Tuesday, 12 April 2011

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

It has been known for a long time that asbestos can cause mesothelioma.  Just one filament can give someone cancer.  A cancer that hibernates in the body for twenty years before striking.  A horrible, invariably fatal, illness.

Asbestos is still around in buildings and has to be treated with care.  Unfortunately, back when asbestos was first found to be carcinogenic, companies did not treat their safety responsibilities with the requisite care.  Over a period of decades, many workers fell ill, many contracted mesothelioma. 

So many of these workers issued proceedings against their employers, seeking compensation.  The employers sought to hide behind the doctrine of causation.  What the companies said was “you can’t prove that it was exposure to our asbestos that gave you cancer.” 

The problem is obvious.  You cannot bring a claim in negligence if the negligence didn’t cause your loss; you might be knocked over by a speeding motorist, but if you’d’ve been knocked over if he’d been doing the limit because it was your own fault for not looking, you won’t win.  So in these asbestos cases an employer could say “you worked for us for three years; you had other asbestos exposure; chances are, it was not one of our filaments that made you ill.”  On a balance of probabilities, a claimant is going to be in difficulties.

In the case of Fairchild, the House of Lords reached a pragmatic solution.  Looking away from the strict legal position for a moment, what had happened in the intervening years?  Employers told insurance companies that they might be at risk of asbestos claims; insurance companies hiked the renewal premium to take that into account.  So for years insurers had been building up their coffers to deal with such claims.  Now they were landing, the insurance companies were trying to deny liability.  Worse, in many cases, a single employee had been working for, say, half-a-dozen companies – all of whom had the same insurer.  So the insurance company was saying that because the claimant could not show which of the six companies caused mesothelioma, it was not responsible – even though it had to have been one of the companies it insured.

Therefore, in Fairchild, the House of Lords decided that the claimant could sue any of the companies that employed him.  They would all be liable, on the well-established ground that they had increased the risk of cancer.  There was a wrinkle in a later decision that tried to split the liability up pro rata – which meant that if 9 out of 10 employers had since gone bust, the claimant could recover only 10% of the damages it should have had – but that was legislated into oblivion.

The Sienkiewicz case was a slight variation of the Fairchild principle.  Mrs Sienkiewicz is the personal representative (and daughter) of Mrs Costello, who had died of mesothelioma; Mrs Costello had only been employed by one company that had exposed her to asbestos.  The Court held that that company, Greif, had only increased the risk of cancer by a slight amount (less than 20%); however the Court held that that was enough to make it liable for 100% of the claim.  Greif took it to the Supreme Court.  Surely it should only be liable if it increased the risk by more than half?  Normal causation principles?  The chances were Mrs Costello caught the disease naturally?

The Supreme Court disagreed.  Two principles came together in this one; the principle in Fairchild and the principle in McGhee (the latter being that causing a material increase in disease risk is enough).  Just because there was only one employer didn’t matter.  The Court did think it was a little harsh on Greif, but Parliament had made it clear that if someone had to bear the rough end of a judgment it should be the guilty, not the innocent, party.

Quite a narrow decision, it may only apply to mesothelioma rather than e.g. miners’ lung diseases.  At the very least though it will deliver a measure of justice to those dying of mesothelioma.

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