Weekly Update - A Summary Of Recent Developments In Insurance, Reinsurance And Litigation Law - 10/11

This Week's Caselaw

Sienkiewicz v Grief (UK) Ltd

Supreme Court rules on causation test for mesothelioma in "single exposure" cases

http://www.bailii.org/uk/cases/UKSC/2011/10.html

The unusual features of mesothelioma (see Weekly Update 38/10 for further details) have led to the development of a special test of causation for the disease (it being impossible for a claimant to prove causation according to the conventional "but for" test). The case of Fairchild v Glenhaven [2002] provided a cause of action "against a defendant who has materially increased the risk that the claimant will suffer damage and may have caused that damage, but cannot be proved to have done so because it is impossible to show, on a balance of probability, that some other exposure to the same risk may not have caused it instead" (as per Lord Hoffmann) (emphasis added). In Barker v Corus [2006] it was established that, where not all those who were responsible for an employee's mesothelioma were before the court, only a proportion of the relevant damages would be recoverable. Section 3 of the Compensation Act 2006 reversed that finding and, as a result, (and on the satisfaction of certain conditions) an employer who negligently exposes an employee to asbestos (and is liable by reason of having materially increased a risk) can be held liable for the whole of the damage even though another person may also have exposed the victim to asbestos.

Of issue in this case was which causation test applies in a "single exposure" case (ie the claimant alleges only one possible tortious source for the asbestos exposure). Is it the Fairchild test ("materially increased the risk") or is it the alternative "doubles the risk" test i.e. it must be shown that the exposure for which the employer was responsible has more than doubled the environmental exposure (in this test case, it was proven that the employer had only increased the exposure which the employee would have otherwise experienced as a result of environmental exposure to asbestos by 18%).

The House of Lords has unanimously held that the special rule established in Fairchild applied. There was no room for the "doubles the risk" approach. This was the case even though, as Lord Brown recognised, the result is the liability in full even of someone who is responsible for only a small proportion of the overall exposure of a claimant to asbestos dust.

Meat Corporation of Namibia v Dawn Meats

Whether expert was independent/disclosure of privileged information

http://www.bailii.org/cgibin/markup.cgi?doc=/ew/cases/EWHC/Ch/2011/474.html&query=title+(+meat+and+namibia+and+dawn+)&method=boolean

The claimant sought a direction that permission to call an expert (sought by the defendant) be refused because she had seen confidential and privileged information and because she lacked the necessary independence of an expert. Both sides had tried to instruct her, and in the course of negotiations, the claimant had supplied certain materials to the expert, who had then chosen to act for the defendant. Mann J held as follows:

It was undisputed that the expert had received privileged and confidential...