Claimant has to establish increased risk of damage

Court of Appeal
Sienkiewicz v Greif (UK) Ltd
Before Lord Clarke of Stone-cum-Ebony, Lord Justice Scott Baker and Lady Justice Smith
Judgment November 6, 2009

A CLAIMANT who brought an action in tort for exposure to asbestos dust, which resulted in mesothelioma was required to establish a material increase in the risk of contracting the disease because of the tortious exposure.

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

Mr Christopher Melton, QC and Mr Ivan Woolfenden for the claimant; Mr Jeremy Stuart-Smith and Mr Charles Feeny for Greif.

Lady Justice Smith said that in a personal injury claim, the claimant had to prove that the tort had probably caused the injury or condition complained of. That could give rise to difficulty in cases where the injury had more than one potential cause.

Where there was more than one source of asbestos exposure in a mesothelioma case, the question which had arisen was whether the claimant could be required to establish that the risk from the tortious exposure was more than twice the risk arising from nontortious causes, or whether it was sufficient, on the authority of Fairchild v Glenhaven Funeral Services Ltd (The Times June 21, 2002; 2003 1 AC 32) and Barker v Corus UK Ltd (The Times May 4, 2006; 2006 2 AC 572) to show a material, that is, more than a minimal increase in risk.

By enacting section 3 of the Compensation Act 2006, Parliament had intervened so that the common law alone no longer governed claims for damages in mesothelioma cases.

In Barker the House of Lords explained the juridical basis of the Fairchild exception not as a pragmatic solution to difficult cases but by reference to a hitherto unrecognised tort of negligently increasing the risk of injury.

The House held that once liability for contributing to the risk had been established it should give rise to several liability.

Where more than one source of asbestos had contributed to the risk, justice required that the damages should be apportioned according to the contribution of each tortfeasor to the total risk.

For claimants the effect of that decision was unsatisfactory. Parliament decided to overturn the decision in Barker in relation to its requirement of the apportionment of damages.

The purpose of section 3 of the 2006 Act was to ensure that a clamant could recover full verdict damages where he could establish liability against one tortfeasor.

Parliament used clear words which provided that, in all mesothelioma cases, where a 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, the claimant could take advantage of section 3(2) by which the responsible person was liable for the whole of the damage caused by mesothelioma.

The defendant was therefore not entitled to put the claimant to proof of causation by requiring a twofold increase in risk to be shown. It was therefore wrong of the judge to require the claimant to cross that hurdle.

Had he applied the correct test on causation, which was whether or not the tortious exposure at work had materially increased the risk, he would have concluded that the answer was plainly "Yes". The claimant ought to have succeeded.

Lord Justice Scott Baker agreed and Lord Clarke delivered a concurring judgment.

Solicitors: Norman Jones, Birkenhead; Hill Dickinson, LLP