“Divisible injury: damages apportioned where only part of harm attributable to defendant's breach”
The claimant developed asbestosis after working for several employers over many years, all involving exposure to asbestos dust. He worked for the defendant for approximately half his working life. Medical evidence could not precisely determine what proportion of his asbestosis was caused by exposure during employment with each employer, but it was clear the disease was divisible and cumulative based on total exposure.
Whether a defendant employer should be liable for all damage caused by asbestosis or only for the proportion of damage attributable to exposure during the claimant's employment with that defendant.
The Court of Appeal held that the defendant was only liable for the proportion of injury attributable to the exposure occurring during the claimant's employment with them. Damages were apportioned accordingly.
The court distinguished between indivisible injuries (where any exposure could cause the entire harm) and divisible injuries (where the severity increases with cumulative exposure). Asbestosis is a divisible disease - the longer and more intense the exposure, the worse the condition. The court applied the principle that a tortfeasor is only liable for the damage they actually caused. Where medical science shows injury is divisible and relates to cumulative exposure, defendants should only be liable for their contribution to the total harm. The court rejected the argument that the defendant should be jointly and severally liable for all damage, as this would impose liability beyond the defendant's actual contribution. The approach required the court to make a reasonable assessment of the defendant's contribution based on available evidence, including duration and intensity of exposure.
This case establishes the important principle of apportionment in occupational disease cases where injury is divisible. It distinguishes the approach for cumulative conditions from indivisible 'single-hit' diseases, shaping liability in industrial disease litigation.
The court noted this approach differs from indivisible injuries like mesothelioma, where any exposure can trigger the entire disease and defendants may be fully liable.
OSCOLA Citation
Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421 (CA)
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