The special features of mesothelioma (its “indivisible” nature and its long latency) have thrown up many complex legal questions resulting in the creation of special mesothelioma jurisprudence and legislation governing the liabilities arising from the disease and how insurance should respond. Those developments have taken nearly 20 years, but the courts have not (yet) directly addressed how mesothelioma claims should be allocated to reinsurance programmes. None of the decisions in the “Fairchild enclave” directly addresses reinsurance.
Author Archives: Richard Hopley
In Bussey v Anglia Heating ( EWCA Civ.243, 22 February 2018), the Court of Appeal looked at asbestos exposure levels sufficient to found liability for causing mesothelioma. Mr Bussey had developed mesothelioma as a result of exposure while employed by the defendant as a plumber from 1965 to 1968. The issue was whether, given the relatively low level of exposure and the state of knowledge in the late 1960s, the defendant was under a duty to take protective measures.
English law has developed a body of principles to address the particular problems posed by mesothelioma. This special area of law is known as the “Fairchild enclave”, a reference to the House of Lords decision in 2002. The Court has adopted a modified test for causation, but the claimant still has to prove that the defendant was negligent and/or in breach of duty. Where a claimant is unable to rely upon a breach of statutory duty, this question usually involves an analysis of the level of exposure and available knowledge of the risks. The recent High Court decision in Bussey v Anglia Heating (12 May 2017) reviewed this issue in the context of low-level, infrequent exposure.
In Heneghan v Manchester Dry Docks Ltd & Ors  EWCA Civ 86, the Court of Appeal considered whether the Fairchild exception should be applied in a case of multiple exposures to asbestos leading to lung cancer. Like mesothelioma, lung cancer is regarded as an “indivisible” disease – the severity does not depend upon the exposure to asbestos.