Sienkiewicz v Greif (UK) Ltd
[2009] EWCA Civ 1159
Sienkiewicz v Greif (UK) Ltd was the first case where the Court of Appeal considered the implementation of section 3 of the Compensation Act 2006 ("the Act"). The decision has led some defendant practitioners to ask whether there is now strict liability in practical terms for asbestos exposure claims.
The Facts
The Claimant's mother died of mesothelioma in January 2006 at the age of 74. She had worked for 18 years in the Defendant's factory in Ellesmere Port. The deceased was an office worker but she spent some time in the areas of the factory which had been contaminated with asbestos.
The Defendant admitted its use of asbestos but denied breach of duty of care. It also denied causation, arguing that any occupational exposure to asbestos had been minimal and much less than the background environmental exposure. In order to succeed, the Defendant argued the Claimant had to show that it was probably the occupational exposure rather than the environmental exposure that had caused the disease.
At first instance the Judge held that the Deceased had been exposed to low level asbestos during her employment with the Defendant and exposed to asbestos in the general atmosphere. She had not been exposed to asbestos during any other employment. However the Judge dismissed the claim on the basis that the Claimant could not show that the occupational risk had at least doubled the risk which the Deceased had unavoidably faced as the result of living in Ellesmere Port, following the approach adopted in Jones v Metal Box Ltd & Anor (unreported 11.1.07. In fact the occupational exposure increased the background risk due to the environment by only 18%. The Claimant appealed.
The Appeal
The Appeal was allowed on the basis that:
- In a mesothelioma case, it was not open to a defendant to put a claimant to proof of causation by reference to a twofold increase in risk. The correct test on causation is whether the tortfeasor had materially increased the risk.
- In s.3 (1) (d) of the Act, the intention of Parliament was that a claimant had to prove causation by any available method, which included a material increase in risk. Parliament had used clear words which provided that a claimant could take advantage, in mesothelioma cases, of s.3.2 provide that he could satisfy the four conditions in s.3.1
Conclusion
This decision demonstrates that, in the absence of occupational exposure elsewhere, the Claimant need only show a measurable degree of occupational exposure to succeed on causation.
Whether or not this outcome was intended by Parliament, we now know that the Fairfield exception is not restricted to claims involving exposures to asbestos by more than one negligent employer.
Whilst Sienkiewicz does not establish strict liability for employers, the case does show that the Court of Appeal is prepared to help claimants who have difficulties proving causation using the conventional 'but for' test.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
