Sienkiewicz v Greif (UK) Ltd

In mesothelioma claims involving tortious and non-tortious asbestos exposure, the Fairchild exception applies where the tortious exposure materially increased the risk, meaning more than a minimal increase. A claimant need not prove that the tortious exposure more than doubled the risk from environmental exposure. Section 3 of the Compensation Act 2006 permits full, joint and several liability once its conditions are met. Causation may be established by any available method, including material increase in risk. If a defendant introduces a quantitative causation case and expert evidence late, a new trial may be required if that issue is decisive.

The appellant, administratrix of the estate of Mrs Enid Costello, appealed from the dismissal of a mesothelioma claim against her mother’s former employer. The Liverpool County Court found that the employer had breached its duty and that Mrs Costello’s occupational asbestos exposure had increased the risk of mesothelioma, but by only 18 per cent compared with environmental exposure. The claim was dismissed because the occupational exposure had not more than doubled the environmental risk.

The appeal concerned whether the claimant had to satisfy that doubling-of-risk test or only show a material increase in risk under the Fairchild exception, and whether section 3 of the Compensation Act 2006 applied.

The appeal was allowed unanimously. Smith LJ gave the leading judgment. Scott Baker LJ agreed, and Lord Clarke agreed while adding reasons on the common-law principles. Judgment was entered for the appellant on liability, with damages to be assessed if not agreed.

1. The ordinary rule in personal injury claims requires proof on the balance of probabilities that the tort caused the injury. A material contribution is sufficient where the tort contributed more than minimally to the injury, as explained in Bonnington Castings Ltd v Wardlaw [1956] AC 613. The mesothelioma exception developed through McGhee v National Coal Board [1973] 1 WLR 1 and Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32.
2. Where mesothelioma may have resulted from more than one asbestos exposure, the claimant need only show that the tortious exposure materially increased the risk. The exception applies even where another exposure was environmental or otherwise non-tortious. The claimant is not required to prove that the tortious exposure more than doubled the competing risk. Lord Clarke considered that Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572 confirmed that the relevant causal link was the negligent increase of risk and that the presence of non-tortious asbestos exposure did not prevent liability.
3. Smith LJ further held that section 3 of the Compensation Act 2006 applied where the conditions in section 3(1) were met. Section 3(1)(d) required common-law liability, but causation could be proved by any available method, including a material increase in risk. Section 3(2) therefore required liability for the whole damage jointly and severally, notwithstanding other asbestos exposure. Lord Clarke stated that the result followed at common law and did not depend on section 3, but agreed that the statutory provision led to the same conclusion.
4. The court did not need to determine the detailed criticisms of the quantitative assessment. If a twofold increase had been required, the late introduction of that case and the absence of suitable expert preparation would have made the trial unfair and justified a new trial.

• Court of Appeal (Civil Division): allowed the appeal and entered judgment for the appellant on liability.
• Liverpool County Court: HH Judge Main QC dismissed the claim on 15 December 2008, having found breach of duty but concluding that occupational exposure had not more than doubled the environmental risk.