By Per Laleng*
Despite the exceptional nature of Fairchild v Glenhaven Funeral Services Ltd  1 AC 32, its formulaic application in low exposure mesothelioma cases has ramifications for the coherence and scope of causal responsibility for harm in the English law of negligence. Existing threshold conditions for its application are either so fluid that the exception could become the norm in all competing cause cases, or they are unacceptably arbitrary. While the formulaic application of the exception in grave harm toxic tort cases can be understood as a chemo-phobic over-reaction to risk, its application in low exposure cases – that is to say, where tortious exposures are less than unavoidable background environmental exposure – cannot be rationally justified. This article urges the Supreme Court of England in Sienkiewicz v Greif (UK) Ltd  2 WLR 951 and Willmore v Knowsley Metropolitan Borough Council  EWCA 1211 Civ to adopt an overarching threshold condition delimiting the application of the exception to cases where, in reasonable likelihood, the claimant’s harm was caused by wrongful conduct. This approach will place reasonably intelligible limits on responsibility for uncertainty and risk in toxic torts and beyond.
The full article can be accessed here: “Causal responsibility for uncertainty and risk in toxic torts” (2010) 18 Tort L Rev 102.
* Lecturer, University of Kent, Barrister and Academic Member of Chambers, Liverpool Civil Law.