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Asbestos Claims: A Collection of Articles from BC Disease News October 2016
Transcript of Asbestos Claims - BC Legal · 2016-10-26 · Asbestos Claims: A Collection of Articles from BC...
Asbestos Claims:
A Collection of Articles from BC
Disease News
October 2016
Asbestos Claims: A Collection of Articles from BC Disease News
October 2016
1 | P a g e
CONTENTS
PAGE 3
Introduction
PAGE 4
Mesothelioma, the Law and PSLA Awards (BCDN Edition 4)
PAGE 9
Mesothelioma – Eliminating the Impossible Does Not Reveal the Truth (BCDN Edition 5)
PAGE 10
Mesothelioma Law and Liability – Looking to the Future (BCDN Editions 6, 7 and 8)
PAGE 26
Claimants Must Not Dispose of Histological Samples (BCDN Edition 20)
PAGE 27
Awards for Special Parental Care in Mesothelioma Claims – A Review (BCDN Edition 21)
PAGE 30
Mesothelioma and the Asbestos Industry Regulations 1931 (BCDN Edition 25)
PAGE 33
A Common Law Mirror? The Factories Acts (BCDN Edition 26)
PAGE 39
Damages in Fatal Claims (BCDN Edition 34)
Asbestos Claims:
A Collection of Articles from
BC Disease News
October 2016
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PAGE 40
The Mesothelioma Act 2014 – A Potted History (BCDN Edition 35)
PAGE 44
Mesothelioma Claims Against Occupiers of Premises (BCDN Edition 38)
PAGE 48
The Diffuse Mesothelioma Payment Scheme – An Overview (BCDN Edition 45)
PAGE 54
Case Note: Mesothelioma (BCDN Edition 47)
PAGE 56
Duty of Care of a Parent Company (BCDN Edition 48)
PAGE 57
Recovering Medical Costs in Asbestos Claims (BCDN Edition 57)
PAGE 62
Case Note: Mesothelioma (BCDN Edition 59)
PAGE 63
Damages in a Fatal Mesothelioma Claim (BCDN Edition 60)
PAGE 65
Low Level Asbestos Exposure (BCDN Edition 67)
PAGE 66
Dusting Down Statutory Liabilities for Exposure to Asbestos – the Supreme Court’s Decision in McDonald
v The National Grid (BCDN Edition 69)
PAGE 71
Contributory Negligence in Asbestos Related Lung Cancer Cases (BCDN Edition 73)
PAGE 72
Causation in Lung Cancer Claims (BCDN Editions 73 and 74)
PAGE 78
Causation and Apportionment in Asbestos Related Lung Cancer Claims (BCDN Edition 76)
PAGE 83
Recovering Medical Costs in Scottish Asbestos Claims (BCDN Edition 78)
PAGE 87
Supreme Court Rules Welsh Assembly Lacks Competence to Enact Asbestos Bill (BCDN Edition 83)
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PAGE 91
A Review of Low Level Exposure Mesothelioma Claims (BCDN Editions 89 and 91)
PAGE 99
Insurers Only Liable for Proportionate Share of Exposure in Mesothelioma Claims, Supreme Court Rules
– Zurich Insurance PLC UK Branch v International Energy Group Limited [2015] UKSC 33 (BCDN Edition
96)
PAGE 102
Pleural Thickening: The Importance of Blunting of One or More of the Costophrenic Angles of the Lung
(BCDN Edition 106)
PAGE 106
Fatal Damages and The Application Of The Ogden Tables: Multipliers For Future Dependency Must Be
Assessed As At The Date of Trial And Not Death (BCDN Edition 130)
PAGE 108
Fatal Damages and The Application Of The Ogden Tables: The Impact of Knauer In Fatal Disease Claims
(BCDN Edition 131)
PAGE 113
Low Exposure Mesothelioma Judgment: Case Comment on Smith v Portswood House Ltd (BCDN Edition
138)
PAGE 115
S.63 Factories Act 1961: The Statutory Interpretation of ‘Substantial Quantity of Dust’ (BCDN Edition
139)
PAGE 121
Material Contribution to Low Disability Asbestos Claim: Mayne v Atlas Stone Company Ltd [2016] EWHC
1030 (QB) (BCDN Edition 140)
PAGE 123
Court of Appeal Ruling On De Minimis In Asbestosis Cases: Carder v University of Exeter (BCDN Edition
152)
Introduction
BC Disease News has covered a wide range of issues that arise in asbestos claims. This reference guide
collates all of our articles into one collection, with the aim of making the information more accessible
and practically beneficial.
Any comments or feedback can be sent to Boris Cetnik or Charlotte Owen.
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Mesothelioma, the Law and PSLA Awards (BCDN Edition 4)
Introduction
‘Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is
caused by the inhalation of asbestos fibres’.1 Accordingly, it is vital to ensure that victims are
appropriately compensated.
This article considers briefly the way in which mesothelioma is treated differently by the law compared
to other diseases and then analyses how the Judicial College Guidelines on the amount to be awarded
by way of PSLA have changed with each successive edition. Finally, it makes predictions for the next
edition.
Unique Treatment
Owing to the peculiarly unpleasant features of the disease the law specifically deals with mesothelioma
in a number of ways to protect victims.
Firstly, in mesothelioma claims, unlike other claims, a defendant can be liable for damages if, in breach
of their duties, they materially increase the risk of an individual contracting mesothelioma; proof of
causation on ordinary principles is not required.2 Under Section 3 of the Compensation Act 2006 where
a ‘responsible person’ is liable then they pay 100% of the claim irrespective of whether there was
exposure elsewhere (although they can claim a contribution from other persons responsible for other
asbestos exposure).
Secondly, mesothelioma claims have been exempted, for the time being, from part of the wide ranging
Jackson reforms to civil litigation. Therefore success fees and insurance premiums will continue to be
recoverable.3 Further, mesothelioma claims will not be subject to the new Employers’ Liability and Public
Liability Pre-action Protocol for claims up to the value of £25,000.4
Thirdly, a bill specifically dealing with mesothelioma is currently proceeding through Parliament. The
Mesothelioma Bill will establish a scheme to compensate sufferers of mesothelioma where there is no
traceable employers’ liability insurer. It will be funded by a levy on insurers.5
1 [2011] UKSC 10, [2011] 2 AC 229 [1] (Lord Phillips). 2 Fairchild v Glenhaven Funeral Services Ltd [2006] UKHL 20, [2006] 2 AC 572. 3 Legal Aid, Sentencing and Punishment of Offenders Act 2012, section 48. For more information on the Jackson reforms see: BC Legal, ‘Changes to the Civil Procedure Rules’ (BC Legal Update, April 2013) <http://www.bc-legal.co.uk/images/pdf/Article.pdf> accessed 31 May 2013. 4 Ministry of Justice, ‘Pre-action Protocol for Low Value Personal Injury (Employers’ Liability and Public Liability) Claims’ (Draft, May 2013), para 4.3(9) <http://www.justice.gov.uk/downloads/civil-justice-reforms/el-pl-protocol.pdf> accessed 31 May 2013. 5 For more information on the Mesothelioma Bill see: BC Legal, ‘Mesothelioma Bill to be Brought Forward’ (BC Legal Update, 13 May 2013) <http://www.bc-legal.co.uk/images/pdf/Articlemeso.pdf> accessed 31 May 2013; BC
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Fourthly, mesothelioma claims are dealt with specifically in the Civil Procedure Rules. Practice Direction
3D lays down unique rules for mesothelioma claims and the Disease Pre-Action Protocol has provisions
specific to mesothelioma claims.
Finally, the Government intends to consult in summer 2013 on a package of proposals to expedite the
pre-litigation process in mesothelioma claims. The Government has indicated:
that a Mesothelioma Pre-action Protocol will be introduced along with an electronic gateway,
similar to the soon to be extended Claims Portal;
a regime of fixed costs is going to be proposed, the principle and structure of which will be
consulted upon; and
there will be a review of the mesothelioma provisions in the Legal Aid, Sentencing and
Punishment of Offenders Act 2012.6
The Judicial College Guidelines
The Guidelines for the Assessment of General Damages in Personal Injury Cases,7 published by the
Judicial College (previously known as the Judicial Studies Board (JSB) Guidelines), provide guideline
bracket figures for awards made for pain, suffering and loss of amenity.
Mesothelioma has its own guideline bracket, owing to its unique features. The current (11th) edition of
the Guidelines provide the following:
Chapter 6(C)(a)
Mesothelioma causing severe pain and impairment of both function and quality of life. This may be of the pleura (the lung lining) or of the peritoneum (the lining of the abdominal cavity); the latter being typically more painful. There are a large number of factors which will affect the level of award within the bracket. These include but are not limited to duration of pain and suffering, extent and effects of invasive investigations, extent and effects of radical surgery, chemotherapy and radiotherapy, whether the mesothelioma is peritoneal or pleural, the extent to which the tumour has spread to encase the lungs and where other organs become involved causing additional pain and/or breathlessness, the level of the symptoms, domestic circumstances, age, level of activity and previous state of health. £50,000 to £90,000
Legal, ‘BC Disease News: A Weekly Disease Update’ (23 May 2013) 3 <http://www.bc-legal.co.uk/images/pdf/bcnewsletter2.pdf> accessed 31 May 2013. 6 For more information, see: BC Legal, ‘BC Disease News: A Weekly Disease Update’ (30 May 2013) 4 <http://www.bc-legal.co.uk/images/pdf/bcnewsletter3.pdf> accessed 31 May 2013. 7 Judicial College, Guidelines for the Assessment of General Damages in Personal Injury Cases (11th edn, OUP 2012).
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The guideline figures change with each edition. The change accounts for inflation, new decisions and any
changes in policy. The following table shows how the mesothelioma figures have changed with each
edition:
JC Edition Mesothelioma Bracket
7th (2004) £45,000-£70,000
8th (2006) £47,850-£74,300
9th (2008) £52,500-£81,500
10th (2010) £35,000-£83,750
11th (2012) £50,000-£90,000
The following graph shows the changes in the upper and lower brackets for mesothelioma awards from
each edition to the next:
The graph shows that both the upper and lower brackets have increased in value since the 7th edition.
The upper bracket has risen year on year every year. The lower bracket, however, peaked in the 9th
edition at £52,500 but then fell sharply in the 10th edition. It has since risen again to £50,000 in the
current edition.
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The sharp fall in the lower bracket in the 10th edition followed the decision in Gallagher v Vinters
Armstrong and SHSEGL Realisations Ltd [2007].8 In that case (decided in accordance with the 8th edition)
the time from onset to death was three months. The Judge held that it was not a typical case, as
symptoms would normally exist for one to three years before death, and therefore the Guidelines were
not of assistance. The Judge awarded £20,000. The 9th edition of the guidelines subsequently continued
the upward trend in the lower bracket but reflected Gallagher by noting: ‘In cases of unusually short
periods of pain and suffering lasting 3 months or so, an award in the region of £25,000 may be
appropriate’. The 10th edition, however, reflected cases like Gallagher by reducing the lower bracket to
£35,000 and removing the reference to unusually short periods of pain and suffering.
The 11th edition of the Guidelines returned the bracket to a higher level following the decision in Ball v
Secretary of State for Energy and Climate Change.9 Here the duration between onset and anticipated
death was approximately 1 year. The claimant was aged 92 with only 2.9 years life expectancy but for
the mesothelioma. An award of £50,000 was made. Swift J expressed concern at the emphasis placed on
duration of symptoms. Assessment of damages was more complex and required consideration of other
factors such as:
extent and effects of any invasive investigations;
level of symptoms; and
domestic circumstances, level of activity and previous state of health. Contrast a young fit man
and his loss of amenity with the knowledge of significantly premature death with an older
claimant who may have far less restriction of activities as a result of the illness.
Concern was expressed that the lower bracket had been lowered to £35,000 when that was well below
most previous awards and had little basis. Accordingly, in the 11th edition the figured returned to nearly
the same level as in the 9th edition.
The following table shows the percentage change in the upper and lower brackets for each successive
edition of the Guidelines and the overall average percentage change. It shows that the upper bracket
has risen at a faster rate than the lower bracket:
Judicial College Guideline Edition Lower Bracket % Change Upper Bracket % Change
7th (2004) 45,000 70,000
8th (2006) 6.33% 6.14%
9th (2008) 9.72% 9.69%
10th (2010) -33% 2.76%
11th (2012) 42.86% 7.46%
Average yearly % change 6.48% 6.51%
8 See [19]-[46] in Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB) <http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2012/145.html&query=gallagher+and+vinters&method=boolean> accessed 4 June 2013. 9 See n 8. That the Guidelines changed following Ball is confirmed in the introduction to the 11th edition. See (n 7) xi.
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Since the 7th edition in 2004 the upper bracket has increased by 28.57%. Meanwhile, the lower bracket
has increased by 11.11%. During its peak in the 9th edition the lower bracket had increased by 16.67%. It
has now fallen by 4.76% to its current value.
Guidance or Law?
The Guidelines are only guidance, they are not law. They can be departed from if the circumstances of
the case so require.10 In Cameron v Vinters Defence Systems Ltd,11 Holland J noted, at [7], that the
starting point is the Guidelines, but that they can be departed from with justification. The circumstances
of the case must, therefore, be regarded as the ultimate determinative factor in any award of damages.
Future Guidelines
A 12th edition of the Judicial College Guidelines is expected to become available in October 2013.12 The
mesothelioma figures presented in the 12th edition will reflect inflationary uplift, any new decisions and
the 10% uplift in general damages effective from 1 April following the decision in Simmons v Castle.13
The Guidelines will provide two sets of figures, one with the 10% uplift and one without.
