Heneghan -v- Manchester Dry Docks Limited and 5 others [2014] EWHC 4190 (AB)

This is an important decision for defendants who face litigation from claimants or their estates, where there is exposure across multiple years and employers, particularly where some employers are not parties to the claim. The decision clarifies that their liability is limited to the proportionate share of the cumulative exposure. 

Facts

The deceased was allegedly exposed to a considerable amount of asbestos when working for six defendants between 1961 and 1974. There were earlier employers who were not pursued. He developed lung cancer symptoms during November 2011 and passed away on 3 January 2013. The claim was brought by his son who claimed on behalf of his surviving mother as a dependant to the estate.

Issues

There was no issue in relation to liability. It was accepted that the deceased cancer was caused by exposure to asbestos due to a substantial lifetime occupational dose.

The sole issue for the court to determine was whether each defendant was liable for damages in full; or for only a proportion of the damages equivalent to the time the deceased had been in their employment.

It was the claimant’s position that he should recover in full, in the sum of £175,000, whereas the defendants argued the contrary, with the proposed award limited to £61,600, being the cumulative share of lifetime exposure of the six defendants (totalling 35.2% with the individual shares ranging between 2.5% and 12%).

Engineering evidence

Mr John Raper was instructed to consider the levels of exposure to asbestos fibres referable to the deceased’s employments. He found that:

  • The exposure attributable to the employers who were not sued was 86.2 f/ml years and the six defendants’ cumulative exposure was 46.9 f/ml years, yielding an apportionment of 35.2%.
  • Upon analysing the deceased’s exposure on a defendant specific basis, this produced doses or exposures ranging between 13.4 f/ml years for the third defendant = 10.1% of total exposure and 3.3 f/ml years for the fourth Defendant = 2.5% of the total exposure.

The deceased’s exposure of 133.1 f/ml years included 114 f/ml years of amphibole; the relevant threshold applicable. All parties were content to proceed on the agreed basis of a more than fivefold increase of the risk of lung cancer when taking the cumulative exposure to asbestos fibres over the whole of the deceased’s employments.

Decision

Mr Justice Jay accepted the defendants’ submissions and the claimant recovered 35.2% (61,600) (taken on the exposure contribution of the defendants pursued) of his damages not 100% (£175,000).

This decision fairly concludes that defendants are liable for damages in proportion to their share of cumulative exposure.

The claimant was granted leave to appeal. This was stayed pending the Supreme Court’s decision in International Energy Group Limited (Respondent) v Zurich Insurance PLC UK Branch (Appellant) UKSC 2013/0057 which is due imminently. However, we understand that the Claimant has recently made an application for expedited appeal.