Adding Insult to Injury: asbestos related lung cancer sufferers face further setback

The Court of Appeal decision in Heneghan v Manchester Dry Docks Ltd and ors has been hailed as a victory by insurers.

Attributing lung cancer to asbestos exposure can sometimes be difficult. Even where causation of the disease is not an issue, in those cases involving multiple negligent defendants the approach to individual causation and apportionment has not been straightforward.

The finding in Heneghan is that in a multiple defendant case each defendant’s liability is based on materially increasing the risk of lung cancer, as it cannot be proved scientifically that any individual defendant had actually caused the cancer. Thus the principle of causation established in Fairchild v Glenhaven Funeral Services Ltd and applied in mesothelioma claims is accepted as extending to lung cancer cases in relation to causation.

The Fairchild principle applied since the key factors were present:

1. all defendants were in breach of duty;
2. all increased his risk of contracting lung cancer;
3. all exposed him to the same agent implicated in causation (asbestos);
4. medical science could not determine which if any of the defendants had exposed him to the asbestos which actually caused the cell changes that culminated in the cancer.

However this also means that the apportionment of damages under Barker v Corus UK Plc applies – each defendant is liable only in proportion to its contribution to risk. Mesothelioma victims are protected by clause s.3 of the Compensation Act 2006 which reversed Barker and enabled victims of mesothelioma to recover full damages from any Defendant who they could prove materially increased the risk of mesothelioma. However that clause does not extend to lung cancer cases.

The end result is that in a multiple defendant lung cancer case the victim could end up receiving a small proportion of damages awarded due to the difficulty in tracing the historic insurer of each negligent employer, whereas in a mesothelioma case based on the same facts, damages would be awarded in full.

If only the insurance industry invested as much effort in ensuring that all victims of asbestos disease are fairly compensated as they do to fighting technical arguments to defeat claims.