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We write as the three medical witnesses who provided evidence (all in writing, two orally) to the Court in the case referred to by Professor Seaton. Essentially we agree with his analysis. The medical evidence presented to the Court made it clear that the risk of mesothelioma increases in relation to the dose of asbestos and that it is not possible to identify the particular fibre or fibres involved in the genesis of a particular mesothelioma. From an epidemiological standpoint it is therefore appropriate to regard all sources of significant exposure as having contributed to causation of the disease, in the same way that all cigarettes smoked would be considered to have contributed to causation of a lung cancer.
Mr Justice Curtis, however, accepted the invitation of Leading Counsel for one of the defendants to adopt a strictly mechanistic approach to causation. He decided that, because the claimant could not show whether the fibre or fibres actually involved in the genesis of the tumour were derived from either or both of two sources of exposure, causation could not be established against either of two defendants.
More recently, a different view has been taken in a similar case by Mr Justice Mitting (Queen's Bench Division C20010111) He considered that there was “no substantial difference between saying that what the defendant did materially increased the risk of injury to the claimant and saying that what the defendant did made a material contribution to his injury”. It would be “wholly artificial to require a claimant to prove which fibre or fibres, inhaled in whose employment in precisely what circumstances, caused or set off or contributed to the process by which one or more mesothelial cells become malignant”. He concluded that breach of duty on the part of both defendants caused the mesothelioma.
Both cases are soon to be considered by the Court of Appeal and the outcome will determine whether the many mesothelioma victims who happen to have derived their asbestos exposure from more than one source are to be left without redress.
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