Sienkiewicz v Greif (UK) Ltd and Willmore v Knowsley Metropolitan Borough Council: A Material Contribution to Uncertainty?

DOIhttp://doi.org/10.1111/j.1468-2230.2011.00871.x
AuthorPer Laleng
Published date01 September 2011
Date01 September 2011
CONCLUSION
The cases of We b s t e r and Mar tin provide an illustration of where two questionable
doctrines of criminal liability collide: constructive liability and complicity.The fact
that the Court of Appeal wished to interpret the rules on complicity in such a way as
to be generous to the secondary party indicates that there was an awareness that
application of the law could result in over-criminalisation. It has been suggested that
one way tojustify joint enterprise i nculpation could be the application of the‘change
of normative pos ition’rational e.
41
When D chooses to provide assistance or encour-
agement to P in a criminal activity, D crosses a moralthreshold and can be held liable
for the consequences.The same rationale can also be given to justify the conviction
of a driver for causing the death of another.Whatever one’s position on the validity of
the ‘change of normative position’ theory and the‘pure luck’ versus ‘moral’ luck argu -
ment,
42
it is rather more di⁄cult to defend what becomes a double ‘ch ange of nor-
mative position’ by allowing D to be convicted of an o¡ence committed by P of
causing death by dangerous driving. Arguably the secondary party in such cases
should be liable for dangerous driving, but his liability should stop there.
Sienkiewicz vGreif (UK) Ltd andWillm ore vKnowsley
Metropolitan Borough Council: A Material Contribution to
Uncertainty?
Per Laleng
n
In the conjoined cases of Sienkiewicz andWi llm ore, the Supreme Court decided that the excep-
tional Fairch ild approach to the proof of causation in negligence applied where a mesothelioma
victim had been negligently exposed to asbestos byo nedefe ndantat a level well below unavoid-
able environmentalasbestos exposure.The negligent exposures in both cases materially increased
the risk of mesotheliomathereby satisfying the Fairc hild test.Whilst reasserti ng the primacy of the
common law as governing the rules of causation in mesothelioma cases, the Supreme Court
failed to clarify the scope of the Fa irchild exception. Moreover, in an extensive obiter discussion of
epidemiological evidence, the Supreme Court has raised more questions than it has answered
relating to the role,if any, of scienti¢c evidence in the lawof toxic torts.
The conjoined cases of Sienkiewicz vGreif(UK)Ltd(Sienkiewicz)andWill more v
Knowsley Metropolitan Borough Council
1
(Will more) represent the latest stage in the
41 Krebs, n 2 above.
42 See J. Horder,‘A critique of the correspondence principle in criminallaw’(199 5 ) Cr i m LR 75 9.
n
Lecturer in Law,University of Kent.The author provided academic research and consultancy services
to theAppellants in relation to the conjoined cases for the purposes of the SupremeCourt hear ing.I am
grateful toAlan Thomson for the guidance he providedin relation to this case note.
1[2011] UKSC10; [2011]2 WLR 53.Unless the context dictates otherwise, Sienkiewiczwill be used
to denote both cases.
Per Laleng
777
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
(2011) 74(5) 767^ 793
epic story of the Fairchi ld exception
2
to the proof of causation in tort law.
3
The
cases continue thestory of the transformationof broadly sensibleideas about cau-
sation intoa rhetorical legal concept
4
bearing an increasingly tenuous relationship
with reality, whilst simultaneously evidencing a clear judicial disquiet about this
radical development: Fair child ‘kick[ed] open the hornet’s nest’,
5
and by a‘quixotic
path
6
has lead to ‘draconian’
7
consequences. Yet, according to some members of
the Supreme Court, it would be ‘remarkable’,
8
if not ‘impossible’
9
to reverse Fair-
child. It may have been remarkable to reverse so soon after the common
lawinventedanewtort,
10
but it does not follow that a reversal would necessarily
have been wrong. Moreover, as there is no legal mechanismprecluding a reversal,
it would not in fact have been impossible. Perhaps the real motivation for
preserving the status quo can be detected in Lady Hale’s opinion: a Supreme
Court reversal of Fairch ild wouldbeinstantlyreversedbyParliament.
11
Plain ly,
Lady Hale had in mind Parliament’s reaction to Barker vCor us UK Ltd
12
(Barker),
a case in which she sat, whichwas reversed within a matter of weeks via section 3
of the Compensation Act 2006. But second-guessing Parliament’s reaction to its
judgments is surely not a central function of the Supreme Court. Only Lords
Rodger, Kerr and Dyson seem at ease with the Fa irch ild exception.The majority,
on the other hand, appear resigned to its inevitable applicabilityi n mesothelioma
cases whilst seeking to draw ‘lessons of caution’
13
and ‘wariness’
14
from the saga
whilst remarkably not advising Parliament to revisit this area of law.
Implicit in most of their Lordships’ opinions is the notion that the Fa irch ild
exception is now to be con¢ned to mesothelioma cases. At the very least, defen-
dants should consider mesothelioma cases a ‘lost cause’.
15
This case note argues
that the exception cannot rationally be con¢ned to mesothelioma cases: its
boundaries are no clearer after Sienkiewicz than they were before. Of greater
concern is the ambivalent treatment given to epidemiological evidence
within Sienkiewicz.The discussion mirrors a parallel legal debate that took place
in relation to the use of actuarial evidence in the assessment of damages in
the 1960s and 1970s that remained unresolved until the mid 1990s.The argument
presented here is that the general suspicion with which epidemiological, and by
2Fairch ild vGlenhavenFuneralServices [2002] UKHL 22; [2003] 1 AC32 (Fairc hild ).
3For earlycommentary,see T.Weir,‘Making it MoreLikely v Making it Happen’(2002) CLJ 519; J.
Morgan,‘LostCauses in the House of Lords:Fairchild v Glenhaven Funeral Services’(2003) 66(2)
MLR 279; K. Oliphant, Fairchild v Glenhaven Funeral Services Ltd (2002)’ in C. Mitchell and P.
Mitchell (eds), LandmarkCases in the Law ofTort(Oxford: Hart Publishing, 2010).
4For a similar point, see E. D. Knutsen,‘AmbiguousCause -in-Facta ndStructured Causation:A
Multi-jurisdictional approach’(2003) 38 Tex Int’l LJ 249, 269.
5n 1 above,Lady Hale at [167].
6ibid Lor d Brow n at [174].
7ibid Lord Phillips at [58]; Lord Brown at [184].
8ibid Lord Brownat [183].
9ibid Lord Mance at[189].
10 ibid Lord Brownat [181]. J. M. Scherpe,‘A New Gist?’[2006] CLJ 487;K. Amirthalingham,‘Cau-
sation and the Gist of Negligence’[2005] CLJ 32.
11 n 1 above,Lady Hale at [167].
12 [2006] 2 AC572 HL(E).
13 n 1 above,Lord Mance at [189].
14 ibid Lord Brownat [187].
15 ibid at [186].
Sienkiewicz vGreif (UK) Ltd andWi llmore vK nowsleyMetropolitan Borough Council
778 r2011 The Authors. The Modern Law Review r2011The Modern Law ReviewLimited.
(2011) 74(5) 767^793

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