The following tables provide predicted values for the 12th edition upper and lower brackets, using the
overall average percentage change from previous editions. The first provides the values without the 10%
uplift in general damages; the second provides values with the 10% uplift in general damages:
Judicial College Guidelines Edition Predicted Lower Bracket Predicted Higher Bracket
12th (expected October 2013) £53,240 £95,859
Judicial College Guidelines Edition Predicted Lower Bracket with 10% Uplift
Predicted Upper Bracket with 10% Uplift
12th (expected October 2013) £58,564 £105,444.90
Common Law Awards
Of course, it is the cases that apply the Guidelines and actually make awards. Naturally, given the
inability to definitively quantify injuries the awards made in cases vary. Awards are based on all the
10 This is made clear in the forward to the 11th edition and was made clear in the forward of the first edition: (n 7) vii and ix respectively. 11 [2007] EWHC 2267 (QB) <http://www.lawtel.com/UK/FullText/AC0115064QBD.pdf> accessed 31 May 2013. 12 For more information see: BC Legal (n 6) 4. 13 [2012] EWCA Civ 1288 <http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2012/1288.html&query=SIMMONS+and+V+and+CASTLE&method=boolean> accessed 3 June 2013.
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circumstances of the case and will take the Judicial College Guidelines as their starting point.
Nevertheless, it is clear that the Guidelines are not always followed. It is also clear that many of the
cases lack consistency or ready explanation.
For a full analysis of the awards made in mesothelioma cases and tariff tables for expected awards in
specific cases, see our new Mesothelioma Quantum Guide and PSLA tool.
Mesothelioma – Eliminating the Impossible Does Not Reveal the Truth (BCDN
Edition 5)
Eliminating impossible causes of asbestos exposure does not mean that the only remaining source of
exposure, however improbable, is the cause of mesothelioma.
The Queen’s Bench Division so held when dismissing the claimant’s claim in Garner v Salford City Council
that the first defendant,14 Salford City Council, and the second defendant, P McGuiness and Company
Limited, were responsible for the claimant’s mesothelioma by causing exposure to asbestos during
demolition works.
Ms Garner, aged 45, was diagnosed with mesothelioma in May 2011. When asked about exposure to
asbestos, she recalled that during her time at school some swimming baths located next door were
demolished and generated an enormous quantity of dust. She contended that she would not have been
exposed elsewhere to asbestos and that the dust generated from the demolition must have contained
asbestos which subsequently caused her mesothelioma. She brought proceedings against the owners of
the swimming baths, the first defendant, and the contractors charged with the demolition works, the
second defendant.
Keith J accepted, at [28], that lagging on the pipework in the baths was likely to contain asbestos,
however, at [37], he held that it was more probable than not that when the lagging was removed it was
hosed down and soaked before it was removed. The effect of this would be that the release of asbestos
fibres into the atmosphere would be minimal. This effectively disposed of the claim.
His Lordship also considered, at [51], that there was no other evidence suggesting any occupational or
other exposure to asbestos. However, this did not undermine his conclusion that the removal of the
lagging was not responsible for Ms Garner’s exposure. To hold otherwise would be to hold that once the
impossible has been eliminated then whatever remains, however improbable, must be the cause. It
would be to conclude that the asbestos in the lagging was responsible for the claimant’s mesothelioma
when it had previously been held that was unlikely. Moreover, there were other possible exposures to
asbestos that could not be eliminated, such as atmospheric exposure. It could not be said with the
degree of likelihood demanded by the law that the claimant was exposed to asbestos when the baths
were demolished. The claim was dismissed.
14 [2013] EWHC 1573 (QB) <http://www.bailii.org/ew/cases/EWHC/QB/2013/1573.html> accessed 14 June 2013.
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This case is important as it shows that, irrespective of the natural sympathy for mesothelioma victims
and the desire to find defendants liable, it is nevertheless necessary to comply with principles of burden
and standard of proof. In some cases factual conclusions simply cannot be made. The court noted this in
quoting [103] of Sienkiewicz v Greif (UK) Ltd:15 ‘There are cases where, as a matter of justice and policy,
a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an
appropriate standard, so that the claim should fail’.
Mesothelioma Law and Liability – Looking to the Future (BCDN Editions 6, 7 and 8) This is a consolidated version of three articles that appeared in editions 6, 7 and 8 of Disease News.
It is uncontroversial that the law concerning mesothelioma represents a special regime. It modifies the
rules of causation. But, beyond this, does the mesothelioma regime alter the burden and standard of
proof? And what will be the sources of mesothelioma cases in the future?
In this review we consider mesothelioma law and liability, and consider what the sources of
mesothelioma cases might be in the future, in particular, schools.
I. HAS THE SPECIAL MESOTHELIOMA RULE ALTERED THE BURDEN OF PROOF?
Mesothelioma: the special rule
Ordinarily a claimant must prove, on the balance of probabilities, that a defendant’s tortious behaviour
caused the claimant’s injury, or that it materially contributed to it. In mesothelioma cases, however, the
rule is different. The rule is justifiably different because human science can only tell us that asbestos
causes mesothelioma, not how it causes it. Claimants are therefore unable to prove who exactly is
responsible for causing their mesothelioma because they cannot prove what period of exposure caused
their mesothelioma.
The current rule in mesothelioma cases is the consequence of the decisions in Fairchild v Glenhaven
Funeral Services Ltd and Barker v Corus UK Ltd,16 and the Compensation Act 2006. It provides that ‘when
a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing
the victim to a significant quantity of asbestos dust and thus creating a "material increase in risk" of the
victim contracting the disease will be held to be jointly and severally liable for causing the disease’.17
The special rule relaxes the necessity to show causation in the traditional sense. It holds that materially
increasing the risk of mesothelioma is sufficient to demonstrate causation.
What level of exposure will materially increase the risk of contracting mesothelioma?
15 [2011] 2 AC 229 <http://www.bailii.org/uk/cases/UKSC/2011/10.html> accessed 14 June 2013. 16 [2002] UKHL 22 <http://www.bailii.org/uk/cases/UKHL/2002/22.html> accessed 19 June 2013; [2006] UKHL 20 <http://www.bailii.org/uk/cases/UKHL/2006/20.html> accessed 19 June 2013. 17 Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 <http://www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKSC/2011/10.html&query=sienkiewicz&method=boolean> accessed 19 June 2013.
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In the conjoined cases of Sienkiewicz v Greif (UK) Ltd and Knowsley MBC v Willmore the issue of what
level of exposure will ‘materially’ increase the risk of contracting mesothelioma was considered.18 It was
held that exposure which is de minimis, or trivial, will not materially increase the risk of contracting the
disease.19 Some exposures are just too insignificant to be taken into account, having regard to the
overall exposure that has taken place.
So how significant does an exposure have to be to be capable of materially increasing risk? Sienkiewicz
suggests not a great deal. In Sienkiewicz itself the claimant was exposed only to asbestos fibres that
permeated the factory corridors where she worked between 1966 and 1984. The exposure ‘was very
light’.20 The exposure was even less in Willmore. There, the claimant was found to have been exposed to
asbestos at her secondary schools in two ways. Firstly, as a result of work involving the removal,
handling and disturbance of asbestos ceiling tiles in a corridor along which the claimant passed, and,
secondly, as a result of asbestos ceiling tiles, including broken tiles, being stored in a girls lavatory which
had been used by the claimant on many occasions. It was held that this minimal exposure was also
material exposure. However, Lord Rodger did express concerns about this finding, although he declined
to interfere with it.21 He added that despite the harrowing nature of mesothelioma, judges must resist
the temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of
the essential elements.
Standard of proof relaxed?
It is hard to conclude that exposure as light as in Willmore, is capable of materially increasing risk on the
balance of probabilities. Lord Rodger himself conceded the finding was ‘very generous’.22 However, it
being the case that such exposure has been held to materially increase risk, does this indicate that the
standard of proof has been relaxed in mesothelioma cases? Is it no longer necessary to show a material
increase in risk on the balance of probabilities? Is it now just enough for a claimant to identify where
they may have been some exposure to asbestos and say that it materially increased the risk of
contracting mesothelioma if they subsequently develop the disease?
Standard of proof reinforced
The issue was recently considered by the High Court in Garner v Salford City Council.23 In that case the
claimant alleged that she contracted mesothelioma after being exposed to asbestos at school during the
demolition of swimming baths (which contained asbestos lagging around pipes) next door to the school.
No occupational or other sources of exposure were identified.
18 Ibid. 19 Ibid [107]. 20 Ibid [60]. 21 Ibid [166]. 22 Ibid. 23 [2013] EWHC 1573 (QB) <http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/QB/2013/1573.html&query=garner+and+salford&method=boolean> accessed 20 June 2013. A case digest appears in last week’s edition of BC Disease News. See BC Legal, n 8, 5.
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It was held that a material increase in risk had not been demonstrated on the balance of probabilities. It
was determined, as a matter of fact, that the pipe lagging had been soaked with water before its
removal, meaning that the likelihood of asbestos being released into the atmosphere was minimal.
Accordingly the risk of inhalation was minimal and unlikely. The claimant failed to prove she had been
exposed to asbestos, or that any exposure was significant enough to materially increase the risk of her
contracting mesothelioma.
Keith J, at [51], made it abundantly clear that the elimination of any other possible source of exposure
did not mean that whatever remained must have been the cause. To have held that the claimant’s only
possible source of exposure was the cause would have been to hold that the unlikely had occurred. In
any event, there were other possible causes, such as environmental exposure. It was simply the case
that the claimant could not prove, on the balance of probabilities, that she had been exposed to
asbestos during the demolition works or that any exposure was significant enough to have materially
increased her risk. The case was simply one of those cases ‘where, as a matter of justice and policy, a
court should say that the evidence adduced (whatever its type) is too weak to prove anything to an
appropriate standard, so…the claim should fail’.24
Garner categorically reaffirms the principle that claims must be proven on the balance of probabilities.
Nothing less will do. It heeds Lord Rodger’s warning in Sienkiewicz that judges must avoid taking a lax
approach to proof of the essential elements, despite the natural and understandable desire to
compensate mesothelioma victims. It suggests that, going forward, cases like Willmore will no longer be
successful.
Looking to the future
Both Willmore and Garner concerned allegations of exposure to asbestos at school. Are children more
vulnerable to asbestos exposure? Will school asbestos exposures lead to a flood of mesothelioma
claims?
II. HOW LIKELY ARE SCHOOL EXPOSURE CLAIMS?
There are around 10 million full time and part-time pupils in 33,700 schools in the UK.25 Of the 24,372
schools in England,26 it is estimated that more than 75% have some buildings which contain asbestos-
containing materials (ACMs).27 That means that there are least 18,279 schools in England where there is
the potential for occupants – children, teachers, and other staff – to be exposed to asbestos.
24 Sienkiewicz, n 17, [193] (Lord Mance). 25 Asbestos in Schools Group, ‘Asbestos in Schools: The Scale of the Problem and the Implications’ (30 October 2011) 4 <http://www.asbestosexposureschools.co.uk/asbestos%20exposure%20in%20schools.pdf> accessed 26 June 2013. 26 Committee on Carcinogenicity, ‘Statement of the Relative Vulnerability of Children to Asbestos Compared to Adults’ (7 June 2013) <http://www.iacoc.org.uk/statements/documents/Asbestosinschoolsstatement_000.pdf> accessed 26 June 2013. 27 Ibid.
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The highest concentrations of asbestos are in found in about 13,000 schools constructed between 1945
to the mid-1970s, when the use of ACMs, including amphiboles, was at its peak. During this period a
large number of schools were built, extended or refurbished using pre-fabricated components based
around a steel, concrete, wood or aluminium frame on which external and internal cladding was placed.
These were light structures vulnerable to fire and so extensive use of ACMs was made and continued
until the mid-1970s when their use declined.28 ACMs in these schools tend to be in more ‘vulnerable’
locations with a higher risk of damage and potential fibre release. School buildings constructed before
1946 still often contain asbestos containing products, but this is mostly limited to chrysotile pipe lagging
and cement roofing.29
The sources of asbestos in post war schools are wide and various. They include: thermal insulation
around piping, ducting, in floor and ceiling voids; sprayed coatings (mainly crocidolite) for insulation and
fire protection on beams, columns and ceilings; insulation board used extensively in walls, window and
door surrounds, door panels, ceiling tiles and notice boards; roofing felt; cement products, including
roofing sheets and external window panels; reinforced plastics, such as PVC floor tiles, toilet cisterns and
toilet seats; bitumen mastics and adhesives, which were used for items such as floor tiles and wall
coverings; and, Artex textured ceilings.30 ACMs were also commonly encountered in science and wood /
metal work lessons – asbestos insulating board, often containing amosite, was used for heat resistant
surfaces in laboratories, to line warm air cabinet and fume cupboards and as Bunsen burner mats.
Crocidolite and chrysotile were used as cloth fireblankets, oven mitts and welding aprons.
Asbestos can be released by a range of common classroom activities, such as slamming doors and
accidental damage by children. The level of fibre release depends on the type of asbestos material, the
type of asbestos it contains, the condition it is in, the type of disturbance and the length of time the
disturbance takes place.31
The Medical Research Council stated, in 1997, ‘Children attending schools built prior to 1975 are likely to
inhale around 3 million respirable fibres…It is not unreasonable to assume, therefore, that the entire
school population has been exposed to asbestos in school buildings…Exposure to asbestos may therefore
constitute a significant part of total [environmental] exposure.’32 It estimated that the outdoor
background level of asbestos is between 0.000001 f/ml and 0.0001 f/ml.33 It is 0.0002 f/ml in buildings
not containing asbestos.34 The level in buildings with asbestos in good condition is 0.0004-0.0005 f/ml.35
The level in schools containing asbestos in good condition is 0.0005 f/ml.36 Accordingly, while the
background level in schools with asbestos in good condition is five to 500 times greater than the outside
28 Asbestos in Schools, n 25, 5. 29 COC, n 26, 4. 30 Department for Education, ‘Asbestos Management in Schools: Where asbestos is Found in School Buildings’ <http://www.education.gov.uk/schools/adminandfinance/schoolscapital/buildingsanddesign/managementofpremises/b00215518/asbestosmanagementschools/whereasbestosisfound> accessed 26 June 2013. 31 Asbestos in Schools, n 25, Part 2. 32 Ibid 10-11. 33 Ibid 10. 34 COC, n 26, 4. 35 Ibid. 36 Asbestos in Schools, n 25, 10.
