By Simon Kilvington, of 18 St John Street Chambers

The Supreme Court recently ruled in favour of the combined appeals of Greif (UK) Ltd v Karen Sienkiewicz and Knowsley Metropolitan Borough Council and Barré Willmore, in the groundbreaking case to consider causation in asbestos-related cancer claims.

 Both the original claimants died of mesothelioma, a cancer which develops from the protective lining or mesothelium which covers many of the body’s internal organs.  It most commonly affects the pleura, the outer lining of the lungs, but may also occur in the lining of the abdominal cavity.

 Here, Simon Kilvington, of 18 St John Street Chambers and junior in the case of Willmore, explores mesothelioma and the history of legal battles surrounding the devastating condition.

 Mesothelioma s not the only disease that is caused by asbestos - there are also lung cancer, asbestosis and pleural thickening - but it is the most notorious.  It is a particularly aggressive disease, with survival from onset of symptoms to death often being measured in months rather than years. Symptoms often begin with shortness of breath, a cough and pain in the chest.  Fluid accumulates in the pleural space or the abdominal cavity and needs to be drained, often repeatedly.  It is resistant to treatment.  Despite radiotherapy and chemotherapy, the disease progresses inexorably and the levels of pain are often poorly controlled by opiate analgesia.  There is no known cure, with even radical surgery such as removal of the lung having a limited impact on prognosis.

 The disease is overwhelmingly caused by exposure to asbestos - the relationship between asbestos and mesothelioma is stronger than that between smoking and lung cancer.

 The dangers of exposure have been known for years.  Asbestos has been mined on an industrial scale since the 19th Century and, as early as 1898, the Chief Inspector of Factories and Workshops referred in his annual report to, “The evil effects of asbestos dust…a microscopic examination of this mineral dust which was made by HM Medical Inspector clearly revealed the sharp, glass-like jagged nature of the particles and where they were allowed to rise and to remain suspended in the air of the room in any quantity, the effects have been found to be injurious as might have been expected.”

 It was not however until 1960 that J C Wagner, a South African pathologist, published in the British Journal of Industrial Medicine his belief that mesothelioma was being caused by asbestos.

 By October 1965, the link was widely publicised by a front page article in the Sunday Times, following an epidemiological survey of mesothelioma cases in the London area which pointed to the fact that the disease had occurred amongst residents in the neighbourhood of asbestos factories in London and in some circumstances which suggested there was exposure from asbestos-contaminated clothing introduced into the home.

 Despite this knowledge, worldwide mining of asbestos peaked in the mid 1970s.  Asbestos continued to be imported into the UK from mines in South Africa, Australia and Canada.  It was not until 1972 a halt was called to the importation of (the most potent) blue asbestos.  Brown asbestos (somewhat less potent) was not imported from about 1980 but importation of white asbestos (the least potent, but far from safe) continued until 1999.

 As a result, the cohort of those potentially exposed is huge.  Dockers in ports up and down the UK handled the imports of asbestos.   It would arrive on ships, often contained in permeable and leaking hessian sacks.  These sacks would be handled on land by railway and transport workers.  They would be delivered to factories and used to make an astonishing variety of products including rope, yarn, paper, fire resistant blankets, brake linings and even toilet seats.  Laggers applied huge quantities of asbestos paste mixed with water (monkey muck or bull muck) to boilers and pipes in power stations, commercial and domestic premises.  Construction workers fitted huge quantities of asbestos mill and insulation boards to buildings of every type in a mania for fire protection - in fact, by 2050, it is expected that the largest occupational group to have been affected by mesothelioma will be joiners.

 And, of course, there was potential for exposure of the people using those buildings.  Mrs Willmore, who died aged only 49, alleged exposure to dust and fibres released from asbestos ceiling tiles whilst a pupil at a secondary school in Knowsley in the 1970s.  Concern about relatively low levels of exposure in public buildings including schools has grown in recent years (see for example Michael Lees’ website, www.asbestosexposureschools.co.uk).

 Mrs Costello (whose claim was continued by her daughter, Karen Sienkiewicz) worked at a factory at Ellesmere Port where steel drums were manufactured.  In the course of the operations, some asbestos dust was released and, although Mrs Costello was an office worker, her duties took her all over the factory including to areas contaminated with asbestos dust.

