Alternative Causation in Asbestos Cases under Belgian Law

Abstract

In the Carl Henegan-decision, the English and Wales Court of Appeal has to deal with the case of an individual who died of lung cancer caused by an exposure to asbestos while being employed successively by six different companies. Experts cannot establish which (if any) of the exposures triggered the cell changes in his body which led to the contraction of the disease. For the first time, the Court of Appeal applies the so-called Fairchild exception (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32) in a lung cancer case. This means that damages are awarded against each employer in proportion to the increase in risk for which each was responsible. This decision offers a typical example of alternative causation, where multiple independent defendants may have caused the plaintiff’s harm, but less than all (or just one defendant) actually caused it. Alternative causation cases are exceptional in Belgian law, the decision therefore offers an invitation to discuss the issue. First, from a Belgian perspective, it is remarkable that the English and Wales Court of Appeal does not apply the conditio sine qua non test, but falls back on another test (i.e. the Fairchild exception) which limits the liability of the employers to the extent of the exposure they generated. Second, civil liability actions because of asbestos exposure are also very rare in Belgium, because of the elaborate system of compensation funds. In the following commentary, I will pay attention to these two main differences, setting forth the current Belgian state of the art. The first section focuses on the civil liability approach of alternative causation in general and asbestos cases in particular. The second section examines two compensation funds which are playing a prominent role in this field: the Fund for occupational diseases and the Asbestos fund.