• In the case of Holtby v Brigham Cowan Hull Ltd 2000 3 ALL ER 421 the claimant was exposed to asbestos during his working life and later suffered from asbestosis. The case before the judges was to determine the causation between C working for the D and others over a course of 12 years and the result of contracting asbestosis.

Facts of the Case

  • The C had been exposed to asbestos through his work history with different employers and who contracted asbestosis as a result, claimed damages from the D of whom he worked with for 12 years.
  • Judgement was entered in his favour, but the D appealed against a decision to reduce his damages to reflect his exposure to asbestos with other employers.
  • C contented that he was entitled to recover all his losses from D, upon proving that D’s tortious conduct materially contributed to his asbestosis.
  • C also claimed that the D ought to have pleaded others were responsible for his condition and it had the burden of proving that fact and the extent of other tortfeasors. 

Issues in Holtby v Brigham Cowan Hull Ltd 2000 3 ALL ER 421

  • What party had the burden of proof to prove the causation of exposure of asbestos to contracting asbestosis in what workplace.

Held by Court of Appeal

  • The appeal was dismissed. As a general rule, the method of apportioning responsibility on a time exposure basis was the correct approach in law. The onus of proving causation was on the claimant, who would succeed if he could prove that the defendant’s conduct materially contributed to his disease.
  • The D was only liable for its share of the damage caused and the court should have a common-sense approach to assessing quantum to achieve justice amongst the parties.
  • This was referred to the House of Lords.

Lord Justice Stuart-Smith (House of Lords)

  • “This case raises a point of general importance which, surprisingly, does not appear to have been considered previously by this court. The question is this: where a claimant suffers injury, in this case asbestosis, because of exposure to a noxious substance by two or more persons, is the defendant who is one of those persons whose tortious act has made a material contribution to the injury, liable in respect of the whole resulting disability, subject only to such rights as he only has against other tortfeasors? Or is he liable only to the extent that he has contributed toward the disability? HH Judge Altman, sitting as a High Court Judge, in a conspicuously careful and succinct judgment, which dealt with many other aspects of the case including liability, limitation and the effect on the overall disability of such matters as smoking, obesity and arthritis unconnected with the tortious conduct, held that the latter was the correct answer. “
  • “The Defendants are liable only for that damage which they have caused, but the quantification of that factor is difficult. Whilst there is no mathematical division to be made in medical terms, for the purpose of assessment I have felt bound to apply a discount factor and I have done so in the amount of 25%.”

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