Mesothelioma Claims: Recent Developments

Oliver and Co Solicitors have welcomed the recent Court of Appeal decision in Sienkiewicz v Greif (UK) Ltd, which has produced a positive result for the innocent victims of asbestos exposure who have sadly gone on to develop asbestos related mesothelioma.

Facts of the mesothelioma case

The mesothelioma claim was brought on behalf of Mrs. Costello, who died of mesothelioma in January 2006 at the age of 74. She had been exposed to asbestos dust during her employment with the respondent’s predecessors in title between 1966 and 1984. She worked at factory premises in Ellesmere Port.  She was an office worker, and not a factory worker, however, her job took her all over the factory and she spent some time in areas which were, from time to time, contaminated with asbestos. Mrs. Costello had not been exposed to asbestos dust ( a cause of mesothelioma) during any other employment.

It was held in the by the judge that she had been exposed a low level of asbestos dust in a general atmosphere. It was therefore held that the exposure was ‘minimal’. The Defendant asserted that in order to show causation, the claimant had to show that the tortuous exposure had a least doubled the risk to the environmental exposure. The Claimant had failed to do this, and therefore the mesothelioma claim failed.

The Claimant appealed and the claim went to the Court of Appeal.

Christopher Melton Q.C, acting for the Claimant, challenged the decision on two grounds.

The Judge had adopted the wrong approach to law of causation

The House of Lords in Fairchild v Glenhaven Funeral Services, as confirmed in Barker v Corus and Section 3 of the Compensation Act 2006, confirmed that at common law, in a mesothelioma claims, it is sufficient to show that the tortuous exposure had made a material contribution to the risk of developing the disease.

In this case it was clear that the occupational asbestos exposure had materially increased the risk of mesothelioma. The Claimant therefore should have succeeded in full.

The Judge had made a number of errors in calculating occupational and environmental exposures.

Lady Justice Smith, in delivering the leading judgment on 6th November 2009, after concentrating on the Mr Melton’s first ground of appeal, held that it was not necessary to deal with the second. She concluded that in a mesothelioma case, it is not for the Defendant to put the Claimant to proof of causation by reference to a twofold increase in risk. She further held that it was not right for the judge in the first instance to ‘require the Claimant to attempt to cross that hurdle’, and that the correct test on causation is whether or not the tortuous exposure had materially increased the risk.

The appeal was allowed in favour of the Claimant, and the Defendant was held responsible for the mesothelioma that caused Mrs Costello’s death, leading to mesothelioma compensation.

As noted above, this decision has been welcomed by Oliver and Co. Solicitors. The original ruling fell out of line with the principles laid down by the House of Lords in Fairchild and the intentions of section 3 of the Compensation Act 2006. It was wrong for the judge to rule that an innocent worker who developed mesothelioma should be denied compensation as the exposure was minimal, as this has not been the intention of the House of Lords.

Oliver & Co Solicitors are experts in the field of asbestos disease claims and have recovered millions of pounds of compensation for clients suffering with mesothelioma, asbestosis and diffuse pleural thickening.

Anyone requiring advice on the potential to pursue an asbestos disease claim should not hesitate to contact us for free legal advice without obligation on 0800 058 2737.