Sienkiewicz v Greif (UK) Ltd

This appeal raises an issue of causation in mesothelioma cases and concerns the application of section 3 of the Compensation Act 2006. I believe this is the first occasion on which this Court has considered that provision.

The appeal is from the order of HH Judge Main QC made on 15 December 2008 in the Liverpool County Court. The judge dismissed a claim for damages for death due to mesothelioma brought by the appellant on behalf of the estate of her mother, the late Mrs Enid Costello, against her former employer. Because he rightly considered that a difficult point of law arose in his decision, the judge granted permission to appeal to this Court.

The appellant is the daughter and administratrix of Mrs Costello, who died of mesothelioma in January 2006 at the age of 74. She had worked for the respondent’s predecessors in title from 1966 until 1984 at their factory premises at Ellesmere Port. The respondent’s business was the manufacture of steel drums and, in the course of several of its operations, asbestos dust was released into the factory atmosphere. Mrs Costello was an office worker, usually working in one of the office blocks. However, her duties took her all over the factory and she spent some time in the areas which were from time to time contaminated with asbestos. The appellant alleged that Mrs Costello had been exposed to asbestos dust in breach of her employer’s duty of care and that she had contracted mesothelioma as a result.

The respondent admitted its use of asbestos but denied that it had ever breached its duty of care towards its employees. The judge found in the appellant’s favour on that issue; he held that the respondent had been in breach of either statutory or common law duty to Mrs Costello throughout her employment. There is no appeal against that holding.

The judge also held that Mrs Costello had probably not been exposed to asbestos dust during any other employment. But, in common with all the other inhabitants of Ellesmere Port, she had been exposed to a low level of asbestos in the general atmosphere.

The respondent initially denied that Mrs Costello’s mesothelioma had been caused by asbestos; it contended that her condition had been of idiopathic origin - in other words of unknown cause. However, at trial, that argument was not pursued with any vigour and the judge was satisfied that the medical cause of the mesothelioma was the inhalation of asbestos. The contentions eventually pursued by the respondent at trial were that any occupational exposure to asbestos had been minimal, much less than the environmental exposure and, in order to succeed, the appellant would have to show that it was probably the occupational exposure rather than environmental exposure which had caused the disease. To do that, it was argued, the appellant would have to show that the occupational exposure had at least doubled the risk of mesothelioma which Mrs Costello had unavoidably faced as the result of living in Ellesmere Port.

That approach to causation in a mesothelioma case had been adopted by His Honour Judge Hickinbottom (as he then was) sitting in the Cardiff County Court in Jones v Metal Box Ltd and Another (Unreported 11 January 2007). In that case the parties agreed and the judge accepted without argument that, in order to succeed, the claimant would have to show that the risk of mesothelioma arising from asbestos exposure at work had more than doubled the risk arising from environmental exposure. The judge found that the risk had been more than doubled and the claim succeeded. In that case, there was direct opinion evidence as to the increase in risk, coming from the well-known expert, the consultant chest physician, Dr Robin Rudd. The judge did not himself attempt a quantitative assessment of the risk.

In the present case, the appellant did not agree that the correct test for causation in a case of mesothelioma was that adopted in Metal Box. It was submitted on her behalf that, since the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, there was an exception in mesothelioma cases to the general rule of legal causation (that the claimant must show that the tort had probably caused the disease) and it was sufficient if the claimant could show that the tortious exposure had made a material contribution to the risk of developing the disease. Further, it was submitted, in reliance on the Court of Appeal’s decision in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189, that all that was necessary to show a material increase in risk was that the tortious exposure was more than minimal.

Judge Main accepted the defendant’s submission that, in order to show causation, the claimant had to show that the tortious exposure had at least doubled the risk due to environmental exposure but, because there was no evidence such as had come from Dr Rudd in the Metal Box case, he carried out quantitative assessments of Mrs Costello’s cumulative occupational and environmental exposures. For present purposes it is necessary to record only that the lifetime environmental exposure created a risk of mesothelioma of 24 cases per million. He also held that the cumulative occupational exposure amounted to 25.37 fibres per millilitre hours, which, translated into terms of risk, gave rise to a risk of 4.39 cases per million. Thus, he concluded, the total occupational exposure was modest compared with the total environmental exposure and increased the risk due to the environment by only 18%. The claim failed because the appellant had not shown that the tortious occupational risk had more than doubled the risk from non-tortious environmental exposure. It is clear from those figures that, if the judge had asked himself whether the tortious exposure had materially increased the risk of Mrs Costello contracting mesothelioma (in the sense that it was more than minimal) the answer must have been that it had.

