Carder v The University of Exeter

In a divisible, dose-related disease such as asbestosis, a claimant need not show that the defendant’s exposure produced a separately measurable change in symptoms, disability or prognosis. The question is whether the exposure made the claimant materially, meaning more than negligibly, worse off physically or economically. Each exposure may contribute to the disease in proportion to dose. A material contribution to the severity or extent of the disease can therefore constitute actionable damage, even where its effects are not observable. The description of the condition as disease, injury or disability does not determine the issue. Where the contribution is quantifiable, damages may be apportioned accordingly.

Mr Carder, aged 87, suffered from asbestosis following asbestos exposure during several employments. Approximately 97% of his exposure was attributable to a former employer, while 2.3% was attributable to the University of Exeter. The University accepted that the exposure contributed materially, though very slightly, to the asbestosis, but argued that it caused no actionable damage because it produced no measurable difference in symptoms, disability or prognosis.

His Honour Judge Gore QC held that the exposure caused actionable damage and awarded £1,552.50, representing 2.3% of the assessed full liability value of £67,500. The University appealed. The central issue was whether a material contribution to a dose-related disease could constitute actionable damage without a separately measurable effect.

Appeal dismissed. The Master of the Rolls delivered the leading judgment. Gross LJ and Christopher Clarke LJ agreed.

1. A tort which is not actionable per se requires proof of actionable damage. The relevant question is whether the claimant has been materially, meaning more than negligibly, worse off physically or economically. It is unhelpful to decide the issue by choosing between labels such as disease, injury, impairment and disability.
2. The approach in Rothwell v Chemical and Insulating Company Limited [2007] UKHL 39 and [2008] 1 AC 281 requires attention to whether the claimant is worse off, rather than merely whether there has been a physical change. Pleural plaques were non-harmful and therefore did not constitute actionable damage. Asbestosis, if more than negligible, was materially different.
3. Asbestosis is a divisible, dose-related disease. Its severity reflects cumulative exposure, and each source contributes approximately in proportion to dose. Consistently with Cartledge v Jopling [1963] AC 758, Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086, whether the contribution is material is a question of fact and degree.
4. The expert’s answers concerned observable, measurable and subjective effects. They did not establish that the exposure made no objective difference to the severity of the disease. The University accepted that its 2.3% contribution was material. That concession was critical: the severity of the asbestosis had been increased to a small but non-de minimis extent, so Mr Carder was slightly worse off and had suffered actionable damage.
5. Several factors relied on by the trial judge carried little weight. The overall risks and progression of the disease did not directly address the incremental effect of the University’s exposure. Nevertheless, the judge reached the correct conclusion. The quantifiable contribution meant that damages were properly assessed at 2.3% of the full liability value, namely £1,552.50.

• Court of Appeal (Civil Division): The appeal was dismissed. [2016] EWCA Civ 790
• High Court of Justice, Queen’s Bench Division: His Honour Judge Gore QC held that the claimant’s exposure attributable to the University caused actionable damage and awarded £1,552.50. [2015] EWHC 2399 (QB)