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Holtby v Brigham and Cowan (Hull) Limited

28 April 2000
The issues

Asbestosis- Causation- Material Contribution – Extent of Defendant’s Liability

The facts

The case raises a point of general importance not previously considered by the Court of Appeal – where a Claimant suffers injury as a result of exposure to a noxious substance by two or more persons was the Defendant with one of those persons whose tortuous act had made a material contribution to the injury, liable in respect of the whole resulting disability subject to rights against other tort feasers or was he liable only to the extent that he had contributed towards the disability.

The Claimant was born in 1927 and worked as a marine Fitter and was exposed to asbestos dust. For half that time – 12 years – he was employed by the Defendant. For the remainder he was employed by other employers doing similar work in similar conditions. At first instance the Judge held the Defendant’s liable only for that damage which they had caused. For the Claimant it was argued that the Defendant should have pleaded the point but they were not responsible for all the Claimant’s disability but only a proportion of it and that the onus of proving that rested on the Defendant. If the Defendant’s negligence had caused a real contribution to his disease he was entitled to recover all his losses from the Defendant not withstanding that others might have contributed. The Defendant was left to his remedy against other tortfeasor. Alternatively, it was submitted that once the Claimant had proved material contribution by the Defendant the onus was upon that Defendant to plead and prove that others were responsible for some and if so, what part of the injury.

The decision

The Judge’s decision would be upheld. Following Bonnington Castings Limited v Waldrow, McGhee v National Coal Board and Wiltshire v Essex Health Authority the onus of proving causation is on the Claimant and it did not shift to the Defendant. The Claimant would succeed if he could prove material contribution by the Defendant’s tortuous conduct.

The Defendant strictly speaking was liable however only to the extent of that contribution. If however that point was never raised or argued by the Defendant (see Bonnington v McGhee) then the Claimant would succeed in full.

Strictly speaking it did not need to be pleaded. It was desirable and preferable that it should be. Quantification might be difficult and the Court would have to do the best it could. The Judge’s decision if anything erred on the side of generosity to the Claimant. His method of dividing responsibility on a time exposure basis was one common amongst the insurance industry and could not be criticised in the absence of unusual features such as periods of exposure to a particular dangerous blue asbestos.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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