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PersonalInjuryMarch2011UK SUPREME COURT UNANIMOUSIN DISMISSING APPEALSLondonParisRouenBrusselsGenevaPiraeusDubaiHong KongShanghaiSingaporeMelbourneSydneyOn 9 March 2011, the Supreme Court of theUnited Kingdom delivered its judgment in theconjoined appeals of Sienkiewicz (Administratrixof Mrs Enid Costello) v Greif (UK) Ltd andWillmore v Knowsley Metropolitan BoroughCouncil [2011] UKSC 10. It dismissed theappeals of the first appellant manufacturingcompany (G) and the second appellant localauthority (K) which appealed against decisionsconcerning the appropriate rule of causationin mesothelioma cases involving a singledefendant. In both cases the exposure hadbeen found to be small and the appellantswere the sole known sources of occupationalexposure of the respondents (S and W) in eachcase.The Law Lords affirmed previous judgmentsrelating to asbestos-related injury, applyingFairchild v Glenhaven Funeral Services Ltd[2002] UKHL 22 and Barker v Corus UK Ltd[2006] 2 A.C. 572, and in each case held theappellant (defendant) was responsible forexposing the claimant, S and W, to sufficientamounts of asbestos dust to create a materialincrease in risk and was therefore liable. Theclaimants (respondents) were therefore entitledto compensation. The Court has therefore againshown sympathy for mesothelioma sufferersand their families in cases where, despite clearlysuffering from the disease, the claimants areunable to prove that the defendant negligentlycaused their mesothelioma, using the normal“but for” test of causation.This case will prove useful in furtherunderstanding of issues of causation arising,not just from mesothelioma claims, butemployer’s liability for industrial diseasegenerally. The Law Lords in this case,most notably Lord Phillips, who gives acomprehensive opening to the case, havepresented a concise and useful guide to thehistory and development of the common law inthis area. As readers of the judgment will note,the House of Lords, now the Supreme Court,have consistently turned a sympathetic eye toclaimants who have suffered seriously, oftenfatally, at the hands of defendant employers, butwho fall short of being able to prove causation


on the balance of probabilities, i.e.showing that but for the defendant’s(or defendants’) negligence theywould not have suffered injury.This is true not only in the casesof Fairchild and Barker mentionedabove, but also in the cases ofMcGhee v National Coal Board[1973] 1 WLR 1 and Wilsher v EssexArea Health Authority [1988] AC1074, on which this judgment andthe Fairchild judgment are based.It is worth mentioning at this stage,that due to the uncertainty as to thebiological cause and developmentof the disease, knowledge aboutmesothelioma was based partlyon medical science and also onstatistical analysis of disease(epidemiology). In the McGhee case,the claimant was a brick kiln workerwho was successful in his claim fordamages for dermatitis caused bybrick dust where his employer hadnot provided shower facilities at hisworkplace to wash off the dust beforehe cycled home. He succeeded,despite not being able to prove withepidemiological evidence a definitecausal link between the dermatitisand the washing facilities. It wasenough for the claimant to show thatthe failure of the defendant to providewashing facilities had “materiallyincreased” the risk that he wouldcontract dermatitis.In the highly-publicised case ofFairchild, the claimants, who hadcontracted mesothelioma throughthe inhalation of asbestos dust,had been exposed to asbestosthroughout their working lives, frommore than one employer in eachcase. It was impossible for theclaimants to prove, on the balanceof probabilities, which period ofexposure from which employer hadactually caused the disease. TheHouse of Lords held that in casesinvolving mesothelioma, for publicpolicy reasons, claimants should beable to recover compensation fromthe defendants, jointly and severally,without having to satisfy the usual“but for” test of causation for anyone of the defendants. This becameknown as the Fairchild exception.In Barker v Corus the House of Lordswent further. They held that since thebasis of the liability was materiallyincreasing the risk of developingmesothelioma, each employer wasonly liable to the extent of thatincreased risk. Therefore, althoughmesothelioma is an indivisibledisease, the liability was divided inproportion to the contribution to theincreased risk. This was almostimmediately reversed by Parliament’scontroversial section 3 of theCompensation Act 2006.One of the distinguishing featuresthat the Law Lords had to deal within this latest judgment (Sienkiewicz)was that both claimants (KarenSienkiewicz on behalf of EnidCostello, and Barré Willmore onbehalf of Dianne Willmore) wereclaiming compensation from justone defendant each. In the case ofMrs Willmore, the level of exposureat the school she had attendedin the 1970’s was low. Similarly,in Sienkiewicz, the low levels ofasbestos dust Mrs Costello wasexposed to while she walked arounda factory floor compared to thelevels in the general environmentin Ellesmere Port increased the riskof her contracting mesotheliomaby just 18%. The defendants,therefore, sought to distinguish thecase from Fairchild because, interalia, the Fairchild case dealt withmultiple exposure through multipledefendants. They argued, therefore,that the Fairchild exception that aclaimant needed only to demonstratethat the defendant “materiallyincreased” the risk of mesotheliomashould not apply in these“As readers of the judgment will note, the House of Lords, nowthe Supreme Court, have consistently turned a sympatheticeye to claimants who have suffered seriously, often fatally,at the hands of defendant employers, but who fall short ofbeing able to prove causation on the balance of probabilities,i.e. showing that but for the defendant’s (or defendants’)negligence they would not have suffered injury.”02 Personal Injury


