New Judgment: Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan BC v Willmore  UKSC 10
09 Wednesday Mar 2011
In cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos, the Fairchild exception relaxes the usual requirement that a claimant must show that it is more likely than not that the harm he has suffered has been caused by the defendant’s breach. This is to reflect the fact that medical science cannot presently determine which asbestos fibre or fibres has caused the mesothelioma to develop, often decades later. The issue in these two appeals was whether this rule applies in cases where only one defendant is proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere. The Court unanimously dismisses the appeals holding that the Fairchild exception applies to cases of mesothelioma involving a single defendant and that there is no requirement for a claimant to show that the defendant’s breach of duty doubled the risk of developing the disease. The decision in Fairchild was made in the context of claims against multiple employers who had each been found to be in breach of duty. It left open the question of whether the principle applied where other possible sources of injury were similar but lawful acts of someone else or a natural occurrence. In Barker v Corus  UKHL 20 the House of Lords answered this question by refining the exception so as to render each employer liable only for the proportion of damages which represented his contribution to the risk. Parliament then intervened to overturn this apportionment of damages, by providing in the Compensation Act 2006, s 3 that where a person was liable under the common law in tort to a victim who had contracted mesothelioma, that liability was for the whole of the damage caused by the disease, jointly and severally with any other responsible person. Parliament has therefore legislated to impose draconian consequences on an employer or his insurers who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos and the court had to have regard to this when considering the issues in these appeals. The courts may revert to the conventional causation test if advances in medical science in relation to this disease make such a step appropriate.