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air, or over double that found inside buildings not containing asbestos, it is the same as the level of
asbestos in other asbestos containing buildings.
School Deaths
How is this level of exposure to asbestos reflected in the number of mesothelioma deaths? Up to 2011 a
total of 228 school teachers died of mesothelioma.37 This is equivalent to 0.052% of teachers.38
Moreover, the rate of mesothelioma deaths in teachers appears to be increasing, as the following table
and graph shows:39
37 Ibid 34. 38 Assuming 438,000 teachers: <http://www.bbc.co.uk/news/education-17840447> accessed 26 June 2013. 39 Asbestos in School, n 25, 34-36.
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The general trend for mesothelioma in the UK is shown in the following graph:40
The rate of mesothelioma in teachers appears to be increasing at around the same rate compared to all
mesothelioma cases generally. Statistics do not show the number of deaths which may be occurring in
teaching and school support staff. The Asbestos in Schools report states that the death rate is
significantly higher than occupations such as farming or forestry, where there genuinely is little or no
contact with asbestos.41 However, a 2009 HSE study suggests that many teachers may also have worked
in higher risk jobs and once these individuals are excluded than the risk of mesothelioma amongst
teachers may not be significantly higher than for the general non-exposed population.42
Are children more at risk?
On 7 June 2013 the Committee on Carcinogenicity (COC) released its statement on the relative
vulnerability of children to asbestos compared to adults. It concluded that, due to the increased life
expectancy of children compared to adults, there is an increased lifetime risk of mesothelioma as a
result of the long latency period of the disease.43 The risk is predicted to be 3.5 times greater for a child
first exposed at age 5 compared to an adult first exposed at age 25. The risk is 5 times greater when
compared to an adult first exposed at age 30.44
However, the Committee was unable to conclude from the limited data whether or not children are
intrinsically more susceptible to asbestos-related injuries.45
Medical opinion believes that any exposure above ‘the normal background level will materially increase
the risk of mesothelioma developing’.46 Indeed the Committee on Carcinogenicity note ‘there is no
40 HSE, ‘Mesothelioma Mortality in GB 1968-2010’ (2012) <http://www.hse.gov.uk/statistics/causdis/mesothelioma/mesothelioma.pdf> accessed 26 June 2013. 41 Asbestos in Schools, n 25, 37. 42 Peto et al, ‘Occupational, Domestic and Environmental Mesothelioma Risks in Britain’ (HSE, 2009) 14 <http://www.hse.gov.uk/research/rrpdf/rr696.pdf> accessed 28 June 2013. 43 COC, n 26, 1. 44 Ibid. 45 Ibid. 46 Asbestos in Schools, n 25, 11
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evidence of any threshold for mesothelioma risk’.47 It also reaffirms that amphibole forms of asbestos
may be more potent than chrysotile for mesothelioma risk.48
The Government’s position
An All-Party Parliamentary Group on Occupational Health and Safety has called for a programme for the
phased removal of asbestos from all schools.49 The Government’s policy however is that, ‘so long as the
asbestos is in good condition and not likely to be disturbed, it is better to manage it for the remaining life
of the school rather than remove it’.50
There is some evidence that the Government policy of asbestos management in schools is failing. For
example in 2009/10 a quarter of local authority schools that were inspected had enforcement action
taken against them for failing to safely manage asbestos. A fifth of schools outside local authority
control had action taken against them for the same reason.51
However, the Government did indicate, on 13 March 2013, that it will review its policy on the receipt of
the COC’s final report.52 It remains to be seen what change of policy, if any, there will be.
Predicting the future
The evidence indicates that the level of asbestos in many schools significantly exceeds the background
ambient level, although the levels are the same as levels in other buildings containing ACMs where they
are properly managed. The concern is whether the ACMs are being properly managed.
There are an increasing number of mesothelioma deaths in the teaching profession and it is thought that
children have an increased of contracting mesothelioma because of their increased life expectancy. The
leading epidemiologist, Professor Peto, suggests that in future 100-150 mesothelioma deaths per year
for both males and females (300 in total) could be due to exposure at school.53
A further concern is whether the future pool of claimants could be extended beyond those who were
genuinely exposed at school. About 15% of male cases of mesothelioma and 62% of female cases cannot
be attributed to any occupational exposure to asbestos.54 That is about 315 mesotheliomas in males and
250 in females-a total of about 565 (c. 1/4 of all mesothelioma deaths). According to the UK Asbestos
Working Party Group (AWP), only 61% of mesothelioma deaths translated into personal injury claims in
47 COC, n 26, 7. 48 Ibid. 49 All-Party Parliamentary Group on Occupational Health and Safety, ‘Asbestos in Schools: The Need for Action’ (2012) 15 <http://www.gmb.org.uk/assets/media/documents/APPG_report_2012.pdf> accessed 26 June 2013. 50 Ibid 6. 51 Asbestos in Schools, n 25, 8-9. 52 David Laws MP, Education Committee, 13 March 2013 (2012-13 HC 1056) <http://www.publications.parliament.uk/pa/cm201213/cmselect/cmeduc/c1056-i/c105601.htm>. 53 http://www.asbestosexposureschools.co.uk/npaper%20links/130.htm 54 Peto et al, n 42, 44-45.
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2008.55 The AWP assumed that no more than about 85-90% of males deaths will ever translate into
claims because of this absence of any occupational exposure. The AWP further considered that the % of
cases is likely to be less than this as some occupational exposures were during self-employment, some
were during service in the armed forces when Crown Immunity may apply and some are where solvent
employers / insurers are no longer identifiable.
The potential problem of asbestos in schools is becoming an increasingly public one. Indeed the recent
COC statement made national news.56 Increasing public knowledge and an increasing number of deaths
means one thing: local authorities and the other bodies responsible for schools should be prepared for
an increasing number of claims. Will schools and local authorities become the ‘defendant of last resort’
in those cases where no solvent exposing employer or their insurer is identifiable, where exposure arose
during self-employment or from DIY activities, where there is an unrecognised or unknown occupational
exposure or simply a genuinely ‘spontaneous’ mesothelioma arising from background risk. These cases
might account for many hundreds of the current mesothelioma deaths.
So what exactly would be required to succeed in a school mesothelioma claim?
III. PROVING A SCHOOL MESOTHELIOMA CLAIM
Common law duty of care
In most claims arising from historic exposures prior to the 1980s, whether from staff or pupils, only
common law negligence will apply. [For later exposures there may be co-existing statutory duties and a
review of specific asbestos legislation is shown as an annex to this article].
The first stage is to identify whether the school owes a duty of care to the individual. It is without
question that a school owes a duty of care to its staff and students as a matter of the law of negligence
to take reasonable care to protect them from foreseeable health and safety risks.
When did it become reasonably foreseeable to those in the schools sector that mesothelioma could
result from asbestos exposure? The law is not entirely settled. Traditionally it was thought that the
commonly applied date of knowledge for mesothelioma claims was October 1965 at the latest, following
the publication of papers by Thompson & Newhouse which linked the disease to asbestos exposure and
a Sunday Times article Scientists track down a killer dust disease.57 However, certainly in cases of low
exposure, the date of knowledge may be considerably later. In Williams v University of Birmingham,58 it
was held that 78 hours of exposure to 0.1 f/ml of asbestos in 1974 did not amount to a breach of duty
55 UK Asbestos Working Party, ‘Update 2009’ (2009) <http://www.actuaries.org.uk/research-and-resources/documents/b12-uk-asbestos-working-party-update-2009-5mb> accessed 28 June 2012. 56 http://www.bbc.co.uk/news/education-22813533 57 See Bartrip, ‘History of Asbestos Related Disease’ (2004) 80 Postgrad Med J 72, 73 <http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1742940/pdf/v080p00072.pdf> accessed 3 June 2013. 58 [2011] EWCA Civ 1242 <http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2011/1242.html&query=williams+and+birmingham+and+university&method=boolean> accessed 4 July 2013.
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because, at that time, it was acceptable to rely on Technical Data Note 13 (TDN 13: Standards for
Asbestos Dust Concentration for Use with the Asbestos Regulations 1969, which accompanied the 1969
Asbestos Regulations) which suggested exposure to chrysotile and / or amosite asbestos up to 0.2 f/ml
(over a 4 hour sampling period) did not require action. Based on that guidance the defendant could not
reasonably have been expected to know about the risks of exposure at lower levels. This view that TDN
13 indicated a ‘safe level’ was recently affirmed in Hill v John Barnsley and Sons Limited.59 Whilst TDN13
specifically related to exposure arising from occupation, by extension, it may be considered the
appropriate standard against which to assess ‘safe’ exposure in other contexts such as schools – indeed
it was so relied upon in Williams where the claimant’s exposure arose whilst a student at the University.
Prior to TDN13 the only guidance limits to exposure were those found in 1960 and 1968 editions of Toxic
Substances in Factory Atmospheres, where a fibre concentration of 30 fibres/ml (8 hour time weighted
average) was regarded as a ‘ceiling value’.
In 1976 TDN13 was replaced by the HSE Guidance Note EH10, which gave revised criteria which the HSE
was to adopt in determining whether the requirements of the 1969 Regulations were being observed.
However for the first time there was the recommendation that exposure be reduced as far as
reasonably practicable.
It seems that the risks to the general public arising from exposure to asbestos only came to be first
considered in 1976 when the Health and Safety Commission appointed an advisory committee on
asbestos (ACA) to look into the issue. The ACA reported in 1979 that:
‘Firm conclusions about asbestos dust levels in buildings cannot be drawn from the present data.
However…the number of people at risk is probably small…Our evidence of the non-occupational risk is
not such as to prompt us to recommend the general removal of asbestos from buildings. Present
evidence suggests that dangers from asbestos in buildings are likely to arise only when asbestos fibres
are released into the air when products containing asbestos are damaged, either accidentally or
during maintenance and repair’.
At the same time the ACA recommended that a programme of work be started to evaluate asbestos
exposure in non-occupational environments. In 1983 the Department of Environment published a
guidance ‘Asbestos in Buildings’ which for the first time laid down guiding principles for assessing and
controlling exposure to asbestos in commercial and non-commercial buildings. This publication gave an
overall estimate of the concentration of asbestos in buildings at 0.4f/l and said that the risk arising from
typical levels of exposure in buildings was ‘very small, especially when compared to other common risks,
such as road accidents or accidents in the household’. However at the same time it advised ‘to reduce
exposure to the minimum that is reasonably practicable’.
Breach of duty
59 [2013] EWHC 520 (QB) <http://www.lawtel.com/UK/FullText/AC0136310QBD(Birmingham).pdf> accessed 4 July 2013.
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In the case of schools then, it becomes clear that exposure to any level of asbestos does not
automatically amount to a breach of duty where the exposure is not beyond the background level of
asbestos for buildings containing asbestos which is well maintained. Rather, it will depend upon what
action was taken by reference to the prevailing knowledge and standards at the time. For example, in
1970, when TDN 13 was published, it was regarded as ‘safe’ to expose individuals to chrysotile and
amosite asbestos up to levels of 0.2 f/ml. It was only in 1976, when EH10 was published, that the notion
of reducing the level of exposure to asbestos to the lowest level that was ‘reasonably practicable’
became relevant. Furthermore, it was only in 1983 that advice specifically aimed at local authorities was
produced. The Asbestos Materials in Buildings booklet gave guidance on how and where asbestos was
used in buildings such as local authority housing, schools, colleges, hospitals and public buildings. It
recommended that asbestos materials in good condition be left undisturbed, that the release of
asbestos dust should be avoided as far as possible and that the concentration of airborne asbestos in
occupied areas be reduced to the lowest reasonable practicable level.60
The issue of breach therefore depends upon the knowledge, advice and standards prevailing at the time,
and the quality of the search for asbestos, the assessment of risk, the measures that were put in place
when it was discovered, and how often the asbestos was inspected by reference to those standards.
So if exposure arose from a slightly damaged classroom wall made of asbestos insulation board in the
1950s then breach of duty would probably not arise. If the same exposure arose in the 1980s then
breach would probably attach. Common sense should also be applied when considering issues of breach
of duty. If work was required on any asbestos containing materials, or building works involved their
disturbance, then, depending upon the urgency of such works, it would make sense that they were
carried out outside of term time or school hours, rather than when children were present and liable to
be exposed.
A finding of breach of duty however depends wholly on the specific circumstances of each case.
Causation of damage
If the school has breached its duty, the final stage for a claimant would be to demonstrate that the
breach of duty caused their mesothelioma. Ordinarily this would require showing that ‘but for’ the
breach of duty the mesothelioma would not have resulted. However, here a special rule of law applies
because of the scientific impossibility of determining which exposure to asbestos caused the
mesothelioma.
Under the special rule of law, which is explained above in Part I, an individual will have demonstrated a
causal link where the defendant has, in breach of duty, been responsible for exposing the individual to a
significant quantity of asbestos dust and thus materially increased the risk of the individual contracting
60 Ibid 19. The advice was subsequently reconsidered in 1991. In 1997 the MRC Institute of Health published a further review: ‘Fibrous Materials in the Environment: A Review of Asbestos and Man-Made Mineral Fibres’ (1997).
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mesothelioma. Moreover, if there are multiple exposures by multiple defendants they will each be held
jointly and severally liable for causing the disease.61
The individual must be exposed to more than a trivial amount of asbestos and it must increase the risk
of contracting mesothelioma by more than a trivial amount.62 This requires the individual to actually
prove, on the balance of probabilities, that they were exposed to a material amount of asbestos from a
certain source which materially increased their risk of contracting the disease. It is not enough, as
Garner v Salford CC recently demonstrated,63 to simply point to the only possible source of exposure and
say it must have caused the mesothelioma.