circumstances because only a singledefendant’s actions were in issue,and also that any exposure which didnot at least double the backgroundrisk was not “material” exposurewithin the meaning of Fairchild andthe Compensation Act.Another argument put forward by thedefendants was that the claimantsshould be required to prove, onthe balance of probabilities, thatthe defendant alone caused themesothelioma, through the bringingof statistical evidence to that effect.Even if the Court found that theFairchild exception did apply to theseclaimants, the defendants argued thatthey should still not succeed in theirclaims because their exposure toasbestos dust was not “material”, i.e.it had not more than doubled the riskof contracting mesothelioma.The Supreme Court did in fact applythe Fairchild exception to the generallaws of causation to this case of“single exposure”. In addition, it washeld that what counted as a “materialincrease in risk” did not mean “adoubling of risk” and was somethingthat should be measured on a caseby-casebasis, having regard to thesufferer’s life history of exposure.In this case, the levels of exposurewere small and so the threshold ofmaterial risk was low. Accordinglya claimant will be compensatedfor developing mesothelioma evenwhere occupational exposure is low(as long as it is not de minimis) andeven where the exposure is lessthan exposure from the claimant’senvironment.where one party, or multiple partiescommitting the same wrong, causedthe disease, their Lordships appearedreluctant to extend the normal “butfor” test of causation into other typesof employer-liability litigation. Theydo not wish to open the floodgates orcreate an environment of uncertainty.The question of the Justicestampering with the common lawcausation rule clearly troubled LordBrown who notes, “mesotheliomaclaims are in a category all their own.[...] The unfortunate fact is, however,that the courts are faced withcomparable rocks of uncertainty ina wide variety of other situations tooand that to circumvent these rockson a routine basis - let alone if to doso would open the way, as here, tocompensation on a full liability basis- would turn our law upside downand dramatically increase the scopefor what hitherto have been rejectedas purely speculative compensationclaims”.Finally, regarding the CompensationAct and its relevance in this matter,the Justices agreed that it should notbe used by a claimant to assist inproving what amounted to “materialcontribution to injury”. It had beenbrought in solely to reverse thedecision in Barker v Corus.For more information, please contactRachel Butlin, Associate, on+44 (0)20 7264 8121 orrachel.butlin@hfw.com, or your usualcontact at HFW.Whilst this case gives comfort tomesothelioma victims and theirfamilies that the rules established inFairchild continue to apply in claimsPersonal Injury 03


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