Is the decision in Carder the last word in ‘Material Contribution’ Defences in asbestos claims?

03 Aug 2016

In the landmark Court of Appeal case Carder v University of Exeter, an 87 year old man developed asbestosis, to which his employer had contributed 2.3% of asbestos exposure. He was found, in the judgment which was handed down on 29 July, to be entitled to damages from his former employer which had been responsible for a ‘material contribution’ to his total exposure to asbestos dust. The claimant’s general damages from his total exposure were assessed at £67,500, with the defendant university, where he worked, in boiler room, from 1980 to 1994, contributing £1,552.50.

The facts of the case

The respondent had worked as an electrician and had been negligently exposed to asbestos by a number of his former employers. He developed asbestosis and also suffered from other conditions which, while unrelated, nevertheless affected his lung function.

The respondent alleged his condition was attributable in part to negligent exposure to asbestos dust whilst in the appellant's employment.

The appellant accepted that it was responsible for 2.3% of the respondent's total exposure to asbestos dust. An expert opined that a 2.3% contribution to the respondent's asbestosis was material, "although very small". The judge found that the respondent had suffered damage and injury that was actionable against the appellant and he was awarded damages worth 2.3% of what would have been the full liability value of his claim.

The appellant conceded that the 2.3% exposure and contribution to the asbestosis, although very small, was material. However, it was argued that since that contribution had made no difference to the respondent's symptoms and condition, the judge should have held that it did not make him worse off and therefore made no material contribution to the damage suffered.

The appeal by the appellant employer was dismissed. It was held by the three Lord Justices’ Gross, Clarke and Master of the Rolls, Lord Dyson, that:

In the context of a claim for asbestosis, the words "disease", "impairment", "injury" and "disability" were used interchangeably which was not considered helpful by the Lords Justices. It was not considered ‘beneficial’ to consider whether a particular medical condition should be characterised as a "disease" or an "injury". Instead, the focus should be on whether the medical condition had made the claimant worse off.

Most diseases or injuries would make a person worse off, but that was not always the case. The use of the word "disability" was perhaps more apposite in that a person suffering from a disability was likely to be worse off as a result of it. But disability might not be an apt word to describe a condition of which a person was unaware but which had caused/continued to cause him some harm. The use of labels to describe a medical condition might be convenient, however it should not distract attention from the only relevant question, namely whether the claimant was materially worse off as a result of the alleged tort.

The respondent had been exposed to more than one source of asbestos dust raised no difficulties of principle.

It was stated by the court that there was a fundamental contradiction in the appellant's case: on the one hand it argued that the asbestos dust attributable to it made no material contribution to the respondent's asbestosis; the 2.3% had made, and would make, no difference to the respondent's symptoms, disability or prognosis. On the other hand, it accepted that the 2.3% was a material contribution to the entire dose of asbestos dust; that each source of asbestos exposure would have contributed to the development of the respondent's asbestosis (including the risk of his developing it) in approximate proportion to the dose of exposure received in each; and therefore the 2.3% made a material contribution to the respondent's asbestosis.

It was not in dispute that asbestosis was a condition which, if more than negligible in severity or extent, caused an individual to be worse off or to suffer damage.

It was to be distinguished from benign conditions such as pleural plaques. The appellant emphasised that the 2.3% caused the respondent to suffer no symptoms and the extent of the disease was not measureable. However, the severity of the disease had been increased to a small, albeit not measureable, extent. It was conceded that the increase was material. That concession was critical.

The Court of Appeal decision

In those circumstances, it was held the judge was right to find that the respondent was slightly worse off as a result of the 2.3% exposure for which the appellant was responsible. That conclusion naturally followed from the appellant's acceptance of the fact that it was responsible for the 2.3% and that it was material.

It should be noted that Lord Dyson stated in his judgment: “I recognise the sum is small when compared with the costs of litigation.” And he described this as ‘regrettable’ and added that “defendants should try to settle cases early where costs are likely to be out of proportion”.

What this means for you

With this decision following hot on the heels of the high court decision of Mayne v Atlas Stone Co Limited (discussed in the July edition of Disease Review) it’s clear that the court is intent on curbing ‘material contribution’ defences in asbestos claims.

In this case the claimant was awarded £1,552.50 (2.3%) out of damages which would have totalled somewhere in the region of £67,500. Given this decision, insurers and those acting for them should consider carefully whether there is likely to be any benefit to running a defence on a minimal exposure basis in asbestos claims.

Michelle Penn

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Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

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