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PI and Civil Litigation

Law - practice - procedure

04 MAR 2015

Henegham (Con and Administrator of the Estate of James Leo Heneghan, Deceased) v Manchester Dry Docks Ltd and others [2014] EWHC 4190 (QB)

Lung Cancer – Apportionment of Damages – Fairchild

High Court, Queen’s Bench Division: Jay J

11 December 2014

The claimant developed lung cancer as a result of exposure to asbestos fibres and dust during the course of his career. The court held that in causation, each defendant was not liable for damages in full but for only a portion of the damages.

Between 1961 and 1974 the deceased was employed by a number of employers on a sequential basis. The six defendants identified in the action exposed the deceased to 35.2% of the asbestos over the course of his working life. Each defendant’s contribution had been quantified and agreed and the court was asked only to determine whether each defendant was liable for damages in full or for only a portion of the damages.

The claimant submitted that lung cancer cases fell between the conventional causation approach and the Fairchild exception of material contribution, submitting that in lung cancer cases the ‘but for’ test must be satisfied in connection with medical causation but that a different question arose at the stage of attribution of causation to any of the individual defendants. The claimant submitted that at this stage, the court was entitled to conclude that any defendant who made a material contribution to the exposure made a material contribution to the injury and was responsible for damages in full.

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The judge concluded that previous case-law that had been decided was based either on the conventional approaches or the Fairchild approach and heldthat the claimant was trying to create a middle ground, which simply did not exist. In fact, in this case the ‘but for’ test had not been shown in medical causation – while it was shown on the balance of probabilities that the deceased’s lung cancer had not been caused by non-occupational factors it had not been shown that any defendant who had been sued had caused the deceased’s lung cancer.

It followed that apportionment was the appropriate outcome in the case and the claimant’s recovery was limited to 35.2% of the full damages.

It is surprising that this issue had not previously been determined, as this would have had the potential, as in this case, to limit defendants’ outlay to the percentage attributable to them. Whilst this case may seem unfair on the claimantit is clear why the court took this approach. To do otherwise would have led to 100 percent recovery and could potentially have meant the whole claim being met by any one defendant who had the means.

Summarised by Joseph Carr and Amy Wedgewood, Anthony Gold Solicitors