Attributing causation in a Tort Case – Case Report Published 10^th March, 2010

Sienkiewicz v. Greif (UK) Ltd.

Willmore v . Knowsley Metropolitan Borough Council

The Supreme Court stated that the rule attributing causation to multiple defendants in mesothelioma cases also applied to a single defendant who, in breach of duty, had exposed a mesothelioma victim to asbestos dust, where her only known exposure was to low levels of asbestos dust in the general atmosphere.

Lord Phillips of Worth Maltravers said that unusual features of mesothelioma had led the House of Lords to create a special rule governing the attribution of causation to those responsible for exposing victims to asbestos dust. See Fairchild v. Glenhaven Funeral Services Ltd. [2003] 1 AC 32    and Barker v. Corus UK Ltd [2006] 2AC 572.  Section 3 of the Compensation Act 2006 varied that rule in relation to liability in damages that applied only to mesothelioma.

Deducing causation in relation to mesothelioma on the basis of epidemiological evidence required a comparison between the statistical relationship between exposure and the incidence of the disease and the experience of the victim.

That exercise was particularly problematical because of the difficulties of collating sound epidemiological data, and of obtaining reliable evidence as to thevictim’s relevant experience.

There was also uncertainty as to the adequacy of the epidemiological evidence available as a guide to causation; that was the most significant inhibition on its use.

Adoption of the special rule applied by the House of Lords was justified; its  justification might diminish or vanish as the aetiology of the disease was revealed by scientific research.

There were special features about mesothelioma and gaps in knowledge in relation to it, that renders it inappropriate to decide causation on epidemiological data as to exposure.  Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Lord Mance, Lord Kerr of Tonaghmore and Lord Dyson delivered judgments concurring in the result. Judgement 9^th March 2011.