However, if an individual can prove that their school breached a duty of care that it owed to them, and
that it materially increased their risk of contracting mesothelioma, then they will successfully recover
damages for their mesothelioma. It is anticipated that many mesothelioma cases against schools and
local authorities will be ‘single exposure’ cases, where ‘background’ environmental exposure, that
everyone experiences during their lifetime, will be the only exposure other than that alleged with the
defendant school / local authority. In such cases even very small levels of exposure may amount to a
significant exposure which materially increases risk.
This was clearly demonstrated in the conjoined appeals of Sienkiewicz and Willmore, where asbestos
exposure in both cases was ‘very light’. In Willmore, the deceased’s childhood exposure at school (if it
occurred at all) arose over a few weeks from walking through a corridor and using the girls’ toilet where
asbestos ceiling tiles had been stacked. In Sienkiewicz, a single occupational exposure amounted to no
more than c. 1/5th of lifetime environmental exposure.
In other cases, where there is some occupational exposure(s), then the very same exposure may no
longer be significant and fall within de minimis principles. We demonstrate this within the examples in
annex 2 (where rough and ready calculations of relative exposures are applied for simplicity of example).
Damages
For a comprehensive guide, see our Mesothelioma Quantum Guide.
Conclusion
This article has examined mesothelioma law and liability and the potential for a future claims from those
exposed to asbestos at schools and colleges (or perhaps local authority housing). Schools, colleges and
local authorities face a real risk of becoming defendants of last resort in cases where there is no known
occupational exposure to asbestos (or perhaps no identifiable
solvent defendant / insurer).
61 Sienkiewicz v Grief [2011] UKSC 10 <http://www.supremecourt.gov.uk/decided-cases/docs/UKSC_2009_0219_Judgment.pdf> accessed 3 July 2013. 62 Sienkiewizc [107]-[108]. 63 See n 23 above.
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The special rules of causation may well assist claimants where even very low exposures may be seen as
more than de minimis and materially contributing to the mesothelioma. In cases where there is some
other occupational exposure(s), which significantly outweighs the school exposure, then a de minimis
defence may still be available.
It is important to remember that whilst the test of causation has been relaxed in mesothelioma claims, a
claimant must still prove a case on breach of duty and as Lord Rodgers [166] cautioned in Sienkiewicz
‘especially having regard to the harrowing nature of the illness, judges, both at first instance and on
appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax
approach to the proof of the essential elements’. In the case of Mrs Willmore, the judge’s inferences at
1st instance to make findings of facts as to exposure were described by the Supreme Court as ‘very
generous [Lord Rodgers 166] and ‘truly heroic’ [Lady Hale 173]. Lord Brown said that on the material
before him there was insufficient proof of exposure and ‘the judge found exposure on a slender and
speculative basis’.
A claimant must prove exposure on the balance of probabilities, and such exposure must amount to a
breach of duty. Exposure in itself is not sufficient evidence of breach.
ANNEX 1
A REVIEW OF ASBESTOS LEGISLATION
The legislation first promulgated to protect individuals specifically from asbestos was the Asbestos
Industry Regulations 1931. These applied principally to the asbestos manufacturing industry, although
the definition of asbestos manufacturing was fairly broad.
The Asbestos Regulations 1969, which came into force in May 1970, were more general regulations to
protect all employees from asbestos. These applied to workers and aimed to give the first quantitative
control levels. Prior to this, the Factories Acts 1937-1961 and the Building (Safety, Health and Welfare)
Regulations 1948, the Shipbuilding and Ship-repairing regulations 1960, the Construction (General
Provisions) Regulations 1961, and the Construction (Working Places) Regulations 1966 dealt more
generally with preventing employee exposure to harmful dust.
In 1974, the Health and Safety at Work Act 1974 required employers to conduct their work in a way that
would not expose employees and other persons affected by the work to health and safety risks. This
obviously includes exposure to asbestos.
In 1983, the Asbestos Licensing Regulations 1983 required those working with asbestos to acquire a
licence from the HSE to ensure standards of workmanship.
From 1985-1999 a range of regulations, including the Asbestos Prohibition Regulations 1985, the
Asbestos Products Safety (Amended) Regulations 1985 (amended in 1987), the Asbestos Prohibition
(Amended) Regulations 1988, the Asbestos Prohibition Regulations 1992, and the Asbestos Prohibition
(Amended) (No. 2) Regulations 1999, were introduced prohibiting the import, supply and use of
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asbestos products. By 1999, the importation, supply and use of all asbestos containing products had
been prohibited.
The Control of Asbestos at Work Regulations 1987 (amended in 1992) introduced statutory control
procedures to prevent workers from exposure to asbestos in workplaces directly involving asbestos.
Duties were also imposed to protect others who might also be exposed to the asbestos. The regulations
required the prevention of exposure or the reduction of exposure to the lowest reasonably practicable
level. It also imposed a number of action levels and control limits.
The Control of Asbestos in the Air Regulations 1990 imposed an emission limit of 0.1mg/m3 for asbestos
emissions to the air by industrial installations utilising asbestos processes.
The Control of Asbestos at Work Regulations 2002 updated many of the previous regulations. However,
its primary change was to introduce a duty to manage asbestos in all non-domestic premises. The
requirements of this duty were: a ‘suitable and sufficient assessment’ had to be carried out to determine
whether asbestos was or was liable to be present in the premises. This included taking into account
building plans and other relevant information, such as the age of the premises. The inspection should
have covered all reasonably accessible parts of the premises. The duty holder was to presume that
materials contained asbestos unless there was strong evidence to the contrary. In making the
assessment the duty holder needed only to take such steps as were reasonable in the circumstances.
The assessment had to be reviewed immediately if there was any reason to suspect it was no longer
valid or if there had been a significant change in the premises. The conclusions of the assessment and
every review had to be recorded in writing. If the assessment indicated the presence or likely presence
of asbestos (or asbestos containing material), a determination of the risk from that asbestos had to be
made and a written plan identifying those parts of the premises concerned had to be prepared
specifying the proposed measures to manage the risk. The specified measures for managing the risk had
to include adequate measures for monitoring the condition of any asbestos or asbestos containing
material, ensure that it was properly maintained or safely removed, and that information concerning its
location and condition was provided to every person liable to disturb it and made available to the
emergency services. The duty holder had to ensure that the plan was reviewed and revised at regular
intervals. If there was a reason to suspect that the plan was no longer valid or there had been a
significant change in the premises, then the plan had to be revised immediately. The duty holder had to
ensure that all measures in the plan were implemented and recorded in writing.
The Control of Asbestos Regulations 2006 combined a number of previous regulations into one,
including the 2002 Regulations. These replaced action levels with a single control limit of 0.1 f/cm3 over
4 hours. It also introduced a Short Term Exposure Limit (STEL) in the Approved Code of Practice of 0.6
f/cm3 over 10 minutes.
In 2012, the Control of Asbestos Regulations 2012 replaced the 2006 Regulations. They essentially re-
enact the provisions of the 2006 Regulations (which were largely based on the 2002 Regulations) with
some changes to notification requirements and recording requirements for non-licensed work.
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ANNEX 2
WORKED EXAMPLES OF SIGNIFICANT AND INSIGNIFICANT SCHOOL EXPOSURES
EXAMPLE 1
THE FACTS
C develops mesothelioma aged 80
Exposure within 10 years of onset considered non-causative-so exposure to
age 70 considered
The C had 3 exposures to asbestos:
-Environmental at 0.0001 f/ml for 70 years
-Background exposure at school which contained asbestos in
good condition at 0.0005 f/ml for 7 hours per day for 39 weeks per
year x 5 days per week (or 195 days)
-4 week exposure at school to asbestos in poor condition at 0.15
f/ml
Assume a respiratory rate of 8000 ml/min
THE EXPOSURE
Environmental
c. 29.5 million fibres
[1440 mins/day x 365 days/yr x 70 years x 8000 ml/min x 0.0001f/ml]
Background at school aged 5-16 (12 years)
c. 3.9 million fibres
[420 mins/day x 195 days x 12 years x 8000ml/min x 0.0005f/ml]
School from asbestos in poor condition
c. 10 million fibres
[420 mins/day x 20 days x 8000ml/min x 0.15f/ml]
RELATIVE EXPOSURES
Overall lifetime exposure
43.4 million fibres
[29.5+3.9+10]
Relative exposures
-Environmental 68% [29.5/43.4]
-Background school 9% [3.9/43.4]
-School asbestos in poor condition 23% [10/43.4]
CONCLUSION
The school would not be in breach of duty in respect of the 12 years background
exposure to asbestos. The school is in breach of duty in respect of the 4 week
exposure from asbestos in poor condition. At 23% of overall lifetime exposure, such
exposure would make a material contribution and the defendant would be liable.
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EXAMPLE 2
THE FACTS
As above
But now with an occupational exposure from machine sawing asbestos
insulation board 2 hours per day x 10 years (240 working days) at 20
f/ml
THE EXPOSURE
Environmental
29.5 million
School background
3.9 million
School asbestos poor condition
10 million
Occupational
768 million
[2 x 240 x 10 x 8000 x 20=768 million]
Overall
29.5+3.9+10+768=811.4 million fibres
RELATIVE EXPOSURES
-Environmental 3.6% [29.5/811]
-Background school 0.5% [3.9/811]
-School asbestos in poor condition 1.2% [10/811]
-Occupational [768/811] 94.7%
CONCLUSION
The school exposure relating to asbestos in poor condition is now responsible
for only 1.2% of overall lifetime exposure. Such exposure may no longer be
considered significant and fall within de minimis principles for which the
defendant would not be liable.
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Claimants Must Not Dispose of Histological Samples (BCDN Edition 20)
Where a claimant did not unreasonably consent to destruction of histological examples which would
have been of some evidential value in a fatal accident claim, that did not found grounds for striking out
the claim as an abuse of process. However, claimants, coroners and solicitors should now be aware that
histological samples should not be disposed of unless the solicitor has confirmed that they will not be
required for the purposes of a claim. The Queen’s Bench Division so held in Matthews v Herbert Collins
(trading as Herbert Collins and Sons),64 a case concerning an estate and dependency claim by a widow
for the death of her husband allegedly as a consequence of occupational exposure to asbestos.
The deceased had allegedly been exposed to asbestos during his employment by the seven defendants
through cutting, mitering and drilling asbestos cement sheets and boards between 1973 and 1980/81. It
was alleged that the deceased contracted asbestosis and lung cancer in consequence of this exposure.
The deceased had previously smoked heavily. The defendants denied liability and causation, arguing
that the diseases were caused by an unknown cause. Death occurred on 21 January 2009 and a post
mortem concluded that asbestos exposure had contributed to the death. An inquest concluded that
death had occurred by reason of an industrial disease. The expert evidence was conflicting. Lung tissue
samples acquired during the post-mortem were disposed of in November 2010 with the consent of the
claimant. The claimant sought the advice of the Coroner’s officer who confirmed samples were usually
not retained. When the defendants became aware of the disposal they sought strike of the proceedings
on the basis that allowing the destruction of the samples was unreasonable and culpable such as to
amount to an abuse of process. Further, they argued that destruction of the samples prevented them
from examining the samples leading to a real risk of injustice making a fair trial impossible.
Swift J held that the claimant could not be criticised. She would not have appreciated the need to keep
the samples and had sought advice which suggested destruction was the proper course. This contrasted
with other cases where the potential evidential value of the samples was known prior to destruction
being authorised. Her Ladyship further held that it was not unreasonable for the claimant’s solicitors to
have assumed that the Coroner’s office would have contacted them prior to destruction. Although the
samples would have been of some evidential value there was ample other evidence on which a judge
could fairly try the claim. A fair trial was not compromised despite the destruction of the samples. The
strike out application was therefore dismissed.
Swift J finally noted that she would send to all Coroners a request that, where industrial disease is
recorded as a contributory cause of death, they advise the deceased’s family to speak to their solicitor
about destruction of histological samples where a claim is pending. Moreover, solicitors should advise 64 [2013] EWHC 2952 (QB) <http://www.bailii.org/ew/cases/EWHC/QB/2013/2952.html> accessed 10 October 2013.
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their client and the relevant Coroner’s Office that disposal of samples should not be undertaken without
confirmation from those solicitors that the samples are not required for the purposes of a claim.
Following this judgment there will be no room for claimants to argue that they inadvertently consented
to the destruction of histological samples without realising their importance. Claimants can expect strike
out to be the likely sanction in the future.
Awards for Special Parental Care in Mesothelioma Claims – A Review (BCDN
Edition 21)
Introduction
It is an inevitable and grossly unfortunate consequence of an individual contracting mesothelioma that
the children and partner of the deceased are left without a mother/wife or, more often, a
father/husband. Of course, they can bring a dependency claim under the Fatal Accidents Act 1976 for
future financial losses and loss of future services that would have otherwise been provided but for the
death. However, the services provided by a parent or partner go far beyond that which could be
replaced by commercially sourced services. Parental life guidance, for example, is irreplaceable.
However, the general rule under the Fatal Accidents Act is that damages are solely for lost financial
dependency.65 So are these ‘intangible’ services compensable?
In this article we consider awards for special parental care in accordance with the principle expressed in
Regan v Williamson,66 which involved loss of a wife and mother.
The principle in Regan v Williamson
In Regan v Williamson, Watkins J affirmed, at 308, that the law was simply to compensate for lost
services, not to compensate for grief, loss of companionship, or loss of parental guidance. However, he
noted that it may seem a harsh law. While his Lordship did not go so far as saying these things could be
compensated as services as such, as Lord Edmund-Davies opined as arguable in Hay v Hughes,67 he held,
at 309, that the notion of ‘services’ had been construed too narrowly. ‘It should, at least, include an
acknowledgement that a wife and mother does not work to set hours and, still less, to rule. She is in
constant attendance, save for those hours she may well give the children instruction on essential
matters to do with their upbringing and, possibly, with such things as their homework. This sort of
attention seems to be as much of a service, and probably more valuable to them, than the other kinds of
service conventionally so regarded’.
On that basis, any award for services may, therefore, acknowledge that a wife or mother is in constant
attendance upon her children or husband.
