Case No. HQ12X03121
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
FATAL LUNG CANCER
BETWEEN:
PROFESSOR CARL HENEGHAN
(Son and Executor of the Estate of
James Leo Heneghan, deceased)
Claimant
- and (1)
(2)
(3)
(4)
(5)
(6)
MANCHESTER DRY DOCKS LIMITED
00722056 LIMITED
CARILLION CONSTRUCTION (CONTRACTS)
LIMITED
R. BLACKETT CHORLTON LIMITED
S.C. CHEADLE HULME LIMITED
KELLOGG BROWN & ROOT LIMITED
Defendants
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BRIEFING NOTE
_____________________________________________________
- High Court applies Fairchild to multi-party lung cancer cases - PERMISSION TO APPEAL TO COURT OF APPEAL -
1. Judgement was handed down today (11th December 2014) in the case of Heneghan.
2. Mr Justice Jay has applied the Fairchild principle to liability in a multi-party lung
cancer case.
-2The Facts
3. James Heneghan died of lung cancer on 3rd January 2013. He was survived by his
widow who is herself unwell.
4. Mr Heneghan was exposed to an aggregate dose of 133 fibres/ml years of asbestos.
5. The six Defendant tortfeasors were responsible for 46.9 fibres/ml years’ exposure,
approximately 35.2% of the total. Their individual contributions ranged from 10.1%
to 2.5% of total exposure.
The Issue
6. The remaining issue when the matter came before the High Court was whether the
Claimant was entitled to recover against each Defendant in full, or only an
apportionment according to that Defendant’s contribution to total exposure.
The Arguments
7. The Claimant and the Defendants were agreed that Mr Heneghan had contracted and
died from asbestos-related lung cancer – the overall dose of 133 fibres/ml years was
more than enough to double the risk.
8. The Claimant then argued, supported by the evidence of Dr Rudd, that he was entitled
to full recovery against each Defendant, on the basis that each had made a material
contribution to his cancer.
9. The Defendants, supported by the evidence of Dr Moore-Gillon, argued that only
contribution to risk and not to cause could be proved, so that the Fairchild principle
should apply and that liability should therefore be apportioned consistent with the
decision in Barker (not reversed for lung cancer cases by section 3 Compensation Act
2006).
-3The Result in the High Court
10. The High Court has accepted the Defendants’ arguments, on the basis that ‘… lung
cancer and mesothelioma are legally indistinguishable.’
11. Jay J found that the Claimant was not able to prove causation of actual injury against
any tortfeasor, despite this being an asbestos-related lung cancer. All that could be
proved was a contribution to risk, so that it was appropriate to apply the Fairchild
principle.
Practical Implications
12. There are two stages in proving causation in a lung (and any other comparable) cancer
claims.
13. A Claimant must first establish that the overall dose more than doubles the risk,
proving that the lung cancer is asbestos-related.
14. At the second stage, where no tortfeasor is responsible for more than 50% of the
overall dose, the Claimant recovers against each such tortfeasor a portion of his / her
damages according to that tortfeasor’s contribution to the overall dose.
15. Accordingly, where there is an asbestos-related cancer (the first stage), the Claimant
succeeds against each tortfeasor who has made a material contribution to the overall
dose, to the extent of that contribution (the second stage).
16. Section 3 Compensation Act 2006 does not apply to a lung cancer case so as to
reverse the effect of Barker. Accordingly, if Barker remains good law (something that
is likely to be considered by the Supreme Court in the Zurich Insurance v IEGL
appeal to be re-heard in January 2015) then there will be an apportionment.
17. Insurers will also be able to argue that they are only liable to indemnify their insured
according to the period that they are on cover.
-418. Where there is a tortfeasor responsible for more than 50% of the overall dose, the
High Court has suggested (at paragraph 61) that a Claimant could recover in full
against them, on the basis that it can be shown that they have caused the disease on
the balance of probabilities.
19. The same principle would apply if there was an insurer of such a tortfeasor, on cover
for more than 50% of the exposure.
Appeal
20. Permission has been given to appeal to the Court of Appeal - the case was
recognised by the High Court as ‘giving rise to problems of some difficulty and
importance’ .
21. The appeal is to be expedited, given the widow’s poor state of health.
22. The Claimant will argue that mesothelioma and lung cancer are materially different
diseases and that the High Court was wrong to extend the Fairchild principle to lung
cancer claims. Causation in full can be proved on a conventional basis.
23. In the meantime, it may be worth considering a stay in multi-party lung cancer
claims.
DAVID ALLAN, QC.
SIMON KILVINGTON