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March 10, 2011

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Judgement reinforces asbestos-liability exemption rule

In a significant case for sufferers of mesothelioma caused by exposure to small amounts of asbestos, the Supreme Court has ruled in favour of two families, allowing them to retain the damages awarded by the courts for the deaths of their relatives.

The separate appeals by the defendants – steel-drum manufacturer Greif (UK) Ltd and Knowsley Metropolitan Borough Council – centred on whether a special rule for cases brought by persons who contract mesothelioma after being wrongly exposed to asbestos should apply in their cases, given that they were the sole defendants.

A general principle says a claimant seeking damages must show that it is more likely than not that the harm they have suffered has been caused by the defendant’s breach. But mesothelioma is deemed a special case because medical science cannot, at present, determine which asbestos fibre, or fibres, has caused the disease to develop.

Therefore, under what is known as the Fairchild exception, defendants whose breaches of their duty of care ‘materially increase the risk’ of mesothelioma are jointly liable for the damage suffered if the victim develops the disease.

Greif (UK) appealed to the Supreme Court after the Court of Appeal had ruled that the company was liable to pay damages to the family of Enid Costello, who died of mesothelioma in 2006. Mrs Costello had worked in an office at a factory of Greif, which was found to have wrongly exposed her to asbestos, although the level of the exposure was ‘very light’.

Knowsley MBC appealed against an original decision that awarded Barre Willmore – the husband of Dianne Willmore, who died of mesothelioma in 2009 after having been exposed to asbestos at her secondary school – damages amounting to £240,000.

Both defendants argued that the Fairchild exception should not apply when proceedings are directed against one defendant. They said, in such cases, liability could only be established if a claimant could prove on the balance of probability that the mesothelioma was caused by the defendant’s exposure – i.e. that the exposure had at least doubled the risk of the victim developing the disease.

The Supreme Court dismissed the appeals, holding that the Fairchild exception should apply to cases of mesothelioma involving a single defendant, and that there is no requirement for a claimant to show that the defendant’s breach of duty doubled the risk of developing the disease.

Ruth Davies, solicitor for Barre Willmore, commented after the ruling: “These cases were another attack on asbestos-disease victims. The defendants were trying to change the law that has been working perfectly well for many years so that fewer people who are dying can get properly compensated.”

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