Asbestos and mesothelioma

The Court of Appeal in Sienkeiewicz v Greif (UK) Ltd [2009] EWCA Civ 1159 has decided that the ordinary rules of causation in tort which apply where there are two or more possible causes of injury are to be relaxed where the injury sustained is mesothelioma resulting at least in part from exposure to asbestos. In mesothelioma cases the test is simply whether tortious exposure had made a material contribution to the risk.

Sienkiewicz: the facts

The claimant, Ms Sienkiewicz, was the daughter and administratrix of Mrs Costello, who died of mesothelioma in January 2006 at the age of 74. Mrs Costello, who had lived in Ellesmere Port, had worked for Greif (UK) Ltd’s predecessors in title from 1966 until 1984, and although she had been an office worker she had been exposed to asbestos dust which had been released in the courts of Greif’s manufacturing operations. Greif did not deny that there had been exposure, and chose not to appeal against the trial judge’s finding that Greif had been in breach of its common law or statutory duties towards Mrs Costello. The issue was causation. At trial the judge concluded that Mrs Costello had contracted mesothelioma due to exposure to asbestos. The issue was, however, causation. Greif’s argument was that the level of exposure to asbestos in the course of employment was low, that Mrs Costello had also been exposed to a low level of asbestos in the general atmosphere of Ellesmere Port and that a causal link between Greif’s breach of duty and Mrs Costello’s illness could be established only if Mrs Costello could show that the occupational exposure had at least doubled the risk of mesothelioma. The question for the Court of Appeal was whether that test was the right one. The Court of Appeal held that it was not, and ruled in favour of Mrs Costello’s estate.