Heneghan v Manchester Dry Docks Ltd & Ors [2016] EWCA Civ 86 (15 February 2016)

“This case concerns (i) an individual (Mr James Heneghan) who died of lung cancer; where (ii) it is common ground that the cancer was caused by his exposure to asbestos fibres; (iii) he was exposed to the asbestos inter alia whilst he was employed successively by each of the six defendants; (iv) biological evidence cannot establish which (if any) of the exposures triggered the cell changes in his body which led to his contracting the disease; but (v) epidemiological or statistical evidence can establish by how much the exposure attributable to each defendant increased the risk that he would contract the disease. The question is: how should the law deal with the issue of causation as between the claimant and each defendant in these circumstances? Jay J applied the so-called Fairchild exception (Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32) and awarded damages against each defendant in proportion to the increase in risk for which it was responsible. The claimant appeals with the permission of the judge and says that the judge should have held that each defendant had materially contributed to the cancer and was liable for damages in full. The defendants say that the judge reached the right conclusion for the right reasons.” (paragaph 1)

“Claimant concedes that causation cannot be established against any of the defendants on the conventional “but for” test. For the reasons that I have given, I do not accept his submission that it is possible to infer from the epidemiological evidence that all or any of the defendants made a material contribution to Mr Heneghan’s contracting of lung cancer. All of the defendants did, however, materially contribute to the risk that he would contract lung cancer. The judge was, therefore, right to apply the Fairchild exception.” (paragraph 50)

Appeal dismissed.