Subsequent authority and extension of the principle
65 Kemp and Kemp, ‘Quantum of Damages’, [29-052]. 66 [1976] 1 WLR 305. 67 [1975] QB 790.
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The Regan decision was first instance so does not strictly bind other courts. Curiously, it has not been
the subject of any considerable higher judicial consideration, despite seemingly creating a new head of
loss, or, at the very least, significantly modifying an existing head of loss. That said, in Spittle v Bunney,68
it was held, at 858-859, that the ‘special qualitative factor’ in Regan had been approved, at least by
implication, in the Court of Appeal decision of Abrams v Cook.69
Most recently, in Beesley v New Century Group Ltd,70 Hamblen J held, at [83], that ‘the principle of
making awards for loss of intangible benefits is now well established…It reflects the fact that services
may be provided by a mother, wife, father or husband over and above that which may be provided by a
paid replacement. In principle, there is no reason for differentiating between the position of children
and spouses in connection with the availability of such awards.’
Beesley not only confirmed the principle but confirmed it extended further than mothers/wives to
fathers/husbands. The earlier cases, such as Regan, were decided at a time when the father was
generally the sole breadwinner and would provide less by way or services to their children/wife by
reason of attending his employment, that task instead being left to the mother/wife. However, modern
society is different and it is not now uncommon for a father instead to be providing such services. In any
event, a working parent/partner still provides services, even if they are provided with less frequency.
That lower frequency can be reflected in a lower award.
If a Regan award is made to reflect the special care provided by a parent, then arguably such an award
should be available when a child is cared for by another individual who provides a similar level of
intangible services. For example, a grandparent that cares exclusively for their grandchild presumably
provides very similar services to the parent. Were that grandparent to contract mesothelioma by reason
of asbestos exposure and die, would it be justifiable to deny a Regan award in those circumstances?
Alternatively, is it correct to say that no individual can ever truly stand in the shoes of a parent?
Aside from questions about how far the principle extends, it is at least clear than an award can be made
to represent the lost intangible services provided by a partner or parent. Most awards have been made
in respect of the loss of a wife/mother; mesothelioma has been the area where extension of the awards
has been made husbands/fathers. How much are these Regan v Williamson awards? The decided cases
suggest that the average award is £2,000 to £3,000. Children tend to be awarded more than spouses, in
the region of £500 to £1,000 more.
The following section reviews Regan v Williamson awards that have been made in mesothelioma claims
and a range of other claims.
Cases making a Regan award
68 [1988] 1 WLR 847. 69 (Unreported, 18 November 1987). 70 [2008] EWHC 3033 (QB).
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- Mehmet v Perry [1977] 2 All ER 529 – fatal accident leading to the death of wife/mother. Held it
was reasonable for father to give up working to care for (5) children, of whom two (aged 6 and
3) suffered a rare blood disorder. Husband and children entitled to recover relatively small sums
for the loss of personal care and attention from the deceased over and above the loss of
housekeeping services. £1,500 awarded to the children; £1,000 awarded to the husband.
- Topp v London Country Bus (South West) Ltd [1992] PIQR 206 – the deceased wife/mother was
killed by a minibus belonging to the defendants. Liability not established but quantum was
nevertheless addressed. Child would have been awarded £2,500 for loss of her mother’s care
and advice; husband would have been awarded £2,000 for loss of his wife’s care and attention.
- Whitmore v Malin (1995) Lawtel Document Number: AM0502355 – fatal accident leading to the
death of wife. £2,000 awarded to the husband for services rendered by a wife over and above
those rendered by paid helpers.
- Johnson v British Midland Airways Ltd [1996] PIQR Q8 – the deceased wife/mother was killed
along with two of her three children in an aeroplane crash. Liability admitted. Award made for
loss of the value of services over and above those which can be bought. Caution exercised to
avoid overlapping awards. Child awarded £3,500; husband awarded £2,500.
- Baden-Powell v Central Manchester (2002) Lawtel Document Number: AM0900442 (approved
out of court settlement) – deceased wife/mother died following clinical negligence. An amount
for loss and care and attention for each child was paid in the sum of £5,000.
- H v S [2003] QB 965 (CA) – divorced mother of four children, three of whom were minors, killed
in a car accident. Awards were initially made of £1,000; £5,000 and £7,000 for special services
that only a mother could provide. On appeal, the latter two awards were reduced to £3,500 and
£4,500 respectively. There was no reason to depart from the conventional maximum of £5,000,
even in the case of a very young child.
- Beesley v New Century Group Ltd [2008] EWHC 3033 (QB) – deceased husband died of
mesothelioma following occupational exposure to asbestos. The deceased performed a number
of jobs around the home at his own time and convenience. This was the intangible benefit. An
award of £2,000 was made to the widow.
- Manning v King’s College Hospital [2008] EWHC 3008 (QB) – deceased wife/mother died
following clinical negligence. The children were each awarded £4,000 for the loss of the love and
devotion of a mother. The husband, who himself had a shortened life expectancy owing to
cancer and would therefore have relied on the special care and attention provided by his wife,
was awarded £3,000.
- Fleet v Roy [2009] EWHC 3166 (QB) – The deceased husband died of mesothelioma following
occupational exposure to asbestos. Interestingly, at [25], it was said the awards are traditionally
an attempt by the courts to value the services of a mother or a father over and above the
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commercial cost of replacing them; it should not be always automatically be extended between
spouses. However, in this case, a payment was justified because the widow was considerably old
than her husband and would, as the years went on, needed more than usual care. The husband
was awarded £2,500.
- Streets v Esso Petroleum (2009) Lawtel Document Number: AM0201440 – Deceased husband
and father died of mesothelioma following occupational exposure to asbestos. The son was
aged 22 at the time of trial. A Regan award of £2,000 was made to the widow.
- Devoy v Doxford [2009] EWHC 1589 (QB) – Deceased husband died of mesothelioma following
occupational exposure to asbestos. The deceased’s wife was 63 at the time of death and
suffered from Parkinson’s disease, osteoporosis and a painful spinal condition. It was held the
widow could recover for the loss of the deceased’s love and affection. Such a claim could arise
where undoubtedly the widow has lost the love and affection and the very special attention
which the deceased would have given to her in respect of her disabilities had he lived. The sum
of £2,000 was awarded.
Conclusion
Regan v Williamson awards are now an accepted head of loss. Questions remain over exactly how far
the principle extends and when an award should be made. They are modest awards. Defence
practitioners should be astute to the amount claimed. In 2003, H v S suggested a maximum conventional
award of £5,000. In 2013, that means a Regan award should not exceed in the region of £7,000.
Typically, in the case of the loss of a father/husband in mesothelioma claims, the award will be in the
region of £2,000-£3,000. However, it is vital to remember that the award is not an automatic one in the
case of fathers/husbands, as Fleet makes clears. It appears that some justification – some very special
care – is necessary to enable a Regan award to be made. In Beesley the deceased performed domestic
tasks, in Fleet the deceased would have provided more than usual care, and in Devoy very special care
would have been given by the deceased in relation to his widow’s disabilities. Accordingly, on the
authority of these cases, Regan awards should be resisted in cases where there is not some justification
for making the award in respect of a father/husband.
Mesothelioma and the Asbestos Industry Regulations 1931 (BCDN Edition 25)
In the asbestos related mesothelioma claim of McDonald v (1) Department for Communities and Local
Government (2) National Grid Electricity,71 the Court of Appeal has ruled on the application and burden
of proof under regulation 2(a) of the Asbestos Industry Regulations 1931. The 1931 Regulations applied
to factories and workshops where any one of six processes involving asbestos was carried out including
the ‘breaking…and the mixing…of asbestos’ – subject to such processes being more than occasional or
involving work of more than 8 hours per week. These Regulations have been examined twice before by
the Court of Appeal with apparent conflicting interpretation and application. In Banks v Woodhall
Duckham & ors (1995) the Regulations were said to only apply to premises where asbestos products
71 [2013] EWCA Civ 1346
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were being manufactured and not to the work of lagging in a steel works.72 In Cherry Tree Machine Co.
Ltd & anor. v Dawson (2001) the Regulations were given wider application to premises outside of the
asbestos industry itself.73
Whilst the Court of Appeal in McDonald has followed the wider interpretation of the 1931 Regulations
adopted in Cherry Tree, there are helpful findings on common law negligence and the application of the
Factories Acts which are relevant to ‘low exposure’ mesothelioma claims.
The exposure
The claimant (C) had been employed by the first defendant’s (D1) predecessor from 1954 to 1959 as a
lorry driver. He alleged his mesothelioma was caused by exposure to asbestos dust when attending
Battersea Power Station – owned and controlled by the second defendant’s (D2) predecessor – in his
lorry to collect fuel ash. C said he would visit the power station about twice a month and would be there
for 1-2 hours. On these occasions he spent about an hour in the power station dealing with paperwork
and would be regularly exposed to asbestos from workers mixing, applying and removing asbestos
based lagging within 10-15ft of him and regularly exposed to ‘clouds of dust’. The defendants argued
that on the majority of his visits there would be no exposure as C would have no need to go to areas
where lagging/stripping took place.
The allegations
The claim was pursued in common law negligence only against the employer D1. Against D2, as the
occupier/controller of the premises, breaches of s.47 (1) of the Factories Act (FA) 1937 (the duty to
remove dust or fumes where these are likely to be injurious or substantial) and regulation 2(a) of the
Asbestos Industry Regulations 1931(the mixing of asbestos by hand shall not be carried on except with a
mechanical exhaust draught to ensure so far as practicable the suppression of dust) were pleaded.
The findings at first instance
The Judge at first instance accepted the defendants’ analysis of the real extent and duration of exposure
and concluded that ‘any exposure was at a modest level on a limited number of occasions over a
relatively short period of time’.
The claim in common law negligence against D1 was dismissed as the Judge accepted that C’s ‘likely
exposure when exposed was not greater than those levels in the 50s and 60s as being unlikely to pose
any real risk to health’. The Judge relying upon Williams v University of Birmingham74 found there could
be do duty upon D1 to act in respect of dangers not known to be dangers at the time.
In respect of the claim against D2 the Judge found that:
72 30 November 1995 (unreported). 73 [2001] EWCA Civ 101. 74 [2011] EWCA Civ 1242.
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(i) s.47 of the FA 1937 did not add materially to any common law duty of care which may have existed.
The statutory duty was itself dependent on what was reasonably foreseeable at the time;75
(ii) s.2 of the Asbestos Industry Regulations 1931 applied to premises where mixing of asbestos was
being carried out but in the case of D2 it was exempt from the Regulations as the lagging work was likely
to have been carried out ‘occasionally’ and/or for no more than ‘eight hours in any week’.
The Court of Appeal
On the issue of common law negligence, the Court of Appeal agreed with the trial judge that on the
state of knowledge at the time there was no foreseeable risk of injury. Therefore there could be no duty
as employer in this respect, following the Court of Appeal decision in Williams v University of
Birmingham.
On the issue of section 47(1) there were two issues: firstly if it applied and secondly if it was breached.
The Court held that it could not be said that C was employed at D2’s premises since he only visited
occasionally and he was not employed in any asbestos processes. The duty did not therefore apply; even
if the duty had applied it could not be said on the evidence that it had been established there was a
‘substantial quantity of dust of any kind’ against which all practicable measures had to be taken to
protect C. Accordingly that part of the claim also failed.
On the issue of regulation 2(a) (mixing of asbestos by hand shall not be carried on except with a
mechanical exhaust draught to ensure so far as practicable the suppression of dust) it was held the
regulation could apply to the mixing of asbestos with water in drums, following the decision in Shell
Tankers v Jeromson; Dawson v Cherry Tree Machine Co,76 which the Court of Appeal felt ‘constrained’ to
follow even though its correctness was doubted on this point. The regulation did not apply (according to
the Preamble to Regulations) if mixing was carried on only occasionally and the person was not
employed at the factory for more than 8 hours per week. However, the judge was wrong to hold that C
must prove the exception did not apply. Rather, on a natural reading of the words, it was clear
regulation 2 applied unless D2 proved otherwise (and D2 also had to prove it had installed an exhaust to
suppress dust so far as practicable). In addition, there was no issue of ‘reasonable practicability’. The
regulations recognised the risk of dust and regulation 2(a) provided that it should be reduced so far as
practicable, not so far as reasonably practicable, again following the decision in Cherry Tree. The duty
had been breached.
Finally, on the issue of causation, it was held that in the absence of other occupational exposure the
exposure materially increased C’s risk of contracting mesothelioma.
Comment
75 Akin to s.29 of the FA 1961 to keep the workplace ‘safe’ and common law negligence in NIHL claims as considered by the Supreme Court in Baker v Quantum Clothing [2011] UKSC 17. 76 [2001] EWCA Civ 101.
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National Grid has indicated its intention to appeal the decision and there are good arguments to support
a more restrictive application of the Asbestos Industry Regulations 1931 such that it would not apply
outside of the asbestos industry.
This decision however still provides much of use in the defence of low level mesothelioma claims which
do not arise from proximal exposures to lagging work (or it can be shown that the 1931 Regulations
would be exempt by reason of the occasional/short duration of such work).
For claims framed only in common law negligence the claimant must show that exposure would give rise
to a foreseeable risk of injury. Arguably it is only by 1976 with the publication of HSE Guidance EH10 that
there was a duty on employers to reduce exposure to the minimum reasonably practicable – prior to
this, provided the exposure was within guidance limits of exposure, (so below the limits set out in
editions of Toxic Substances in Factories between 1960-1969 and below those within Technical Data
Note 13 between 1970-1975) then such exposure would be considered ‘safe’ and not giving rise to a
foreseeable risk of injury. Foresight of harm must be judged by reference to the prevailing standards at
the time.
In respect of claims also framed under the various Factories Acts to protect against exposure to dust or
fumes under s.47 of the 1937 Act and s.63 of the 1961 Act (and similar legislation),77 there are powerful
arguments that such duties do not add materially to any co-existing common law duty of care and still
require the employer to have reasonable foresight of injury.
