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26 Advoc. Q. 471 (2002-2003)
Establishing Causation in Negligence: The House of Lords Speaks Again

handle is hein.journals/aqrty26 and id is 513 raw text is: ESTABLISHING CAUSATION IN NEGLIGENCE:
Thomas S. Woods*
1. Introduction
On June 20, 2002, the House of Lords released the full text of its
decision in Fairchild v. Glenhaven Funeral Services Ltd.,' a case that
is said to have radically changed the law governing causation of dam-
age in negligence cases, or at least those negligence cases involving
claims brought by workers who suffer from industrial diseases.2
In Fairchild, three appeals were heard concurrently. Each was
brought by a worker who had contracted mesothelioma, a species of
cancer that is associated with the inhalation of asbestos dust and
fibres. Mesothelioma is a poorly understood disease that can become
manifest decades after comparatively minimal exposure to asbestos.
Each claimant had worked in at least two workplaces where expo-
sure to airborne asbestos in excessive quantities was permitted to
occur, placing those employers in breach of the duty of care they
*   Of Lawson Lundell, Vancouver, B.C. Credit is due to Jana McLean (associate)
and Jude Samson (articled student) - also of the Vancouver office of Lawson
Lundell - for research assistance. I thank both for their insightful comments.
This article is based on a paper presented to the Twenty Club in Vancouver, B.C.,
on November 7, 2002.
1.  [2002] 3 W.L.R. 89, 3 All E.R. 305 (H.L.). All references to Fairchild in this
paper are cited to the W.L.R. report. The House took the unusual step in Fairchild
of announcing (on May 16, 2002) that the Court of Appeal decision would be
overturned before reasons for judgment were ready for publication. The online
June/July 2002 edition of Environmental Business Magazine noted that this was
done in an effort to reassure dying victims that their families would be provided
for. Even the less than clairvoyant among us were able to divine from the early
announcement of the disposition of the appeals what the tenor of the judgment
would likely be.
2.   A thought-provoking analysis of Fairchild prepared by Andrew Hogarth, junior
counsel for the claimant in the first appeal, is posted on the website for the
London chambers of Richard Methuen, Q.C. The author states, at para. 5 of
Fairchild v. Glenhaven and Others - A New Law of Tort?, that the causation
analysis seems to fly in the face of any conventional thinking as to how the law
of tort operates. See <www. 12kbw.co.uk/News/News.cfm?entrynum=37>.

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