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Sienkiewicz v Grief (UK) Ltd Willmore v Knowsley Metropolitan Borough Council, Supreme Court, 9 March 2011

15 March 2011
The issues

Mesothelioma – Fairchild principle – Compensation Act 2006 – causation.

The facts

Both appeals involved cases where the defendant was the only known source of occupational exposure to asbestos dust. In each case the extent of exposure was very small. In each case the Court of Appeal, applying the rule in Fairchild v Glenhaven Funeral Services Ltd, held the defendant liable for causing the consequential mesothelioma.

In each case the defendant appealed.

In Willmore, Knowsley Metropolitan Borough Council appealed on the basis of an attack on the findings of fact by the trial judge, which were upheld by the Court of Appeal.

In Sienkiewicz, in which the claimant sued as Administratrix of the Estate of her mother Mrs Costello, Grief raised two grounds of appeal. The first ground alleged that the trial judge found Grief to have been responsible for only 18% of the total exposure which Mrs Costello would have experienced as a result of environmental exposure to asbestos and that in these circumstances there was a failure to prove on a balance of probability that Grief had caused Mrs Costello’s mesothelioma.

They alleged that to do this the claimant would have had to prove that the exposure for which Grief were responsible had more than doubled the environmental exposure. The issue raised by this submission was whether or not the special rule of causation that applied in cases of mesothelioma left any room to apply a test of balance of probability to causation and a general issue as to the applicability as proof of causation in personal injury cases of a test usually applied to epidemiological evidence – the ‘doubles the risk’ test. Grief’s second submission was that occupational exposure to asbestos dust would only constitute a material increase in risk for the purpose of the special rule if it more than doubled the environmental exposure to such dust to which the victim was subject.

The decision

The effect of Section 3 of the Compensation Act 2006
The Compensation Act 2006 (see below) had grafted a special rule onto the Fairchild / Barker principle in relation to liability that was applicable only to mesothelioma. It had draconian consequences for an employer who had been responsible for only a small proportion of the overall exposure of the claimant to asbestos dust or to his insurers, but it was wrong to have regard to that fact when considering the issues raised by the appeals because Parliament had willed it so.

The Court of Appeal treated Section 3(1) as stating that in cases of mesothelioma, causation could be proved by demonstrating that the defendant had materially increased the risk of a victim contracting mesothelioma. This was a mis-reading. It did not state that a responsible person would be liable for tort if he had materially increased the risk. Rather, the Section applied where the responsible person was liable in tort for materially increasing the risk. Whether and in what circumstances liability in tort attached remained a question of common law. That law was currently contained in Fairchild and Barker. These cases developed the common law by equating ‘materially increasing the risk’ with ‘contributing to the cause’ in specified and limited circumstances. The common law remained capable of further development and the Section did not preclude it from identifying exceptions to the material increase of risk test, nor from holding that the material increase of risk test no longer applied as more was learned about mesothelioma. The contention put forward by the defendants in Grief was that the court should identify an exception to the rule where there had been only one occupational exposure to risk and that in those circumstances the court could and should apply the ‘doubles the risk’ test. Section 3 posed no bar to that argument, which had to be considered on its merits.

Can the doubles the risk test be applied in mesothelioma cases?
There were special features about mesothelioma and the gaps in the knowledge in relation to it, that rendered it inappropriate to decide causation on epidemiological data as to exposure. So far as apportionment between tortfeasors jointly liable for causing mesothelioma it was necessary to use epidemiological evidence, given the absence of any better method. The doubles the risk test was therefore not appropriate in cases of single or multiple defendants and it was appropriate to apply the special rule in Fairchild in cases where there was one defendant.

Can the doubles the risk test be applied in multiple cause cases involving diseases other than mesothelioma?
The position therefore was that in single exposure cases the Fairchild exception applied and a claimant succeeded if he proved on the balance of probability that the defendant’s breach of duty materially increased the risk that he would develop mesothelioma.

There was no scope for the application of the doubles the risk test in cases where two agents had operated cumulatively and simultaneously in causing the onset of a disease. In such a case the rule in Bonnington applied. Where the disease was indivisible, such as lung cancer, a defendant who had tortiously contributed to the cause of the disease would be liable in full. Where the disease was divisible, such as asbestosis, the tortfeasor would be liable in respect of the share of the disease for which he was responsible. Where the initiation of the disease was dose related and there had been consecutive exposures to an agent or agents that caused the disease, one tortious and one not tortious, the position would depend upon which exposure came first. If it was the tortious exposure it was axiomatic that it would have contributed to causing the disease, even if it were not the sole cause. Where the non-tortious exposure came first there might be an issue as to whether this was sufficient to trigger the disease or whether the subsequent tortious exposure contributed to the cause. There was no reason in principle why the doubles the risk test should not be applied in such circumstances, but the court had to be astute to see that the epidemiological evidence provided a really sound base for determining the statistical probability or the cause of causes of the disease.

Where there were competing alternative rather than cumulative potential causes of a disease or an injury, there was no reason in principle why epidemiological evidence should not be used to show that one of the causes was more than twice as likely as all the others put together to have caused the disease or injury.

What constituted a material increase in risk?
Liability for mesothelioma fell on anyone who had materially increased the risk of the victim contracting the disease. The use of the word ‘material’ was intended to exclude an increase of risk that was so insignificant that the court would properly disregard it on the de minimis principle. The defendant argued for a test of what was de minimis, applicable to all cases. They argued for a doubles the risk test. It was doubtful whether it was ever possible to define in quantitative terms what was de minimis for the purpose of the application of any principle of law. It had to be a question for the Judge on the facts of the particular case. In the case of mesothelioma, a stage had to be reached at which even allowing for the possibility that exposure to asbestos could have accumulative effect, a particular exposure was too insignificant to be taken into account, having regard to the overall exposure that had taken place. In this case, no-one could reasonably conclude that there was no significant possibility that the incremental exposure to which Grief subjected Mrs Costello was instrumental in causing her to contract the disease.

Willmore’s appeal
In the case of Willmore, the appeal was as to the facts. The Court of Appeal had reviewed the evidence and the judge’s reasoning. Having rejected his findings on one point, they accepted that he had been entitled to find exposure to asbestos in two other ways and that those exposures had been material. It was important that judges had to resist any temptation to give a claimant’s case an additional boost by taking a lax approach to the proof of the essential elements of the Fairchild exception. That could result only in the balance struck by the exception being distorted. A number of plausible criticisms of the findings of the Trial Judge and of the approach of the Court of Appeal had been made, suggesting that they had been unduly favourable to Mrs Willmore. With hesitation the court concluded that those criticisms would not justify the Supreme Court in taking the exceptional step of disturbing the concurrent findings of fact of the courts below.

Conclusion
Both appeals would be dismissed.

The Compensation Act 2006
The preamble to the 2006 Act includes among its objects “to make provision about damages for mesothelioma”. The relevant parts of the provision made are as follows:

“3. Mesothelioma: damages

(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 in circumstances in which another person has liability in tort, or

(ii) by the responsible person in circumstances in which he has no liability in tort), and

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

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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