Why Sienkiewicz v Greif (UK) Ltd is important
In Sienkiewicz v Greif (UK) Ltd, the Supreme Court held the defendant liable for the full loss of negligently exposing the claimant to asbestos, even though the defendant only increased the risk of harm by a small amount.
The victim died from mesothelioma after being exposed to asbestos dust. The only negligent exposure was due to the negligence of Greif (UK) Ltd. The other source was the normal exposure to asbestos which is in the atmosphere. The defendant’s negligence only increased the victim’s exposure to asbestos by 18%.
The victim’s daughter brought a claim in the tort of negligence on behalf of her mother against Greif Ltd.
The defendant argued that Sienkiewicz had to show, on the balance of probability, that their negligence caused the loss. They argued this test was not met because their negligence only increased the victim’s exposure by 18%. Alternatively, they argued that to constitute a material increase in the risk of harm the claimant must show their exposure to asbestos had doubled as compared to the environmental exposure.
The case reached the Supreme Court, where the remaining question was whether the defendant’s negligence caused the loss.
The Supreme Court held that Greif (UK) Ltd did cause the claimant’s loss. Applying the Compensation Act 2006, the defendant was liable for the entire loss.
After considering the case-law, and in particular the House of Lords’ judgement in Barker v Corus UK Ltd, Lord Phillips explained the issue raised in this appeal as such:
If it is possible, on the basis of responsibility for exposure, to deduce the relative likelihood of a defendant being the employer who actually caused the injury, why should one not resolve liability according to the normal test of balance of probability.
Why, if it was possible to equate increasing exposure to increasing risk, could one not postulate that, on balance of probabilities, where one employer had caused over 50% of a victim’s exposure, that employer had caused the victim’s mesothelioma? Why could one not, by the same token, postulate that where over 50% of the victim’s exposure was not attributable to fault at all, on balance of probability, the victim’s mesothelioma had not been caused tortiously?
The Supreme Court nevertheless rejected that the ‘balance of probability’ was the appropriate test to apply. They highlighted the medical uncertainty which surrounds mesothelioma, and especially that it remained unclear whether mesothelioma is caused by a single fibre, or cumulative exposure. Requiring the claimant to show causation ‘on the balance of probability’ is inappropriate if mesothelioma is caused by cumulative exposure.
The Court also highlighted the unreliability of statistical analysis, made more unreliable by the lack of understanding about mesothelioma.
Finally, Lord Rodger highlighted that the claimants in Fairchild would not have been able to show, on the balance of probability, that the defendants materially contributed to their injury.
Therefore, the claimant’s case was upheld and Greif (UK) Ltd were held liable for the harm.
Compensation Act 2006
The Supreme Court also acknowledged the impact of the Compensation Act 2006. This Act renders an individual jointly and severally liable for the full loss where a person contracts mesothelioma, irrespective of their contribution to the risk of harm. This reversed the House of Lords’ judgement in Barker v Corus UK Ltd.
The Supreme Court concluded this was the only purpose of the provision. They held it did not impact the question whether the exposure to asbestos caused the harm. The Act therefore did not exclude the defendant’s submissions on causation, and it was therefore a question the Court had to decide.