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

Abstract

In the conjoined cases of Sienkiewicz and Willmore, the Supreme Court decided that the exceptional Fairchild approach to the proof of causation in negligence applied where a mesothelioma victim had been negligently exposed to asbestos by one defendant at a level well below unavoidable environmental asbestos exposure. The negligent exposures in both cases materially increased the risk of mesothelioma thereby satisfying the Fairchild test. Whilst reasserting 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 Fairchild 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 scientific evidence in the law of toxic torts.