 In both cases, the exposure was relatively low - the trial judge’s finding was that Mrs Costello’s exposure with the defendant was only 18 per cent more than her total environmental exposure - and the question was posed: what proof of exposure is necessary to establish causation in a mesothelioma claim?

 The Appellants are concerned to establish a threshold below which a claim cannot succeed.  The Respondents argue any material increase in risk is enough, pursuant to the House of Lords’ authority of Fairchild v Glenhaven Funeral Services [2003] 1 AC 32.

 Over the past decade, industrial disease litigation has competed with clinical negligence to produce the most groundbreaking authorities on causation. Many of the legal conundrums have arisen from the still poorly-understood aetiology of the disease processes involved.

 It is generally accepted that the time between first exposure and the first clinical manifestations of mesothelioma ranges from 10 years with no upper limit.  However, the tumour does not start to grow as soon as fibres are inhaled - instead it is thought that a series of reactions between fibres and mesothelial cells takes place until there is a malignant transformation of the mesothelial cell.  Thereafter, once the tumour gains its own blood supply, the development of the disease is inevitable.

 What science is currently unable to determine is exactly how the disease is caused: Lord Bingham in Fairchild famously described this as the ‘rock of uncertainty’ -

 “There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.  It is on this rock of uncertainty - referring to the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial Judges.”

 All that could be said therefore was that each employer’s negligence had contributed to the risk of injury but not to the injury itself.

 It was this that caused the Court of Appeal in Fairchild  to say the claimants were not able to prove their case because they could not establish which of several sources of asbestos had caused the disease.

 The House of Lords responded by creating what became known as the, “Fairchild exception” to the “but for” rule of causation.  Where the exception applied, it was held to be enough for the claimant to show that a defendant’s exposure had made a material contribution to the risk of injury.  This is the case even though the injury might have been caused by the negligence of some other defendant.

 It is clear from the judgments that the court was motivated by an appreciation of the fairness and justice of imposing liability upon an employer who had been in breach of his duty to protect an employee.

 The limits of the new exception were, however, soon to be tested.  The case of Barker v Corus (UK) Ltd [2006] 2 AC 572 came before the House of Lords less than two years later.  The defendants challenged the application of the Fairchild exception in circumstances where the injury might have had some non-tortious cause.  The answer was that it was enough for the claimant to show that the defendant’s negligence had made a material contribution to the risk of injury even though the injury might have been caused by something non-negligent, including the claimant’s own negligence or a natural source.

 The House also held that liability for causing mesothelioma was divisible, each employer being liable to the extent of his aliquot share of overall exposure (Lord Rodger dissenting - how could a court find a defendant had ‘one-fifth killed the victim?’).

 The practical consequences of such an apportionment on the time and expense of pursuing claims in which the aim is resolution during a limited lifetime prompted an outcry from both practitioners and victims.  The result was the swiftest statutory reversal in history.  Section 3 Compensation Act 2006 received Royal Assent on 25/7/06 and restored the position pre-Barker that a claimant can recover full damages against any exposing tortfeasor irrespective of exposure elsewhere.

 Despite some of the more dire predictions of the broad potential for expansion of the exception, attempts thus far to extend it to other areas of personal injury litigation have enjoyed little success (see, for example, Gregg v Scott (2005) 2 AC 176 – clinical negligence; Clough v First Choice Holidays and Flights (2006) PIQR 22 - accident on holiday, and Sanderson v Hull (2008) EWCA Civ. 1211 - infection through employment as turkey plucker), though it was applied in 2 VWF cases (Transco v Griggs (2003) EWCA Civ. 564, and Brown v Corus (UK) Ltd (2004) EWCA Civ. 374).

 In Willmore/ Sienkiewicz, the highest court in the UK has once again been asked to consider the limits of the Fairchild exception.  The Appellants submitted that in a case where there was one tortious exposure and otherwise only environmental exposure (what they term “single exposure cases”), then the exception should not apply and a claimant should have to prove that a breach of duty had more than doubled the risk that they would contract mesothelioma.

