InFairchild v. Glenhaven Funeral Services Ltd. [2003] 1 A.C. 32 the claimant had been exposed to asbestos fibres by successive negligent employers and later developed mesothelioma; because of the limitations of science, it was not possible to identify which employer was the source of the fatal fibre, but it must have been one of them. In these exceptional circumstances, the House of Lords relaxed the “but for” test of causation and allowed the claimant to recover damages from any employer who had materially increased the risk of mesothelioma. Fairchild left the precise boundaries of this exception unclear, but they were clarified in Barker v. Corus UK Ltd. [2006] 2 A.C. 572, where the House of Lords decided two related issues: first, that the Fairchild exception was not confined to its precise facts, but applied to a claimant who also had a period of asbestos exposure while he was self-employed; as Lord Hoffmann said, “it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself”. This was justified because, secondly, a defendant liable under Fairchild was not jointly and severally liable for the whole of the claimant's damage, but was merely liable in proportion to his contribution to the increased risk. Parliament immediately intervened to reverse the second answer by section 3 of the Compensation Act 2006. But where did that leave the first issue and the current scope of the Fairchild exception?
In Sienkiewicz v. Greif (UK) Ltd. [2009] EWCA Civ 1159 the claimant's mother (Mrs C) died aged 74 of mesothelioma, having worked from 1966 until 1984 at the defendant's factory premises in Ellesmere Port. Mrs C worked in one of the factory offices, not on the factory floor, but her duties took her all over the premises, including regular errands to areas contaminated with asbestos dust. The claimant alleged that this exposure was in breach of the defendant's duty and that Mrs C had contracted mesothelioma as a result. The trial judge found, on the balance of probabilities, that (unlike the various claimants in both Fairchild and Barker) Mrs C had not been exposed to asbestos dust during any other periods of employment.
Thus far, the facts appear entirely straightforward, without the element of causal impossibility that prompted the Fairchild exception. There was, however, a different complication: “in common with all the other inhabitants of Ellesmere Port, [Mrs C] had also been exposed to a low level of asbestos in the general atmosphere”. Moreover this exposure was not quite as “low level” as one might expect. Mrs C's lifetime environmental exposure created a mesothelioma risk of 24 cases per million, whereas her exposure due to the defendant's fault produced a risk of 4.39 cases per million: comparing the two, her workplace exposure increased her risk of contracting mesothelioma by just 18%.
Where the Fairchild exception does not apply, claimants have occasionally established causation using epidemiological evidence that the defendant's fault more than doubled the risk of the harm (reasoning first adopted by Mackay J. in XYZ & others v. Schering Healthcare Ltd [2002] EWHC 1420), on the logical basis that “more than double” is the equivalent of “more likely than not”. Using this approach, the judge in Sienkiewicz held that a mere 18% increase in risk did not suffice and rejected the claim.
On appeal, the claimant argued that the judge erred in treating the case as requiring a more than doubling of risk, when it should properly have been treated as within the Fairchild exception. On this basis, an 18% increase in risk would count as a material increase satisfying the Fairchild test, bringing the case within section 3. The defendant argued that Fairchild applied only where it was scientifically impossible to tell whether the fatal asbestos fibre(s) came from the defendant, so should not apply where there was enough evidence to allow the claimant to be put to proof of “but for” causation on a doubling of risk basis. This argument is difficult to understand on the facts. It was no less impossible for the claimant to show whether Mrs C's mesothelioma resulted from the fibres inhaled at work or in the streets of Ellesmere Port, than it is for someone employed by successive negligent employers to prove the source of the fatal fibre.
The Court of Appeal agreed with the claimant that the judge should have applied Fairchild and allowed the appeal. In doing so, the court decided that the boundaries of Fairchild remained as explained in Barker: correctly interpreted, section 3 reversed only the second (proportionate liability) issue, but not the first.
Section 3 applies where four conditions in subsection 1 are satisfied: (a) a person (the “responsible person”) has exposed the victim to asbestos by his fault, (b) the victim contracts mesothelioma as a result of asbestos exposure, (c) it is scientifically impossible to tell whether or not the responsible person's exposure caused the victim's mesothelioma and (d) the responsible person is liable in tort for the mesothelioma “whether by reason of having materially increased a risk or for any other reason.” Smith L.J. interpreted the fourth condition as “saying that the claimant had to prove the causation element of common law liability by any available method, which included showing a material increase in risk”.
If these four conditions are met, subsection 2 provides that the responsible person is liable for the whole of the damage (thereby reversing Barker's proportionate liability) and crucially this applies “irrespective of whether the victim was also exposed to asbestos (i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or (ii) by the responsible person in circumstances in which he has no liability in tort”. So the responsible person is liable in full even if there is another source of asbestos fibre in the frame, whether naturally occurring, non-tortious or tortious. Overall, “in a mesothelioma case, it is not open to the defendant to put the claimant to proof of causation by reference to a twofold increase in risk”. (Of course, the statute does not apply to other forms of damage potentially caught by Fairchild, such as dermatitis, for which presumably proportionate liability continues to apply.)
One striking feature of Sienkiewicz is the factual finding that Mrs C's background environmental risk of mesothelioma was far greater than her risk from almost two decades of tortious exposure in the workplace, when contrasted with the artificial assumption made in Fairchild that the background environmental risk was so negligible that it could be ignored. Ellesmere Port is certainly an area with high levels of asbestos pollution, although hardly unique in this respect: according to the Office of National Statistics, “geographical analysis of deaths from mesothelioma highlights the greatest excesses in areas containing industrial sites where asbestos has been used in the past, particularly areas containing ports or dockyards”. As a matter of policy, it seems right not to penalise claimants from the most polluted parts of the country, though a defendant whose breach increases the background risk by just 18% may understandably baulk at being liable in full for the claimant's damages.
Changing the facts slightly, it is interesting to speculate whether a defendant who increased the risk of mesothelioma by an equivalent percentage would still be liable for the whole of the claimant's damages, if the fatal fibre was overwhelmingly likely to have come from one other tortious source (e.g., if the claimant worked for one other employer for 82% of her working life, and for the remaining 18% for the defendant)? On the Sienkiewicz reasoning the defendant would presumably be caught by section 3, yet section 3 only operates when the responsible person “is liable in tort”, so there is no escaping the need to resolve the precise boundaries of the Fairchild exception, post-Barker. The defendant in Sienkiewicz has applied to the Supreme Court for leave to appeal and, with such fascinating and fundamental issues at play, it is very much to be hoped that leave is granted.
