rules and traditions. The law must be developed coherently, in accordance
with principle, so as to serve, even-handedly, the ends of justice. If,
however, a decision is given in this country which offends one's basic sense
of justice, and if consideration of international sources suggests that a
different and more acceptable decision would be given in most other
jurisdictions, whatever their legal tradition, this must prompt anxious
review of the decision in question. In a shrinking world (in which the
employees of asbestos companies may work for those companies in any
one or more of several countries) there must be some virtue in uniformity
of outcome whatever the diversity of approach in reaching that outcome.
Accepting that this broad approach might involve a defendant assuming legal
responsibility for an injury he or she had not in fact caused, where the defendant's
conduct had been otherwise negligent, he considered such a result less unjust than
leaving the victim without compensation:
... 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.
Further he considered it inevitable that the principle would be developed in future
cases by analogy:
I would in conclusion emphasise that my opinion is directed to cases in
which each of the conditions specified in (1) - (6) of paragraph 2 above is
satisfied and to no other case. It would be unrealistic to suppose that the
principle here affirmed will not over time be the subject of incremental and
analogical development. Cases seeking to develop the principle must be
decided when and as they arise.
Lord Nicholls articulated his support for the conclusion in forceful terms (at para.
36):
I have no hesitation in agreeing with all your Lordships that these appeals
should be allowed. Any other outcome would be deeply offensive to
instinctive notions of what justice requires and fairness demands.
He expressed the threshold test in broad terms (i.e. as long as the breach was 'not
insignificant'), and set out the logic for it:
So long as it was not insignificant, each employer's wrongful exposure of its
employee to asbestos dust and, hence, to the risk of contracting
mesothelioma, should be regarded by the law as a sufficient degree of
41
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