Wrong Test Made in Mesothelioma Case

Sienkiewicz (on behalf of the estate of Enid Costello Deceased) v Greif (UK) (2009)

Court of Appeal 6 November 2009

Enid Costello died of mesothelioma in 2006. She had been an office worker employed by the defendant at its premises in Ellesmere Port between 1966 and 1984. The defendant manufactured steel drums and during the course of several of its operations, asbestos dust was released into the factory atmosphere. Ms Costellos duties took her all over the factory and she spent some time in areas where were, on occasions, contaminated with asbestos dust.

There was no other occupational asbestos exposure, but as an inhabitant of Ellesmere Port, she was exposed to low level asbestos in the general atmosphere.

The defendant argued that the occupational exposure to asbestos had been minimal, much less than the environmental exposure and in order to succeed, the claimant would need to show that it was probably the occupational exposure, rather than the environmental exposure, which had caused the disease. To do that, it was argued that the claimant would need to show that the occupational exposure had at least doubled the risk of mesothelioma, which the deceased had faced as a result of living in Ellesmere Port.

At first instance, the defendants argument was accepted and the claim was dismissed.

The claimant appealed on the grounds that the Judge had applied the wrong test in respect of causation by not accepting that a material increase in risk was sufficient.

The Court of Appeal found that causation could be satisfied by reference to an increase in material risk and that this was the intention of Sub-Section 3 (1) (d) of the Compensation Act 2006. Thus, the Judge at first instance was wrong to require the claimant to prove causation by reference to a twofold increase in risk. If the correct test had been applied, the Judge would have found in the claimants favour.

As a result, in mesotheliema cases involving tortious asbestos exposure with only one tortfeasor, the Court will accept that causation is established, provided the claimant can demonstrate that the exposure has made a material contribution to the risk of injury.