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David Platt KC wins test case on asbestos lung cancer claims

Mr. Justice Jay this morning handed down judgment in Heneghan v Manchester Dry Docks and others (attached). This important decision confirms for the first time that Fairchild applies to asbestos-induced lung cancer claims and that any damages awarded are divisible pursuant to the subsequent House of Lords’ decision in Barker. Barker therefore survives notwithstanding adverse comments made by the Court of Appeal in IEGL v Zurich.

Heneghan was a lung cancer claim where there was no dispute on liability and it was accepted by the Defendants that it was more likely than not that his cancer was caused by exposure to asbestos (he had a very substantial lifetime occupational dose). There were 6 Defendants and their individual share of exposure ranged between 2.5% and 12%. Their total cumulative share of the Claimant’s lifetime exposure was 35.2%. Gross quantum was agreed.

The Claimant contended that damages in such a case were in fact indivisible and that once medical causation had been proven (i.e. that asbestos was the cause of the lung cancer rather than smoking) then he was entitled to judgment in full against all six tortfeasors on the basis of material contribution to the injury- or indeed to the risk of such injury. This argument was rejected. Accordingly the Claimant received 35.2% of his damages rather than 100% given the exposure contribution made by the Defendants before the Court. As a result, lung cancer (and potentially other cancer claims) are indivisible conditions with divisible consequences

The lengthy judgment of Jay J. repays study. He agreed with the Defendants that epidemiological evidence could not be used in this case to answer the question of which Defendant was responsible for the culpable exposure. Accordingly the Claimant could prove against none of the defendants on conventional grounds despite all being guilty of negligent exposure. That led to the application of Fairchild and hence to Barker. The alternative was that the Claimant recovered no damages from any Defendant.

The Judge accepted the Defendants’ submissions that in cancer claims such as this a two stage test applied: (1) What caused the cancer (i.e. asbestos or smoking or something else) which was a question decided on the balance of probabilities; (2) Who caused the cancer, which was a conclusion which medical science could not reach when considering several “minority share” tortfeasors. Mr. Justice Jay did accept (and this remains contentious and may be explored in any appeal) that where a tortfeasor had been responsible for more than half of culpable exposure, then proof against that defendant was possible on the balance of probabilities.

Both Dr Robin Rudd and John Moore-Gillon gave evidence. The medical evidence of Dr Rudd which sought to show that every material exposure by an employer “contributed” to the actual onset of the cancer was not accepted by Mr. Justice Jay.

The Claimant was granted leave to appeal, and the Judge requested that the hearing was expedited in view of the life expectancy of the Deceased’s widow.

For a copy of the judgment click here.

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