On this appeal, Mr Christopher Melton QC for the appellant challenged the judge’s decision on two main grounds. First, he submitted that the judge’s approach to the law of causation had been wrong. The judge had failed to apply the law as declared by House of Lords in Fairchild and as confirmed in Barker v Corus UK Ltd [2006] 2 AC 572. He had also failed to have regard to section 3 of the Compensation Act 2006. That provision had been passed by Parliament following the House of Lords decision in Barker. The House had declared that, at common law, in a mesothelioma case, the nature of the tort was that of increasing the risk of contracting the disease. That had led the House to hold that, in a case in which the deceased had been exposed to more than one source of asbestos, the damages should be apportioned according to the various contributions made to the risk of developing the disease. That would have the effect that, where the claimant was able to sue only some of the employers who had exposed him, he would recover only a portion of the full verdict damages. Parliament had not been prepared to accept that result and had passed section 3 of the Act which had the effect, submitted Mr Melton, that where the claimant could show that the proven tort had made a material contribution to the risk of contracting the disease, the claimant would succeed in full, unless some apportionment for contributory negligence was appropriate. Thus, submitted Mr Melton, the judge should not have embarked on the quantitative assessments. They were neither necessary nor appropriate. But even from the assessments in fact carried out, it was abundantly clear that the occupational exposure had materially increased the risk of mesothelioma and the appellant should have succeeded in full.

Mr Melton’s second complaint was that the judge had made a number of significant errors in calculating the cumulative occupational and environmental exposures. The evidence was unsatisfactory, partly because the appellant had not been adequately prepared for the assessment exercise. The need for this had not been presaged in the defence, the skeleton argument or in the defendant’s expert’s early reports. The need for detailed quantitative assessments had emerged only during the trial. The appellant had not instructed an expert who was suitably qualified to give relevant evidence. Also, the judge had accepted speculative evidence. There were no dust readings; the judge had had to rely on the opinion of the respondent’s expert witness as to the likely intensity of the exposure. He had had to rely on the estimates of witnesses as to the periods of time which Mrs Costello had spent in each part of the factory. In the event, the occupational assessment contained a number of obvious errors and was deeply flawed. When the obvious errors were removed from the calculation, it could be seen that, in fact, the occupational exposure had more than doubled the risk due to environmental exposure. So, even if the judge’s legal approach was right, his factual findings were deeply flawed and had led to the wrong conclusion.

Mr Jeremy Stuart-Smith QC for the respondent submitted that the judge had been right to accept the respondent’s submissions as to the legal test. Further, his quantitative assessments had been careful, indeed painstaking, and were the best that could have been done. The appellant had had sufficient opportunity to obtain suitable expert advice during an adjournment in the trial but had not sought to do so. The judgment should be upheld.

The two grounds of appeal are interrelated in that, if the judge’s approach to the law was wrong, it was not necessary or appropriate for him to embark on the quantitative assessments. As consideration of the allegations about the assessments would require detailed examination of the evidence, and, as I have formed the view that the judge’s approach to the law was wrong, I propose to deal with that issue first.

It is trite law that, in a personal injury claim, the claimant must prove that the tort complained of has probably caused the injury or condition complained of. In most cases this does not give rise to difficulty but it can do in cases where there is more than one potential cause of the injury. In Bonnington Castings Ltd v Wardlaw [1956] AC 613, it was held that it was sufficient if the tort had made a material contribution to the injury. A contribution was material if it was more than minimal.

In McGhee v National Coal Board [1973] 1 WLR 1, the House of Lords held that, in a case where the aetiology of the disease from which the claimant was suffering was not fully understood, there was no substantial difference between materially increasing the risk of injury and making a material contribution to the injury. That was a pragmatic solution to the problem of causation but was difficult to understand from the point of view of legal principle. It was fully explained, for the first time, in Fairchild.

