Fatal Fibre Argument
Asbestos Knowledge Base
Edwin Matthews, an asbestosis sufferer, runs a demolition firm near Manchester and is involved in what has become a celebrated case involving the House of Lords. A BBC2 TV programme transmitted on 17 April 2002 outlined the arguments and these are reproduced below.
Since about 1930, the claimant's employers have met claims for compensation by mesothelioma where they were asbestos product manufacturers. Mesothelioma is a cancer of the lining of the lung caused by exposure to asbestos. There has been broad agreement on the acceptance of liability by the employers and the total claim has been divided between manufacturers according to the time the claimant has worked with each.
Recently, Dr Robin Rudd of Bartholomew's Hospital London helped Eddie Matthews win his claim in court and secured a judgment for a £155,000 award in Eddie's favour. The judge added that the defendants should have leave to appeal. Chris Philips, another Manchester solicitor took up the appeal and argued that the practice of dividing claims was wrong. He won the appeal, overturned years of legal precedent and in effect ensured that Eddie Matthews received nothing.
Chris Philips' argument was that in English Law, a patient has to prove who injured them. The nature of the disease is such that one fibre can trigger this deadly disease. In the case of multi-employers this is almost impossible to prove. Philips argues that it is not fair to share the costs of a claim across employers who may not have been responsible for causing the disease, adding that it might drive them out of business because the claims may be so high.
The appeal was held in the London courts at the end of 2001 and Dr Rudd gave evidence to the effect that claimants were being asked to prove the impossible. It was said to be unrealistic to prove which fibre played a mechanical part in causing the disease. It was likened to a smoker with 40 years experience of 4 different brands being asked to prove which tar from which cigarette from which brand triggered lung cancer. The court ruled, however, that it was a legal requirement to prove the fatal fibre issue. About 100 claims were stopped in their tracks.
The judgement included a statement that in spite of the legal position, 'For victims to be denied compensation was a major injustice crying out to be righted'. The big winners here are the insurers, who are concerned with the issues of precedent. There has, naturally, been an outcry from the sufferers and the families whose claims were blocked.
In February 2001, the Prime Minister stated in the House of Commons that the government would pay compensation and this is believed to be to a maximum of around £30,000 per claimant depending on several factors including the claimant's age. It is understood that the widow of a 65 year old man would get only £3,000. This raised important arguments as to why the tax payer should foot the bill when the employers were responsible for the disease and were not denying responsibility. More important for the victims, payouts were to be only a fraction of those typically met through court settlements.
In April 2002, the House of Lords started their review of the situation and the case has become known as the Fairchild case after Mr Fairchild, a sufferer who has now died and has been represented by his widow. This has ended in a judgement in mid May 2002 by Lord Bingham in favour of the victims including Eddie Matthews. The verbal judgement was issued before the written one. From this, we understand that the fatal fibre argument does not need to be proved. Employers would need to contribute to the claim in proportion to the time spent by the employee with each of them. The press reports that this will open the floodgates to about 100 similar claims held up because of the judicial process outlined here.