Wrong test made in mesothelioma case

Sienkiewicz (of behalf of the estate of Enid Costello, deceased) v Greif (UK) (2009)

(Court of Appeal — 6 November 2009)

Enid Costello died of mesothelioma in 2006. She had been an office worker employed by the defendant at its premises in Ellesmere Port, between 1966 and 1984. The defendant manufactured steel drums and, during the course of several of its operations, asbestos dust was released into the factory atmosphere. Ms Costello's duties took her all over the factory and she spent some time in areas which were, on occasion, contaminated with asbestos dust.

There was no other occupational asbestos exposure, but, as an inhabitant of Ellesmere Port, she was exposed to low level asbestos in the general atmosphere.

The defendant argued that the occupational exposure to asbestos had been minimal, much less than the environmental exposure and, in order to succeed, the claimant would need to show that it was probably the occupational exposure, rather than the environmental exposure, which had caused the disease. To do that, it was argued that the claimant would need to show that the occupational exposure had at least doubled the risk of mesothelioma, which the deceased had faced as a result of living in Ellesmere Port.

At first instance, the defendant's argument was accepted and the claim was dismissed.

The claimant appealed on the grounds that the judge had applied the wrong test in respect of causation, by not accepting that a material increase in risk was sufficient. The Court of Appeal found that causation could be satisfied by reference to an increase in material risk and that this was the intention of sub-section 3(1)(d) of the Compensation Act 2006. Thus, the judge at first instance was wrong to require the claimant to prove causation by reference to a twofold increase in risk. If the correct test had been applied, the judge would have found in the claimant's favour.

Comment

As a result, in mesothelioma cases involving tortious asbestos exposure with only one tortfeasor, the court will accept that causation is established, provided the claimant can demonstrate that the exposure has made a material contribution to the risk of injury. Adam Redman, BLM Manchester

The following law report contributed by specialist insurance practice Berrymans Lace Mawer (www.blm-law.com) first appeared in Post Magazine on 7 January  2010.

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.