In Fairchild, the House of Lords recognised that particular difficulties arose for claimants who sought to demonstrate that exposure to asbestos dust during any particular period of employment had been responsible for the development of mesothelioma. That is because the aetiology of the disease is not fully understood. It is thought that the disease is almost always caused by the inhalation of asbestos. Some doctors believe that that is the only possible cause; cases where there is no known exposure to asbestos are to be explained as being caused by exposure of which the patient was unaware. Other doctors believe that a minority of cases are caused by other unknown factors. There is usually a long latent period between exposure to the dust and diagnosis of the disease. It is not known exactly how the disease is triggered. It is known that the disease can follow only very light exposure. Some doctors take the view that it is possible for mesothelioma to be triggered as the result of the action of a single asbestos fibre. However, I understand that that theory is no longer in favour. But it does appear to be generally accepted that there is some risk arising out of very slight exposure and that the risk increases with the degree of exposure.

In Fairchild, the House of Lords accepted that, where the worker has been exposed to more than one source of dust, it is not possible for the claimant to satisfy the usual ‘but for’ test of causation by demonstrating which source has probably been responsible for the development of the condition. Nor is it possible for a claimant to prove that any particular source has made a material contribution to the disease and thereby to satisfy the test of causation set out in Bonnington. If the disease has been caused by a single fibre or only slight exposure, only one source of dust might be responsible and all other sources of dust would not be causative. Because of these difficulties, the House decided that it was fair, just and reasonable to create an exception to the general rule of causation. It would be sufficient if the claimant could show that the negligent exposure had materially increased the risk or materially contributed to the risk that the worker would develop the disease. The House recognised that it was tampering with well-established legal principles but felt that this was necessary in the interests of justice. It recognised that this new principle, which was for the present to be confined to cases of mesothelioma, might have to be applied to other types of condition but left that for consideration on a case by case basis.

In Fairchild, the defendants accepted that, if they were held liable, they would be liable for all the damage, jointly and severally with any other defendant also held to be liable. In Barker, the defendants argued that, if more than one source of dust had contributed to the risk of causing the disease, the damages should be apportioned, with each defendant liable to pay only its aliquot share of the damages calculated as the proportion of dust it had contributed to the whole dust load inhaled by the worker throughout his or her life. The House revisited the question of causation. In particular, Lord Hoffmann re-examined the juridical basis on which the House had acted in Fairchild. He concluded that, in Fairchild, the House had implicitly recognised the existence of a new tort which would be of restricted application. Whereas personal injury law is based on the tort of negligently causing personal injury, the new tort comprised negligently increasing the risk of personal injury. So viewed, it would be logical in such a case to apportion the damage between all those who had contributed to the risk. The House limited this tort to cases of mesothelioma, recognising again that attempts at extension were likely to be made.

In the light of those authorities, it might seem bold to suggest that there are some cases of mesothelioma in which the claimant can properly be expected to prove causation on the balance of probabilities and where the Fairchild exception would not therefore apply. Yet that submission was accepted by HH Judge Hickinbottom in Metal Box, without disagreement from the claimant. The route to be adopted was for the claimant to show that the risk from the tortious exposure was at least twice as great as the risk from any other exposure.

The theory that causation could be proved on the balance of probabilities by reference to a doubling of the risk of injury was first applied by Mackay J in the Oral Contraceptive litigation XYZ & Ors v (1) Schering Healthcare Ltd (2) Organon Laboratories Ltd (3) John Wyeth & Brothers Ltd (2002)
[2002] EWHC 1420 (QB). As a preliminary issue, the parties agreed that the judge should examine the epidemiological evidence relating to the risk of deep vein thrombosis arising from two different types of oral contraceptive. The claimant group could succeed only if the epidemiology showed that the risk of harm arising from the type of contraceptive they had been taking (which it was assumed they had not been warned about and would not have taken if warned) was at least twice that arising from the type which they had formerly been taking (which it was assumed they had been warned about and which risk they had accepted). The logic behind this was that, if the risk from potential cause A is x% and the risk from the other potential cause B is 2.1x%, it is more likely than not that the condition which has eventuated has been caused by B.

