Sunday, 12 September 2010
THE RIGHT HONOURABLE BARON BINGHAM OF CORNHILL, KG, PC, FBA
He was visitor of my alma mater - Balliol College, Oxford and I had the privilege of meeting him several times in that capacity. He was a true believer in the rule of law and was in a position to put right several injustices during his judicial career.
I recall this from the Fairchild judgment -which permitted mesothelioma claimants to recover even though science could not get them through the goal posts on the usual causation standard of proof in English Civil proceedings - Lord B had no problem moving the goal posts to avoid injustice:
The crux of cases such as the present, if the appellants' argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law.