The High Court in London handed down judgement in the case of Heneghan v Manchester Dry Docks Limited and 5 others  EWHC 4190 (QB) on 11th December 2014. The decision seeks to provide guidance on how the payment of asbestos related lung cancer compensation will be treated when a case is brought against multiple Defendants. The case was noted by the court to “give rise to problems of some difficulty and importance” in the field of asbestos disease claims.
Mr Heneghan’s Story
The late Mr Heneghan was exposed to a considerable amount of asbestos dust when working for the 6 Defendant parties between 1961 and 1974. He sadly developed lung cancer symptoms during November of 2011 and passed away on 3rd January 2013. The case was brought by the deceased son who continues with the claimon behalf of his surviving mother as a dependent and his late father’s estate.
Proof of Exposure
As is the norm in asbestos related lung cancer cases, there was a need to show that Mr Heneghan had been exposed to sufficient quantities of asbestos to have more than doubled the risk of him developing lung cancer, in order to prove that his condition was asbestos related. This was referred to in the case as the first stage of establishing causation in a lung cancer case.
Exposure to many other carcinogens including cigarette smoke are well known to increase the risk of developing lung cancer and, therefore, there is always a requirement in such cases to establish significant exposure to asbestos dust in the workplace, opening up the need to obtain supportive engineering evidence.
Evidence Shows High Levels of Asbestos Exposure
Engineering evidence was obtained in the case for the purposes of assessing Mr Heneghan’s total dose to asbestos fibres over the course of the relevant period. The evidence from Mr Raper of Pragma Asbestos Limited showed that the deceased had been exposed to very high levels of the deadly dust, at an aggregate figure of 133 fibres/ml years. It is generally accepted that where a sufferer has been exposed to mixed asbestos fibres (blue and brown as well as white) over time, there is a need to establish a total asbestos exposure dosage in excess of 40 fibre/ml years following the decision in Shortell. Clearly, Mr Heneghan had sustained sufficient exposure to have more than doubled the risk of him developing lung cancer, caused by asbestos exposure and the medical experts agreed on this point.
The engineering evidence also provided a helpful breakdown of the exposure caused by the individual Defendants which in total amounted to 46.9 fibres/ml years or approximately 35.2% of Mr Heneghan’s total dose. The Defendants own contributions ranged from 10.1% down to 2.5% of the total exposure figure.
On medical causation, the deceased’s family was represented by the eminent Dr Robin Rudd with evidence being filed on behalf of the Defendants from the well respected Dr Moore-Gillon. Whilst the experts agreed that the deceased had suffered substantial exposure to asbestos, sufficient to have more than doubled the risk of him developing lung cancer, their opinions were poles apart when deciding on the key issue before the court.
Armed with Dr Rudd’s evidence, the Claimant argued that he was entitled to recover compensation against each Defendant in full as they had made a material contribution to the development of his father’s cancer.
Conversely, the Defendants argued that the Defendants liability to compensate the Claimant should be apportioned as between the Defendant parties based on their relevant percentage contributions to the deceased’s total dose of asbestos exposure. The evidence of their expert purported to show that only contribution to risk and not to the cause of the cancer could be proven, arguing that the principle laid out in the famous decision in Fairchild should apply and that liability should be apportioned as between the parties, following old House of Lord’s authority in the case of Barker.
Whilst mesothelioma sufferers and their families gained great success in Fairchild along with the passing of the Compensation Act 2006, which allowed them to recover 100% of the compensation awarded from one Defendant, providing it was shown that they had made a material contribution to the risk of the development of the condition, no such comfort was provided to asbestos related lung cancer sufferers and their families.
The case was heard by Justice Jay who considered multiple past decisions in reaching his conclusions on which argument was right in law. He found in the Defendants’ favour, reaching what many Claimant lawyers will see as a controversial conclusion, in that he stated,“lung cancer and mesothelioma are legally indistinguishable”. The judge also concluded that the Claimant was unable to prove causation of “actual injury” against any individual Defendant, in spite of this being an asbestos related lung cancer. He decided that all that could be proved was a contribution to the risk of the development of the conditionand by taking these conclusions into account, he decided to extend the Fairchild principle to lung cancer cases.
On the basis of the judge’s decision in Heneghan it was held that the Claimant had failed to establish that the individual exposures with each Defendant had caused the development of the lung cancer and therefore, the compensation would have to be apportioned in line with the decision in Barker which was not reversed by the Compensation Act of 2006, in contrast with the approach taken in mesothelioma cases.
The insurance industry will treat the decision as a significant victory as on the decision as it currently stands, individual insurers will only be liable to pay Claimants compensation on an apportioned basis if their overall contribution to the exposure amounted to less than 50%. Such success may well be short lived as the Claimants legal advisors do have permission to appeal to the Court of Appeal. The appeal itself will be heard on an expedited basis in view of Mrs Heneghan’s current, poor state of health.
Claimants who are able to establish that an individual Defendant was responsible for over 50% of the asbestos exposure dosage should be in a position to recover 100% of their asbestos related lung cancer compensation from that party on the basis that they will then have proved their case on the balance of probabilities. This finding comes as little comfort to Mr Heneghan and his family in that no Defendant in the case was responsible for exposure in excess of the 50% figure.
All is not lost for Mr Heneghan and other asbestos related lung cancer Claimants as further guidance on this issue is to be provided at Supreme Court level in the case of Zurich Insurance v IEGL, which is to be re-heard in early January 2015. In particular there will be great focus on whether the apportionment arguments, which succeeded in the case of Barker,still remain good law or not.
On appeal the Claimant is likely to argue that Justice Jay was wrong in concluding that mesothelioma and asbestos related lung cancer should be treated as indistinguishable conditions in law and thus, he should not have extended the Fairchild principle to lung cancer cases. Evidence will be relied upon showing lung cancer and mesothelioma to be entirely distinct conditions.
At Asbestos Justice we are in the process of dealing with cases for Claimants who face similar hurdles to those faced by Mr Heneghan in his case and we await the Supreme Court’s decision in the Zurich v IEGL litigation with great interest. Hopefully, the Defendants and their insurers’ victory in Heneghan will be short lived.
Image Credit: Manchester Evening News – Manchester Docks, November 1969