The answer will be potentially significant for any case in which it is asserted that exposure is unlikely to have exceeded background environmental levels (whatever these are).  Both the claimant and defendant are likely to need evidence from engineers to estimate the total exposure and the (not always readily accessible) evidence of epidemiologists about the level of risk. The first instance trial in Sienkiewicz (in which there was evidence from only one engineer) took place over a total of eight days.

Behind all these cases, there is of course a personal and family tragedy.  The reality of practice in this field includes conferences explaining to a claimant and (as it usually is) his wife, the difference between the values of his claim during life and after death or the hearing of evidence taken on commission in the front room of a dying man, with judge, lawyers and DVD operatives closely packed in on chairs as the claimant is asked to recall events perhaps 30 to 50 years ago.

The courts have responded sympathetically to the special needs of claimants in such circumstances, with a Specialist List for asbestos-induced disease claims operated by Senior Master Whitaker in the Royal Courts of Justice and judges with specialist knowledge managing cases in the provinces, though the bleak prognosis, of course, remains.  Cases are handled quickly and efficiently, the aim being wherever possible to dispose of at least the liability issues during life. 

In the vast majority of cases, a sensible view can be reached. The legal practitioners in the field tend to be properly expert and fully aware of the issues which are likely to be litigated.  Experienced solicitors and counsel have a vast knowledge of previous cases and the issues that are likely to arise. 

It is a stark fact that the number of cases of mesothelioma continues to rise, with predictions of a peak in deaths towards 2020.  This is of course the legacy of exposures which continued well into the 1980s and beyond, despite knowledge from the mid-1960s of the link between very low exposures to asbestos and mesothelioma.

Perhaps most shockingly, the use of asbestos, much of which is mined in Canada, continues to rise in developing countries such as China and India.  As life expectancy in these countries improves, the incidence of asbestos-related diseases, including mesothelioma, is likely to increase.

In the UK, these cases are likely to continue to occupy the courts for years to come with their own particular impact on the development of legal principle.

Human tragedy and legal legacy surrounding asbestos-related cases
By Simon Kilvington, of 18 St John Street Chambers

The Supreme Court recently ruled in favour of the combined appeals of Greif (UK) Ltd v Karen Sienkiewicz and Knowsley Metropolitan Borough Council and Barré Willmore, in the groundbreaking case to consider causation in asbestos-related cancer claims.

 Both the original claimants died of mesothelioma, a cancer which develops from the protective lining or mesothelium which covers many of the body’s internal organs.  It most commonly affects the pleura, the outer lining of the lungs, but may also occur in the lining of the abdominal cavity.

 Here, Simon Kilvington, of 18 St John Street Chambers and junior in the case of Willmore, explores mesothelioma and the history of legal battles surrounding the devastating condition.

 Mesothelioma s not the only disease that is caused by asbestos - there are also lung cancer, asbestosis and pleural thickening - but it is the most notorious.  It is a particularly aggressive disease, with survival from onset of symptoms to death often being measured in months rather than years. Symptoms often begin with shortness of breath, a cough and pain in the chest.  Fluid accumulates in the pleural space or the abdominal cavity and needs to be drained, often repeatedly.  It is resistant to treatment.  Despite radiotherapy and chemotherapy, the disease progresses inexorably and the levels of pain are often poorly controlled by opiate analgesia.  There is no known cure, with even radical surgery such as removal of the lung having a limited impact on prognosis.

 The disease is overwhelmingly caused by exposure to asbestos - the relationship between asbestos and mesothelioma is stronger than that between smoking and lung cancer.

 The dangers of exposure have been known for years.  Asbestos has been mined on an industrial scale since the 19th Century and, as early as 1898, the Chief Inspector of Factories and Workshops referred in his annual report to, “The evil effects of asbestos dust…a microscopic examination of this mineral dust which was made by HM Medical Inspector clearly revealed the sharp, glass-like jagged nature of the particles and where they were allowed to rise and to remain suspended in the air of the room in any quantity, the effects have been found to be injurious as might have been expected.”

 It was not however until 1960 that J C Wagner, a South African pathologist, published in the British Journal of Industrial Medicine his belief that mesothelioma was being caused by asbestos.

