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IN Williams v University of Birmingham [2011] EWCA Civ 1242 the Court of Appeal reiterated that, though claimants are assisted with proof of causation in mesothelioma cases by the doctrine in Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 A.C. 32, they must establish the other elements of the claim in the orthodox way.
Michael Williams died of mesothelioma aged 54. The University of Birmingham admitted it had exposed him to asbestos lagged pipes while he was carrying out experiments as an undergraduate in 1974. The trial judge found that this exposure lasted only between 52 and 78 hours and noted that the high level of asbestos present in Williams' lungs post-mortem suggested he had been exposed to substantial amounts of asbestos elsewhere.
The Fairchild doctrine allows a claimant to prove that the tortious exposure to asbestos due to the defendant made a material causal contribution to the victim's mesothelioma merely by showing that the exposure had materially increased the risk of the victim contracting that disease. The trial judge had imported the latter terminology into her statement of the University's common law obligation of care to Mr. Williams, namely as one "to take all reasonable measures to ensure that [he] was not exposed to a material increase in the risk of mesothelioma" (quoted at [39]).
In contrast, Aikens L.J., who gave the main judgment of the court, stated the obligation as one to take reasonable care (including precautions if necessary) to ensure that Mr. Williams was not exposed to a reasonably foreseeable and unacceptable risk of asbestos-related injury (at [40]) and that, accordingly, a number of detailed findings were necessary before the University could be found to have been in breach. First, a...