Since the oral contraceptive case, this method of proving causation has been applied in cases of lung cancer where the claimant has been tortiously exposed to asbestos and non-tortiously exposed to cigarette smoke, both of which are potent causes of the condition. Expert evidence is received as to the relative risks created by the two forms of exposure and, if, on the individual facts of the case, the risk from the asbestos exposure is more than double the risk from smoking, the claimant succeeds.

The only case of which I am aware in which this approach has been applied or approved in the Court of Appeal is Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261. That was a case of bladder cancer, in which the claimant had been tortiously exposed to carcinogens in the course of his employment in a dye works. He had also been a regular smoker. Both were potential causes of bladder cancer. At trial, the defendant’s case was that the tortious exposure at work had been minimal. The recorder held that it was not minimal and applied Bonnington; he held that the tort had made a material contribution to the disease. On appeal, the appellant employer argued, correctly, that that was wrong as the tort could not be said to have made a contribution to the disease, only to the risk of the disease developing. The respondent argued that the case ought to come within the Fairchild exception so that all that was necessary was to prove a material increase in risk. The appellant employer contended that Fairchild should not be extended to cover such a case. In the event, the Court of Appeal observed that there was expert evidence, which the Recorder had accepted, to the effect that the tortious exposure had more than doubled the risk arising from smoking. The Court held that that was sufficient for the claim to succeed.

In my view, it must now be taken that, saving the expression of a different view by the Supreme Court, in a case of multiple potential causes, a claimant can demonstrate causation in a case by showing that the tortious exposure has at least doubled the risk arising from the non-tortious cause or causes.

The question which arises in this appeal is whether, in a mesothelioma case, where there is more than one source of asbestos exposure, the claimant can be required to show that the risk arising from the tortious exposure is more than twice the risk arising from the non-tortious cause or causes. Or is it sufficient, as Mr Melton submitted, in the light of Fairchild and Barker, that he need only show a material (more than minimal) increase in risk.

Mr Stuart-Smith accepted that, in many mesothelioma cases, where the claimant has been exposed to several different sources of asbestos, it will be impossible for him to demonstrate which source has probably caused his disease. In those cases, he accepted that the Fairchild exception must apply. But, he submitted that, where it is (or should be) possible for the claimant to demonstrate that the tortious exposure has more than doubled the risk arising from any other exposure, he should be put to proof of that. The exception allowed by Fairchild is not necessary. The exception was allowed only out of justice to claimants who were otherwise in an impossible position; it should not be applied to claimants who could, if they assembled the necessary evidence, prove causation on ordinary principles. In any event, he submitted, the House of Lords in Fairchild and Barker were considering cases where there had been several employments in which there had been significant asbestos exposure. They were not considering a case in which there was only one occupational exposure and the only other source of asbestos was that found in the general atmosphere. Had they considered such a case, they would not have included such a case in the exception.

It seems to me that there is considerable force in Mr Stuart-Smith’s submission. It is true that, in Fairchild, the House of Lords was concerned with cases in which the claimants could not possibly prove causation on ordinary principles. No one suggested to the House that, in some mesothelioma cases, it might be possible to prove causation on the balance of probabilities by reference to a more than twofold doubling of risk. On hypothetical consideration, I could not rule out the possibility that, if the House had been asked to consider that issue, it might have limited the exception to the rule to cases in which such an assessment was impossible. However, it is now idle to speculate as to what the House would have said if that argument had arisen. Also, it is not now possible for this Court to consider whether, at common law, the Fairchild exception should be limited in application to cases in which it is quite impossible for a claimant to prove causation by reference to a more than twofold increase in risk. That is because Parliament has intervened by enacting section 3 of the Compensation Act 2006 so that the common law simpliciter no longer governs claims for damages in mesothelioma cases.

