Sienkiewicz (administratrix of the estate of Enid Costello decd) v Greif (UK) Ltd; [2009] EWCA Civ 1159; [2009] WLR (D) 321

NEGLIGENCE — Causation — Asbestos exposure — Claimant developing mesothelioma after occupational and environmental exposure to asbestos dust — Whether claimant to establish occupational rather than environmental exposure was probable cause of disease — Whether sufficient for claimant to show material contribution to risk of developing disease made by occupational exposure — Compensation Act 2006, s 3

Sienkiewicz (administratrix of the estate of Enid Costello decd) v Greif (UK) Ltd

[2009] EWCA Civ 1159; [2009] WLR (D) 321

CA: Lord Clarke of Stone-cum-Ebony MR, Scott Baker and Smith LJJ: 6 November 2009

A claimant bringing an action in tort for exposure to asbestos dust resulting in mesothelioma was required to establish that the tortious exposure had materially increased the risk of contracting the disease.

The Court of Appeal so held, allowing the appeal of the claimant, Karen Sienkiewicz, administratrix of the estate of her mother, Enid Costello, against the dismissal by Judge Main QC in the Liverpool County Court on 15 December 2008, of her claim for damages for death due to mesothelioma, against the deceased’s former employer, Greif (UK) Ltd.

SMITH LJ said that in a personal injury claim, the claimant had to prove that the tort complained of had probably caused the injury or condition complained of. That could give rise to difficulty in cases where there was more than one potential cause of the injury. The question which arose 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 from the tortious exposure was more than twice the risk arising from non-tortious causes, or was it sufficient, in the light of Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] 2 AC 572, to show a material (more than minimal) increase in risk. Parliament had intervened by enacting s 3 of the Compensation Act 2006 so that the common law simpliciter no longer governed claims for damages in mesothelioma cases. In Barker’s case the House of Lords explained the juridical basis of the Fairchild exception not in terms of a pragmatic solution to difficult cases but the recognition of a hitherto unrecognised tort of negligently increasing the risk of injury. The House held that liability for contribution to the risk should give rise to several liability. Justice required that, where more than one source of asbestos had contributed to the risk, the damages should be apportioned according to each tortfeasor’s contribution to the total risk. The effect of that decision was unsatisfactory for claimants. Parliament decided to overturn the decision in Barker’s case in so far as it required the apportionment of damages. It wished to ensure that, where a claimant could establish liability against one tortfeasor, he could recover full verdict damages. That was the purpose of s 3 of the Compensation Act 2006. Parliament used clear words which provided that, in all mesothelioma cases, a claimant could take advantage of s 3(2) by which the responsible person was liable for the whole of the damage caused by mesothelioma provided that the claimant could satisfy the four 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 therefore not open to a defendant to put the claimant to proof of causation by reference to a twofold increase in risk. The judge was therefore wrong to require the claimant to cross that hurdle. If he had applied the correct test on causation, namely whether or not the tortious occupational exposure had materially increased the risk, the answer was plainly yes. The claimant should have succeeded.

SCOTT BAKER LJ agreed. LORD CLARKE OF STONE-CUM-EBONY delivered a concurring judgment.

Appearances: Christopher Melton QC and Ivan Woolfenden (instructed by Norman Jones, Birkenhead) for the claimant. Jeremy Stuart-Smith QC and Charles Feeny (instructed by Hill Dickinson LLP) for the defendant.

Reported by: Susan Denny, barrister