Tort

Personal injury - plaintiff suffering asbestosis from exposure during work with defendant and others - defendant liable only for proportion of disabilityHoltby v Brigham & Cowan (Hull) Ltd: CA (Stuart-Smith, Mummery and Clarke LJJ): 6 April 2000

The plaintiff was exposed to asbestos dust for 24 years of his working life, 12 of which he spent with the defendants and the remainder he spent with several different employers.

The amount of exposure was similar throughout the period.

He contracted asbestosis and claimed damages against the defendants for negligence.

The judge found that the defendants were negligent, but reduced the general damages for the plaintiff's disability by 25%, on the basis that the effects of exposure were cumulative and the defendants were liable only for that proportion of the damage which they had caused.

The plaintiff appealed on the ground that once he had proved that the defendants had materially contributed to his condition, it was for them to plead and prove that others had contributed to his disability.Kieron May (instructed by Philip Hamer & Co, Hull) for the plaintiff.

Anthony Goldstaub QC and Richard Seabrook (instructed by Whitfield Hallam Goodall, Batley) for the defendants.Held, dismissing the appeal (Clarke LJ dissenting in part but concurring in the result), that the onus of proving causation was on the plaintiff and he was entitled to succeed if he could prove that the defendant's tortious conduct made a material contribution to his disability; that, the defendant was only liable to the extent of that contribution, provided that he raised the issue, whether formally pleaded or not, and dealt with it in evidence; but that the real question for the court was whether, on consideration of all the evidence, applying common sense and doing the best that it could to do justice between the parties, the plaintiff had proved that the defendant was responsible for the whole, or only a quantifiable part, of his disability.