Robert O’Leary outlines what a claimant needs to prove in an occupational cancer claim in light of the Phurnacite Workers Group Litigation
The legal principles applicable to occupational cancer claims are the same as those in other personal injuries actions. The claimant must prove that the defendant owed him a duty in law, that the duty was breached, and that the breach has caused him injury, loss and damage. In such cases, however, other than those involving mesothelioma, the important question is often raised of how the burden of proof can be discharged where there are alternative potential causes of a disease.
Sienkiewicz
Before the decision of the Supreme Court in Sienkiewicz v Greif (UK) Ltd; Willmore v Knowsley Metropolitan Borough Council [2011] UKSC 10, a mesothelioma claim, the test applied by the courts was whether the claimant had proved that the defendant’s breach of duty more than doubled the relative risk of the claimant contracting the disease (the “doubles the risk” test). The “doubles the risk” test had been applied in Sienkiewicz in the Court of Appeal ([2009] EWCA Civ 1159)
