Introduction
The legal principle of causation in tort law requires a claimant to establish a direct link between the defendant’s actions and the harm suffered. The “but for” test, a common method of establishing this link, asks if the harm would have occurred ‘but for’ the defendant’s conduct. However, cases involving diseases with multiple potential causes, such as mesothelioma, pose unique challenges. Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 addresses the application of the ‘Fairchild exception,’ a legal principle developed to address such challenges when causal links are difficult to prove. This exception permits a finding of liability where a defendant has materially increased the risk of harm, even if the precise causal mechanism is uncertain. This judgment critically examines the scope of the Fairchild exception, particularly its application in situations involving a single defendant and varying levels of exposure, providing clarity on the threshold for “material increase of risk” within the legal framework of tortious liability in mesothelioma cases. The decision provides a significant precedent for cases involving asbestos exposure.
The Context of Fairchild Exception
The Fairchild exception arose from the case of Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. This landmark case involved multiple employers exposing claimants to asbestos, each potentially contributing to the claimants' development of mesothelioma, a cancer linked to asbestos exposure. The difficulty in establishing which employer's exposure specifically caused the disease prompted the House of Lords to create an exception to the standard ‘but for’ test. Under the Fairchild exception, a defendant is held liable if they materially increased the risk of the claimant contracting mesothelioma, even if it cannot be proven that their actions were the single cause. The exception addressed the problem of causal uncertainty in situations where scientific understanding limits the ability to pinpoint the precise source of the illness when there are multiple potential negligent exposures to asbestos. This principle, however, needed further clarification, particularly concerning single defendant scenarios, as seen in Sienkiewicz v Greif.
Factual Background in Sienkiewicz v Greif
The case of Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, concerned a deceased individual who developed mesothelioma as a result of asbestos exposure. During his employment at a steel drum factory, the claimant had been exposed to asbestos from two sources: general environmental exposure that was deemed non-negligent, and exposure that was negligent, which increased the environmental exposure level by 18%. The Court of Appeal had determined that the employer, Greif (UK) Ltd, was liable due to a material increase in the risk of mesothelioma using the Fairchild exception, mandated by s. 3 of the Compensation Act 2006. Greif (UK) Ltd appealed to the Supreme Court, arguing that the Fairchild exception should not apply when there is a single negligent source of exposure, and that the negligent exposure should be held responsible only if it doubled the risk. Furthermore, they contended that the 18% increase was not a material increase in risk.
Issues Before the Supreme Court
The Supreme Court was asked to consider several key issues. The first was whether s.3 of the Compensation Act 2006 mandated the application of the Fairchild exception in all mesothelioma cases. Second, the court considered if a ‘doubles the risk’ test is applicable when assessing liability in cases with a single negligent source of exposure. Thirdly, the court examined what criteria determine a ‘material increase in risk’ under the Fairchild exception. The Supreme Court's task was to clarify the application of the Fairchild principle in the context of both statutory provisions and factual complexities arising from mesothelioma claims. This involved analyzing the limits of the Fairchild principle, particularly regarding single exposure instances, and assessing the degree of risk increase required to establish liability.
The Supreme Court’s Judgment and Analysis
The Supreme Court, in dismissing the appeal, clarified that s.3 of the Compensation Act 2006 does not mandate the application of the Fairchild exception; rather, it recognizes that the exception already exists in common law when the responsible person has materially increased the risk of mesothelioma. In the words of Lord Phillips, the section “does not state that the responsible person will be liable in tort if he has materially increased the risk of a victim of mesothelioma. It states that the section applies where the responsible person is liable in tort for materially increasing that risk.” The court also rejected the ‘doubles the risk’ test, explaining that epidemiological evidence, upon which that test is based, is unreliable. The court also cited medical theories which suggest the risk of mesothelioma is not directly proportional to exposure. Finally, the court addressed the material increase of risk by defining it as “not so insignificant that the court will properly disregard it on the de minimis principle”. The Supreme Court found that the 18% risk increase was neither statistically insignificant nor de minimis and held the defendants liable.
Implications and Significance
Sienkiewicz v Greif clarified the application of the Fairchild exception within the framework of mesothelioma liability. The Supreme Court reinforced that the exception applies even when there is only one negligent source of exposure. It also established a relatively low threshold for ‘material increase in risk,’ thus allowing claims with minimal exposure. The court’s rejection of the ‘doubles the risk’ test was also significant, recognising the limitations of statistical evidence and medical uncertainty in mesothelioma etiology. This decision opened the door for claimants to pursue legal action based on minimal levels of negligent exposure to asbestos, which previously may not have been actionable. This established precedent creates a lower legal barrier for claimants to obtain compensation in cases where there is negligent exposure to asbestos, even when it is not the sole cause of the illness.
Conclusion
In summary, Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 clarified several significant points concerning liability in mesothelioma cases. The Supreme Court held that the Fairchild exception extends to single-defendant scenarios and that there is no requirement to establish a 'doubles the risk' threshold. The decision makes it clear that a "material increase" is determined by the facts of each specific case and should not be considered a high threshold, provided the risk increase is not de minimis. This case is important when considering cases concerning negligent exposure to asbestos and clarifies that a very low level of exposure may result in a finding of liability. The court's reasoning is grounded in the unique characteristics of mesothelioma and the evidentiary challenges in establishing direct causation. This ruling connects to tort law principles concerning causation, where, in cases of medical uncertainty, the court can lower evidential thresholds, particularly in cases where there has been negligent exposure to an agent known to cause disease. The Supreme Court’s analysis provides a framework for handling similar claims, aligning with the broader goal of providing fair compensation to victims of tortious actions.
