Heneghan v Manchester Dry Docks Ltd & Ors

Where asbestos exposure is proved to have caused lung cancer overall, but science cannot show that any particular employer’s exposure actually contributed to the cancer, an employer is not liable on the ordinary material-contribution-to-damage principle merely because its breach increased the risk.

The Fairchild exception applies where each defendant breached duty, materially increased the risk through the same causative agent, and medical science cannot identify the causative exposure. Liability is then apportioned by each defendant’s contribution to risk. Epidemiological evidence may establish that asbestos caused the disease, but it cannot, without more, establish which individual exposure caused it.

The deceased developed and died from asbestos-related lung cancer after successive employments with six defendants. It was agreed that his cumulative asbestos exposure more than doubled the risk of lung cancer, but that no individual defendant’s exposure did so. Medical science could not identify the exposure that initiated the cellular changes leading to the cancer.

Jay J entered judgment by consent on liability but held that the defendants were liable only for their respective risk-based shares, awarding £61,600 rather than the £175,000 claimed in full. The claimant appealed, contending that each defendant had materially contributed to the disease itself. The central issue was whether ordinary material contribution to damage, rather than the Fairchild exception, governed multi-employer asbestos-related lung cancer.

1. Appeal dismissed. The court upheld Jay J’s award of damages apportioned by the defendants’ respective contributions to risk.

2. The ordinary material-contribution principle in Bonnington Castings applies where the evidence establishes that a defendant’s breach actually contributed to a cumulative disease process. It was inapplicable to this indivisible lung cancer. Unlike pneumoconiosis, increased asbestos exposure increased the statistical risk of cancer but did not establish that the exposure had actually contributed to the particular cancer.

3. The epidemiological evidence established the what question: cumulative asbestos exposure had, on the balance of probabilities, caused the cancer because it more than doubled the relevant risk. It could not answer the who question. No evidence showed that exposure attributable to any individual defendant had caused or contributed to the disease. The court therefore rejected the proposed inference that every period of exposure materially contributed to the cancer.

4. The conditions for the Fairchild exception, derived from Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, were satisfied. Each defendant was in breach of duty, each materially increased the risk through the same agency—asbestos fibres—and medical science could not identify the exposure responsible for the initiating cellular changes. Principle required the exception to apply to a disease materially analogous to mesothelioma. Under Barker v Corus UK Ltd [2006] UKHL 20, liability was apportioned according to risk. Section 3 of the Compensation Act 2006, which reverses that apportionment for mesothelioma, did not apply to lung cancer.

5. Sales LJ additionally reserved, as unnecessary and insufficiently argued, the question whether an employer responsible for doubling the relevant risk might be liable on ordinary principles alongside other employers liable only under Fairchild.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal and upheld risk-based apportionment: [2016] EWCA Civ 86.
• High Court of Justice, Queen’s Bench Division — Jay J held that the Fairchild exception applied and awarded £61,600, rather than damages in full.