 By October 1965, the link was widely publicised by a front page article in the Sunday Times, following an epidemiological survey of mesothelioma cases in the London area which pointed to the fact that the disease had occurred amongst residents in the neighbourhood of asbestos factories in London and in some circumstances which suggested there was exposure from asbestos-contaminated clothing introduced into the home.

 Despite this knowledge, worldwide mining of asbestos peaked in the mid 1970s.  Asbestos continued to be imported into the UK from mines in South Africa, Australia and Canada.  It was not until 1972 a halt was called to the importation of (the most potent) blue asbestos.  Brown asbestos (somewhat less potent) was not imported from about 1980 but importation of white asbestos (the least potent, but far from safe) continued until 1999.

 As a result, the cohort of those potentially exposed is huge.  Dockers in ports up and down the UK handled the imports of asbestos.   It would arrive on ships, often contained in permeable and leaking hessian sacks.  These sacks would be handled on land by railway and transport workers.  They would be delivered to factories and used to make an astonishing variety of products including rope, yarn, paper, fire resistant blankets, brake linings and even toilet seats.  Laggers applied huge quantities of asbestos paste mixed with water (monkey muck or bull muck) to boilers and pipes in power stations, commercial and domestic premises.  Construction workers fitted huge quantities of asbestos mill and insulation boards to buildings of every type in a mania for fire protection - in fact, by 2050, it is expected that the largest occupational group to have been affected by mesothelioma will be joiners.

 And, of course, there was potential for exposure of the people using those buildings.  Mrs Willmore, who died aged only 49, alleged exposure to dust and fibres released from asbestos ceiling tiles whilst a pupil at a secondary school in Knowsley in the 1970s.  Concern about relatively low levels of exposure in public buildings including schools has grown in recent years (see for example Michael Lees’ website, www.asbestosexposureschools.co.uk).

 Mrs Costello (whose claim was continued by her daughter, Karen Sienkiewicz) worked at a factory at Ellesmere Port where steel drums were manufactured.  In the course of the operations, some asbestos dust was released and, although Mrs Costello was an office worker, her duties took her all over the factory including to areas contaminated with asbestos dust.

 In both cases, the exposure was relatively low - the trial judge’s finding was that Mrs Costello’s exposure with the defendant was only 18 per cent more than her total environmental exposure - and the question was posed: what proof of exposure is necessary to establish causation in a mesothelioma claim?

 The Appellants are concerned to establish a threshold below which a claim cannot succeed.  The Respondents argue any material increase in risk is enough, pursuant to the House of Lords’ authority of Fairchild v Glenhaven Funeral Services [2003] 1 AC 32.

 Over the past decade, industrial disease litigation has competed with clinical negligence to produce the most groundbreaking authorities on causation. Many of the legal conundrums have arisen from the still poorly-understood aetiology of the disease processes involved.

 It is generally accepted that the time between first exposure and the first clinical manifestations of mesothelioma ranges from 10 years with no upper limit.  However, the tumour does not start to grow as soon as fibres are inhaled - instead it is thought that a series of reactions between fibres and mesothelial cells takes place until there is a malignant transformation of the mesothelial cell.  Thereafter, once the tumour gains its own blood supply, the development of the disease is inevitable.

 What science is currently unable to determine is exactly how the disease is caused: Lord Bingham in Fairchild famously described this as the ‘rock of uncertainty’ -

 “There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.  It is on this rock of uncertainty - referring to the point to which medical science has so far advanced, that the three claims were rejected by the Court of Appeal and by two of the three trial Judges.”

 All that could be said therefore was that each employer’s negligence had contributed to the risk of injury but not to the injury itself.

 It was this that caused the Court of Appeal in Fairchild  to say the claimants were not able to prove their case because they could not establish which of several sources of asbestos had caused the disease.

 The House of Lords responded by creating what became known as the, “Fairchild exception” to the “but for” rule of causation.  Where the exception applied, it was held to be enough for the claimant to show that a defendant’s exposure had made a material contribution to the risk of injury.  This is the case even though the injury might have been caused by the negligence of some other defendant.

