Carl Heneghan (Son and Executor of James Leo Heneghan, Deceased) v Manchester Dry Docks Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Tomlinson,Lord Justice Sales |
| Judgment Date | 15 February 2016 |
| Neutral Citation | [2016] EWCA Civ 86 |
| Docket Number | Case No: B3/2014/4329 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 February 2016 |
[2016] EWCA Civ 86
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR JUSTICE JAY
HQ12X03121
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Tomlinson
and
Lord Justice Sales
Case No: B3/2014/4329
David Allan QC and Simon Kilvington (instructed by Slater & Gordon (UK) LLP) for the Appellant
David Platt QC and Peter Houghton (instructed by BLM LLP) for the Respondents
Hearing dates: 18 & 19/01/2016
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.
Mr Heneghan was born on 8 March 1938. During the course of his working life, he was exposed to respirable asbestos fibres and dust. He was diagnosed as suffering from lung cancer in early 2012 and died from the disease on 3 January 2013.
He was employed by the six defendants successively between 1961 and 1974. There were earlier employers who have not been sued. The parties have agreed that (i) Mr Heneghan's exposure to asbestos over the course of his working life can be quantified as 133 fibres/ml years; (ii) the total exposure for which the six defendants were responsible was 46.9 fibres/ml years (i.e. 35.2% of the whole exposure); (iii) the doses or exposures for which the defendants were responsible range from 2.5% to 10.1%; (iv) cumulative exposure of 25 fibres/ml years is sufficient to enable an inference properly to be drawn that lung cancer in any individual case is attributable to asbestos, provided that there is a minimum ten year interval from first exposure to onset of the cancer; (v) the 25 fibres/ml year criterion remains appropriate for exposure to mixed fibre types with a preponderance of amphiboles: if exposure involved equal quantities of amphiboles and chrysotile, then cumulative exposure of 40 fibres/ml year is probably necessary to double the risk of lung cancer; and (vi) since the deceased's exposure included 114 fibres/ml years of amphibole, the relevant threshold is likely to be below the threshold of 40 fibres/ml years, and the parties have been content to proceed on the agreed basis of a more than five-fold increase in the risk of lung cancer attributable to Mr Heneghan's cumulative exposure to asbestos over the whole of his employments.
In these proceedings, damages are claimed on behalf of the estate of the deceased and on behalf of his widow against the six former employers alleging exposure to asbestos in breach of duty and further alleging that the asbestos to which each of the defendants exposed him caused his lung cancer.
Judgment was entered by consent against all of the defendants. The consent order identified that there was an issue as to "whether each defendant is liable for damages in full or for only a portion of the damages". It was common ground that (i) if the claimant's case on causation was right, he was entitled to £175,000, being the damages in full contemplated by the order; and (ii) if the defendants' case on causation was correct, the recoverable damages were £61,600 on the basis of the Fairchild exception.
In an impressive judgment given on 11 December 2014, Jay J accepted the submissions of the defendants and awarded the claimant £61,600. The appeal is of some general importance because this is the first time that the Court of Appeal has considered whether the Fairchild exception should be applied to a case of multiple exposures leading to lung cancer (as opposed to mesothelioma).
Some medical common ground
The judge summarised some medical common ground in these terms:
"15. On 12 November 2013 the medical experts produced a Joint Statement to the Court, points 2, 3 and 5 of which are relevant for present purposes:
'2. His risk of lung cancer was increased by smoking and by asbestos exposure.
3. On the balance of probabilities he would not have developed the lung cancer if he had not been exposed to asbestos.
…
5. The risk that lung cancer will develop increases with the amount smoked and with the dose of asbestos received. If a lung cancer does develop, then the duration and severity of symptoms and the eventual outcome are not affected by the amounts of smoking or asbestos exposure which led to that increase in risk.'
16. The medical experts are also agreed about the multiple mechanisms involved in the carcinogenesis of asbestos-related lung cancer. This involves a consideration of the microbiological processes occurring in cells, in particular cellular DNA, of the inhibitive effect asbestos has on programmed cell death, and of the reduction in the effectiveness of the body's natural defences against cancer caused by the presence of asbestos fibres in lung tissue. The precise detail does not matter for present purposes; it is sufficient to record that the experts are in general agreement that anything between four and seven stages in cellular mutation is required before the emergence of a cancer cell which may potentially progress to become a clinically apparent carcinoma of the lung."
The two stages of the causation question
It is not in dispute that the first question (the "what" question) is what probably caused the lung cancer. Was it asbestos, smoking or something else? It is not in dispute that epidemiology can be deployed to answer this question. Nor is it in dispute that the epidemiological evidence shows on the balance of probabilities that the deceased's exposure to asbestos was a cause of his lung cancer. That is because it establishes that the relative risk of the cancer having been caused by exposure to asbestos was greater than 2:1: i.e. the risk was "doubled". The "doubles the risk" test is one that applies epidemiological data to determining causation on the balance of probabilities where medical science does not permit determination with certainty of how an injury was caused. If statistical evidence shows that a tortfeasor more than doubled the risk that the victim would suffer the injury, it follows that it is more likely than not that the tortfeasor caused the injury. Some doubt has been expressed as to the validity of the doubling the risk test, at any rate for mesothelioma cases: see, for example, per Lord Phillips in Sienkiewicz v Greif UK Ltd [2011] UKSC 10, [2011] 2 AC 229 at paras 94 to 106. But there can be no doubt as to the validity of applying it to answer the first question. The deceased's lifetime risk of developing lung cancer had he not smoked and not been exposed to asbestos fibres was of the order of 0.5%. As I have said, the parties proceeded on the agreed basis that the cumulative effect of the deceased's exposure to asbestos over the whole of his employments resulted in a more than fivefold increase in the risk of his contracting the disease. I leave out of account the complication of the extent to which, having regard to the multiplicative effect of the smoking, the risk attributable to the exposure to asbestos was even greater. On any view, the exposure to asbestos more than doubled the risk of the deceased contracting the disease. That is why it was common ground that it was established in this case that the cancer was caused by that exposure.
The second question (the "who" question) arises in a multi-contributor case where the issue is which contributor's asbestos caused the cancer. Medical science is unable to determine this issue. The question in this case is whether epidemiological evidence can provide the answer. It is common ground that it could not be proved that the exposure attributable to any individual defendant had doubled the risk that Mr Heneghan would develop lung cancer. None of the defendants exposed him to an amount of asbestos close to 25 fibres/ml years (see para 3 above). Only one employer, W Blackwell (who had not been sued), was responsible for exposure in excess of 25 fibres/ml years (56% of the total exposure).
The Fairchild exception
In Fairchild, all the claimant employees had been exposed to asbestos dust during periods of employment with more than one employer. They contracted mesothelioma. This is an indivisible disease, i.e. one whose severity does not depend on the extent of the exposure to...
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