Personal injury law

Apportionment of damages in cumulative exposure cases

Holtby v Brigham & Cowan (Hull) LTD, Court of Appeal, 6 April 2000, Stuart-Smith, Mummery and Clarke LJJThis important decision ought to proceed to the House of Lords for clarity.

The Court of Appeal dismissed the claimant's appeal against the decision of the High Court judge who found that if the claimant's injury - in this case asbestosis - resulted from tortious exposure by two employers, both of which made a material contribution to his injury, then one employer is not liable for the whole resulting disability.Mr Holtby was a marine fitter exposed to asbestos for approximately 24 years.

Half of his exposure was with the defendants and the other half was over a number of periods of time with other employers.

As a matter of principle, the Court of Appeal, in the lead judgement of Stuart-Smith LJ, relied on the fact that asbestosis is a cumulative condition in which, to quote the defendant's doctors, 'All periods in which Mr Holtby was exposed to asbestos should be considered relevant in causing mild asbestosis'.His Lordship found that the defendant is only liable to the extent of his contribution to the injury.

He then applied the approach of Mustill J in Thompson v Smiths Shiprepairers (1984) QB 405 in apportioning damages on a time basis in relation to periods of exposure which his Lordship felt was 'not only the sensible but correct approach in law'.The interest in the case is twofold: 1.

That although the defendants did not plead the fact that other employers also materially contributed to the claimant's condition, they were still allowed to pursue the point at trial.

The basis was that the defendant's doctor had made it quite clear in his report from the quote above that other periods were relevant in relation to causation.

2.

Importantly, once the claimant succeeds in proving fault on the part of the defendant, he must then further prove causation and the extent of the material contribution by the defendant to the injury.

This differs from the approach of Bonnington Castings v Wardlow, 1956, AC613.

This has a potentially major and disturbing impact on many disease cases, beyond asbestos exposure cases.

For instance, in the miners' respiratory cases, would the plaintiffs have had to prove what part of their injury was caused by the tortious dust? How can they do that? It is not the defendant's responsibility.

It is on this point that the Court of Appeal was in disagreement with Lord Justice Clarke, dissenting and applying what on the face of it appears to be a sensible logic, namely that if an injury is truly indivisible then once a claimant succeeds in showing a material contribution from one employer he will recover in full so it is illogical that the burden doesn't shift to the defendants to show that there was exposure which was 'innocent' or caused by others which has also contributed when the exposure is cumulative.

His Lordship cited the example of contributory negligence in which the burden shifts from the claimant to the defendant.

It is on this point that the case should proceed to the House of Lords.

Stuart-Smith LJ held that even if an injury was 'indivisible', if it was caused by sequential exposure the apportionment could still apply.In relation to asbestos claims, it is evident that, whilst the law may not have changed, defendants will heed this judgement and in cases of asbestosis and pleural thickening will undoubtedly fight cases on the question of apportionment should they lose in relation to negligent exposure.

Cases of mesothelioma and pleural plaques should not fall to be apportioned.

by Simon Allen, Russell Jones and Walker, Sheffield