Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10

Facts

• The case involved a deceased individual who developed mesothelioma after asbestos exposure at a steel drum factory during employment with Greif (UK) Ltd.
• The claimant’s exposure to asbestos came from two sources: general (environmental, non-negligent) and occupational (negligent) exposure, with the employer’s negligence increasing total exposure by 18%.
• The Court of Appeal found Greif (UK) Ltd liable on the basis the negligent exposure materially increased the risk of mesothelioma, applying the Fairchild exception and s. 3 of the Compensation Act 2006.
• Greif (UK) Ltd appealed to the Supreme Court, disputing the applicability of the Fairchild exception in single-defendant cases and the sufficiency of an 18% increase in risk.

Issues

1. Whether s. 3 of the Compensation Act 2006 mandates the application of the Fairchild exception in all mesothelioma cases.
2. Whether a “doubles the risk” test is required to establish liability for a single negligent source of exposure.
3. What constitutes a “material increase in risk” under the Fairchild exception and whether an 18% increase meets this threshold.

Decision

• The Supreme Court dismissed Greif (UK) Ltd’s appeal.
• It held that s. 3 of the Compensation Act 2006 does not mandate the Fairchild exception but recognises its existence in common law when a responsible person has materially increased the risk.
• The Court rejected the ‘doubles the risk’ test, stating that epidemiological evidence supporting it is unreliable and that risk is not necessarily proportional to exposure.
• The Court determined that a “material increase in risk” need not be substantial, only not so insignificant as to be disregarded under the de minimis principle.
• The 18% increase in risk was found neither statistically insignificant nor de minimis; liability was thus established.

Legal Principles

• The Fairchild exception applies where a defendant’s negligence has materially increased the risk of mesothelioma, including cases with a single defendant.
• Section 3 of the Compensation Act 2006 acknowledges, but does not impose, the Fairchild exception.
• The ‘doubles the risk’ test is not a legal requirement in mesothelioma claims, and statistical evidence is not determinative of liability.
• A “material increase in risk” is judged by whether the risk increase is not de minimis; there is no stringent quantitative requirement.

Conclusion

The Supreme Court clarified that the Fairchild exception permits liability for materially increasing the risk of mesothelioma, applying even to single-defendant cases with modest risk increases, and that neither a “doubles the risk” threshold nor statutory compulsion under s. 3 of the Compensation Act 2006 is required for liability.