In any case it is important to always consider the nature and application of any statutory duty against
the employer or occupier and whether this will create a similar or higher standard of care than at
common law and whether reasonable foresight of injury is still required. We will examine this in more
detail in a future feature in BCDN but a timeline of common legislation which may be applicable in
asbestos claims is shown as an appendix.
A Common Law Mirror? The Factories Acts (BCDN Edition 26)
Introduction
In asbestos related claims it is often considered that the various duties of care contained in the Factories
Act 1937 and 1961 impose duties which are more onerous than the common law duty of care. But are
the statutory duties stricter than those at common law or are they merely a common law mirror?
In this article we consider the position of the three most commonly pleaded duties under the Factories
Acts. We then go on to consider how they apply to two distinct categories of people: those employed
and generating the asbestos dust and those exposed to asbestos by reason of their proximity to a
person engaged in an asbestos process.
77 Such as under the Building (Safety, Health and Welfare) Regulations 1948, Construction (General Provisions) Regulations 1961 and Construction (Working Places) Regulations 1966.
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The Common Law
Before considering the nature of the duties under the Factories Acts, it is helpful to identify exactly what
the common law duty of care is. The issue was dealt comprehensively in Williams v University of
Birmingham.78 The duty of care is to take reasonable care (including measures if necessary) to ensure
that an individual is not exposed to a reasonably foreseeable risk of asbestos related injury. What is
reasonably foreseeable is judged by reference to the prevailing standards of knowledge at the time.79
It is the prevailing-knowledge-of-standards-at-the-time part of the test that often presents problems. Up
to 1960 risk was considered in the context of prolonged heavier exposures giving rise to known diseases
such as asbestosis and lung cancer. Between 1960 and 1965 came the first tranche of knowledge of
mesothelioma in four papers: ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in North-Western
Cape Province’ (Wagner, Sleggs and Marchand,1960); ‘Mesotheliomas and Asbestos Dust’ (Smither,
Gilson and Wagner, 1962); ‘Asbestos and Malignancy’ (BMJ, 1964); and ‘Mesothelioma of Pleura and
Peritoneum Following Exposure to Asbestos in the London Area’ (Newhouse and Thompson, 1965). The
final paper led to the notorious Sunday Times article ‘Scientists Track Down Killer Dust Disease’ in
October 1965. This brought knowledge of mesothelioma into the public arena and made it clear that
even modest exposures could give rise to fatal cancer. From that point onwards, 1965 was commonly
assumed to be a watershed moment whereby any exposure to asbestos after this date, irrespective of
the dose, would result in a finding of breach of duty of care.
However, the reality is that for a considerable period after 1965 there were various levels of exposure
set down officially that were regarded a ‘safe’. For example ‘Toxic Substances in Factory Atmospheres
(first published by the Ministry of Labour in March 1960) set ‘maximum permissible concentrations’ to
mineral dusts and asbestos at 5-30 fibres/ml. Later, Technical Data Note 13 (published by HM Factory
Inspectorate in March 1970) provided that exposure to a level of 0.2 fibres/ml2 of crocidolite or 2
fibres/ml2 of amosite or chrysotile was ‘safe’. It was only in December 1976 with the publication of
Guidance Note EH10 by the HSE that reducing exposure to the lowest level reasonably practicable was
recommended. Only in Williams did the courts finally respond to this developing knowledge, holding
that an employer could rely on standards of knowledge at the time. Accordingly TDN 13 prevented a
duty of care arising because it was not reasonably foreseeable that exposure to a level below the levels
set out there was harmful.
As a result of this developing knowledge preventing liability attaching in common law negligence,
claimants will seek to argue that the statutory duties set out in the Factories Acts impose stricter duties
to limit exposure, which are not subject to the prevailing knowledge of the time. Do the duties in the
Acts impose stricter liability or not?
The Factories Acts
78 [2011] EWCA Civ 1242. 79 See [36] and [40].
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Under the Factories Acts there are three particular duties that merit consideration. These are section 4
of the 1937 Act (re-enacted as section 4 in the 1961 Act), section 29 of the 1961 Act and section 47 of
the 1937 Act (re-enacted as section 63 of the 1961 Act). We shall consider each in turn.
Section 4 of the 1937/1961 Act (providing ventilation)
Section 4 can be dealt with briefly. This section provides: ‘Effective and suitable provision shall be made
for securing and maintaining by the circulation of fresh air in each workroom the adequate ventilation of
the room . . .’.
This section cannot be said to extend beyond the common law. In Ebbs v James Whitson Ltd the duty in
section 4 was interpreted as requiring merely the circulation of fresh air and nothing more.80 The
common law duty of care would almost certainly require the same.
Section 29 of the 1961 Act (safe place of employment)
Section 29(1) of the 1961 Act has required significantly more judicial consideration. The section
provides: ‘There shall, so far as is reasonably practicable, be provided and maintained safe means of
access to every place at which any person has at any time to work, and every such place shall, so far as is
reasonably practicable, be made and kept safe for any person working there’.
Claimant practitioners had argued that ‘safety’ was an absolute concept; if a workplace was unsafe, even
if that was only clear with the benefit of hindsight, then the duty had been breached. In asbestos claims
the implications are clear: strict liability would be imposed. Defendants would be liable for exposing
employees to asbestos (outside of the de minimis range) who subsequently developed an asbestos
related disease, even though it was thought at the time not to be a risk.
A decision was made on the proper approach to section 29 by the Supreme Court in Baker v Quantum
Clothing Group Ltd.81 Lord Mance held at [64]: ‘Whether a place is safe involves a judgment, one which is
objectively assessed of course, but by reference to the knowledge and standards of the time. There is no
such thing as an unchanging concept of safety…’
Accordingly the duty in section 29 is to take all reasonably practicable measures to keep the workplace
safe based on what was regarded as safe at the relevant time: it is a mere mirror of the common law. It
goes no further. Lord Mance continued, at [78]: ‘There is nothing to show that section 29(1) was
intended to go further [than the common law], and there is no assumption (or, in my opinion, likelihood)
that it was intended to. The standard of reasonableness expressed in the qualification “so far as is
reasonably practicable” (in respect of which the onus of proof is on the employer) makes it more, rather
80 [1952] 2 QB 877. 81 [2011] 1 WLR 1003.
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than less, likely in my view that the concept of safety is itself to be judged…by reference to what would,
according to the knowledge and standards of the relevant time, have been regarded as safe…’
Section 47 of the 1931 Act/ Section 63 of the 1961 Act (removal or dust or fumes)
Section 47/63(1) provides: ‘In every factory in which, in connection with any process carried on, there is
given off any dust or fume or impurity of such a character and to such extent as to be likely to be
injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all
practicable measures shall be taken to protect the persons employed against inhalation of the dust or
fume or other impurity and to prevent its accumulating in any workroom, and in particular, where the
nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near
as possible to the point of origin of the dust or fume or other impurity, so as to prevent its entering the
air of any workroom.’
The section appears to impose two duties: a duty to take all practicable measures not to expose
employees to:
(a) a quantity of dust likely to be injurious to health; or
(b) a substantial quantity of dust of any kind.
The duty in (a) is another common law mirror. What is ‘likely’ to be injurious to health depends upon the
prevailing standards of knowledge at the time: Ebbs v James Whitson Ltd. Arguably, this duty is a little
more demanding that the common law. The common law only requires reasonable measures to be
taken. This statutory duty is seemingly more onerous because it requires all practicable measures to be
taken, not only reasonably practicable measures.82 What does ‘practicable’ mean compared with
‘reasonably practicable’? It is not an easy matter to decide: Cartwright v GKN Sankey Ltd.83 Measures
may be ‘practicable’ which are not ‘reasonably practicable’,84 but ‘practicable’ appears to mean more
than just physically possible. The measures must be possible in light of current knowledge and
invention;85 accordingly, it is impracticable to take precautions against a danger which cannot be known
to be in existence or take precautions which have yet to be invented.86 On this interpretation it is to be
doubted that the section adds little to the common law: even if more than reasonable measures must
be taken it does not go as far as demanding any physically possible measure. More importantly, an
employer can only be expected to take measures against known risks, which depends on the prevailing
knowledge at the time: it is not practicable to protect against an unknown. Consequently, even when
practicable measures must be taken the relevant knowledge of the time must be raised because
measures must only be taken against known risks.
The position in respect of the duty in (b), on the other hand, is less clear. There is no question of safety
or likelihood. It is simply a duty not to expose an individual to a substantial quantity of any dust. It
82 McDonald v Department for Communities and Local Government [2013] EWCA Civ 1346. 83 (1973) 14 KIR 349 at 363. 84 Marshall v Gotham Co Ltd [1954] AC 360. 85 Asdett v K and L Steelfounders and Engineers Ltd [1953] 1 WLR 137. 86 Jayne v National Coal Board [1953] 2 All ER 220.
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appears to be absolute: if an individual is so exposed (where all practicable measures to avoid this have
not been taken) and this results in injury, the defendant is liable. Thus a defendant is seemingly liable
even for unknown risks so long as there has been substantial exposure.
There are two issues with this construction. Firstly, are there really two separate limbs to section 63(1)
with foreseeability only relevant to the first part where dust exposure is ‘likely to be injurious’ but not to
the second part where the exposure is ‘substantial’? Arguably this deconstruction of section 63(1) into
separate limbs is artificial and foreseeability is a relevant consideration – irrespective of whether the
dust is ‘likely to be injurious’ or ‘substantial’. Secondly, what is a ‘substantial’ amount of dust? In
Anderson v RWE Npower plc Irwin J suggested that the term meant little, since in the context it ‘almost
certainly meant “so substantial as to be likely to be injurious”’.87 Were this interpretation adopted then
the duty in (c) would amount essentially to the duty in (a) and match the common law duty closely.
Alternatively, if it is interpreted instead as a separate duty then arguably what is substantial must be
judged against official guidance of the time, as it was in Boyle v Laidlaw and Fairgrieve Ltd.88 Guidance of
the time was formulated based on known risks. Accordingly, a volume of dust would not be regarded as
substantial unless it exceeded a level in official guidance of the time, and such a level would not appear
in the guidance unless a level of dust was known to pose a risk. That is to say the duty is not absolute
and does have regard to the knowledge of the time. Defendants would not have to protect against a
level of dust which was not known to pose a risk.
In any event, the third issue with an absolute construction is that the duty is qualified so that
‘practicable’ measures must be taken. As we have just seen it is not practicable to take measures to
protect against an unknown risk. Once again, this introduces the knowledge of the day and elides the
statutory duty with the common law duty.89 The only difference between the two would be the need to
take all practicable measures as opposed to reasonably measures. As we saw above, it is doubtful if the
gulf between these two standards is that great.
Arguably then, the duty in section /4763 requires little more than the common law.
By way of summary, it is arguable that the vast majority of statutory duties relied on by claimants in
asbestos claims under the Factories Acts do no more than to require compliance with the common law
duty of care. Even if they are not identical they import many of same concepts. With this is mind we
shall now consider to whom these statutory duties apply.
Applicability of duties
The statutory duties will inevitably apply to those directly employed in the process giving rise to
asbestos exposure, but do they apply to those exposed to asbestos by reason of their proximity to a
person creating the exposure?
87 (QBD, 22 March 2010) at [43] 88 [1989] SLT 139. 89 This interpretation appears to be supported in Gregson v Hick Hargreaves and Co Ltd [1955] 1 WLR 1252 and Richards v Highway Ironfounders (West Bromwich) Ltd [1957] 1 WLR 781.
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Such individuals may be employed at the workplace but engaged in another process. Alternatively they
may not be employed at the workplace but engaged in an occupation that requires them to attend the
workplace and work there. Either way, the individual is exposed to asbestos by reason of their proximity
to asbestos processes rather than being directly engaged with them themselves.
Section 4 seemingly applies to this category of individuals. Since the duty requires ventilation in the
workroom, it applies on a natural reading to all those in the workroom, irrespective of whether they are
engaged in an asbestos process or not.
Under section 29 the workplace should be kept safe for ‘any person working there’. This has been
interpreted as capturing any person who has to work on the premises, including independent
contractors.90
The applicability of section 47/61 appears more restricted. The duty is to protect ‘persons employed’
where removal processes generate dust. Does this mean it applies to all persons employed whether they
are engaged with the process or not? In McDonald v Department for Communities and Local
Government the Court of Appeal appeared to hold that it is necessary to be actually employed in the
dust generating process. 91 In any event the Court was agreed that the duty could not apply to those
they are not employed at the premises, whether they are engaged in asbestos processes or not.92
However, it is important to remember that although a statutory duty may not arise a common law duty
may nevertheless arise if there is a sufficient relationship of proximity between the claimant and
defendant.93
Conclusion
Sections 4, 29 and 47/63(1) of the Factories Acts (along with their counterpart duties in other industries
(which are shown in the table at the end of this article)) are commonly pleaded in asbestos claims.
Arguably the statutory duties in the Factories Acts are predominately common law mirrors, requiring no
more or little more than the discharge of the common law duty of care. This is of crucial importance in
asbestos claims since the exposure in a number of claims occurred at a time when some exposure to
asbestos was regarded as ‘safe’. It prevents liability attaching to defendants for risks they could not
foresee, and could not reasonably have been expected to foresee, at the relevant time. When statutory
duties are pleaded these should be scrupulously analysed to determine if they merely import the
common law duty of care or its concepts. Attention should be paid to four particular issues: does the
statutory duty apply to the relevant workplace; does it apply only to those generating the exposure or to
all persons in the workplace; does it apply only to employees or to others; and, finally, what is the
standard of the duty – does it merely mirror the common law?
90 Whitby v Burt [1947] KB 918; Lavender v Diamints Ltd [1949] 1 KB 585; Wigley v British Vinegars Ltd [1964] AC 307. 91 [2013] EWCA Civ 1346. The Master of the Rolls took that view while McCombe LJ did not decide the point. Gloster LJ agreed with both judgments. See also Morrison v Central Electricity Board and Babcock and Wilcox Ltd (QBD, 15 March 1986); Banks v Woodhall Duckham (CA, 30 November 1995). 92 See [59], [107] and [104]. 93 See Caparo Industries plc v Dickman [1990] UKHL 2, [1990] 2 AC 605.