Before considering section 3, it is necessary to consider the background against which it was enacted. In Barker, as I have said, the House explained the juridical basis of the Fairchild exception not in terms of a pragmatic solution to difficult cases but rather in terms of the recognition of a hitherto unrecognised tort; that of negligently increasing the risk of injury. In that case the starting point was recognition of the Fairchild exception. The argument focussed on whether any defendant held to be in breach of duty should be jointly and severally liable for all the damage or only severally liable for its aliquot share of the risk. The House held that liability for contribution to the risk should give rise to several liability. Justice required that, where more than one source of asbestos had contributed to the risk, the damages should be apportioned according to each tortfeasor’s contribution to the total risk. The total risk would include the risk from exposure by other employers who had not been sued and also non-tortious exposure such as from the environment. It would also include exposure for which the claimant himself had been negligently responsible. Lord Hoffmann said that, for the purpose of apportionment, insurers (or where necessary the courts) should do a rough apportionment based on the duration of the various exposures.

The effect of this decision was unsatisfactory for claimants. Many claimants have worked for a large number of employers, some of whom have long since gone out of business and for whom an insurer, if there was one, can no longer be traced. The decision would mean that many claimants would recover only a small proportion of their full verdict damages. Parliament decided to overturn the decision in Barker in so far as it required apportionment of the damages. It wished to ensure that, where a claimant could establish liability against one tortfeasor, he would recover full verdict damages. That was the purpose of section 3 of the Damages Act 2006.

Section 3 is headed ‘Mesothelioma: damages. It provides:

(1)

This section applies where –

(a)

a person (“the responsible person”) has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos,

(b)

the victim has contracted mesothelioma as a result of exposure to asbestos,

(c)

because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure mentioned in paragraph (a) or another exposure which caused the victim to become ill, and

(d)

the responsible person is liable in tort, by virtue of the exposure mentioned in paragraph (a) in connection with damage caused to the victim by the disease (whether by reason of having materially increased a risk or for any other reason).

(2)

The responsible person shall be liable –

(a)

in respect of the whole of the damage caused to the victim by the disease (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 liability in tort) and

(b)

jointly and severally with any other responsible person.

(3)

Subsection (2) does not prevent –

(a)

one responsible person claimant a contribution from another or

(b)

a finding of contributory negligence.

In the course of argument in the Court of Appeal, there was a dispute as to whether section 3 governed the present case. Mr Melton submitted that, on its clear words, the section applied to all mesothelioma cases. In the present case, all the four conditions set out in section 3(1) were satisfied. Condition (d) was satisfied because the appellant had shown that the tortious exposure had materially increased the risk of Mrs Costello developing mesothelima. Therefore section 3(2) operated to ensure that, although the tortious exposure had, on the judge’s findings, made only a modest contribution to the risk of mesothelioma, the claimant would recover full verdict damages.

Mr Stuart-Smith submitted that this case was not affected by section 3. The purpose of section was a specific response to the issue of apportionment decided in Barker. It was not intended to change the underlying common law. Moreover, section 3 did not apply in this case because the four conditions in section 3(1) were not all satisfied so the case was governed by the common law. He accepted that the first three conditions in section 3(1) were satisfied but submitted that the fourth (d) was not. He submitted that the fourth condition made it plain that the claimant had to establish liability in tort at common law. The words in brackets made it clear that the section applies where liability is established at common law applying the principles established by Fairchild. That case did not apply in a case where the court was considering only a tortious exposure to asbestos and background environmental exposure.

If Mr Stuart-Smith is right, it will be necessary for this Court to decide whether the Fairchild exception covers all mesothelioma cases or only those cases in which it is, on the facts, impossible for the claimant to prove ‘but for’ causation by reference to a more than twofold increase in risk.

It may well be that, in enacting section 3(1) as it did, Parliament intended to require that, before the benefit of section 3(2) took effect, the claimant would have to establish liability at common law. It seems to me that Parliament was setting out, as conditions, those matters which would have to be proved for common law liability. In Fairchild the House of Lords had said that causation could be proved in a mesothelioma case by the demonstration of a material increase in risk. However, it is obvious that, in some cases, a claimant might be able to prove causation by some other means – for example, in a simple case of heavy tortious exposure by only one employer, by proving causation on the balance of probabilities.

