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    Asbestos : Mesothelioma : Causation : Duty of care

    The appellant administratrix (S) appealed against an order dismissing a claim for damages for death due to mesothelioma brought by S on behalf of the estate of her mother (C) against the respondent company (G).

    C had worked for G at their factory premises where asbestos dust had been released during the course of the manufacture of steel drums. Although C had been an office worker, her duties took her all over the factory and she therefore spent time in areas which had been contaminated by asbestos.

    The judge held that: (i) C had been exposed to asbestos dust and such exposure had been caused by breach of G’s duty of care or statutory duty owed to her; (ii) C had not been exposed to asbestos dust during any other employment, but had been exposed, in common with other inhabitants in her area, to a low level of asbestos dust in the general atmosphere; (iii) the tortious exposure materially increased the risk of C contracting mesothelioma, in the sense that the risk was more than minimal; (iv) the total tortious exposure was modest compared with the total environmental exposure and increased the risk due to the environment by only 18%, and the tortious exposure had not more than doubled the risk of non-tortious exposure.

    The judge concluded that the claim failed because S had not shown that the tortious occupational risk more than doubled the non-tortious environmental exposure. G submitted that, where it was possible for a claimant to demonstrate that the tortious exposure had more than doubled the risk arising from any other exposure, he should be put to proof of that. S submitted that she simply had to show that the tortious exposure materially increased the risk of contracting mesothelioma in the sense that the risk was more than minimal. S argued that the judge had erred in his approach to causation, as he had failed to apply the law as stated in the relevant authorities and to have regard to section 3 of the Compensation Act 2006.

    Held: (1) In a mesothelioma case, it was not open to a defendant to put a claimant to proof of causation by reference to a twofold increase in risk. The judge was therefore wrong to require S to attempt to cross that hurdle. If he had applied the correct test on causation, namely whether or not the tortious exposure had materially increased the risk, the answer would plainly have been yes and S would have succeeded in her claim, 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 applied, Bonnington Castings Ltd v Wardlaw[1956] AC 613 HL, Jones v Metal Box Ltd (unreported) January 11, [2007] CC (Cardiff), McGhee v National Coal Board [1973] 1 WLR 1 HL, Cox v Rolls Royce Industrial Power (India) Ltd [2007] EWCA Civ 1189, X v Schering Health Care Ltd [2002] EWHC 1420 (QB), (2003) 70 BMLR 88 and Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261 considered.

    (2) In section 3(1)(d), the intention of parliament was that a claimant had to prove the causation element of common law liability by any available method, which included a material increase in risk. It could be accepted that it was the intention of parliament to reflect the common law requirements of causation and it did not apply its mind to the possibility that, at some future time, the common law might be declared differently from the way in which it was explained in Fairchild and Baker, so as to limit the scope of the exception to cases in which it was impossible for the claimant to prove ‘but for’ causation by reference to a greater-than-twofold increase in risk. However, parliament had used clear words which provided that, in all mesothelioma cases, a claimant could take advantage of section 3(2) provided that he could satisfy the four conditions in section 3(1) and where the fourth condition could be satisfied by proof of causation by reference to a material increase in risk.

    Appeal allowed.

    Karen Sienkiewicz (administratrix of the estate of Enid Costello, deceased) v Greif (UK) Ltd: CA (Civ Div) (Lord Clarke of Stone-cum-Ebony, Lord Justice Scott Baker, Lady Justice Smith): 6 November 2009

    “Law Society Gazette”: 26.11.09

    Humphreys & Co. are pleased to support the North Bristol NHS Trust Mesothelioma Research Fund