Heneghan v Manchester Dry Docks Ltd [2016] EWCA Civ 86
Facts
The claimant's father died from lung cancer after asbestos exposure during employment with several businesses. The evidence established that asbestos had caused the cancer, but could not identify which employer's exposure supplied the causative mechanism. The defendants before the court were responsible for 35.2% of his total exposure. The judge assessed their liability in proportion to their contributions to the risk. The claimant sought full damages from them, arguing that each had materially contributed to the actual injury. The appeal concerned the distinction between contribution to disease and increased risk, and the special statutory treatment of mesothelioma.
Legal Issue
Did each employer's asbestos exposure materially contribute to the actual lung cancer, or establish proportionate liability through the exceptional material-increase-in-risk approach?
Held
The Court of Appeal held that the Fairchild exception applied to the particular lung-cancer evidence. The claimant could establish that asbestos exposure had caused the cancer overall, but could not identify which employer's exposure supplied the causative process. That did not prove that every exposure materially contributed to the actual disease.
Each defendant had materially increased the relevant risk. Liability was therefore apportioned according to its contribution to risk, following the applicable Barker approach. The special statutory rule imposing whole-damage liability for mesothelioma did not extend to this lung-cancer claim. The appeal seeking full damages from the defendants accordingly failed. The result depends on the disease and evidential context, not a general rule that all multiple-defendant causation cases receive proportionate damages.
⭐ Legal Principle
Where the Fairchild risk exception applies to asbestos-related lung cancer, contribution to risk may establish proportionate liability without proving each exposure contributed to the actual disease. The Compensation Act 2006's special mesothelioma rule must not be extended to lung cancer merely because asbestos is involved.
Significance
Heneghan is an important limit on treating every asbestos claim as legally identical. It distinguishes proof that asbestos caused the disease from proof identifying a particular defendant as its cause. It also separates material contribution to damage from material increase in risk. The mesothelioma-specific legislative response to Barker cannot simply be transferred to lung cancer. For undergraduate study, apply the correct causation route first, then identify the corresponding basis for apportionment and any relevant statutory modification.
Common exam questions about this case
Why did asbestos causation overall not establish full liability against each employer?
The evidence could show that asbestos caused the cancer without identifying which exposure caused the relevant cell changes. It did not establish that every defendant's exposure materially contributed to the disease itself. The court therefore used the exceptional risk analysis rather than treating overall causation as proof against each employer.
Why did the mesothelioma rule not require whole-damage liability?
The Compensation Act's special provision concerns mesothelioma. This claim involved lung cancer, so the statutory change could not be applied merely because asbestos exposure was present. The court used the proportionate risk approach appropriate to the exception and disease before it.
What is the distinction between contribution to damage and contribution to risk?
Contribution to damage concerns evidence that the defendant's breach helped cause the actual injury. Contribution to risk is an exceptional alternative where the required causal identification cannot be made in the recognised circumstances. Heneghan warns against inferring the former simply because the latter is scientifically established.