Assessing material increase in mesothelioma claims
Following Weightmans successful defence earlier in the year in the case of Johnstone -v- Fawcett’s Garages (2025) EWCA Civ 467 the claimant/appellant’s application for permission to appeal to the Supreme Court was refused on 15 October 2025.
Lords Hodge, Hamblen and Richards found that the application did not raise an arguable point of law. The judgment of the Court of Appeal therefore stands and while there is no single court approved method for assessing material increase in risk, the use of studies such as Hodgson & Darnton and Peto & Rake together with epidemiological evidence is certainly a permissible approach, with many of the criticisms of those studies rejected by the High Court and Court of Appeal.
This refusal of permission to appeal therefore continues to allow the court to take a more nuanced approach to the assessment of material increase in risk, introducing factors such as age, gender, fibre toxicity, and the incidence of idiopathic disease, ignored by the exposure/risk approach adopted in Sienkiewicz.
