The Court of Appeal yesterday handed down judgment in the case of Heneghan -v- Manchester Dry Docks and others[2016] EWCA Civ 86. A full copy of the judgment is available here.

The case was heard by Mr Justice Jay in December 2014. His decision was significant to claimants and defendants alike as it purported to establish the correct approach to be applied to compensation in multi-defendant asbestos-related lung cancer claims.

The facts

The deceased died of lung cancer after occupational exposure to asbestos with several employers, including the six defendants. There were earlier employers who were not pursued. There was no dispute on liability and it was accepted by the parties that it was more likely than not that the cancer had been caused by exposure to asbestos.

It was agreed that the cumulative exposure with the defendants accounted for 35.2% of the deceased’s overall lifetime exposure. The defendants’ individual shares of exposure ranged between 2.5% and 12%.

The sole issue before the Court at first instance was whether each defendant was liable for damages in full or in proportion to their respective shares of exposure.

The judgment

Jay J preferred the defendant’s case, and applying the ‘Fairchild principles(Fairchild -v- Glenhaven Funeral Services Ltd[2002] UKHL 22) to causation concluded that the defendants should only be liable to contribute to the extent of their respective shares of exposure.

It had been agreed between the parties that had the claimant’s case on exposure been accepted, she would have been entitled to damages of £175,000. In the circumstances, her recovery was limited to £61,600. As such, the case was an important victory from the perspective of defendants/insurers.

The appeal

The focus of the claimant’s appeal was quite narrow. Their aim was to overturn the judge’s conclusion on the medical evidence so as to show material contribution in accordance with Bonnington Castings Ltd -v- Wardlaw [1956] AC 613. On behalf of the claimant, it was argued that the exposure attributable to each defendant had materially contributed to the disease itself and that as such, the Fairchild exception should not apply.

The leading judgment was given by the Master of the Rolls, Lord Dyson, who did not accept the claimant’s submission that it was possible to infer from the medical evidence that any of the defendants had made a material contribution to the deceased’s lung cancer.

He did find, however, that all of the defendants had materially contributed to the risk that the deceased would contract lung cancer. As such, Jay J had been correct in his application of Fairchild and the appeal was rejected.

Comment

At first instance, Jay J stated that he would have seen no difficulty in principle in concluding that a 56% share of exposure (that which was sustained by the deceased in respect of a period of employment with W.Blackwell, who were not sued) would have been sufficient to prove liability on a conventional balance of probabilities approach (paragraph 61).

Interestingly, despite the defendant’s submission that the Court should expressly disprove Jay J’s observations, the Court of Appeal declined to deal with this aspect in light of the fact that his comments were considered to be obiter and they had not heard adversarial argument on the point.

Accordingly, there remains a degree of uncertainty as to whether the Fairchild exception only applies to ‘minority’ tortfeasors i.e. where each defendant’s exposure is less than 51%. We can no doubt expect to see further litigation on this issue…