The claimant employee was exposed to asbestos over the course of his working life, during which he was employed by the six defendant employers. He died from lung cancer and the issue in this case was whether each defendant was liable and, if so, whether it would be liable in full or in part. The parties agreed that the claimant's cumulative exposure to asbestos had increased his risk of developing lung cancer fivefold. Since the claimant was also a smoker, this risk had further increased by a multiple of five.
Following the decision in Fairchild v Glenhaven Funeral Services Ltd (2002), a defendant to a mesothelioma claim is liable if the negligent exposure "materially increased the risk" of the claimant developing the disease. This is an exception to the normal common law rule that that a claimant must show, on the balance of probabilities, that the defendant's tort caused his injury (applying the "but for" test). This exception was developed because for mesothelioma it is impossible to say which exposure to asbestos triggered the disease. It resulted in an employee being able to sue any one of his employers in full.
The issue in this case was whether the common law should, for these purposes, treat lung cancer in the same way as mesothelioma. Jay J held that it should, because the two are "legally indistinguishable". He therefore rejected the defendants' argument that there is an "intermediate" category of cases which fall between the conventional approach and Fairchild.
However, the judge also held that apportionment was appropriate in this case: "A proportionate recovery may not be a particularly principled one, in the sense that in an indivisible injury case such as the present principle would require full recovery; but ... after all, adherence to the conventional common law approach, which is entirely principled, would lead to no recovery at all".
Heneghan v Manchester Dry Docks Ltd [2014] EWHC 4190 (QB)
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