Holtby v Brigham & Cowan (Hull) Ltd

A tortfeasor whose breach makes a material contribution to a cumulative industrial disease is liable only for the disability caused by that contribution, unless the injury is truly indivisible. The court must decide, on all the evidence, whether the defendant caused the whole disability or a quantifiable part. It must make the best practical assessment it can even where precise quantification is impossible. In cumulative-exposure cases, time-based apportionment will usually be appropriate unless unusual features justify another approach. The issue should be raised and addressed by evidence, although formal pleading is not strictly essential.

The claimant developed asbestosis after long employment as a marine fitter. He was exposed to asbestos for about 12 years while employed by the defendant and during further periods with other employers.

HH Judge Altman, sitting in the Queen's Bench Division, found the defendant negligent and in breach of statutory duty. He held that the defendant was responsible for only part of the disability caused by cumulative exposure and reduced most damages by 25 per cent. The claimant appealed.

The central issue was whether a defendant whose wrongdoing made a material contribution to cumulative asbestosis was liable for the whole disability or only its own contribution.

1. Appeal dismissed unanimously. Stuart-Smith LJ gave the principal judgment, with which Mummery LJ agreed. Clarke LJ agreed that the appeal should be dismissed and agreed on the defendant's liability and the assessment of damages.

2. The claimant had to prove that the defendant's negligence or breach of duty caused, or materially contributed to, his disability. That did not make the defendant liable for disability which was in fact caused by other exposure. Where cumulative exposure produces a disease capable of worsening over time, the injury is not necessarily truly indivisible. The defendant is liable for the part of the disability attributable to its contribution.

3. The court should determine the issue from all the evidence at the end of the case. Exact scientific allocation is unnecessary. It must make the best practical estimate, using common sense and making appropriate allowance for uncertainty. In the absence of an unusual feature, allocation by periods of material exposure is a sensible and legally correct method.

4. There was ample evidence that all asbestos exposure contributed to the claimant's condition and that the defendant's exposure accounted for only part of it. The judge was therefore entitled to reduce the relevant damages by 25 per cent. Indeed, Stuart-Smith LJ considered that, if all other employers had been before the court, a larger reduction might have been justified.

5. The procedural objection failed. The issue had been sufficiently raised by the medical material and at trial, and the claimant neither sought an adjournment nor recalled his expert. Stuart-Smith LJ, with whom Mummery LJ agreed, considered that a defendant did not strictly have to plead third-party responsibility, though it was desirable to do so and the matter had to be addressed in evidence. Clarke LJ would have required pleading and would have placed the burden of establishing other contributions on the defendant. Both judgments regarded recourse to burdens of proof as unlikely in practice because the assessment is a broad one.

6. The appeal was dismissed with costs, subject to detailed assessment in default of agreement.

• Court of Appeal (Civil Division) — in [2000] EWCA Civ 111, dismissed the claimant's appeal and upheld the 25 per cent reduction for disability attributable to other asbestos exposure.
• Queen's Bench Division — HH Judge Altman found the defendant negligent and in breach of statutory duty, held that the claim was not statute-barred, and awarded damages reduced to reflect other exposure.