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Why Holtby v Brigham & Cowan (Hull) Ltd is important

In Holtby v Brigham & Cowan, the Court of Appeal followed Bonnington Castings, by concluding it was sifficient that the defendant materially contributed to the damage. However, unlike in Bonnington Castings only held the defendant liable to the extent of their contribution.


Holtby was exposed to asbestos dust whilst working as a marine fitter, as a result of which he suffered asbestosis. The defendant employed Holtby for twelve years, about half of Holtby’s career as a marine fitter. Holtby worked in similar conditions, again being exposed to asbestos dust, when working as a marine fitter for other employers.


The claimant brought an action in the tort of negligence against Brigham and Cowan Ltd. The issue for the Court was whether the defendant caused Holtby’s injury, and if so how to quantify this loss.


The defendants did cause the claimant’s loss, although were only liable for their extent of the contribution to the damage.


Applying Bonnington Castings Ltd v Wardlaw, Brigham & Cowan Ltd were held to have caused Holtby’s injury through their material contribution to the damage.

The contentious question for the Court of Appeal was how to quantify this loss. This remained an open question of law because it had not been argued in Bonnington Castings that the defendants were only liable to the extent of their material contribution.

The Court of Appeal held that Brigham and Cowan (Hull) Ltd were only liable for the extent they contributed to the injury. Theyheld that it was for the claimant to prove the extent of the defendant’s contribution. The Court based this decision on the ‘justice’ of the case. Stuart-Smith LJ borrowed the following quote from Mustill J in Thompson v Smiths Shiprepairers [1984] 1 QB 405:

“What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment.”

Whilst Clarke LJ agreed with the overall decision, he dissented on the burden of proof. He argued that, once the claimant had shown that the defendant had materially contributed to the injury, that defendant should be liable in full. it would then be for each defendant liable in full to argue between themselves their respective liabilities.

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