Carl Heneghan (Son & Executor Of James Leo Heneghan, Deceased) v Manchester Dry Docks Ltd & 5 Ors [2016] EWCA Civ 86

The appellant’s father (H) had been exposed to asbestos in the course of his employment with the respondents (as well as earlier employers who had not been sued). The medical experts agreed that, on the balance of probabilities, H would not have developed lung cancer if he had not been exposed to asbestos. It was further agreed that (a) the respondents were responsible for 35.2% of the whole exposure and (b) medical science could not establish which, if any, of the exposures had triggered the changes in H’s body which led to him developing the disease. The judge awarded damages against each respondent in proportion to the increase in risk for which it was responsible, applying Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 A.C. 32. The appellant argued that the judge should have held that, as each respondent had materially contributed to the cancer, each was liable for damages in full.

HELD: The principle in McGhee v National Coal Board [1973] 1 W.L.R. 1 had been adopted in order to find a just solution in cases where the usual rules of causation would result in a claimant failing to prove his case even though the defendant had materially increased the risk that the claimant would suffer injury. Bonnington Castings Ltd v Wardlaw [1956] A.C. 613 applied in cases where the court was satisfied that the exposure for which the defendant was responsible had contributed to the injury. In cases where the scientific evidence did not support a finding that a particular defendant contributed to the injury, the Fairchild exception applies. The factors identified in Fairchild applied in the instant case: (a) all the respondents conceded breach of duty; (b) all the respondents had increased the risk that H would contract lung cancer; (c) all had exposed H to the same causative agent, namely asbestos fibres; (d) medical science was unable to determine which respondent was responsible for the exposure which actually caused the cancer. Therefore, the judge had been right to apply the Fairchild exception. It was not possible to infer that all or any of the respondents had made a material contribution to H’s cancer. The appeal was dismissed.

March 28, 2016 В· Editorial Team В· Comments Closed
Posted in: Cases