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Table of equivalent provisions
Equivalent Provisions
Scope of Provision
Provision in the Factories Acts
Building (Safety, Health and Welfare) Regulations 1948
Shipbuilding and Ship Repairing Regulations 1960
Construction (General Provisions) Regulations 1961
Construction (Working Places) Regulations 1966
Ventilation Section 4 Regulation 82 Regulation 48 Regulation 21
Safe Workplace
Section 29 Regulation 7 Regulation 6
Removal of Dust/Fumes
Section 47/63
Regulation 82 Regulation 53 and 76
Regulation 20
Damages in Fatal Claims (BCDN Edition 34)
Loss of dependency is a recoverable head of loss. The Court of Appeal so held in Haxton v Phillips
Electronics UK Ltd, a case concerning mesothelioma caused by exposure to asbestos.
Mr and Mrs Haxton both developed mesothelioma. Mr Haxton had worked as an electrician for the
defendant and was exposed to asbestos. He died from mesothelioma in 2009. Mrs Haxton was
secondarily exposed to asbestos through washing Mr Haxton’s clothes. She subsequently also
contracted mesothelioma. Mrs Haxton brought two claims. One was in her capacity as widow and
administratrix of the estate of her late husband under the Law Reform (Miscellaneous Provisions) Act
1934 and as a dependent under the Fatal Accidents Act 1976. Her damages for dependency were
severely limited by her own limited life expectancy: she received dependency damages for only 0.7
years. Her second claim was in her own right for negligence and breach of statutory duty against the
defendant. Liability was conceded in both claims. The issue for determination arose from her personal
claim. She argued that but for the defendant’s negligence, her life would not have been shortened and
the assessment of her dependency claim in the first action would have been significantly greater.
Therefore the defendant should compensate her for that loss. Was this recoverable as a head of
damage?
On behalf of Mrs Haxton it was submitted that damages aim to place the receiving party into the
position they would have been but for the tortious act. Applied here, in the absence of the tortious act
Mrs Haxton would have lived significantly longer and would have received more dependency damages.
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Therefore, they should be recoverable. Moreover, there was no policy objection to allowing recovery of
this sort.
On behalf of the defendant it was submitted that permitting recovery in these circumstances would
allow her to recover for a period of dependency when she never would in fact be dependant. It would
import a loss from a claim which arose from the first proceedings into the second claim and would be
inconsistent with the careful structure of the Fatal Accidents Act. The High Court agreed.
In the Court of Appeal, Elias LJ held the issue was whether there was any reason or principle or policy
which should deprive Mrs Haxton from recovering the additional dependency damages that she would
have received but for the defendant’s negligence. His Lordship held at [14] that there was not. The Fatal
Accidents Act conferred a statutory right to recover for loss of dependency and there was no reason why
a diminution in the value of that right resulting from the negligence of the defendant could not be
recovered as a head of loss in the claimant’s personal action. That did not interfere with the principle
under the legislation. Mrs Haxton’s claim was a common law claim for damages for loss of dependency;
it was a claim for diminution in the value of a valuable chose in action (a right to recover money), a
statutory right. There was nothing in the language of the legislation or other cases which suggested that
there was any special attribute distinguishing that particular chose in action from any other. Indeed
similar principles supported the recoverability of the loss of dependency. Furthermore the loss of
dependency was not too remote. It was reasonably foreseeable that a curtailment of life may lead to a
diminution in the value of a litigation claim. If the claimant had such a claim, the wrongdoer must take
the victim as he finds them. Mrs Haxton could recover for the reduced dependency.
The Mesothelioma Act 2014 – A Potted History (BCDN Edition 35)
Introduction
February 2014 finally brought the news that the Mesothelioma Bill had received Royal Assent and been
enacted as the Mesothelioma Act 2014. In this article we examine the history of the Bill from its
inception right through to its enactment. Future developments are also discussed.
Proposal
In edition 1 of BC Disease News (BCDN) we learned that the Queen’s speech announced a bill on
mesothelioma would be brought forward, with the aim of establishing a compensatory scheme for
sufferers of the dreadful condition who are unable to make a claim owing to the unavailability of a
traceable employers’ liability insurer. It was announced that anyone diagnosed from 25 July 2012 would
be eligible to claim.
The House of Lords
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Just a week later, edition 2 of BCDN brought news that the Mesothelioma Bill had formally entered
Parliament, commencing its passage through the House of Lords. Clauses 2 and 3 of the Bill were the
primary provisions, acting as a gateway to the making of a payment under the scheme.
Clause 2 provided that a mesothelioma payment would be payable if:
(a) an employer has negligently or in breach of statutory duty caused or permitted a person to be
exposed to asbestos,
(b) the person has been diagnosed with diffuse mesothelioma on or after 25 July 2012,
(c) the person has not brought an action against the employer or any other insurer for damages in
respect of the disease and is unable to do so (because the employer and insurer cannot be
found or no longer exist or for any other reason), and
(d) the person has not received damages or a specified payment in respect of the disease and is not
eligible to receive a specified payment’.
Clause 3 provided for dependency payments where:
(a) the person who died of diffuse mesothelioma was eligible for a payment under Clause 2,
(b) no one has brought an action for damages under the fatal accidents legislation, or on behalf of
the estate of the person with the disease, against the relevant employer or any relevant insurer
in respect of the disease and no one is able to do so (because the employer and insurer cannot
be found or no longer exist or for any other reason), and
(c) no one has received damages or a specified payment in respect of the disease or is eligible to
receive a specified payment.
We also saw that, even at this very early stage, claimant practitioners were expressing concerns about
the level of payments to be made under the scheme – which at that time were pitched at the equivalent
of 70% of the damages that would be awarded in court – and that the scheme was limited only to
mesothelioma and no other asbestos related conditions.
The debate throughout the House of Lord focused on the level of payments. Edition 4 of BCDN noted the
Government’s attempt to justify the level, where it argued that 70% was a fair balance, since it ensured
payment would be made to sufferers without being an excessive burden on insurers, who were not all
necessarily in business at the time; moreover if the levy was set too high, insurers would pass on the
costs to British industry. In addition to this, there were calls for the Bill to be extended to the
uncompensated sufferers of all asbestos related conditions in Early Day Motion 182. The Bill proceeded
to the Report stage, however, without amendment.
Around this time, the true impact of the Bill became clear in editions 6 and 7 of BCDN, where we noted
that the Association of British Insurers had calculated the levy to fund the scheme up to February 2015
would generate up to £35 million each year for payments and could cost the industry approximately
£300 million over 10 years. Payments equivalent to 100% of compensation would cost the industry £451
million over 10 years.
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The Bill was amended during its Report stage. Edition 11 of BCDN noted the Government’s Lord Freud
confirmed that he had negotiated an additional 5% increase in the value of payments to victims, raising
the level of payments to 75%. It was also announced that the mesothelioma scheme would be contained
in a statutory instrument, rather than being merely published by the Secretary of State. Nevertheless,
final attempts in the House of Lords to elevate payments to 100% of compensation and to allow claims
for diagnoses before 25 July 2012 failed. The Bill then passed to the House of Commons.
The House of Commons
As we noted in edition 18 of BCDN, the Bill started passage in the House of Commons in September
2013.
Edition 28 of BCDN reported on the Bill’s second reading. Mike Penning MP, who had responsibility for
the Bill in the Commons, explained that the regulations enacting the mesothelioma scheme could be
expected to be in place by April 2014 and the first payments could be made by July 2014. Further, the
payments made each year were expected to number 300 and would be an average of £115,000. The
debate focused heavily on the level of payments. Labour MP David Anderson said: ‘…the employers
were 100% to blame,…the insurance companies have had 100% contributions for many years,…the
Government are asking for 100% clawback on DWP benefits and…, sadly, 100% of the victims are dead[.]
Is there not a clear moral case for this House to accept nothing less than 100% compensation for the
people who have died?’ Nevertheless, the Bill proceeded steadfastly to the Committee stage.
We considered the Committee stage in the House of Commons in editions 29 and 30 of BCDN. Once
again, debate focused on the rate of payments. A number of amendments sought to increase the value
of payments. Proposed rates were 80%, 90%, 100% and even 110%. All of the proposed amendments
were rejected. Other interesting amendments attempted to rename the Bill to the Diffuse
Mesothelioma Payment Scheme Act 2013 to better reflect the purposes of the Bill, and an attempt to
impose a duty on the Government to produce a report on how it would compensate similarly placed
sufferers of other asbestos related conditions. Both amendments were withdrawn without being voted
on. The Bill continued to the report stage and its third reading.
At the report stage a final batch of amendments sought to change the level of payments and the date
from which payments could be paid. As before, these all failed. One other failed amendment sought to
incorporate provision for research on mesothelioma into the Bill.
Having completed its passage and awaiting Royal Assent, lawyers were then entreated, as we saw in
edition 32 of BCDN, not to claim the maximum legal fee permitted under the scheme. The legal fee was
initially set at £7,000 and then reduced to £2,000. It was then raised to £7,000 again over concerns that
sufferers would be unable to obtain the high quality advice they would need. Labour MP Nick Brown
was arguably unduly cynical when he said: ‘I hope this does not sound unduly cynical, but once the legal
profession knows that a maximum of £7,000 is available for the cost of administering this, the work
done and the effort put in by the individual law firms is likely to rise up towards the£7,000 ceiling...’
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In addition, the debate over the adequacy of the Bill rumbled on, with claimant representatives arguing
it did not go far enough, particularly in relation to the level of payments, and insurer representatives
saying the Bill represented a fair compromise. Ian McFall, head of the asbestos team at Thompsons, said
the Bill was a ‘long time coming and fell a long way short of what victims and their families
expected…The Government did a deal behind closed doors with the insurers. It stacks up very heavily in
favour of the insurers and leaves the victims and their families short-changed’. Mike Klaiber, Zurich’s UK
disease claims manager, said the outcome was ‘not a perfect solution for claimants but not a perfect
solution for insurers either…It goes a long way to providing some remedy and provides additional
support for victims who would otherwise have received nothing. The 75% cap retains some incentive for
clients to trace their employer or their insurer, rather than defaulting to the scheme.’ And Malcolm
Tarling, of the Association of British Insurers, said the cap had been set at a level ‘the industry believes is
workable. Anything above that would not be sustainable.’
Royal Assent
Despite many attempts at amendment, the Bill completed it passage through Parliament with only
technical amendment. The final product is substantively an exact copy of the Bill as it entered
Parliament. Royal Assent was granted on 30 January 2014, which formally enacted the Bill as the
Mesothelioma Act 2014. Sections 2 and 3 are the primary provisions. Section 2 of the Act provides that a
mesothelioma payment will be payable if:
(a) an employer has negligently or in breach of statutory duty caused or permitted a person to be
exposed to asbestos,
(b) the person has been diagnosed with diffuse mesothelioma on or after 25 July 2012,
(c) the person has not brought an action against the employer or any other insurer for damages in
respect of the disease;
(d) the person is unable to bring a claim (because the employer and insurer cannot be found or no
longer exist or for any other reason), and
(e) the person has not received damages or a specified payment in respect of the disease and is not
eligible to receive a specified payment.
Section 3 of the Act allows dependency payments. A dependency payment is payable if:
(a) the person who died of diffuse mesothelioma was eligible for a payment under section 2,
(b) no one has brought an action for damages under the fatal accidents legislation, or on behalf of
the estate of the person with the disease, against the relevant employer or any relevant insurer
in respect of the disease;
(c) no one is able to bring a claim (because the employer and insurer cannot be found or no longer
exist or for any other reason), and
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(c) no one has received damages or a specified payment in respect of the disease or is eligible to
receive a specified payment.
Future Developments
There will be further developments following the Bill’s enactment. Firstly, the scheme itself needs to be
promulgated in a statutory instrument. This is expected to be done by April. Payments are then
expected to be made from July.
There is also the prospect of payments under the scheme increasing with time. Labour’s Lord McKenzie
of Luton has predicted that compensation will increase over time to give victims 100% of the equivalent
damages awarded in the courts. As the number of claims settles, he believes the 3% levy will enable
increased payments.94
In the short term, changes can be expected to a dubious practice adopted by HMRC, who are refusing to
release records to the families of individuals who have died from asbestos related conditions without a
High Court order on the grounds of data protection. It is a curious decision which is prone only to waste
time and costs. Moreover, it is a baseless decision. Section 35 of the Data Protection Act 1998 (DPA)
essentially exempts personal data from the DPA when personal data is sought in connection with legal
proceedings, even if they are only anticipated proceedings. HMRC can seemingly legitimately release
such information without the need for a court order.
Moreover, it is unclear whether further reforms for mesothelioma claims will be attempted following
the Government’s decision to abandon plans to introduce a dedicated pre-action protocol and an
electronic claims gateway.
Finally, as we have seen earlier in this edition, it appears that success fees and ATE insurance premiums
will no longer be recoverable in mesothelioma claims in the near future.
Conclusion
The Mesothelioma Act will provide much needed relief for sufferers of the hideous disease that is
mesothelioma. It is to be hoped that the regulations setting out the scheme are unambiguous and the
scheme itself is well administered; both will militate in favour of an efficient regime which tightly
controls costs.
Mesothelioma Claims Against Occupiers of Premises (BCDN Edition 38)
In the first of two articles, John Williams of Crown Office Chambers examines mesothelioma claims
against occupiers of premises.
94 ‘Peer Offers Future Mesothelioma Claimants Hope of 100% Compensation’ (Litigation Futures, 5 February 2014) <http://www.litigationfutures.com/news/peer-offers-future-mesothelioma-claimants-hope-100-compensation> accessed 6 February 2014.
