Holtby v Bringham & Cwan (Hull) Ltd
April 6/2000 (Court of Appeal)
Wicks v Wilton Cobley Limited and Others
12th May 2000 Southampton County Court
What happens where an employee suffers an occupational disease due to the negligent conduct of more than one employer? At first sight, the common sense answer might be that the various negligent employers should share the burden and each contribute a fair proportion of the compensation payable, according to the relative contribution made by each employer to the injury suffered. That is the decision of the Court of Appeal in Holtby. A decision which may seen unremarkable, but results in injustice to injured workers in practice.
What happens when the disease does not manifest itself until decades after the relevant employment? In many cases the employers may no longer exist or cannot be traced nor their insurers identified. Are the victims of crippling industrial diseases to be left under-compensated with insurers evading their responsibilities?
The Court of Appeal considers that fairness between insurers ranks higher than the proper compensation of industrial disease victims. They rejected a proposal which would provide for both proper compensation for victims and fair apportionment between insurers. Their decision is morally and politically wrong,. Mr Holtby spent 41 years as a marine fitter. He was exposed to asbestos dust for much of his employment, including 12 years with the Defendants. He developed asbestosis which is an accumulative condition, ie the seriousness of the condition is dependent on the extent of exposure.
The Court of Appeal reiterated the long established principle that an employer is liable where the relevant exposure for which that employer is responsible has either materially contributed to causing the injury or has materially increased the risk of injury. But the Court of Appeal state that the principle is only the starting point, namely, whether there is any liability on the Defendants. However, if the Defendants then argue that their liability should be restricted to the extent of their contribution, it is for the Court to determine whether the Claimant has proved that the Defendant is responsible for the whole or a quantifiable part of his disability. The Court should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the Claimant for the uncertainties known to be involved in any apportionment. This approach was necessary because: "...the Court must do the best it can to achieve justice, not only to the Claimant but the Defendant, and among Defendants."
Holtby had argued that, once he had established a material contribution as against one employer, that employer is liable to pay full compensation. It would then be that employer's problem (in practice the insurer's problem) to trace the other employers and their insurers and pursue claims against them for their proper contribution. That was an entirely pragmatic suggestion as it is the insurance industry who have access to the relevant records and can establish who insured the employers concerned at the relevant times. If insurers are not prepared to open their books, they cannot complain if they are left having to sort out apportionment between themselves.
Of course, the employers like to have their cake and eat it and, in this case, the Court of Appeal have given them that. In so doing, there is added impetus to the campaign for legislation requiring a detailed register of insurers.
This decision also leaves open the position in cases where the industrial disease is not cumulative, ie additional exposure does not necessarily result in additional disability.
Exposure to asbestos gives rise to the risk of physical mutation and cancers such as mesothelioma and pleural thickening developing. These conditions are not related to the degree of exposure: just one asbestos strand can start the cancer. Up till now it has always been understood that, whilst apportionment may apply in cases of industrial deafness, asbestosis etc because they are cumulative and depend upon the level and duration of exposure, that rule did not apply in all conditions. If a worker can show that an employer materially contributed to the risk of contracting the disease, that employer would be 100% liable for the consequences.
The Holtby case has already been considered in a mesothelioma case at County Court level: Wicks v. Wilton Cobley Limited and Others May 12 2000 Southampton County Court. In that case the employers sought to argue that apportionment should apply relying on Holtby. Thankfully, the Court rejected an argument that apportionment should apply and as Wilton had materially contributed to the risk of Wicks contracting mesothelioma the company ws 100% liable. The Wix case is being appealed. It is to be hoped that the appeal will uphold the decision of the County Court.
In the long run, these cases underline the need for insurers to open their books only then can victims effectively trace and pursue insurers who, for far too long, have managed to evade their responsibilities.