By Colin Richmond
The full judgment is now available on Bailii and Lawtel in the case of Albert Victor Carder v University Of Exeter  EWCA Civ 790.
The Court of Appeal held that an asbestosis sufferer was entitled to recover damages from an employer who had contributed 2.3% of his overall exposure to asbestos dust. The contribution, whilst undoubtedly very small, had materially contributed to the respondent’s medical condition and was not de minimis.
The appellant appealed against a decision that it should pay damages for personal injury to the respondent.
The appellant conceded that the exposure and contribution of 2.3% was material, however sought to argue that the respondent’s symptoms and overall condition has not been affected by its contribution and that he was no worse off physically or economically as a result of the appellant’s involvement. The court held that this constituted a “fundamental contradiction in the appellant’s case.”
In giving the lead judgment, Lord Dyson MR stated that:
- “…the severity of the disease had been increased by a small, albeit not measurable, extent. It is conceded that the increase was material, i.e. not de minimis. In my view, this concession is critical. In these circumstances the judge was right to hold that Mr Carder was slightly worse off as a result of the 2.3% exposure for which the appellant was responsible. It seems to me that this conclusion (which is one of fact) naturally followed from the appellant’s acceptance of the fact that it was responsible for the 2.3% and that this was material.”
He went on to state:
- “Although the evidence is not entirely easy to interpret, I do not consider that this case raises any difficult issues of law. Questions of causation in divisible disease cases may raise difficult evidential issues. But in principle they are straightforward.”
Accordingly, the appeal was dismissed.
The respondent’s damages against the appellant had previously been awarded in the sum of £1,552.50, that being 2.3% of the overall award of £67,500. Lord Dyson added, as a postscript:
- “I recognise that Mr Carder has been awarded a sum which is small when compared with the costs of this litigation. That is regrettable. But litigation of this kind is often necessarily factually complex. Defendants faced with claims whose costs are likely to be out of proportion to the damages likely to be awarded after a trial should try to settle them early.”
One final point to note is that the respondent previously discontinued a claim against another defendant who had contributed 0.3%, following medical evidence confirming that such a level of contribution was de minimis. As set out above, the appellant’s concession that 2.3% was not de minimis was clearly significant.
The full judgment is available here: