Mayne v Atlas Stone Company Ltd & Ors

In a divisible industrial disease claim, a claimant need prove that the defendant’s breach materially contributed to an actionable injury caused by the totality of the exposure. The defendant’s contribution need not, viewed in isolation, have produced a perceptible or measurable injury. Where the overall injury is actionable, liability may be apportioned by reference to the defendant’s quantifiable contribution to the exposure and resulting disability. The de minimis threshold applies to the injury as a whole, not to each individual tortfeasor’s contribution.

The claimant, as executrix of the deceased’s estate, continued a personal injury claim against three former employers arising from occupational asbestos exposure. Only the second defendant remained sued because insurance cover could not be identified for the first and third defendants.

The second defendant admitted breach of duty but disputed causation. The medical evidence established an actionable asbestos-related disability, but the second defendant’s contribution to the total asbestos exposure was 8.16 per cent. That contribution represented approximately 0.4 per cent disability and would not have been perceptible to the deceased or an observer. The issue was whether that imperceptible contribution could constitute an actionable injury and, if so, how damages should be assessed.

1. Actionable injury and material contribution. The claimant established an actionable injury resulting from the totality of the asbestos exposure. The overall disability was plainly more than de minimis. Under Bonnington Castings Ltd v Wardlaw [1956] AC 613 and Rothwell v Chemical and Insulating Company Ltd [2008] 1 AC 281, the question was whether the defendant materially contributed to that actionable injury.
2. The defendant’s contribution did not have to produce a separately discernible or measurable injury. Requiring proof that each individual exposure independently caused perceptible disability would disregard the cumulative nature of asbestos disease and produce arbitrary and unfair outcomes. The reasoning in Carder v University of Exeter [2015] EWHC 2399 (QB) was respectfully adopted.
3. Apportionment. Applying Holtby v Brigham and Cowan (Hull) Ltd [2000] ICR 1086, the defendant was liable for the quantifiable part of the disability attributable to its contribution. The appropriate approach was to assess the damages for the whole asbestos-related disability and apportion them according to exposure.
4. The appropriate general damages were 8.16 per cent of £12,600, namely £1,028. Judgment was therefore entered for the claimant against the second defendant in that sum.