Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10

The deceased in each conjoined appeal contracted mesothelioma following one tortious asbestos exposure and background environmental exposure. The Supreme Court held that the 'material increase in risk' test for causation from Fairchild applies, even with only a single tortious defendant.

Facts

This Supreme Court judgment concerned two conjoined appeals, both involving claims for damages for mesothelioma caused by exposure to asbestos. In the first case (Sienkiewicz), the estate of Enid Costello claimed against her former employer, Greif (UK) Ltd. Mrs Costello was exposed to asbestos dust while working in the defendant’s factory. This was the only known tortious exposure, but she was also subject to low-level asbestos exposure from the general atmosphere. In the second case (Willmore), the estate of Dianne Willmore claimed against Knowsley Metropolitan Borough Council. Mrs Willmore had been exposed to asbestos as a pupil at a school run by the Council. Again, this was a single tortious exposure, set against general environmental exposure.

Issues

The central legal issue in both appeals was causation. Specifically, the court had to determine the correct legal test for causation in a mesothelioma case where there was only one identified source of tortious exposure to asbestos, in addition to non-tortious environmental exposure. The question was whether the claimant had to prove on the balance of probabilities that the defendant’s breach of duty caused the disease (the traditional ‘but for’ test), or whether it was sufficient to show that the defendant’s breach had materially increased the risk of the claimant contracting the disease, applying the exceptional principle established in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22.

Judgment

The Supreme Court unanimously dismissed the defendants’ appeals, holding that the modified causation test from Fairchild applies equally to cases with a single tortious source of exposure as it does to cases with multiple tortious sources. The Court rejected the ‘doubles the risk’ test which had been posited by the Court of Appeal as a way of reconciling the Fairchild exception with the ‘balance of probabilities’ standard.

Lord Phillips, giving the leading judgment, clarified the scope and application of the Fairchild exception. He criticised the introduction of an epidemiological ‘doubles the risk’ test as unworkable and contrary to the principled basis of the exception, which was founded on the scientific impossibility of proving which specific fibre caused the mesothelioma.

The rock of uncertainty upon which the Fairchild exception was founded was the inability of medical science to determine, on a balance of probabilities, the source of the fibre or fibres that initiated the genetic process that resulted in mesothelioma… The Court of Appeal in the present cases has substituted for this uncertainty a different rock and one that is, in my view, far less satisfactory as the foundation of an exception to the normal rule of causation.

Instead, Lord Phillips held that a simpler, single test should apply for all mesothelioma cases. A claimant succeeds if they can prove a material contribution to the risk.

In my judgment, the Fairchild exception should be applied in any case of mesothelioma where the claimant can prove that the defendant’s tortious conduct made a material contribution to the risk of his contracting the disease.

Lord Brown agreed, stating that applying a different, harsher test for single-exposure claimants would be unjust and illogical.

In short, I have come to an even clearer conclusion on these single-exposure appeals than I reached three years ago on the multi-exposure secondary asbestosis appeal in Barker: I would hold Fairchild’s ‘material risk’ approach to causation to be applicable in all mesothelioma cases. So long as the claimant can show that the defendant’s breach of duty materially increased the risk of his contracting the disease, he is entitled to succeed.

Implications

The decision in Sienkiewicz provides crucial clarification on the law of causation for mesothelioma. It confirms the broad scope of the Fairchild exception, establishing a single, unified test based on ‘material increase in risk’ for all mesothelioma claims, regardless of whether there was one or multiple tortious sources of asbestos exposure. This prevents the injustice of a claimant being in a worse position legally when they can only identify one negligent party. The judgment represents a significant policy decision by the highest court, prioritising justice for victims of this fatal disease over a dogmatic application of traditional causation principles, particularly in circumstances of scientific uncertainty.

Verdict: The defendants’ appeals were dismissed.

Source: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10