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'No low level' for asbestos exposure after Supreme Court ruling

14 March 2011

The Supreme Court has held that employers are liable for mesothelioma contracted by their staff even if exposure to asbestos was “very small”.

Norman Jones, principal of Norman Jones solicitors, who acted for one of the claimants, said the message of the ruling was that “there is no low level where asbestos is safe”.

The Supreme Court also ruled the special rules for causation in mesothelioma cases set out in the Fairchild exception and in section 3 of the Compensation Act 2006 applied to single as well as multiple defendants.

Giving the leading judgment in Sienkiewicz v Greif (UK) and Knowsley MBC v Willmore [2011] UKSC 10, Lord Phillips, president of the Supreme Court, said the appeals both involved single defendants where the extent of the exposure was “very small”.

In the first case, Lord Phillips said the respondent’s daughter was suing as administratrix of the estate of her mother, Enid Costello.

The trial judge found that the exposure to asbestos Costello suffered while working as an accounts clerk for packaging client Greif was only 18 per cent more than she would have experienced in an ordinary environment.

Lord Phillips said Costello died in 2006, having worked in the company’s factory in Ellesmere Port from 1966 to 1984.

He said that the trial judge’s starting point was that the Fairchild exemption did not apply where there was only one tortfeasor and instead the judge applied the ‘doubles the risk’ test.

Under the test, unless a claimant can show that exposure to asbestos has doubled the risk of mesothelioma it could not be said to have caused the illness.

“Liability for mesothelioma falls on anyone who has materially increased the risk of the victim contracting the disease,” Lord Phillips said.

“It does not seem to me that there is any justification for adopting the ‘doubles the risk’ test as the bench mark of what constitutes a material increase of risk.”

Lord Phillips said whether exposure to asbestos was considered to be de minimis was a question for the judge on the facts of any particular case.

“No one could reasonably conclude that there was no significant possibility that the incremental exposure to which Greif subjected Mrs Costello was instrumental in causing her to contract the disease,” he said.

“I am in no doubt that the wrongful exposure to which she was subjected materially increased her risk of contracting mesothelioma.” He dismissed Greif’s appeal.

Lord Rodger said, in the Knowsley case, that some of the inferences which the High Court drew in Willmore’s favour from the evidence relating to her exposure as a pupil at Bowring comprehensive could properly be regarded as “very generous”.

He went on: “With considerable hesitation, however, I have concluded that the criticisms would not justify this court in taking the exceptional step of disturbing the concurrent findings of fact of the courts below.”

He dismissed Knowsley Council’s appeal on the facts.

Lords Brown, Mance, Kerr and Dyson and Lady Hale agreed, for various reasons.

Norman Jones acted for Sienkiewicz. “The message here is that there is no low level where asbestos is safe,” he said.

“Mesothelioma is at the most serious end of illnesses and people who get it go on to die, there is no getting away from that.

“This judgment gives the unsuspecting victim who has worked in an environment where they have been exposed to asbestos a chance to be compensated for an illness they have developed through no fault of their own.”

Adrian Budgen, head of the asbestos litigation team at Irwin Mitchell, said the ruling was a “positive step towards proper acknowledgment of the risks that asbestos can pose in schools and other public buildings, even if the amount of fibres which pupils, teachers and others come into contact with is relatively small”.

Budgen said the firm had represented a number of teachers, school workers and pupils who had suffered from asbestos-related cancer, demonstrating that cases like Dianne Willmore’s were “not uncommon”.

He went on: “The risks posed by the toxic fibres have been shown to be far greater in children’s lungs rather than those which are fully-developed, meaning school pupils are more susceptible to the dangers of asbestos.

“We hope that this ruling, and its implications over what ‘low-level’ exposure can lead to, will lead to a step change in how the hazardous material’s presence in schools is viewed and hopefully lead to its eventual removal from all sites.”

Brian Goodwin, partner at Berrymans Lace Mawer, acted for Knowsley Metropolitan Borough Council.

He said the Supreme Court’s ruling had “reinforced the anomaly” of the Fairchild exception, which uniquely benefitted mesothelioma claimants.

“Worryingly, the message from the Supreme Court might also reassure judges who are tempted to base their findings on speculation and conjecture, rather than evidence, that their decisions are unlikely to be interfered with on appeal,” Goodwin said.

“The court’s failure to align, even in a modest way, the evidential burden facing mesothelioma claimants with that facing claimants generally is particularly disappointing for local authorities.

“It remains permissible to argue that fleeting exposure in schools, swimming baths, or libraries, for example, is ‘material’, a term open to interpretation by the trial judge.”

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Health & Safety