It seems to me that, in section 3(1)(d), Parliament was 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. I would accept that it was Parliament’s intention to reflect the common law requirements of causation. I would accept that Parliament did not apply its mind to the possibility that, at some future time, the common law might be declared differently from the way in which it was explained in Fairchild and Barker, so as to limit the scope of the exception to cases in which it was impossible for the claimant to prove ‘but for’ causation by reference to a greater than twofold increase in risk. However, in my view, Parliament used clear words which provide that, in all mesothelioma cases, a claimant can take advantage of section 3(2) provided that he or she can satisfy the four conditions in section 3(1) and the fourth condition can, in my judgment, be satisfied by proof of causation by reference to a material increase in risk.

I conclude therefore that, in a mesothelioma case, it is not open to a defendant to put the claimant to proof of causation by reference to a twofold increase in risk. The judge was therefore wrong to require the appellant in this case to attempt to cross that hurdle. If he had applied the correct test on causation, namely whether or not the tortious exposure had materially increased the risk, the answer was plainly yes. In my view, the appellant should have succeeded and the appeal must be allowed.

In the light of that conclusion, it is not necessary for me to deal with Mr Melton’s second main ground of appeal, that the judge’s quantitative assessments of the tortious and environmental exposures were flawed. This argument took up a good deal of time on the hearing of the appeal. I am reluctant to extend the length of this judgment by a full discussion of the merits of Mr Melton’s criticisms and have come to the conclusion that such a discussion is not necessary in any event.

I must pay tribute to the careful and painstaking way in which HH Judge Main QC approached these assessments. I have held that he should not have embarked on the enterprise at all, but, having done so, he certainly did his best to reach a sound conclusion. I must confess that some of Mr Melton’s detailed criticisms of the judge’s assessments did cause me some concern and I remain uncertain as to the validity of whole process of quantitative assessment in a case of this kind. However, if I had concluded that the judge had been right to undertake these quantitative assessments, I would have held that Mr Melton had not shown that, on the evidence before him, the judge had significantly erred.

However, Mr Melton’s most fundamental criticism was that the appellant had never had a fair chance to prove her case by reference to the detailed quantitative assessments. The respondent’s case on the pleadings and in the opening skeleton arguments was that any tortious exposure (none being admitted) had been de minimis. It was to those issues that the respondent’s expert evidence was directed. It appeared that the causation argument which would be run was that the claimant had to show more than minimal tortious exposure. That remained the respondent’s stance until some time during an adjournment of several weeks in the course of the trial. The respondent then disclosed a further expert report designed to support the argument that ‘but for’ causation would have to be established by showing a more than twofold increase in risk. The appellant’s expert was not suitably qualified to deal with those issues. This put the appellant’s team into a very difficult position. They took the view that this new causation argument was wrong in principle and they decided not to instruct a new expert, a process which would have been bound to lead to substantial delay in the resumption of the trial. The result was that, when the judge decided to undertake the quantitative assessment, the appellant was severely disadvantaged.

During the hearing, I believe that I expressed the view that, having taken the decision not to instruct a new expert, the appellant must live with the consequences. If it was held necessary to prove ‘but for’ causation and the appellant failed to do so because of a lack of evidence and expertise, so be it. However, on reflection I do not think that that was the correct view. In these days, a party is expected to set out its case fully on the pleadings and to disclose any expert evidence on which it will rely in advance of the hearing. That the respondent failed to do in the present case. When, half way through the hearing, the respondent decided to make a major change in its stance, relying on a principle of law which had not hitherto been argued in a mesothelioma case, it put the appellant into the kind of position which the Civil Procedure Rules are designed to prevent arising. In my view, this was a most unfair position. From the resumption of the trial, the playing field was manifestly uneven. Not only was the appellant unable to call expert evidence to advance her own quantitative assessments of the occupational and environmental exposures but, without the help of expert advice, counsel must have been significantly handicapped in understanding the epidemiology relied on and in challenging the respondent’s expert’s views.

Accordingly, I would hold that, in the event that my conclusion as to the law is incorrect and that it was necessary for the appellant to prove causation by reference to a twofold increase in risk, there should be a new trial at which that requirement is understood from the outset.

For the reasons I have given I would allow the appeal and enter judgment for the appellant on liability with damages to be assessed if not agreed.

I agree.

