Stop press: mesothelioma claimants with low exposure to asbestos succeedThe Supreme Court rules in favour of mesothelioma claimants – 9th March 2011 in the cases of:
Sienkiewicz -v- Greif; Willmore -v- Knowsley 2011 UKSC10.
Now in order to succeed on the issue of causation a mesothelioma claimant only needs to establish, on the balance of probabilities, that his or her exposure to asbestos dust was more than minimal and, if so, it will satisfy the Fairchild Test that such exposure “made a material contribution to the risk” that the claimant would develop mesothelioma.
The defendants who had exposed the claimants to asbestos dust advanced arguments in their appeal that claimants could only succeed if the level of asbestos exposure was double the background or ambient levels of exposure and that the claimant still had to prove that “but for” such exposure the claimants would not have gone on to develop mesothelioma. The Supreme Court rejected these arguments and held that:
1. The exposure to asbestos dust need only make a material contribution to the risk of developing mesothelioma even where there is only one negligent employer.
2. The material contribution test set out in section 3 of the Compensation Act 2006 applies to all mesothelioma claims, not only to cases where there are multiple negligent employers.
The result of this case will be that more claimants are likely to succeed in their claims event though the asbestos exposure would be regarded as slight or low providing that such exposure made a material contribution to the risk that mesothelioma would develop.
Peter Montgomery 09.03.2011