In Williams v University of Birmingham [2011] EWCA Civ 1242 the Court of Appeal analysed the correct approach to proving liability in a mesothelioma case. The Court emphasised that the relaxation of normal principles of proof in relation to mesothelioma claims, laid down by the House of Lords in the Fairchild case (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22), apply only to the need to prove causation. Every one of the other elements necessary to establish a claim for breach of a common law duty are unaffected by the "special" mesothelioma jurisprudence and must therefore be established according to normal principles.

The victim died of mesothelioma aged 54. He had been exposed to asbestos in 1974 when a student studying physics at Birmingham University. He had conducted experiments in an underground tunnel linking two University buildings. That tunnel was found to have contained blue, brown and white asbestos, apparently from asbestos lagging around water pipes running through it. The original judge found that the victim had been in the tunnel for a total of between 52 and 72 hours over an eight-week period. The victim had a second period of possible exposure when working as a pilot, but a claim against that other defendant was withdrawn.

The Fairchild exception is a relaxation of the normal test for causation. A mesothelioma victim is able to prove that a particular exposure to asbestos caused the mesothelioma by proving that the exposure was such as to create a "material increase in risk" of the victim contracting the disease. To be "material" the increase in risk must be more than minimal and so the exposure must be more than de minimis. This relaxation is to account for the impossibility of proving as a matter of medical fact which fibres or which exposure actually caused the disease.

The Court of Appeal reiterated that before a court approaches the question of causation, it must first establish whether there has been a breach of the duty of care by the defendant. Even in a mesothelioma case to which the special Fairchild principle applies, the court must apply the normal rules for establishing whether there has been a breach of duty. The trial judge had incorrectly formulated the duty owed by the University as "a duty to take all reasonable measures to ensure that [the victim] was not exposed to a material increase in the risk of mesothelioma". The Court of Appeal found that this incorrectly brought the Fairchild relaxed test for causation into the prior questions of the nature of the duty and what constitutes a breach of it. It made clear that there is nothing in Fairchild or the recent Supreme Court decision in Sienkiewicz v Greif [2011] UKSC 10 (please see our blog on this decision here) altering the test for whether there had been a breach of duty. The correct formulation of the duty of care was to take reasonable care (including measures if necessary) to ensure that the employee was not exposed to a foreseeable risk of injury. The Court re-affirmed that in relation to the common law duty of employers, the standard of conduct expected is that of a reasonable and prudent employer at the time, but taking into account the developing knowledge about the particular danger concerned.

The Court of Appeal found that the question of whether an exposure was de minimis is relevant to the question of whether there has been a breach of duty, because if the exposure is only de minimis, it is hard to see how there could be a breach of duty. If the breach of duty is established, the claimant still has to establish causation according to the Fairchild test.

The Court found that, on the facts of the case, the University was not in breach of its duty of care as it was not reasonably foreseeable to a body in the position of this University in 1974 that the level of asbestos in the tunnel during the short period in 1974 exposed the victim to an unacceptable risk of asbestos-related injury.