I agree that this appeal should be allowed for the reasons given by Smith LJ. I add a few words of my own on the relevant legal principles because this is, so far as I am aware, the first mesothelioma case in which the court has been asked to consider together the decisions in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572 and the terms of section 3 of the Compensation Act 2006.

As explained by Smith LJ, the critical facts, which were either found by the judge or were common ground, were these:

The question is whether, as the law stands, a claimant in the position of Mrs Costello’s daughter must show that it was more probable than not that the tortious exposure and not the environmental exposure which Mrs Costello had unavoidably faced by living in Ellesmere Port caused the disease which caused her death. As Smith LJ says at [6], it was submitted on behalf of the respondent that this would necessitate the claimant showing that the tortious exposure more than doubled the risk. It was submitted on behalf of the claimant that she simply had to show that the tortious exposure materially increased the risk of Mrs Costello contracting mesothelioma in the sense that the risk was more than minimal.

In resolving this question it is important to note the limited circumstances in which it falls for decision in this case. As in Fairchild and Barker, we are here concerned only with a mesothelioma case. Whether the principles applicable in such a case are applicable in other types of case must be left for decision on a case by case basis.

The decision in Fairchild was explained by the House of Lords in Barker. Lord Hoffmann said at [1] in Barker that in Fairchild the House of Lords decided that a worker who had contracted mesothelioma after being wrongfully exposed to significant quantities of asbestos dust at different times by more than one employer or occupier of premises could sue any of them, notwithstanding that he could not prove which exposure had caused the disease. Such a case was an exception to the general rule that causation must be established on the balance of probability. He noted that in Fairchild, the state of scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. A claim against any person responsible for any such exposure would therefore not satisfy the standard causal requirements for liability in tort. But the House considered that, in all the circumstances of the case, that would be an unjust result. It therefore applied an exceptional and less demanding test for the necessary causal link between the defendant's conduct and the damage.

At [2] he identified Barker as raising two important questions which were left undecided in Fairchild. I will focus on each in turn. The first was what are the limits of the exception? In Fairchild the causal agent (asbestos dust) was the same in every case, the claimants had all been exposed in the course of employment, all the exposures which might have caused the disease involved breaches of duty by employers or occupiers and although it was likely that only one breach of duty had been causative, science could not establish which one it was. Lord Hoffmann posed the question whether all those factors must be present.

As I read his speech, he answered that question no. The facts of Barker were different from those in Fairchild. In Barker, Mr Barker, who died of asbestos-related mesothelioma in June 1996, had been exposed to three material periods of exposure to asbestos. The first two were while he was working for employers who were in breach of duty for failing to take reasonable precautions, whereas the third was agreed to involve a failure by Mr Barker to take reasonable precautions for his own safety. Thus, as Lord Hoffmann put it at [3], not all the exposures that could have caused the disease involved breaches of duty owed to him.

At [5] to [10] Lord Hoffmann set out various formulations identified in Fairchild by Lord Bingham, by himself, by Lord Hutton and by Lord Rodger and then said this by way of conclusion at [11]:

“The assistance which can be derived from these various formulations is limited. No one expressly adverted to the case in which the claimant was himself responsible for a significant exposure. Lord Bingham's formulation requires that all possible sources of asbestos should have involved breaches of duty to the claimant; Lord Rodger allowed for a non-tortious exposure by a defendant who was also responsible for a tortious exposure but reserved his position on any other non-tortious exposure. The most that can be said of the others is that they did not formulate the issue in terms which excluded the possibility of liability when there had been non-tortious exposures. On the other hand, no one thought that the formulations in Fairchild were the last word on the scope of the exception. Lord Bingham said, at p 68, para 34:

“It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise.””

Lord Hoffmann then reconsidered McGhee v National Coal Board [1973] 1 WLR 1, which had played a significant part in the speeches in Fairchild, and said at [13] that the House had treated McGhee as an application “avant la lettre” of the Fairchild exception. At [14] Lord Hoffmann observed that, in McGhee, one source of risk was tortious and one was not. At [15] he noted the submission on behalf of the defendant which allowed for the “McGhee extension” where the risk was created by a similar but lawful act or omission by the same defendant or another tortfeasor. However, at [16] Lord Hoffmann said that, once it is accepted that the exception can operate even though not all the potential causes of damage were tortious, there is no logic in requiring that a non-tortious source of risk should have been created by someone who was also a tortfeasor.

