Court of Appeal decides that the Fairchild causation exception applies in lung cancer cases

The Court of Appeal has recently decided that the Fairchild causation exception applies in a lung cancer case. The case is significant in that to date the Fairchild exception has only been applied to mesothelioma claims, and this is the first time the Court of Appeal has been asked to consider its application to a lung cancer case.

It remains to be seen how the Courts now interpret this decision and whether the Fairchild enclave is now set to experience a period of rapid expansion but it does appear that, where medical science cannot prove that a defendant has materially contributed to a disease, but can prove that a defendant has materially increased the risk of contracting the disease, the Fairchild exception may be applied to establish the necessary causation, and liability will be proportionate to the increase in risk for which the defendant was responsible. 

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Supreme Court confirms employer’s liability insurers have a right to seek contribution from the insured and other insurers in mesothelioma claims

An employer which exposes an employee to asbestos creating a risk of mesothelioma is, as matter of English law, treated as causing later contracted mesothelioma.  As a result of the Compensation Act 2006, the employer and thus its Employer's Liability ("EL") insurer, is liable for the full amount of its insured's liability for mesothelioma so caused. However, and upon payment, the insurer has an equitable right to seek contribution as against other insurers during the period of exposure.  In a new development of the law, and by a 4-3 majority, the insurer also has a right of contribution against the insured itself in respect of any period of uninsured exposure.  

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