Supreme Court rejects local authority appeal in school asbestos case

The Supreme Court has rejected an appeal by a local authority in a case where a woman was exposed to asbestos at her secondary school and decades later contracted mesothelioma.

The issue in the cases of Knowsley MBC v Willmore and Sienckiewicz (Administratrix of the Estate of Enid Costello) v Greif (UK) Limited [2011] UKSC 10 was whether the so-called Fairchild exception applied to cases where only one defendant had been proved to have exposed the victims to asbestos, but where the victims were also at risk of developing the disease from environmental exposure to asbestos in the general atmosphere.

The exception followed the House of Lords decision in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22. The Fairchild rule says that defendants whose breaches of their duty of care “materially increase the risk” of mesothelioma are jointly and severally liable for the damage suffered if mesothelioma does develop.

It therefore relaxes the normal requirement that the claimant has to show it is more likely than not that the harm was caused by the defendant’s breach. The reason for the rule is that medical science cannot determine which asbestos fibre or fibres has caused the mesothelioma to develop. The disease can often develop decades after exposure.

In the Knowsley case, Dianne Willmore was found to have been exposed to asbestos at her secondary school when she was 11. She died on 15 October 2009 at the age of 49, just a day after the Court of Appeal upheld the trial judge’s decision to apply the Fairchild exception and award her £240,000 in damages.

Enid Costello had meanwhile been wrongly exposed to asbestos at a factory where she worked in an office. The trial judge ruled that this had increased her total level of exposure over the general environmental exposure by 18%. However, he ruled that the exception did not apply and that Mrs Costello had failed to establish that this occupational exposure to asbestos was the likely cause of her mesothelioma. This decision was reversed by the Court of Appeal.

In both cases, the defendants appealed to the Supreme Court, arguing that the Fairchild exception should not apply in proceedings against one defendant. They argued that liability could only be established if the claimant could prove on the balance of probability that the mesotheloma was caused by the defendant’s exposure. The claimants would therefore have to proved that the exposure had at least doubled the risk of mesothelioma developing.

The Supreme Court rejected these arguments and dismissed the appeals. Giving the lead judgment, Lord Phillips said the rule in Fairchild (and in Barker v Corus [2010] UKHL 20) was adopted in order to cater for the ignorance at the time of those decisions about the way in which mesothelioma was caused. The courts are not precluded from reverting to the conventional approach of balance of probabilities in mesothelioma cases should advances in medical science in relation to the disease make such a step appropriate, he added.

The judge pointed out that in the Barker case the House of Lords had refined the Fairchild rule by making each employer only liable for the proportion of damages which represented his contribution to the risk.

Parliament then intervened, with section 3 of the Compensation Act 2006 providing that where a person was liable under the common law in tort to a victim, that liability was for the whole of the damage caused, jointly and severally with any other responsible person.

“The 2006 Act, coupled with Fairchild, has draconian consequences for an employer who has been responsible for only a small proportion of the overall exposure of a claimant to asbestos dust, or his insurers, but it would be wrong to have regard to that fact when considering the issues raised by these appeals,” Lord Phillips said. “Parliament has willed it so.”

The Supreme Court ruled that the Fairchild exception applies to single defendants. Lord Phillips also said there was no justification for adopting – in the way the judge in the Greif had done to reject the claimant's case – the “doubles the risk” argument as the benchmark for what constituted a material increase of risk.

“I doubt whether it is ever possible to define, in quantitative terms, what for the purposes of the application of any principle in law, is de minimis,” he said. “This must be a question for the judge on the facts of the particular case. “

Both appeals were dismissed. The challenges to the findings of fact in the Knowsley case failed, although Lord Rodger said some of the inferences Nicol J drew in Mrs Willmore’s favour from the evidence relating to her exposure at Bowring Comprehensive “can properly be regarded as very generous”.

“With considerable hesitation, however, I have concluded that the criticisms would not justify this Court in taking the exceptional step of disturbing the concurrent findings of fact of the courts below,” he added.

In the Costello case, Lord Phillips said that although the judge had not expressly considered whether the exposure materially increased the risk, if he had thought it insignificant he would have said so.

Philip Hoult