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Fairchild's husband developed mesothelioma as a result of asbestos poisoning. He worked for two consecutive employers where he was exposed to asbestos in his work. Both employers breached their duty of care for him by exposing him to asbestos, but it cannot be determined which breach actually led to the poisoning, or if they both did. Glenhaven was successful in the lower courts which Fairchild appealed.,,,,


  1. When two defendants are equally probable to have caused an injury, which is liable?


Appeal allowed.


In the lower courts the judges applied the “but for” test and determined that neither party can be found liable because it cannot be proven that the outcome would have occurred without either of their actions.

In this court, Bingham of Conhill uses the principle in McGhee v National Coal Board to formulate his own specific formula for determining liability in cases like this. He breaks the facts into six specific steps that must be present for his decision to apply, and states that when they are present the plaintiff is entitled to recover against both defendants. He emphasizes that this only applies when all six steps are present.


When the plaintiff (C) was . . .

  1. employed by two different companies (A & B) at different times;
  2. both A & B owed a duty of care to C;
  3. both A & B breached their duty to C when he worked for them;
  4. C suffers from an injury directly related to the breach of duty;
  5. any other cause of injury can be effectively ruled out; and
  6. C cannot prove when the injury developed or who was responsible . . .

then C is able to collect damages from both defendant.