When the dust settles

The Law Lords have re-opened the door to compensation claims for
asbestos-related disease. But how far-reaching will the ruling be? Nic Paton

Union boss George Brumwell was a very happy man on 16 May. Brumwell, general
secretary of the construction union Ucatt, has waged a personal campaign to
compensate people suffering from asbestos-related diseases.

He hailed the decision in the House of Lords that day on the cases of three
people suffering from mesothelioma, which overturned earlier judgments by the
High Court and Court of Appeal, as a landmark victory.

The decision would open the litigation floodgates for thousands of people
with such illnesses, costing British businesses between £6bn and £8bn, he

But while it was certainly good news for the three claimants, the dust has
now begun to settle and the reality looks a little less dramatic.

The Lords overturned an earlier Court of Appeal judgment that argued
compensation could not be paid to workers exposed to asbestos dust by more than
one employer. They were primarily considering the Fairchild case in which a man
died of mesothelioma after being exposed to asbestos while working for Leeds
City Council in the early 1960s and later for the games maker, Waddingtons
(Fairchild v Glenhaven Funeral Services Ltd and others [2001] EWCA Civ 1881).

The High Court and subsequently the Court of Appeal had rejected his widow’s
claim for compensation. Had she lost at the House of Lords as well, Mrs
Fairchild would have faced a legal bill of around £1m. Instead, she will now
receive approximately £191,000 in compensation.

Lord Bingham and his four colleagues decided if a person suffering from
mesothelioma had been exposed in several places making it impossible to prove
which of those companies was at fault, then all defendants should contribute
because they all exposed the claimant.

Two other claims were also considered: those of Doreen Fox, widow of Thomas
Fox, who worked for a firm called Spousal (Midland) as well as for several
employers at Liverpool docks; and Edwin Matthews, 54, from Rochester in Kent,
who is dying from mesothelioma.

Matthews was awarded compensation of £155,000 by the High Court, but this
was then overturned by the Court of Appeal. A former factory worker, he had
brought his claim against two employers, Associated Portland Cement and British

According to Adrian Budgen, head of the asbestos diseases unit at solicitor
Irwin Mitchell, the Court of Appeal took the view that in cases where there
were several wrongdoers, some of which may have since gone out of business, it
would be wrong that the surviving firms should have to pay for the negligence
of others.

"They could all walk away scot-free because it was not possible to
prove which company had the fatal fibre," he said.

"These fibres do not come with neat markers describing their company of
origin. It is not possible scientifically to prove where they come from. But
this was not opening the floodgates, just restoring the status quo," he

He was scathing about Ucatt’s estimates of the costs to British business,
arguing it would be more like £200m to £300m. "It is very easy to talk
about huge numbers, but we are not talking about billions of pounds. That is
scaremongering," he said.

The fact the Lords revealed their decision before publishing their full
written ruling, which will probably not be made public until the autumn, is

"It is unprecedented that the Law Lords should have made this
announcement," said Budgen. "They can only have made the decision
because of the uncertainty and speculation. They probably thought they would
put an end to that."

The fact that Matthews is dying, making urgency paramount, was likely to
have been another factor in going public at this early stage. Many other cases
had also been left in limbo following the Court of Appeal ruling, with lawyers
on both sides waiting for the Lords to give them direction.

Even now, there is still likely to be a hiatus, with lawyers arguing for the
need to see the complete ruling before being able to progress. Until that full
judgment is available, the ramifications will not be completely clear. But it
is likely the most interest will be in how far this judgment applies to other,
similar, industrial diseases.

Because of the stringent laws now covering asbestos, cases involving
mesothelioma are by and large historical, going back decades. This is not true
of, say, asthma or vibration white finger, both of which could come under the
remit of the ruling. Companies might also have to take an even closer look at
the due diligence procedures surrounding the transfers, potential risks and
liabilities and so forth.

"It would seem that the Fairchild principle would apply to any cancer
or asthma case. It is any injury that would be cumulative," asserted

"The main point is that this is not a new law, this is a reapplication
of old law. The door was shut in claimants’ faces last February but now it has
been reopened. The Law Lords’ decision was a very humane and compassionate
thing to do."

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