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Sienkievicz Administratrix of the Estate of Enid Costello Deceased v Grief (UK) Ltd, Court of Appeal, 6 November 2009

11 November 2009
The issues

Mesothelioma – Fairchild v Glenhaven Funeral Services Ltd – Compensation Act Section 3 – causation.

The facts

Mrs Costello died of mesothelioma in January 2006, at the age of 74, having worked for the Defendant’s predecessors in title from 1966 until 1984 at their factory in Ellesmere Port. The Defendant manufactured steel drums. Asbestos dust was released in the factory atmosphere in the course of its processes. Mrs Costello was an office worker. Her duties took her all over the factory and she spent time in the areas which were, from time to time, contaminated with asbestos. It was alleged that she had been exposed to asbestos dust and had contracted mesothelioma as a result. The Defendant admitted its use of asbestos but denied breach of duty. The Judge at first instance found against the Defendant, holding that the Defendant had been in breach of either statutory or common law duty to Mrs Costello throughout her employment. The Judge also found that Mrs Costello had probably not been exposed to asbestos dust during any other employment but that, in common with the other inhabitants of Ellesmere Port, had been exposed to a low level of asbestos in the general atmosphere. The Defendant contended that any occupational exposure to asbestos had been minimal and much less than the environmental exposure and that in order to succeed, the Claimant would have to show that it was probably the occupational exposure rather than environmental exposure which had caused the disease. The Defendant argued that the Claimant would have to show that the occupational exposure had at least doubled the risk of mesothelioma which Mrs Costello faced as a result of living where she did. The Judge at first instance accepted that submission, finding that the total occupational exposure was modest compared with the environmental exposure and had increased the risk due to the environment by only 18%. The claim therefore failed because the Claimant had not shown that the tortious occupational risk had more than doubled the risk from non-tortious environmental exposure.

The Claimant appealed.

The decision

It was trite law that in a personal injury claim the Claimant had to prove the tort complained of probably caused the injury complained of. In Bonnington Castings v Wardlaw it was held sufficient if the tort had made a material contribution to the injury. A contribution was material if it was more than minimal.

In McGhee v National Cole Board, it was held that in a case where the aetiology of the disease from which the Claimant was suffering was not fully understood, there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury. In Fairchild v Glenhaven Funeral Services Ltd, the House of Lords recognised the particular difficulties arising for Claimants trying to demonstrate that exposure to asbestos dust during any particular period of employment had been responsible for the development of mesothelioma. The House of Lords accepted that where the worked had been exposed to more than one source of dust, it was not possible for a Claimant to satisfy the usual “but for” test of causation, or to prove that any particular source made a material contribution to the disease and satisfy therefore the test of causation set out in Bonnington. The House of Lords decided therefore that it was fair, just and reasonable to create an exception to the general rule of causation such that it would be sufficient if a Claimant could show that the negligent exposure had materially increased the risk or materially contributed to the risk, that the worker would develop the disease.

The theory that causation could be proved on a balance of probabilities by reference to a doubling of the risk was first applied by Mackay, J in X, Y & Z v Schearing Healthcare Ltd & Ors (the “oral contraceptive litigation”). As a method of proving causation the principle had subsequently been applied in lung cancer cases. The Court of Appeal had approved the approach in Novartis Grimsby Ltd v Cookson, a bladder cancer case. In that case the Claimant had argued that the case ought to come within the Fairchild exception. The Court of Appeal found that it was sufficient for the Claimant to succeed that the expert evidence showed that tortious exposure had more than doubled the risk arising from smoking. It must now therefore be taken that in cases of multiple potential causes, a Claimant can demonstrate causation in a case by showing that the tortious exposure has at least doubled the risk arising from the non-tortious cause or causes. The question that arose in this Appeal was whether, in a mesothelioma case where there was more than one source of asbestos exposure, the Claimant could be required to show that the risk arising from the exposure was more than twice the risk arising from the non-tortious causes or whether it was sufficient, in the light of Fairchild, that the Claimant need only show a material increase in risk. The Defendant argued that Fairchild did not apply. It accepted that where a Claimant had been exposed to several different sources of asbestos it would be impossible for him to demonstrate which source had probably caused his disease and that in those cases the Fairchild exception should apply. But, the Defendant argued, where it was possible for a Claimant to demonstrate that the tortious exposure had more than doubled the risk arising from any other exposure, he should be put to proof of that and the exception allowed by Fairchild was not necessary. The exception should not be applied to Claimants who could, if they assembled the necessary evidence, prove causation on ordinary principles. Moreover, the House of Lords in Fairchild had been considering a case where there had been several employments in which there had been only one significant asbestos exposure. They were no considering cases where there was only one occupational exposure and the only other source of asbestos was that found in the general atmosphere. Had they been doing so the Defendant argued, they would not have included such a case in the exception.

The Court of Appeal accepted that there was considerable force in the Defendant’s argument. The “two-fold doubling” principle had not been suggested to the House of Lords. Had the House of Lords been asked to consider that issue, it might have limited the exception to the two cases in which such an assessment was impossible. It was now idle to speculate however because Parliament had intervened, enacting Section 3 of the Compensation Act 2006. Section 3 provided:

“Section 3 is headed Mesothelioma:damages. It provides:

(1) This section applies where:

(a) a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos.

(b) the victim has contracted mesothelioma as a result of exposure to asbestos.

(c) because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph(a) or another exposure which caused the victim to become ill, and

(d) the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a) in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

(2) The responsible person shall be liable:

(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos:
(i) other than by the responsible person, whether or not circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has liability in tort) and

(b) jointly and severally with any other responsible person.

(3) Subsection (2) does not prevent:

(a) one responsible person claimant a contribution from another or

(b) a finding of contributory negligence.”

It was argued for the Defendant that Section 3 did not apply to this case because the purpose of the Section was a specific response to the issue of apportionment and was not otherwise intended to change the underlying common law. Moreover, it did not apply because, of the four conditions necessary, the fourth was not satisfied. The Claimant still had to establish liability in tort at common law. The Defendant argued that the Section applied only where liability was established in common law, under the principles established by Fairchild and did not apply in a case where the Court was considering only a tortious exposure to asbestos and background environmental exposure.

The view of the Court of Appeal was that Parliament had used clear words, providing that in all mesothelioma cases, a Claimant could take advantage of Section 3(2) provided that he or she could satisfy the full conditions in Section 3(1) and the fourth condition could be satisfied by proof of causation by reference to a material increase in risk. It was not therefore open to a Defendant to put the Claimant to proof of causation by reference to a two-fold increase in risk. The Judge was wrong to require the Claimant to cross that hurdle.

Appeal allowed.

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