Sienkiewicz v Greif (UK) Ltd: Upholding the Fairchild/Barker Exception and Rejecting the 'Doubles the Risk' Test for Mesothelioma Causation

Introduction

Sienkiewicz v Greif (UK) Ltd ([2011] ICR 391) is a landmark decision by the United Kingdom Supreme Court that further clarifies the legal framework surrounding causation in claims of mesothelioma resulting from asbestos exposure. This case specifically addresses whether the "doubles the risk" test should be applied in single exposure scenarios, ultimately affirming the existing Fairchild/Barker exception without adopting the proposed statistical threshold.

The appellant, Greif, contested rulings from the Court of Appeal that had held them liable for causing mesothelioma in the claimant, Mrs. Enid Costello, despite being the sole known occupational source of asbestos exposure, which was quantified as increasing the environmental risk by 18%. Greif argued that without the exposure doubling the baseline risk, causation could not be established on the balance of probability.

Summary of the Judgment

The Supreme Court dismissed Greif's appeal, maintaining that the Fairchild/Barker exception appropriately applies to mesothelioma cases regardless of whether the increase in risk precisely doubles the baseline probability. The court reiterated that, under the Compensation Act 2006 and existing legal precedents, any material increase in the risk of mesothelioma due to negligence suffices for causation without necessitating the additional requirement of doubling the risk.

The judgment underscored that medical science's limitations in definitively linking specific asbestos exposures to mesothelioma necessitate a broader legal approach to ensure justice for victims, even when precise causation cannot be statistically established.

Analysis

Precedents Cited

The judgment extensively referenced pivotal cases that have shaped the legal landscape for asbestos-related claims:

• FAIRCHILD v GLENHAVEN Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32: Established the Fairchild exception, allowing multiple employers to be held jointly liable when it is impossible to determine which specific breach caused the victim's mesothelioma.
• Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572: Further developed the Fairchild exception, emphasizing that any employer who has materially increased the risk of mesothelioma is liable in full.
• Compensation Act 2006: Specifically amended the rules of liability, reinforcing joint and several liability among responsible parties for mesothelioma claims.
• Hotson v East Berkshire Area Health Authority [1987] AC 750: Discussed causation in cases where a breach of duty contributed to but did not solely cause the injury.
• McGhee v National Coal Board [1973] 1 WLR 1: An earlier case discussing causation where multiple factors contributed to the injury.
• XYZ v Schering Health Care Ltd [2002] EWHC 1420 (QB); 70 BMLR 88: Addressed the "doubles the risk" test in proving causation for mesothelioma.

Legal Reasoning

The Supreme Court's decision rested on the argument that the Fairchild/Barker exception was designed to address the inherent uncertainties in linking specific asbestos exposures to mesothelioma due to limitations in medical science. The court emphasized that requiring a "doubles the risk" threshold would undermine the exception's purpose, introducing an unnecessary and unjust hurdle for victims who have already established that negligence materially increased their risk of developing the disease.

The court also clarified that the Compensation Act 2006 does not alter the foundational principles established in Fairchild and Barker but rather enforces the existing framework by allowing joint and several liabilities. This ensures that victims can receive compensation even when one or more responsible parties are unable to be individually identified as the direct cause of their illness.

Impact

The decision reinforces the established Fairchild/Barker exception, ensuring that victims of mesothelioma can seek compensation effectively without being burdened by additional causation requirements. By rejecting the "doubles the risk" test, the court maintains a more accessible path for claimants to establish liability, particularly in scenarios involving single exposure sources where medical science cannot definitively pinpoint causation.

Future mesothelioma cases will continue to rely on the material increase in risk as the standard for causation, preserving the balance between victim compensation and defendant liability. This also prevents the dilution of the exception's protective intent amidst evolving scientific uncertainties.

Complex Concepts Simplified

Causation in Tort Law

Causation refers to the relationship between a defendant's action (or inaction) and the plaintiff's injury. To establish causation, the plaintiff typically must show that the injury would not have occurred "but for" the defendant's breach of duty.

Fairchild/Barker Exception

This exception applies to mesothelioma cases where multiple employers exposed the victim to asbestos, and it's impossible to determine which specific exposure caused the illness. Under this exception, all responsible parties are liable for the total damage, ensuring the victim receives compensation.

"Doubles the Risk" Test

Proposed by the defendants in this case, this test suggests that to establish causation, the negligent exposure must more than double the victim’s baseline risk of developing mesothelioma. The Supreme Court rejected this, maintaining that any material increase suffices without needing to meet this specific statistical threshold.

Balance of Probabilities

This is the standard of proof in civil cases, where the plaintiff must show that it is more likely than not (greater than 50% likelihood) that the defendant's breach of duty caused the harm.

Conclusion