Landmark asbestos claim decision

Floodgates set to open after Supreme Court ruling

Thousands of asbestos-related claims are likely to be brought following a Supreme Court judgment in favour of the families of two mesothelioma victims.

Seven justices ruled unanimously that claimants do not need to prove the defendant “doubled the risk” of mesothelioma in order to prove negligence, in Sienkiewicz (Administratix of the estate of Enid Costello Deceased) v Greif (UK) Ltd, and Knowsley Metropolitan Borough Council v Willmore [2011] UKSC 10 [2011] All ER (D) 107 (Mar).

They held that it was up to the individual judge in each case to determine whether the exposure was significant enough to be taken into account.

Enid Costello was exposed to low levels of asbestos while working at a factory run by Greif.  This increased her exposure to asbestos by 18% above the level she would have experienced normally through exposure in the atmosphere.  Greif contended that Costello needed to prove they were responsible for at least doubling the level of asbestos in the atmosphere in order to demonstrate, on the balance of probabilities, a “material increase in risk”. 

However, the justices rejected this argument.

Lord Phillips said mesothelioma was “an indivisible disease…there is no uncertainty as to whether its contraction is related to the amount of asbestos fibres ingested”.

Later in his judgment, he said: “I doubt whether it is ever possible to define, in quantitative terms, what, for the purposes of the application of any principle of law, is de minimis.

“This must be a question for the judge on the facts of the particular case…If one assumes, as is likely, that Mrs Costello’s disease was asbestos induced, it is plain that a very low level of exposure sufficed to cause the disease… No one could reasonably conclude that there was no significant possibility that the incremental exposure to which Greif subjected Mrs Costello was instrumental in causing her to contract the disease.”

Norman Jones, solicitor for Costello, says: “The message here is that there is no low level where asbestos is safe.

“This judgment gives the unsuspecting victim who has worked in an environment where they have been exposed to asbestos a chance to be compensated for an illness they have developed through no fault of their own.” 

“New Law Journal”: 18.3.11