Burning questions

Following the last update (SJ 159/7), the courts have dealt with some interesting issues which have not arisen previously. Recently, they grappled with a particularly difficult causation issue arising in an asbestos-related lung cancer case.

Lung cancer has other causes (such as smoking), so the first step in establishing causation is to prove it is asbestos related. As science does not allow us to determine with any degree of certainty which agent caused the disease, the claimant has to show the levels of asbestos exposure are above certain thresholds. If this is proven against any particular defendant, then the asbestos exposure is said to have ‘more than doubled the risk’ of developing lung cancer, meaning causation is made out
(as ‘it is more likely than not’ to have caused the disease). Therefore, the claimant is entitled to seek their full damages from that party (Shortell v Bical Construction Ltd [2008] QBD).

However, the courts have never had to consider instances where the claimant is unable to show a doubling of the risk by any particular defendant. Heneghan v Manchester Dry Docks Ltd [2014] EWHC 4190 (QB) is the first case to address this.

Doubling the risk

Mr Heneghan (H) was exposed to asbestos in various places during his working life. He was
able to identify and sue six former employers
(who became party to these proceedings),
but there were other employers not sued. According to engineering expert opinion, these six defendants (D) were responsible for 35.2 per cent of H’s total lifetime asbestos dose. The contribution from each defendant ranged from 2.5 per cent to 10.1 per cent, meaning he was not able to show any single employer had doubled his risk.

H developed lung cancer and sadly died from this disease in early 2013. The claim was advanced by his son (C). D admitted liability and the total claimed by C was £175,000.

While both parties agreed the lung cancer
was asbestos related (as the total levels were
above the relevant thresholds), they disagreed
on the appropriate test to be applied to determine whether each defendant was responsible for the full damages or just part of it. Applying Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, D argued it was only possible to show each source increased the risk of developing lung cancer (as opposed to doubling it), and, further to Barker v Corus (UK) plc [2006] 2 AC 572, each defendant
was only liable for the extent of the risk they had created. Therefore, they claimed to be only collectively liable for 35.2 per cent of the damages claimed (i.e. £61,600).

D’s expert, Dr Moore-Gillon, considered this
was the only feasible approach for lung cancer as medical science does not permit us to determine which particular fibres (and therefore which particular defendant) caused the disease, and the best we can do is say each defendant contributed to the risk of developing lung cancer.

C agreed it is not possible to identify the responsible source of asbestos fibres, but highlighted that the test for causation does not require such certainty, as all one has to establish
is whether the source was ‘more likely than not’
to have caused the disease.

According to C’s expert, Dr Rudd, it is now possible to contend the fibres from any source where the exposure was more than de minimis
(i.e. above normal environmental levels) materially contributed to lung cancer, as each source was statistically more likely than not to cause the cancerous mutations leading to H’s diagnosis.

Interestingly, in Jones v Secretary of State for Energy and Climate Change [2012] EWHC 2936  (QB), Dr Rudd confirmed that the available information at the time of Fairchild did not permit such an analysis, but that the understanding of carcinogenesis has since significantly improved.

However, Mr Justice Jay did not accept this approach and considered that unless you show each defendant has individually doubled the risk, it is not possible to establish causation via the conventional ‘but for’ test. All that can be said
is that the exposure has increased the risk of
lung cancer.

Fairchild test

The judge next considered if it was appropriate
to apply the Fairchild test to lung cancer cases.
This is the approach adopted for mesothelioma
(a terminal cancer of the lining of the lungs caused by asbestos), but, further to the Compensation Act 2006, mesothelioma sufferers are entitled to recover full damages from any single defendant who has increased their risk of the disease.

While the aetiology of both these diseases differed, Jay J considered they were ‘legally indistinguishable’. Also, he could find no authority to preclude the use of the Fairchild test in lung cancer cases. Therefore, as the test was appropriate, C failed to recover his full damages.

Rather unsurprisingly, given the wide-reaching implications of this decision, permission to appeal has been granted. However, this has been stayed pending the outcome of the Supreme Court appeal in Zurich Insurance v IEGL [2013] EWCA Civ 39, where the Barker decision was considered.

It will be interesting to see the appeal court’s approach to the complex issues of causation.
If they hold the Fairchild test is appropriate, the burning question will be why those diagnosed with lung cancer should not be offered the same protection as mesothelioma sufferers under the Compensation Act 2006.

Seeking further damages

Lloyd v Humphreys and Glasgow Ltd [2015] EWHC 525 (QB) addressed an abuse of process point in another asbestos case.

The claimant (L), who had already settled a claim following the development of asbestosis (fibrosis of the lungs caused by asbestos exposure) against two defendants, sought to make a further claim against a different defendant when he was subsequently diagnosed with mesothelioma.

L had been exposed to asbestos when
working as a welder for several employers from
the 1950s to the 1970s. In 2008, he was diagnosed with asbestosis and successfully advanced his case against two of his former employers. He settled
on a full and final basis in November 2011.

Sadly, his health deteriorated, and in March
2012 L was diagnosed with mesothelioma. Approximately one and a half months later he succumbed to the disease, and his widow sued another former employer, Humphrey and Glasgow Ltd (HG).

HG’s insurers were Excess, who many will recall were involved in the ‘trigger litigation’ where the Supreme Court had to determine whether the wording of certain policies meant it was the insurer who provided cover at the time when mesothelioma developed (usually many years after the asbestos exposure) instead of the insurer providing cover at the time of employment who was on risk.

The Supreme Court subsequently found for
the claimants. However, at the time that L’s claim for asbestosis was advanced, this point was undecided, and so Excess refused to indemnify the claim. This is why they were not involved in the original settlement.

Therefore, and rather crucially, HG had the opportunity to become party to the full and final settlement but decided against this. This would have meant L was barred by the terms of the settlement against seeking damages from
them for any future asbestos-related claim.

Abuse of process

HG argued this was an abuse of process, claiming L should have issued proceedings against them
at the same time as the other defendants.
HG put forward the usual concerns about floodgates, stating that, as a matter of policy,
such claims should be discouraged.

Mr Justice Laing considered there could be
an abuse where two claims are advanced against different defendants. However, a court is unlikely to find an abuse unless there is ‘unjust harassment or oppression’ of the defendant. Here, HG
had suffered no injustice, as they had taken
a calculated risk which did not pay off.
This meant there was no abuse of process.

HG also failed on a limitation point, and so
the claimant won.

In the majority of cases, the symptoms experienced by mesothelioma sufferers are
far more serious compared with other asbestos diseases. In addition, they have a limited life expectancy. It is always difficult for someone diagnosed with a less serious disease to decide whether to settle on a provisional or final basis.
It can be an awful predicament if they opt for final settlement only to find themselves barred from seeking damages if they develop mesothelioma later on. Therefore, it is re-assuring the claimant succeeded in this case. SJ

Vijay Ganapathy is a partner at Leigh Day

@LeighDay_Law