In Fairchild, the House of Lords relaxed the normal test for causation in the limited circumstances of a mesothelioma claim. Instead of being obliged to prove that a particular exposure caused the disease, it was enough to prove that an exposure materially increased the risk of developing the disease. The result was that causation was proved against several different employers who were each responsible for culpable exposure. The Court of Appeal characterised this as a new tort of negligently increasing the risk of personal injury. The subsequent decision in Corus ruled that liability under this relaxed test was several only; in Fairchild, it had been assumed that the liability was joint and several. Section 3 of the Compensation Act 2006 restored joint and several liability.
In Sinkiewicz, a lady developed mesothelioma. It was found that she had been tortiously exposed to asbestos dust at work during one period of employment. She had also been exposed (non-tortiously) to a low level of asbestos in the general atmosphere in the industrial area in which she lived. Evidence was available as to the relative level of the two exposures.
The Court of Appeal found that section 3 of the Compensation Act was available to anyone who could satisfy the Fairchild test of causation. The victim need only prove a material increase in risk. It was irrelevant that there might be other evidence that could have been examined to establish whether causation was proved by some other means. The decision is also noteworthy in that, without any hesitation, the Court of Appeal applied the Fairchild test to a situation where there was only one tortious exposure.
