• In the case of Henegham v Manchester Dry Docks 2016 EWCA Civ 86 it was held on appeal that respondents to claims of damages regarding material contribution should only be liable so far as their contribution to the risk goes.

Facts of the Case

  • The appellant in this case appealed against a decision regarding the assessment of damages in respect of his father’s death from lung cancer.
  • The father during his working life had been exposed to asbestos and dust.
  • He had been employed successively by each of the six respondents.
  • It was agreed by experts that on the balance of probabilities, he would not have developed lung cancer if he had not been exposed to asbestos.
  • It was agreed that the respondents were to be responsible for 35.2% of the whole exposure.
  • It was also agreed that biological evidence could not establish which, if any, of the exposures had triggered the cell changes leaning to contracting the disease.
  • The judge awarded damages against each respondent in proportion to risk for which it was responsible.
  • The appellant on that basis was awarded damages of £61,600 rather than full damages of £175,000.
  • The appellant submitted that the judge should have held that each respondent had materially contributed to the cancer and was liable for damages in full.

Issues in Henegham v Manchester Dry Docks 2016 EWCA Civ 86

  • The issues relate to if the respondents are to be liable in relation to the risk as a whole or to their individual contribution to the risk to the appellant’s father.  

Held by Court of Appeal

  • Appeal dismissed.

Lord Dyson MR

  • It was held that the trial judge was right to apply the Fairchild exception and that each respondent is to be liable for damages in proportion to their contribution to the risk of the appellant’s father.  
  • “In short, I can see no reason not to apply the Fairchild exception to the facts of the present case. There can be no objection in principle to extending it to situations which are not materially different from Fairchild. Indeed, principle requires that in a situation which is truly analogous to that considered in that case, the Fairchild exception should be applied. Otherwise, the law in this area would be inconsistent and incoherent… 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.” [48-50]

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