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PI Brief Update

A Change to the Law of Causation in Asbestos-Related Lung Cancer Cases: Heneghan (Deceased) v Manchester Dry Docks & Others [2014] EWHC 4190 - Kate Boakes, 12 King's Bench Walk

20/04/15. Lung cancer has several possible causes, including exposure to asbestos dust. Medical science cannot prove whether a particular case of lung cancer was caused by asbestos exposure rather than, say, smoking. Nor can it prove that it was caused by asbestos from a particular source where there have been multiple sources. These factors rule out the strict application of the conventional ‘but for’ test to asbestos-related lung cancer.

Further, it is an indivisible disease. A person either has lung cancer or they do not, and there is no relationship between the dose of asbestos dust and the severity of the disease. Bonnington v Wardlaw [1956] AC 613 and the material contribution test therefore do not apply.

Although it was open to the Supreme Court to do so, it resisted extending the application of Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 beyond mesothelioma. Accordingly, establishing material contribution to risk could not prove causation in a lung cancer case.

So, how did a claimant succeed in a lung cancer case before Heneghan? They did so by a relaxation of the ‘but for’ test, whereby the test was said to be satisfied if defendant had exposed a claimant to asbestos and in so doing more than doubled their risk of contracting lung cancer. For an example of the application of this relaxed test, see Shortell v BICAL Construction Ltd (QBD 16.05.2008, unreported)...

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The opinions expressed in the articles are the authors' own, not those of Law Brief Publishing Ltd, and are not necessarily commensurate with general legal or medico-legal expert consensus of opinion and/or literature. Any medical content is not exhaustive but at a level for the non-medical reader to understand. 

Professional advice should always be obtained before applying any information to particular circumstances.

Excerpts from judgments and statutes are Crown copyright. Any Crown Copyright material is reproduced with the permission of the Controller of OPSI and the Queen’s Printer for Scotland under the Open Government Licence.