Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore
| Jurisdiction | England & Wales |
| Judge | LORD PHILLIPS,LORD RODGER,LADY HALE,LORD BROWN,LORD MANCE,LORD KERR,LORD DYSON |
| Judgment Date | 09 March 2011 |
| Neutral Citation | [2011] UKSC 10 |
| Court | Supreme Court |
| Date | 09 March 2011 |
[2011] UKSC 10
Lord Phillips, President
Lord Rodger
Lady Hale
Lord Brown
Lord Mance
Lord Kerr
Lord Dyson
Appellant (Greif)
Jeremy Stuart-Smith QC
Charles Feeny
(Instructed by Hill Dickinson LLP)
Respondent (Sienkiewicz)
Christopher Melton QC
Richard Pearce
(Instructed by Norman Jones Solicitors)
Appellant (Knowsley)
Jeremy Stuart-Smith QC
Charles Feeny
(Instructed by Berrymans Lace Mawer LLP)
Respondent (Willmore)
David Allan QC
Simon Kilvington
(Instructed by John Pickering & Partners LLP)
Heard on 26, 27 and 28 October 2010
Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres. Unusual features of the disease led the House of Lords to create a special rule governing the attribution of causation to those responsible for exposing victims to asbestos dust. This was advanced for the first time in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and developed in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. Parliament then intervened by section 3 of the Compensation Act 2006 further to vary this rule. The rule in its current form can be stated as follows: when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.
These two appeals involve cases where the defendant was the sole known source of occupational exposure to asbestos dust. In each case the extent of the exposure found was very small. In each case, the Court of Appeal, applying the special rule, held the defendant liable for causing the disease.
In Willmore v Knowsley Metropolitan Borough Council the Council contends that the trial judge erred in finding that it was responsible for exposing Mrs Willmore to sufficient asbestos dust to cause a material increase in risk. The appeal involves an attack on findings of fact by the judge, which were upheld by the Court of Appeal, but no issue of principle, albeit that it nicely illustrates the effect of the special rule of causation. I agree that this appeal must be dismissed for the reasons given by Lord Rodger and I have nothing to add to these.
In Sienkiewicz v Greif (UK) Ltd ("Greif") the respondent is the daughter of Mrs Enid Costello and sues as administratrix of her estate. The appellant, Greif, raises two separate, albeit interrelated, grounds of appeal. The exposure for which the judge found Greif to have been responsible only increased the total amount of exposure which Mrs Costello would have experienced as a result of environmental exposure to asbestos, that is exposure to asbestos in the atmosphere, by 18%. Greif submits that in these circumstances the respondent failed to prove on balance of probability that Greif caused Mrs Costello's mesothelioma; to do this she would have had to prove that the exposure for which Greif was responsible had more than doubled the environmental exposure. This submission raises the following important issue of principle. Does the special rule of causation that applies in cases of mesothelioma leave any room for applying a test of balance of probability to causation? It also raises a general issue as to the applicability as proof of causation in personal injury cases of a test usually applied to epidemiological evidence that I shall call the "doubles the risk" test. Shortly stated this test attributes causative effect to any factor that more than doubled a risk that would otherwise have been present of the injury that occurred.
Greif's alternative submission is that occupational exposure to asbestos dust will only constitute a material increase in risk for the purpose of the special rule of causation if it more than doubles the environmental exposure to such dust to which the victim was subject. It did not do so in the case of Mrs Costello.
Most claims for death or personal injury result from accidents. In such cases the cause of death or personal injury will seldom be in issue. A body of knowledge which I shall call "medical science" will enable a witness, expert in that science, to describe the precise mechanism by which the accident brought about the death or injury. I shall describe this as the "biological cause" of death or injury. It is sometimes referred to by the more general description of the "cause in fact". In some cases, however, medical science will not yet have identified the precise mechanism by which an injury gives rise to a particular physical consequence. In such cases it may be possible to deduce that there was a causative link between the two by evidence of what usually happens. Epidemiological evidence that a particular injury or disease usually follows a particular type of bodily insult may enable a court to conclude in a particular case, on balance of probability, that the former was caused by the latter. "Post hoc ergo propter hoc". A finding of causation based on such evidence is sometimes described as "the cause in law".
Where the court is concerned with a speculative question – "what would have happened but for a particular intervention" it is likely to need to have regard to what normally happens. A good example of such a situation is the task of estimating the loss of expectation of life of a person whose death has been caused by negligence or breach of duty. In such a situation the evidence upon which the court will reach its conclusion is likely to be provided, at least in part, by a statistician or an epidemiologist. Medical science will identify whether the deceased had any physical characteristic relevant to his life expectancy. Epidemiology will provide statistical evidence of life expectancy of the group or cohort to which the deceased belonged. With this material the court answers the hypothetical question of the length of the life that the victim would have enjoyed but for the breach of duty of the defendant.
Epidemiology can also provide a court with assistance in deciding what actually happened, when the cause of a disease or injury is not clear. For one remarkable example of the use, and ultimate rejection, of epidemiological evidence see Loveday v Renton [1990] 1 MLR 1. Another remarkable case, to which I shall make further reference was XYZ v Schering Health Care Ltd [2002] EWHC 1420 (QB); 70 BMLR 88.
When a scientific expert gives an opinion on causation, he is likely to do so in terms of certainty or uncertainty, rather than probability. Either medical science will enable him to postulate with confidence the chain of events that occurred, ie the biological cause, or it will not. In the latter case he is unlikely to be of much assistance to the judge who seeks to ascertain what occurred on a balance of probability. This reality was expressed by Lord Prosser in Dingley v The Chief Constable, Strathclyde Police 1998 SC 548, 603 with a clarity that merits quotation:
"In ordinary (non-lawyers') language, to say that one regards something as 'probable' is by no means to say that one regards it as 'established' or 'proved'. Yet in the civil courts, where we say that a pursuer must prove his case on a balance of probabilities, what is held to be probable is treated as 'proved'. I do not suggest that any lawyer will be confused by this rather special meaning of the word 'proved'. But speaking very generally, I think that the civil requirement of a pursuer – that he satisfy the court that upon the evidence his case is probably sound – would in ordinary language be regarded as very different from, and less stringent than, a requirement that his case be established or proved. More importantly in the context of such a case as the present, the fact that the two concepts are distinct in ordinary language, but the same in this legal context, seems to me to give rise to a risk of ambiguity or misunderstanding in the expressed opinions of expert witnesses. And this risk will be increased if the expert in question would normally, in the exercise of his profession, adopt an approach to such issues starkly different from that incumbent upon a court. Whether one uses the word 'scientific' or not, no hypothesis or proposition would be seen as 'proved' or 'established' by anyone with any form of medical expertise merely upon the basis that he had come to regard it as probably sound. (Indeed, I think even the word 'probable' would be reserved for situations where the likelihood is thought to be much more than marginal). And even if, in relation to any possible proposition or hypothesis, such an expert even troubled to notice that he had come to the point of regarding it as not merely possible but on balance 'probable', then I think he would regard that point as one from which he must set off on further inquiry, and by no means as being (as it is in the courts) a point of arrival. Mere marginal probability will not much interest him. But it must satisfy a court."
The issue in Dingley was whether the development of multiple sclerosis had been caused by physical injury sustained in a motor accident. Medical science was not able to demonstrate the connection between the two, and reliance was placed on epidemiological evidence. Lord Prosser, at pp 604–605, had this to say about this method of proof:
"I am not much impressed by one argument advanced for the defender to the effect that the pursuer's argument...
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