II Tort law: Fairchild v glenhaven Funeral Services Ltd In the Fairchild case, three appeals were heard together. In all three cases, employees had developed mesothelioma caused by asbestos dust, to which they had been exposed during their work for various successive employers. The Court of Appeal decided that, as the employees could not prove on a balance of probabilities, during which period of exposure the inhalation of asbestos fibres had led to the disease, they had not proven that a particular employer was to be held liable. It was clear from medical evidence that medical science could not give an answer to the question what had been the relevant period of inhalation. The House of Lords was confronted with a dilemma. The employers had admitted that they had committed a breach of their duty to protect their employees against the danger of inhaling asbestos fibres. The employees, however, would never be able- giving the state of medical science-to prove in which period the relevant inhalation leading to mesothelioma had taken place. It meant that the employees would suffer a loss because of lack of evidence, which could not be attributed to them given the state of medical cience. It would also lead to the result that none of the employers, although they all admitted their breach of duty, could be held liable. If, however, the rules of causation would be reformulated in such a way that in a case like this all the employers could be held liable, this could lead to an unfair result for the employers. They would all be liable for an act which was, from a medical them. Still, the final result might be fair from the oyees, who were innocent victims It is the type of dilemma which can also be found in the case of white v Jones (10)A testator had instructed his solicitor to change a will, but he died before the solicitor had acted. The result was that those who would have benefited under the new will did not benefit because the testator had died. he no longer could lodge a claim under the contract he had concluded with the solicitor. the disappointed beneficiaries, who had not been a party to the contract and therefore could only claim damages in tort, had to face the problem whether, in such a situation, a claim on the grounds of pure economic loss could be awarded. The dilemma is clear: this, no doubt, was a case of malpractice, but who- if anyone-could claim damages? In order to escape from this dilemma, the House of Lords also analysed foreign law, focusing on considerations of policy. The same approach can be found in Fairchild In this case. the barristers had discussed several american and commonwealt but the House of Lords explicitly suggested that foreign legal materials describing the position in European legal systems would also be discussed. (11)The House of Lords- speeches by Lord ingham of Cornhill and Lord Rodger of Earlsferry -referred to several foreign legal materials for further information References were made to the laws of Australia, Canada, France, Germany Greece, Italy, the Netherlands, Norway, South Africa, Switzerland and the United States. Writings by Christian von Bahr, Walter van Gerven, Markesinis Unberath, Palandt(Burgerliche Gesetzbuch: 2002 edition! ) Fleming, Robertson, Jaap Spier, Hart Honore and Jeroen Kortmann were also mentioned. The Van Gerven casebook on tort law was mentioned several times Furthermore, Lord Rodger of Earlsferry discussed Roman law. In regard to Dutch law, a leading case decided by the Hoge Raad(Netherlands Supreme Court)was discussed in connection withII Tort law: Fairchild v. Glenhaven Funeral Services Ltd. In the Fairchild case, three appeals were heard together. In all three cases, employees had developed mesothelioma caused by asbestos dust, to which they had been exposed during their work for various successive employers. The Court of Appeal decided that, as the employees could not prove, on a balance of probabilities, during which period of exposure the inhalation of asbestos fibres had led to the disease, they had not proven that a particular employer was to be held liable. It was clear from medical evidence that medical science could not give an answer to the question what had been the relevant period of inhalation. The House of Lords was confronted with a dilemma. The employers had admitted that they had committed a breach of their duty to protect their employees against the danger of inhaling asbestos fibres. The employees, however, would never be able - giving the state of medical science - to prove in which period the relevant inhalation leading to mesothelioma had taken place. It meant that the employees would suffer a loss because of lack of evidence, which could not be attributed to them given the state of medical science. It would also lead to the result that none of the employers, although they all admitted their breach of duty, could be held liable. If, however, the rules of causation would be reformulated in such a way that in a case like this all the employers could be held liable, this could lead to an unfair result for the employers. They would all be liable for an act which was, from a medical point of view, caused by only one of them. Still, the final result might be fair from the viewpoint of the employees, who were innocent victims. It is the type of dilemma which can also be found in the case of White v. Jones.(10) A testator had instructed his solicitor to change a will, but he died before the solicitor had acted. The result was that those who would have benefited under the new will did not benefit. Because the testator had died, he no longer could lodge a claim under the contract he had concluded with the solicitor. The disappointed beneficiaries, who had not been a party to the contract and therefore could only claim damages in tort, had to face the problem whether, in such a situation, a claim on the grounds of pure economic loss could be awarded. The dilemma is clear: this, no doubt, was a case of malpractice, but who - if anyone - could claim damages? In order to escape from this dilemma, the House of Lords also analysed foreign law, focusing on considerations of policy. The same approach can be found in Fairchild. In this case, the barristers had discussed several American and Commonwealth cases, but the House of Lords explicitly suggested that foreign legal materials describing the position in European legal systems would also be discussed.(11) The House of Lords - speeches by Lord Bingham of Cornhill and Lord Rodger of Earlsferry - referred to several foreign legal materials for further information. References were made to the laws of Australia, Canada, France, Germany, Greece, Italy, the Netherlands, Norway, South Africa, Switzerland and the United States. Writings by Christian von Bahr, Walter van Gerven, Markesinis & Unberath, Palandt (Bürgerliches Gesetzbuch: 2002 edition!), Fleming, Robertson, Jaap Spier, Hart & Honoré and Jeroen Kortmann were also mentioned. The Van Gerven casebook on tort law was mentioned several times. Furthermore, Lord Rodger of Earlsferry discussed Roman law. In regard to Dutch law, a leading case decided by the Hoge Raad (Netherlands Supreme Court) was discussed in connection with