In December 2014 Asbestos Justice reported on the judgment in the case of Heneghan v Manchester Dry Docks Limited and 5 others  EWHC 4190 (QB). The case involved asbestos related lung cancer and how the condition should be treated in a case involving multiple Defendant employers.
Mr Heneghan was exposed to asbestos whilst working for a number of employers and sadly passed away due to lung cancer on 3rd January 2015. Only six of his former employers were traced and so proceedings were brought against these companies. His exposure with all six companies amounted to around 35% of the total asbestos dose Mr Heneghen had experienced during his working life.
Liability in the case was not in dispute and the Defendants had accepted that it was more likely than not that Mr Heneghan’s lung cancer had been caused by his asbestos exposure.
The Claimant’s legal team argued that as causation had been agreed and the cancer had been caused by asbestos and not any other cause, such as smoking, that the condition should be treated as an indivisible complaint. It was also argued that it was not possible to confirm which fibre had caused the lung cancer to develop, supporting the indivisible argument further as is the case with asbestos related mesothelioma.
With an indivisible condition, such as mesothelioma, each Defendant is separately liable for the Claimant’s whole loss. In practical terms, this means that if someone had 50% of their asbestos exposure with one company and 50% with another company, but only one company could be traced, that company would be liable for paying 100% of the claim’s value. With divisible diseases, such as asbestosis and pleural thickening, Defendants are only liable for the percentage of asbestos exposure they caused. For any Defendants that cannot be traced, the percentage of exposure is deducted from the value of the claim. This is known as a Holtby discount.
In the Heneghan case, the Claimant’s solicitors argued that each Defendant had made a material contribution to the development of Mr Heneghan’s lung cancer and so each should be held to be fully liable. The Defendants’ view was that whilst they had contributed to the risk of Mr Heneghan developing asbestos cancer, the exact cause of the cancer could not be proven. Therefore, they countered the Claimant argument, believing the condition should be treated as a divisible complaint.
The Judgment was passed down in December 2014 in the Defendants’ favour, with each Defendant only being held liable to pay compensation on an apportioned basis.
The Claimant appealed the decision and a further Judgment was handed down from the Court of Appeal on 15th February 2016. The appeal was dismissed.
The aim of the Claimant’s appeal was to overturn Mr Justice Jay’s conclusion in relation to the medical evidence in the case. The Claimant argued that the exposure attributable to each Defendant had materially contributed to Mr Heneghan’s disease and so the Fairchild principle should not apply.
The so called Fairchild exception from Fairchild v Glenhaven Funeral Services Ltd  UKHL 22) states that defendants should only be liable for their respective shares of exposure.
The appeal Judgment was given by Lord Dyson, the Master of the Rolls who rejected the Claimant’s argument that it could be inferred from the medical evidence that any defendants made a material contribution to the development of Mr Heneghan’s asbestos related lung cancer. Therefore, the Fairchild principle stood and each Defendant in the case was only responsible for their respective proportions of asbestos exposure. The Court of Appeal followed the House of Lord’s decision in the case of Barker which was thought to still remain, good law.
This decision causes problems for Claimants diagnosed with asbestos related lung cancer as they will no longer be able to recover 100% of their asbestos compensation from an employer who made a material contribution to the development of the disease. For example, if an employer was found to be responsible for only 20% of the Claimant’s overall dose of asbestos exposure, that employer would only have to pay 20% of the value of the claim to the Claimant, due to asbestos related lung cancer now being treated as a divisible condition.
Asbestos Justice hopes that as was the case in mesothelioma claims, the Government will intervene to overturn the decision, by passing legislation to ensure that sufferers of asbestos related lung cancer are able to recover 100% of the value of their claims from negligent Defendants.
Unfortunately, the Heneghen decision did not shed any further light on what would happen in a case where a Defendant was found to be responsible for exposing a Claimant to over 50% of his total asbestos dose, thus opening the door to a Claimant arguing that such a Defendant had caused the lung cancer on a simple balance of probabilities test. The judges refused to comment on this as Mr Heneghen had only traced around 35% of this total exposure history with the six pursued Defendants.
This point remains in the balance and further court decisions are likely to cover this anomaly in the future. We will continue to monitor developments closely and will keep you updated.
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