the risk that the employee would contract mesothelioma. That, coupled
with the fact that mesothelioma had been contracted and that it was not
possible to tell when the fatal inhalation had taken place, justified, in their
Lordships' view, the imposition of liability on each employer who had
contributed to the risk.
While Barker ruled in favour of several liability where the Fairchild principle was
being applied, the approach was subsequently reversed by the UK Compensation Act
2006 which makes liability in such circumstances 'joint and several'.
In Sienkiewicz v Grief (2011), the UK Supreme Court (the successor to the House of
Lords), again considered the test of causation in the context of asbestos exposure.
This time the increased exposure created by the defendant's breach of duty was
particularly small: the judge at first instance found that the exposure to asbestos
over the deceased's working life at Greif’s factory increased the risk to which
environmental exposure subjected her from 24 cases per million to 28.39 cases per
million – an increase of risk of 18%.
Lord Phillips described the question for the court at para. 11:
Knowledge about mesothelioma is based in part on medical science and in
part on statistical analysis or epidemiology. These appeals raise the
question of whether, and if so to what extent, the court can satisfactorily
base conclusions about causation on the latter, both in mesothelioma cases
and more generally.
It was submitted by the defendant that the 'double the risk' test for proving
causation should be applied. The theory that causation could be proved on the
balance of probabilities by reference to a doubling of the risk of injury was first
applied by Mackay J in the oral contraceptive litigation XYZ v Schering Health Care
Ltd (2002) 70 BMLR 88. As a preliminary issue, the parties agreed that the judge
should examine the epidemiological evidence relating to the risk of deep vein
thrombosis arising from two different types of oral contraceptive. The claimant
group could succeed only if the epidemiology showed that the risk of harm arising
from the type of contraceptive they had been taking (which it was assumed they had
not been warned about and would not have taken if warned) was at least twice that
arising from the type which they had formerly been taking (which it was assumed
they had been warned about and which risk they had accepted). The logic behind
this was that, if the risk from potential cause A is x% and the risk from the other
potential cause B is 2.1x%, it is more likely than not that the condition which has
eventuated has been caused by B.
Lord Phillips explained the circumstance in which he considered the 'doubles the
risk' test might be appropriate:
Where there are competing alternative, rather than cumulative, potential
causes of a disease or injury, such as in Hotson, I can see no reason in
principle why epidemiological evidence should not be used to show that
44
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