 It is clear from the judgments that the court was motivated by an appreciation of the fairness and justice of imposing liability upon an employer who had been in breach of his duty to protect an employee.

 The limits of the new exception were, however, soon to be tested.  The case of Barker v Corus (UK) Ltd [2006] 2 AC 572 came before the House of Lords less than two years later.  The defendants challenged the application of the Fairchild exception in circumstances where the injury might have had some non-tortious cause.  The answer was that it was enough for the claimant to show that the defendant’s negligence had made a material contribution to the risk of injury even though the injury might have been caused by something non-negligent, including the claimant’s own negligence or a natural source.

 The House also held that liability for causing mesothelioma was divisible, each employer being liable to the extent of his aliquot share of overall exposure (Lord Rodger dissenting - how could a court find a defendant had ‘one-fifth killed the victim?’).

 The practical consequences of such an apportionment on the time and expense of pursuing claims in which the aim is resolution during a limited lifetime prompted an outcry from both practitioners and victims.  The result was the swiftest statutory reversal in history.  Section 3 Compensation Act 2006 received Royal Assent on 25/7/06 and restored the position pre-Barker that a claimant can recover full damages against any exposing tortfeasor irrespective of exposure elsewhere.

 Despite some of the more dire predictions of the broad potential for expansion of the exception, attempts thus far to extend it to other areas of personal injury litigation have enjoyed little success (see, for example, Gregg v Scott (2005) 2 AC 176 – clinical negligence; Clough v First Choice Holidays and Flights (2006) PIQR 22 - accident on holiday, and Sanderson v Hull (2008) EWCA Civ. 1211 - infection through employment as turkey plucker), though it was applied in 2 VWF cases (Transco v Griggs (2003) EWCA Civ. 564, and Brown v Corus (UK) Ltd (2004) EWCA Civ. 374).

 In Willmore/ Sienkiewicz, the highest court in the UK has once again been asked to consider the limits of the Fairchild exception.  The Appellants submitted that in a case where there was one tortious exposure and otherwise only environmental exposure (what they term “single exposure cases”), then the exception should not apply and a claimant should have to prove that a breach of duty had more than doubled the risk that they would contract mesothelioma.

The answer will be potentially significant for any case in which it is asserted that exposure is unlikely to have exceeded background environmental levels (whatever these are).  Both the claimant and defendant are likely to need evidence from engineers to estimate the total exposure and the (not always readily accessible) evidence of epidemiologists about the level of risk. The first instance trial in Sienkiewicz (in which there was evidence from only one engineer) took place over a total of eight days.

Behind all these cases, there is of course a personal and family tragedy.  The reality of practice in this field includes conferences explaining to a claimant and (as it usually is) his wife, the difference between the values of his claim during life and after death or the hearing of evidence taken on commission in the front room of a dying man, with judge, lawyers and DVD operatives closely packed in on chairs as the claimant is asked to recall events perhaps 30 to 50 years ago.

The courts have responded sympathetically to the special needs of claimants in such circumstances, with a Specialist List for asbestos-induced disease claims operated by Senior Master Whitaker in the Royal Courts of Justice and judges with specialist knowledge managing cases in the provinces, though the bleak prognosis, of course, remains.  Cases are handled quickly and efficiently, the aim being wherever possible to dispose of at least the liability issues during life. 

In the vast majority of cases, a sensible view can be reached. The legal practitioners in the field tend to be properly expert and fully aware of the issues which are likely to be litigated.  Experienced solicitors and counsel have a vast knowledge of previous cases and the issues that are likely to arise. 

It is a stark fact that the number of cases of mesothelioma continues to rise, with predictions of a peak in deaths towards 2020.  This is of course the legacy of exposures which continued well into the 1980s and beyond, despite knowledge from the mid-1960s of the link between very low exposures to asbestos and mesothelioma.

Perhaps most shockingly, the use of asbestos, much of which is mined in Canada, continues to rise in developing countries such as China and India.  As life expectancy in these countries improves, the incidence of asbestos-related diseases, including mesothelioma, is likely to increase.

In the UK, these cases are likely to continue to occupy the courts for years to come with their own particular impact on the development of legal principle.