Employers liable for low levels of exposure to asbestos, Supreme Court rules

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

The 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 and Knowsley MBC v Willmore (UK) [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 she died in 2006, having worked in the company's factory in Ellesmere Port from 1966 to 1984.

He said 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.

'I am in no doubt that the wrongful exposure to which she was subjected materially increased her risk of contracting mesothelioma.' He dismissed Grief's appeal.

Lord Rodger said, in the Knowsley case, 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.

'I would accordingly dismiss the council's appeal on the facts. In the result, the appeal in Willmore must also be dismissed.'

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

Norman Jones, principal of Norman Jones solicitors, acted for Sienkiewicz. Jones, president of Liverpool Law Society, said: 'The message here is that there is no low level where asbestos is safe.

'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.'