Earlier this month the Court of Appeal decided the latest in a series of personal injury cases involving causation after exposure to asbestos.  The cases arose from difficulties faced by Claimants who worked for a number of employers, more than one of whom may have caused or contributed to the development of the illness mesothelioma.  Such cases may be less common in Sussex than in other areas given the relatively low levels of heavy industry here, but the lengthy periods that can elapse between exposure to asbestos and diagnosis may mean that victims are retired and living here on the South Coast by the time they need to claim. 

The problem Claimants face is that the law usually requires you to show on the balance of probabilities which Defendant caused your illness – but how do you do that when you have worked for several employers who exposed you to asbestos in addition to the background presence of asbestos we all face?  How do you know which was responsible?  The fact that the causes and development of the condition are not fully understood make it even harder to find who is to blame.

The courts and Parliament tried to deal with this problem by taking the approach that any Defendant who had materially increased the Claimant’s risk of contracting mesothelioma would be liable – whether or not they could be shown, on the balance of probabilities (ie that it was more likely than not), to have caused the condition. The Court of Appeal was asked to decide whether this was right and to rule on other related questions in the case of Sienkiewicz (Administratrix of the estate of Enid Costello) v Greif,  where the Claimant (who sadly died  long before the appeal was heard), had only been exposed to a low level of asbestos through her work.

There were 3 issues for the Court of Appeal. The first was whether the rule that any material increase in the risk to the Claimant was sufficient causation replaced the usual requirement for a Claimant to prove causation on the balance of probability?  The Court of Appeal confirmed that it did. Where there are two or more Defendants who caused such a material increase they will be jointly and severally liable to compensate the Claimant.  This will have very serious consequences for insurers whose insured was responsible for only a small proportion of the Claimant’s total exposure to asbestos. Indeed, a Defendant who caused a material increase in risk but did not in fact cause the illness may have to pay the full compensation.

The second issue was whether this “material risk” test applied only to cases involving two or more Defendants who had exposed the Claimant to risk or whether it also applied where there was only one. The Court decided that an increase in material risk is enough even where there is only one Defendant.

The third was whether, as the defending insurers argued, a Claimant should only succeed where his risk had been doubled by a Defendant. The Court of Appeal rejected this and confirmed any material increase was enough although it declined to define “material risk”.  

So the decision can be seen as sympathetic to Claimants who would otherwise face the task of establishing which employer caused their illness – which lack of medical knowledge may make impossible. The Court of Appeal has confirmed that Claimants do not have to attempt this in mesothelioma cases – they only have to show that a particular Defendant materially increased their risk which is a relatively low threshold of exposure. This is likely to help Claimants receive justice – although in many cases it will come too late for them and only their families will see any benefit.

 By Barry Davis

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