On 22 April, the judicial House of Lords will revisit one of the most deplored decisions by the British judiciary in modern times: the Fairchild case, in which the Court of Appeal refused compensation to many whose lives have been wrecked by negligent uses of asbestos. Appeal court decisions are usually described as nothing more serious than “surprising”, but Michael Clapham, the Labour MP who used to run the miners’ union compensation fund, described this decision as “appalling” in a question to the Prime Minister; and Tony Blair came as close to agreeing with him as protocol allows.
Arthur Fairchild was killed by mesothelioma. This, according to medical evidence, is triggered by the intake of a single particle of asbestos dust.
But as with most of the cases considered by the appeal court, Fairchild had worked with asbestos for more than one employer, and it was therefore impossible to say with certainty which had caused the disease.
Had Fairchild contracted asbestosis – which is caused by cumulative exposure – the court would have apportioned liability according to how long he had worked for each employer.
The reasoning may have logic, and the facts could make the basis of a good question in an undergraduate law of torts exam, but we are dealing here with real life. It is an embarrassment to a civilised society that the financial future of dying or bereaved people should be determined in this arbitrary way.
In lower-profile cases, the appeal court has applied the law “creatively” to avoid injustice, and it could have had the courage and humanity to do so here.
Even within existing law, there is little support for the view that the appeal court got it right. Fairchild, after all, worked for just two employers, and it should not be too difficult to say that one was more likely to have caused the risk than the other: because he worked longer for one employer, or because one was slacker in its handling of asbestos, or because one had a higher proportion of workers who became victims.
The Court of Appeal compounded its bad judgement by refusing the claimants permission to appeal. The Lords have only partially overruled that refusal: the claimants who will be heard later this month will not include Fairchild’s widow. There have been previous attempts to stop the Lords overturning an injustice. A 14-year-old boy called Justin Jolley was rendered paraplegic when playing with a boat abandoned on land owned by the London Borough of Sutton. He and a friend had jacked it up in an attempt to repair it when it slipped and crushed him.
It was established – relatively uncontroversially – that Justin was 25 per cent responsible for the accident, and that any damages would have to be reduced commensurately. But the Court of Appeal, headed by Lord Woolf, ruled that he was entitled to no damages. The appeal court decided that, although it was foreseeable that a child might be injured as a consequence of the council failing in its duty to remove the boat, it was not foreseeable that it would happen that way.
With the same intellectual arrogance as the appeal court showed in the Fairchild case, Woolf refused permission to appeal, only for both the refusal and the main decision to be resoundingly overturned by the Lords.
The temptation in the Fairchild case is to blame the employers and their insurers for defending the claims and to portray them as typically wicked capitalists. But that would be wrong. Companies that pay out where they believe they can establish a legal basis for not doing so convert themselves from commercial into munificent organisations. They would then be obliged to pay out in many cases where there was no legal liability. Commercial organisations are not equipped to make moral judgements; they merely follow the law. It is up to judges and parliament to get that law right.
And it may be wise for the insurance companies not to contest the Fairchild case too vigorously. If they win, the public outcry could spur the introduction of a no-fault system for compensating many victims of accidents and preventable illnesses – and that would deprive insurers of a significant proportion of their business.
Moreover, any parliamentary review would lead to careful questioning of the legal fiction that it is the employer rather than an insurance company that meets the cost of such losses. At present, judges aren’t even supposed to know if employers are insured. The perversity of the Fairchild decision would become all the more striking should it emerge that all the employers of a claimant had used the same insurer. Then there could be no “injustice” in failing to identify which of those employers was actually to blame.
Whatever conclusions the law lords come to, the mere existence of such a perverse decision by the Court of Appeal should be a matter for political concern. The government should take a long, hard look at the whole system of compensating accident victims.
Richard Colbey is a barrister