The 9th March 2011 saw a landmark judgment handed down in the Supreme Court. The judgment concerned two high profile mesothelioma cases which had both been appealed. We have reported on the cases in earlier newsletters and they have remained high profile within the press.
The first concerned Mrs Costello who was exposed to asbestos during her employment with Greif UK Ltd. She had worked in the offices as a secretary at the Defendant’s packaging factory in Ellesmere Port. It was alleged that she had breathed in dust containing asbestos whilst she walked around the factory, in particular, when she met up with her husband, who also worked there, on the factory floor.
The second case concerned Mrs. Willmore who developed mesothelioma having been exposed to asbestos whilst at Bowring School in Huyton during the 1970s. It was alleged that she had been exposed to low levels of asbestos dust from ceiling tiles whilst she was a pupil at the school.
Both claims were successful but subsequently appealed by the defendants to the Court of Appeal. The Court of Appeal upheld the initial rulings; however, Grief UK Ltd and Knowsley Council further appealed the decisions in the Supreme Court.
Detailed evidence was heard in relation to both cases with the submissions centring on the argument that, in cases of a single occupational exposure to asbestos, the Claimant could only succeed if he could show that the alleged exposure with the defendant had more than doubled the “background” risk of mesothelioma.
In his extensive judgment, Lord Phillips summarised what is known about the causation of mesothelioma. He concluded that, given the gaps in knowledge about the causation of mesothelioma, it is not possible to decide causation on the basis of epidemiological evidence. Epidemiology being defined as the study of patterns of health and illness and associated factors at the population level. Therefore, the concept of “doubling the risk” could not apply to mesothelioma cases.
It was said that the courts may revert to the conventional causation test if advances in medical science with regards to mesothelioma make such a step appropriate.
The other six Supreme Court justices unanimously agreed that such an approach based on assessing whether a certain level of exposure to asbestos had “doubled the risk” of someone developing mesothelioma, was inappropriate. This was considered to be the case even where the only known exposures to asbestos were background levels and a single occupational exposure.
It still remains for a Claimant to show that exposure to asbestos is significant but reaffirms the principle that very low levels of asbestos exposure can be considered sufficient. Whether exposure is too insignificant to be taken into account will remain a matter for the trial judge to assess on the facts of each particular case.
The decision confirms that a claimant will recover compensation for mesothelioma even where the occupational exposure is very slight and even though that exposure is less than the exposure from the general atmosphere. Lord Brown stated that such cases, from a Defendant’s point of view, were “a lost cause”.
This is a much welcomed ruling in mesothelioma cases. The clarification the cases provide will allow us to deal with mesothelioma cases more quickly in cases involving low exposure.
Mrs. Willmore is believed to be the first pupil to have successfully sought compensation for mesothelioma following exposure to asbestos at school. Given the prevalence of asbestos still in our schools today, as considered in our February newsletter, one begs the question how many more such cases will now be pursued.
It also raises doubts as to the theory that cases of mesothelioma will peak in 2015. If our schools contain as much asbestos as remains to be the belief, such low levels of exposure will continue unless and until a full programme of removal is undertaken.