoupment analysis is in
> my opinion a classic example of the problems associated with the adoption of
> special rules within the Fairchild enclave which differ from those that
> would follow from the application of the ordinary principles of law”.
> Finally, from the joint judgment of Lord Neuberger and Lord Reed:
> [191] as subsequent decisions have shown, the effect of what was a
> well-intentioned, and may seem a relatively small, departure from a basic
> common law principle by a court, however understandable, can lead to
> increasingly difficult legal problems – a sort of juridical version of chaos
> theory. ..
> [210]. When the issue is potentially wide-ranging with significant and
> unforeseeable (especially known unknown) implications, judges may be well
> advised to conclude that the legislature should be better able than the
> courts to deal with the matter in a comprehensive and coherent way. It can
> fairly be said that the problem for the courts in taking such a course is
> that the judges cannot be sure whether Parliament will act to remedy what
> the courts may regard as an injustice. The answer to that may be for the
> courts to make it clear that they are giving Parliament the opportunity to
> legislate, and, if it does not do so, the courts may then reconsider their
> reluctance to develop the common law. For the courts to develop the law on a
> case-by-case basis, pragmatically but without any clear basis in principle,
> as each decision leads to a new set of problems requiring resolution at the
> highest level, as has happened in relation to mesothelioma claims, is not
> satisfactory either in terms of legal certainty or in terms of public time
> and money.
> 211. In the case of mesothelioma claims, there can be no real doubt but if
> Fairchild had been decided the other way, in accordance with normal common
> law principles, Parliament would have intervened very promptly. That may
> very well have been a better solution, but it can fairly be said that that
> observation is made with the wisdom of hindsight.
> From this side of any decision by the High Court, I trust they may learn
> from the comments of the Supreme Court here.
> Regards
> Neil
> neil foster
> Associate Professor
> Newcastle Law School
> Faculty of Business and Law
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