Lord Hoffmann then gave a number of examples and expressed his conclusion thus at [17]:

“It should not therefore matter whether the person who caused the non-tortious exposure happened also to have caused a tortious exposure. The purpose of the Fairchild exception is to provide a cause of action against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead. For this purpose, it should be irrelevant whether the other exposure was tortious or non-tortious, by natural causes or human agency or by the claimant himself. These distinctions may be relevant to whether and to whom responsibility can also be attributed, but from the point of view of satisfying the requirement of a sufficient causal link between the defendant's conduct and the claimant's injury, they should not matter.”

At [18] to [24] Lord Hoffmann, under the heading “Distinguishing Wilsher v Essex Health Authority [1988] AC 1074” asked what, if the Fairchild exception does not require that all the causes of the injury should be tortious, are the conditions which mark out its limits. He quoted a passage from the speech of Lord Bingham in Fairchild at [22] in which he distinguished Wilsher in this way:

“It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage.”

After quoting a passage from the speech of Lord Rodger in Fairchild at [170], Lord Hoffmann said at [24] that, in his opinion, it is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. In the present case there is no difficulty about this because the two candidates for causing the disease are both asbestos and thus operated in the same way.

Lord Scott agreed with Lord Hoffmann. He said at [53] that in Fairchild liability was imposed because each defendant, by its breach of duty, had materially increased the risk that the employee would contract mesothelioma. That, coupled with the fact that mesothelioma had been contracted and that it was not possible to tell when the fatal inhalation had taken place, justified the imposition of liability on each employer who had contributed to the risk. At [59] he expressed his conclusions very clearly in this way:

“Liability is imposed by Fairchild on a negligent employer because that employer has, by allowing the victim to be exposed to the injurious agent in question, materially increased the risk that the employee will contract the disease or be afflicted by the condition attributable to that injurious agent. The fact that there may have been periods of exposure during which the victim was employed by an employer who had not been in breach of duty, or during which the victim had been self-employed, or during which the victim had not been working for reward in any capacity, does not detract from the exposure for which the negligent employers had been responsible.”

I do not read the opinions of Lord Rodger, Lord Walker or Lady Hale as leading to any other conclusion.

It follows that I entirely agree with Smith LJ that the principle in Fairchild (sometimes called the Fairchild exception) applies to the facts of this case. Mrs Costello was exposed to asbestos in two periods, namely periods when she was working for the respondent and periods when she was exposed to asbestos in the atmosphere and was thus an example of a victim who (in Lord Scott’s words) for part of the time was not working for reward. Applying Fairchild, I conclude that the respondent is liable to Mrs Costello because the tortious dust made a material contribution to the risk. I can see no reason why it should make any difference that it might have been possible for the claimant to show that that exposure doubled the risk. I agree with Smith LJ that the effect of Barker is to explain Fairchild on the basis that, in cases to which it applies, it has introduced what may be seen as the new tort of negligently increasing the risk of personal injury. For the reasons given above, I agree with Smith LJ that the exception applies here.

I arrive at this conclusion simply by a consideration of the position at common law in the light of Fairchild and Barker. This conclusion does not depend upon section 3 of the Compensation Act 2006. As Smith LJ says, the purpose of that section was to reverse the second part of the decision in Barker, in which it was held, Lord Rodger dissenting, that in the case of liability on the part of more than one defendant, each defendant is not jointly and severally liable to the claimant for the whole amount of the damages but is liable, as Lord Hoffmann put it at [2] in Barker, only for his aliquot contribution to the total risk of the claimant contracting the disease.

Smith LJ has set out the terms of section 3. It is plain from them and from the common law analysis set out above that, on the basis of the facts set out in some detail by Smith LJ and summarised at [44] above, the respondent is liable for the mesothelioma which caused Mrs Costello’s death. For these reasons, which are I think essentially the same as those of Smith LJ, I agree that the appeal should be allowed.