Sienkiewicz (Administratrix of the Estate of Enid Costello Deceased) v Greif (UK) Limited

The Fairchild exception applies to mesothelioma caused by a single wrongful exposure to asbestos where environmental exposure is the only alternative source. The claimant need only prove that the defendant’s breach materially increased the risk of contracting the disease. A material increase means one which is more than de minimis; it need not double the background risk.

Section 3 of the Compensation Act 2006 does not create this causal rule. Liability remains governed by the common law. Once liability exists, however, the responsible person is liable for the whole damage and jointly and severally with any other responsible person.

These conjoined appeals concerned two women who died from mesothelioma after relatively slight exposure to asbestos. In Sienkiewicz v Greif (UK) Ltd, the trial judge found that the employer’s breach increased Mrs Costello’s environmental risk by about 18%, but dismissed the claim because the risk had not doubled. The Court of Appeal allowed the claim in [2009] EWCA Civ 1159.

In Willmore v Knowsley Metropolitan Borough Council, Nicol J found that Mrs Willmore had encountered asbestos while attending a council school and awarded £240,000. The Court of Appeal rejected one alleged source of exposure but upheld liability in [2009] EWCA Civ 1211.

The principal issue was whether the Fairchild exception applied where there was only one tortious source of asbestos exposure and the competing source was low-level environmental exposure. The Court also considered whether causation or materiality required the tortious exposure to have more than doubled the background risk.

1. Both appeals dismissed unanimously. Lord Phillips and Lord Rodger gave the principal reasons. Lady Hale, Lord Brown, Lord Mance, Lord Kerr and Lord Dyson agreed that the Fairchild exception governed both claims.

2. The exception applied where one defendant had wrongfully exposed the victim to asbestos and environmental exposure was the only alternative source. The same scientific uncertainty existed as in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. It was irrelevant that the competing exposure was non-tortious. The claimants therefore had to prove that each breach materially increased the risk of mesothelioma, rather than that the breach probably caused the disease.

3. The “doubles the risk” test was inapplicable. Present knowledge about mesothelioma did not permit causation to be determined reliably by comparing the relative quantities of asbestos exposure. The disease might involve cumulative and temporal processes which exposure statistics alone could not resolve.

4. Section 3 of the Compensation Act 2006 did not prescribe when a person became liable in tort. That remained a matter of common law, capable of development if scientific knowledge advanced. The section instead reversed the proportionate-liability holding in Barker v Corus UK Ltd [2006] UKHL 20: once liability existed, each responsible person became liable for the whole damage and jointly and severally with any other responsible person.

5. A material increase in risk meant an increase which was more than de minimis. Materiality could not be reduced to a universal numerical test. It depended on the facts, including the significance of the wrongful exposure compared with exposure from other sources. Greif’s contribution, although small, was material.

6. The Fairchild exception did not relax the claimant’s burden of proving breach, actual exposure and a material increase in risk. In the Willmore appeal, some findings were generous, but the Court would not take the exceptional step of disturbing the concurrent findings that two sources of exposure at the school were established and material.

7. The broader discussion of epidemiological proof was obiter. Lord Phillips considered that sufficiently sound epidemiological evidence might sometimes assist conventional proof in non-mesothelioma cases. Lord Rodger and Lady Hale stressed that population-level association did not itself prove individual causation. Lord Dyson left open whether exceptionally compelling statistics might support the necessary factual inference.

1. United Kingdom Supreme Court: Unanimously dismissed Greif’s appeal in Sienkiewicz v Greif (UK) Ltd and the Council’s appeal in Willmore v Knowsley Metropolitan Borough Council.
2. Court of Appeal—Sienkiewicz: In [2009] EWCA Civ 1159, allowed the claimant’s appeal and held that the defendant’s material increase of the risk of mesothelioma was sufficient.
3. First instance—Sienkiewicz: HH Judge Main QC dismissed the claim because the occupational exposure had increased the environmental risk by only 18% and had not doubled it.
4. Court of Appeal—Willmore: In [2009] EWCA Civ 1211, rejected one alleged source of exposure but upheld the findings that two other sources were established and material.
5. First instance—Willmore: Nicol J found three sources of asbestos exposure at the council school and awarded agreed damages of £240,000.