Heneghan v Manchester Dry Docks Ltd [15.02.16]

The Court of Appeal has extended the exception set out in Fairchild v Glenhaven Funeral Services Ltd [2002] to asbestos induced lung cancer claims. This decision emphasises the unique nature of asbestos litigation.

We consider the background to the case and the Court of Appeal’s clarification of the appropriate tests for causation and apportionment of damages. Will the claimant lobby now seek to extend the application of the Compensation Act 2006?

Background 

Mr Heneghan died from lung cancer in 2013. He had been exposed to asbestos by multiple employers. The total exposure dose was assessed at 133 fibre/ml years. Under the Helsinki criteria a cumulative exposure of 25 fibres/ml years is sufficient to infer that lung cancer is attributable to asbestos. 

Proceedings were issued against six Defendants. Their combined exposure was 46.9 fibres/ml years, or 35.2% of the total dose. The individual doses from each Defendant ranged from 2.5% to 10.1%. Biological evidence could not establish which, if any, of the exposures triggered the cancer. However, epidemiological evidence could establish the extent each Defendant had increased the risk of contracting the disease. 

The Defendants admitted breach of duty. The Claimant (the deceased’s son) argued that each Defendant was liable in full on the basis that each had materially contributed to the cancer. 

At first instance damages of £175,000 were awarded which were apportioned to reflect the increase in risk for which the Defendants were responsible, i.e. 35.2% equating to £61,600. The Claimant appealed. 

The two stages of causation 

The Court of Appeal held that a two-stage approach should be taken to causation in lung cancer cases:

  • The “what” question: i.e. what caused the deceased’s cancer? Was it asbestos, smoking or something else? The epidemiological evidence showed on the balance of probabilities it was asbestos. The deceased’s total exposure of 133 fibres/ml years was five times in excess of the Helsinki criteria, clearly satisfying the doubling of risk test. If a claim fails at this stage then it does not proceed to the second stage.
  • The “who” question: this arises in multi-contributor cases, i.e. who caused the cancer? Medical science is unable to answer this question. It could not be proven that any individual Defendant had doubled the risk. Under the normal rules of causation the claim would have therefore failed against all Defendants. However, the decision in Fairchild was applied.

Fairchild exception 

Mesothelioma and lung cancer are indivisible diseases, meaning the severity of the disease does not depend on the extent of exposure. The risk of developing mesothelioma and lung cancer increases in proportion to the asbestos inhaled. However, there is no way of identifying the source of the fibres which initiate the generic process culminating in the tumour. 

To overcome this evidential difficulty for claimants, the House of Lords in Fairchild adopted a modified approach to causation: proof that a defendant had materially contributed to the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. 

Court of Appeal decision 

The Court of Appeal clarified that there are three ways of establishing causation in disease cases:

  • But for test: but for the defendant’s negligence the claimant would not have suffered the disease. It was accepted by all parties that the deceased failed this test against all defendants.
  • Material contribution test: this was the test in Bonnington Castings Ltd v Wardlaw [1955]. In cases of cumulative exposure the defendant is liable where the breach made a material contribution to the injury.
  • Fairchild exception: for an indivisible disease where the defendant materially increased the risk of the victim contracting the disease.

Ultimately the Claimant wanted 100% of the damages as opposed to 35.2%. He claimed that policy considerations of justice should permit full recovery. The Claimant argued the Bonnington test should be applied to lung cancer cases and, if so, the exposure attributable to each Defendant contributed to the disease itself. 

The Court of Appeal rejected this approach. It applied the Fairchild exception for the following reasons:

  • Lung cancer and mesothelioma cases are legally indistinguishable diseases, which made it logical to follow the approach taken in Fairchild.
  • Bonnington (and the material contribution test) applied to divisible diseases, such as pneumoconiosis, where severity increases with increased exposure. The aetiology of lung cancer is different, since not every asbestos fibre is implicated in the disease process.
  • The epidemiological evidence on which the Claimant relied did not support the argument that the exposure with each Defendant contributed to the causation of the deceased’s cancer, it only allowed quantification of the risk.
  • The Claimant was mistaken to equate the creation of a material risk of injury with making a material contribution to the injury.
  • The test in Bonnington only applied where the court was satisfied on the scientific evidence that the exposure for which the defendant was responsible had in fact contributed to the injury. Where scientific evidence does not permit such a finding, then the Fairchild exception should be applied.

The Claimant’s appeal was therefore dismissed and the apportionment of damages stood.

Issues arising 

Barker v Corus Ltd [2006] addressed the issue of apportionment in mesothelioma claims and held a defendant was only liable in proportion to its own contribution to the exposure to asbestos and to risk. The decision was effectively overturned when the Government intervened and imposed joint and several liability on defendants under s.3 Compensation Act 2006. The Act applies to mesothelioma claims only. 

After the decision in Barker the Claimant lobby successfully petitioned for the introduction of the Compensation Act. We anticipate that it will now seek to extend the Act to include asbestos induced lung cancer claims. 

The Court of Appeal was not prepared to address the issue of the deceased’s former employer, who was not sued but was responsible for 56% of his total asbestos dose. The High Court had commented that this employer would have satisfied the second stage of the causation test to be held liable in full. Arguably this cannot be correct, since the second stage deals with the contribution to risk, which would be 56% and not 100%.