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Heneghan: damages for asbestos-assoctiated lung cancer are divisible

David Platt KC and Peter Houghton have secured a significant victory for insurers on appeal in the leading asbestos-related lung cancer case of Heneghan v Manchester Dry Docks Ltd & Ors. The Court of Appeal (Lord Dyson MR, Tomlinson and Sales LJJ) today delivered judgment upholding Jay J’s decision and dismissing the Claimant’s appeal.

The case concerns the proper approach to causation and apportionment in multi-party asbestos-related lung cancer cases. At first instance the Claimant argued that every defendant who tortiously exposed a lung cancer sufferer to asbestos should be held jointly and severally liable for full damages. The Respondents argued successfully that each defendant’s liability was based on materially increasing the risk of lung cancer – since it could not be said that any defendant had actually caused the cancer – and thus on the Fairchild principle. The result was that apportionment under Barker applied – each defendant was liable only in proportion to its contribution to risk – because s.3 of the Compensation Act 2006 which reversed Barker for mesothelioma claims did not apply to lung cancer.

The Claimant appealed Jay J’s decision but the Court of Appeal unanimously found for the Respondents. Lord Dyson MR gave the leading judgment. He explained that the medical evidence did not provide specific evidence of individual causation directed to individual defendants (at [31]). The Claimant’s reliance on Bonnington Castings was rejected (at [34]-[41]), and in rejecting it the Master of Rolls approved the analysis of Swift J in the Phurnacite litigation. The Bonnington material contribution principle could not be used to bridge the evidential gap in an asbestos-related lung cancer claim (at [41]). Dr Rudd’s assertion that every period of exposure in fact contributed to the development of cancer was “not a medical opinion” but an attempt to infer causation from epidemiological evidence. However it was wrong to draw such an inference; the epidemiology allowed the quantification of each defendant’s contribution to the risk of cancer but went no further (at [42]). There was a fundamental difference between making a material contribution to an injury (Bonnington) and materially increasing the risk of an injury (McGhee, Fairchild) (at [45]); the two could not be equiparated. Bonnington was reserved for the situation where the court was “satisfied on scientific evidence” that a defendant had in fact contributed to the injury (at [46]). The Fairchild principle applied to an asbestos-related lung cancer case since the key factors for its application were present: (i) all defendants were in breach of duty to the Deceased; (ii) all increased his risk of contracting lung cancer; (iii) all exposed him to the same agent implicated in causation (asbestos); (iv) medical science could not determine which if any of the defendants had given him the exposure which actually caused the cell changes that culminated in the cancer (at [47]). There was no objection in principle to extending Fairchild to a situation that was truly analogous (at [48]).

Jay J’s obiter observation at [61] of his judgment – that causation might be established on conventional principles against a defendant who contributed more than 50% of a claimant’s total dose – was not fully argued nor examined by the Court. Both the Master of Rolls and Tomlinson LJ reserved their opinion on whether the Judge was correct. Sales LJ (making a minority obiter observation on the point) also did likewise. It is very doubtful that Jay J was correct on this point. As the Court of Appeal pointed out, both parties considered the Judge was wrong for a variety of reasons.

The Judgment is available here.

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