Mesothelioma

The Supreme Court has confirmed, in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, that mesothelioma cases form an exceptional category in English tort law, and that the test for causation is far more generous to the victim than in any other situation.

The law on causation

The legal background to tort liability for mesothelioma is well known. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 the House of Lords faced the problem of an employee who had been exposed to asbestos by a number of different employers over a period of years and who had subsequently contracted mesothelioma. The state of medical knowledge was at the time – and remains – such that it was impossible to identify the exposure which had led to the disease and thus it was impossible to determine which of the employers was responsible as a matter of fact. The law of causation as it stood meant that none of the employers faced liability. To overcome that impasse, the House of Lords modified the causation test so that liability was imposed upon any employer who materially contributed to the risk of disease. That was thought to mean that every employer – and thus the liability insurers of every employer – was 100% liable for the loss. However, in Barker v Corus (UK) plc [2006] UKHL 20 the House of Lords by a majority took a step back from that position, and held that the Fairchild case merely established liability but not the amount of liability, and that every employer might face liability but only for his potential share of that liability.