Damages

Mesothelioma from small exposure to asbestos

Karen Sienkiewicz (Administratrix of the estate of Enid Costello, deceased) v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore [2011] UKSC 10, 9 March; SJ 15 March p30

These were two appeals by employers against decisions concerning the appropriate rule of causation in cases of mesothelioma involving a single defendant where there was also a risk of exposure from the general atmosphere. They were the sole known sources of exposure to asbestos dust, one from her employment in a steel drum factory and the other from her secondary school. In each case, the extent of the exposure had been found to be small. The Court of Appeal had applied the principle in Fairchild v Glenhaven Funeral Services Ltd (t/a GH Dovener & Son) (2002) UKHL 22, (2003) 1 AC 32 and Barker v Corus UK Ltd (2006) UKHL 20, (2006) 2 AC 572 and in each case found the employers to be responsible for exposing the claimants to sufficient asbestos dust to create a material increase in risk and therefore jointly and severally liable. The issues for determination were: (i) whether the rule of causation that had been developed in cases of mesothelioma left any room for applying a test of balance of probability to causation; (ii) whether the Fairchild exception applied in cases involving a single defendant and whether it was appropriate to apply a test which attributed causative effect to any factor which more than doubled a risk of a claimant developing mesothelioma; (iii) what constituted a material increase in risk.