Sienkiewicz v Greif (UK) Ltd
| Jurisdiction | England & Wales |
| Judge | Lady Justice Smith,Lord Justice Scott Baker,Lord Clarke of Stone-cum-Ebony |
| Judgment Date | 06 November 2009 |
| Neutral Citation | [2009] EWCA Civ 1159,[2009] EWCA Civ 1211 |
| Docket Number | Case No: B3/2009/0096 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 November 2009 |
[2009] EWCA Civ 1159
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LIVERPOOL COUNTY COURT
His Honour Judge Main QC
Before: Lord Clarke of Stone-Cum-Ebony
Lord Justice Scott Baker
and
Lady Justice Smith
Case No: B3/2009/0096
7LV11932
Christopher Melton QC and Ivan Woolfenden (instructed by Messrs Norman Jones) for the Appellant
Jeremy Stuart-Smith QC & Charles Feeny (instructed by Messrs Hill Dickinson LLP) for the Respondent
Hearing dates: 30 June & 1 July 2009
Lady Justice Smith:
Introduction
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.
Factual background in summary
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.
The Grounds of Appeal
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...
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