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Introduction
This article examines the legal liability of an occupier of premises (“O”) to mesothelioma victims who
were exposed to asbestos whilst visiting the premises. Such claims can arise in a variety of different
ways – the common feature being that, for whatever reason, there is no employer against whom
proceedings can be brought. Typically, claims of this nature allege exposure due to the static nature of
the premises (e.g poorly maintained asbestos containing materials - “acms”) or exposure due to
activities by O’s contractors when construction or maintenance works involving “acms” were
undertaken. Of course, the facts of any given case may allow the claimant to successfully sue an
occupier of premises on other grounds (e.g under general principles governing duty situations in tort)
and this must always be borne in mind when considering such claims.
This article focuses on: (a) the Occupiers Liability Act 1957 (“the 1957 Act”) and (b) common law
principles that are sometimes invoked to try to impose liability on occupiers of premises in respect of
work undertaken by contractors. A second article will examine other statutory provisions that can be
relied on in claims based on breach of statutory duty.
Where insurance exists, such claims fall to be dealt with under O’s Public Liability policy. Difficulties in
tracing historic PL insurers and the operation of asbestos exclusion clauses mean that these claims are
often possible only where O is a public authority or a company with the means to pay.
Claims of this nature do not fall within the Diffuse Mesothelioma Payment Scheme established under
the Mesothelioma Act 2014.
The 1957 Act
The starting point is the 1957 Act. Section 2(2) sets out the common duty of care that O owes to his
visitors in respect of dangers due to the state of the premises or the things done or omitted to be done
on them. This duty is a duty to take such care as, in all the circumstances of the case, is reasonable to
see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited
or permitted by the occupier to be there. Section 2(3)(b) provides that an occupier “may expect that a
person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily
incident to it.” Section 2(4)(b) addresses the situation where damage is caused to a visitor by a danger
due to the faulty execution of any work of construction, maintenance or repair by an independent
contractor employed by the occupier. In such a case, the occupier is not to be treated without more as
answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to
an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy
himself that the contractor was competent and that the work had been properly done.
In Fairchild v Glenhaven Funeral Services Limited [2002] 1 WLR 1052, the Court of Appeal held that, as
was the case at common law, the 1957 Act was concerned with the duty owed by an occupier in respect
of the dangerous condition of his premises (the so-called “occupancy liability”) and not with any lack of
safety due to the manner in which activities were carried on at the premises (the so-called “activity
liability”). Mr. Fairchild was a joiner who worked for G H Dovenor & Son. In the course of his job, he was
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exposed to asbestos from the work of other contractors whilst undertaking joinery work at premises
owned by Leeds City Council and Waddingtons plc. He was unable to sue his employers and instead,
sued Leeds City Council and Waddingtons plc in their capacity as the occupiers of the premises where he
did his work and where he was exposed to asbestos. In dismissing Mr. Fairchild’s claim, the Court of
Appeal stated [at para 149]: “the statutory duty of care created by [the 1957] Act imposed a duty on
those occupiers to see that Mr. Fairchild was reasonably safe in using the premises for the purposes for
which he entered them, and he encountered no dangers in his use of the premises, as he would have
done if he had fallen through an unguarded hole in the floor. It was what was going on in those premises
which caused him harm”. The same principle was applied to the other 2 cases where the Defendants had
been sued in their capacity as occupiers of premises (Dyson v Leeds City Council and Babcock
International Ltd v National Grid Co plc).
It follows that a mesothelioma victim cannot rely on the 1957 Act where the alleged exposure arose
from activities conducted on the premises. Where, however, exposure arose from poorly maintained
acms, then it is clearly arguable that the occupier’s failure to maintain the acms in good condition is an
“occupancy liability” under the 1957 Act.
Common Law Liability for the Activities of Contractors
The long established rule at common law is that, if an occupier or employer has engaged an
independent contractor to do work on his behalf, the occupier/employer is not vicariously liable for any
tort committed by the contractor in the course of the execution of the work: see e.g Salisbury v.
Woodland [1970] 1 QB 324 at 336H to 337A.
However, the question remains whether an occupier has any primary duty at common law and, if so,
what the content of that duty is?
Engaging Competent Contractors
At least where dangerous activities are being undertaken, the primary duty on an occupier is a duty to
take reasonable care to engage competent contractors: see Ferguson v Walsh [1987] 1 WLR 1553 and
Bottomley v Todmorden Cricket Club [200] EWCA Civ 1575.
The difficulties confronting a claimant who wishes to rely on this principle are formidable and are amply
illustrated by the recent decision of Nichol J in Yates v National Trust [2014] EWHC 222 (QB). This was an
accident case in which the claimant suffered serious spinal injuries whilst working as a sub-contractor to
contractors undertaking tree surgery on land managed by the National Trust. Having reviewed the
authorities, Nichol J concluded that, on the facts as found by him, the National Trust did not owe a duty
of care to the claimant in its choice of the contractors who were to undertake the work. Whilst the work
of a tree surgeon is hazardous, it was in a different league to the kind of dangerous activities in respect
of which the Courts have previously imposed such a duty. Further, the National Trust had no means or
measure of control over the work of the contractors.
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Of course, different conclusions might be reached in other cases (e.g where an employer employed an
unlicensed contractor to undertake asbestos removal works after the implementation of the Asbestos
(Licensing) Regulations 1983) but such cases are likely to be rare.
Assuming such a duty exists, claimants may well encounter problems in proving the duty has been
breached. In each of the 3 Fairchild appeals for example, the claimants sought to argue that the occupier
had breached this duty but, in each case, the trial judge rejected the argument on the facts95. In 2 of the
cases, there was also a finding that the occupier was unaware of the risks.
Extra Hazardous Activities
The question remains however, whether there is scope for imposing a primary duty on an occupier
notwithstanding the fact that the contractors appeared to be competent?
One way in which this might conceivably be achieved is by seeking to apply the principle in Honeywill &
Stein Limited v Larkin Brothers Limited [1934] 1KB 491 regarding “ultra hazardous” operations. In short,
a person (O) who employs an independent contractor will be liable for the negligence of that contractor
where the contractor is engaged to carry out “extra hazardous” operations. The argument here would
be that a contractor engaged in work to instal or remove acms is engaged in “extra hazardous”
operations96 and that, given the hazardous nature of the work, the occupier is personally responsible for
having the work done in a competent manner.
The principle in Honeywill has been much criticised both academically97 and judicially98 - both as to its
provenance and the uncertain ambit of its application. In Biffa Limited v Machinenfabrik GmbH [2009]
QB 725, the Court of Appeal reviewed both the origins of the principle and how it has fared in
subsequent case law. Stanley Burnton LJ (giving the judgment of the Court) concluded that the
authorities relied on by the Court of Appeal in Honeywell did not support the principle [paras 69-72]. The
principle has been rejected by the High Court of Australia99 and is difficult to reconcile with the decision
of the House of Lords in Read v J Lyons & Co Limited [1947] AC 156. In the Court of Appeal’s words
“...the principle in the Honeywill case is anomalous” and that “It is important that it is understood that its
application is truly exceptional.”
In Biffa Limited itself, the Court of Appeal emphasised that the principle should be confined to activities
which are exceptionally dangerous whatever the precautions taken. This limitation largely emasculates
the rule and it is difficult to see how it could be relied on in the type of case under consideration.
Conclusion
95 In claims by workmen working on O’s premises, the scope of any such duty is also relevant given that the primary duty to protect the workman rests with the workman’s employer. 96 At least post 1965/6 and, depending on the facts, before then. 97 See Atiyah: “Vicarious Liability in the Law of Torts”. 98 See e.g Lord Macmillan in Read v J Lyons & Co Limited [1947] AC 156. 99 Stevens v Brodribb Sawmilling Co Pty Limited (1986) 160 CLR 16.
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Claimants seeking to sue occupiers of premises for asbestos exposure caused by the activities of
contractors who were installing or removing acms face formidable difficulties. There is no right to claim
under the 1957 Act (this being an “activity liability”). Where competent contractors have been
appointed, no liability arises at common law. The rule in Honeywill relating to “extra hazardous”
activities is barely alive but has, in any event, been so emasculated as to be of little value. As such,
liability at common law is likely to be established only where the claimant can prove that the occupier
failed to take reasonable care in its choice of contractors and that the occupier knew or should have
known of the risks that existed if the work was not undertaken competently.
The Diffuse Mesothelioma Payment Scheme – An Overview (BCDN Edition 45)
The Diffuse Mesothelioma Payment scheme is now finally in place and payments can be made from 1
July. With the primary and secondary legislation in place, and the scheme administrator selected, this
article will provide a comprehensive overview of the entire scheme, debate about the scheme, and
considers possible future developments.
Initial proposal
In edition 1 of BC Disease News we learned that the Queen’s Speech announced a bill on mesothelioma
would be brought forward, with the aim of establishing a compensatory scheme for sufferers of the
dreadful condition who are unable to make a claim owing to the unavailability of a traceable employers’
liability insurer. It was announced that anyone diagnosed from 25 July 2012 would be eligible to claim.
The Mesothelioma Bill – House of Lords
A week after the Queen’s Speech, edition 2 of Disease News brought the news that the Mesothelioma
Bill had formally entered Parliament, commencing its passage through the House of Lords. Clauses 2 and
3 of the Bill were the primary provisions, acting as a gateway to the making of a payment under the
scheme.
Clause 2 provided that a mesothelioma payment would be payable if:
(a) an employer has negligently or in breach of statutory duty caused or permitted a person to be
exposed to asbestos,
(b) the person has been diagnosed with diffuse mesothelioma on or after 25 July 2012,
(c) the person has not brought an action against the employer or any other insurer for damages in
respect of the disease and is unable to do so (because the employer and insurer cannot be
found or no longer exist or for any other reason), and
(d) the person has not received damages or a specified payment in respect of the disease and is not
eligible to receive a specified payment’.
Clause 3 provided for dependency payments where:
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(a) the person who died of diffuse mesothelioma was eligible for a payment under Clause 2,
(b) no one has brought an action for damages under the fatal accidents legislation, or on behalf of
the estate of the person with the disease, against the relevant employer or any relevant insurer
in respect of the disease and no one is able to do so (because the employer and insurer cannot
be found or no longer exist or for any other reason), and
(c) no one has received damages or a specified payment in respect of the disease or is eligible to
receive a specified payment.
Even at this very early stage, claimant practitioners were expressing concerns about the level of
payments to be made under the scheme – which at that time were pitched at the equivalent of 70% of
the damages that would be awarded in court – and that the scheme was limited only to mesothelioma
and no other asbestos related conditions
Debate in the House of Lords focused primarily on the level of payments. In edition 4 of Disease News it
was noted the Government attempted to justify the level, where it argued that 70% was a fair balance,
since it ensured payment would be made to sufferers without being an excessive burden on insurers,
who were not all necessarily in business at the time; moreover if the levy was set too high, insurers
would pass on the costs to British industry. In addition to this, there were calls for the Bill to be
extended to the uncompensated sufferers of all asbestos related conditions in Early Day Motion 182.
The Bill proceeded to the Report stage, however, without amendment.
It was around this time that the true impact of the Bill became clear. In editions 6 and 7 of Disease
News, it was noted that the Association of British Insurers had calculated the levy to fund the scheme up
to February 2015 would generate up to £35 million each year for payments and could cost the industry
approximately £300 million over 10 years. Payments equivalent to 100% of compensation would cost
the industry £451 million over 10 years.
The Bill was amended during its Report stage. Edition 11 of Disease News saw the Government’s Lord
Freud confirming that he had negotiated an additional 5% increase in the value of payments to victims,
raising the level of payments to 75%. It was also announced that the mesothelioma scheme would be
contained in a statutory instrument, rather than being merely published by the Secretary of State.
Nevertheless, final attempts in the House of Lords to elevate payments to 100% of compensation and to
allow claims for diagnoses before 25 July 2012 failed. The Bill then passed to the House of Commons.
The Mesothelioma Bill – House of Commons
The Bill started passage in the House of Commons in September 2013, as we noted in edition 18 of
Disease News
We reported on the Bill’s second reading in edition 28. Mike Penning MP, who had responsibility for the
Bill in the Commons, explained that the regulations enacting the mesothelioma scheme could be
expected to be in place by April 2014 and the first payments could be made by July 2014. Further, the
payments made each year were expected to number 300 and would be an average of £115,000. The
debate focused heavily on the level of payments. Labour MP David Anderson said: ‘…the employers
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were 100% to blame,…the insurance companies have had 100% contributions for many years,…the
Government are asking for 100% clawback on DWP benefits and…, sadly, 100% of the victims are dead[.]
Is there not a clear moral case for this House to accept nothing less than 100% compensation for the
people who have died?’ Nevertheless, the Bill proceeded steadfastly to the Committee stage without
amendment to the level of payments.
The Committee stage in the House of Commons was reported on in editions 29 and 30 of Disease News.
Once again, debate focused on the rate of payments. A number of amendments sought to increase the
value of payments. Proposed rates were 80%, 90%, 100% and even 110%. All of the proposed
amendments were rejected. Other interesting amendments attempted to rename the Bill to the Diffuse
Mesothelioma Payment Scheme Act 2013 to better reflect the purposes of the Bill, and an attempt to
impose a duty on the Government to produce a report on how it would compensate similarly placed
sufferers of other asbestos related conditions. Both amendments were withdrawn without being voted
on. The Bill continued to the report stage and its third reading.
At the report stage a final batch of amendments sought to change the level of payments and the date
from which payments could be paid. As before, these all failed. One other failed amendment sought to
incorporate provision for research on mesothelioma into the Bill.
Having completed its passage and awaiting Royal Assent, lawyers were then entreated, as we noted in
edition 32, not to claim the maximum legal fee permitted under the scheme. The legal fee was initially
set at £7,000 and then reduced to £2,000. It was then raised to £7,000 again over concerns that
sufferers would be unable to obtain the high quality advice they would need. Labour MP Nick Brown
was arguably unduly cynical when he said: ‘I hope this does not sound unduly cynical, but once the legal
profession knows that a maximum of £7,000 is available for the cost of administering this, the work
done and the effort put in by the individual law firms is likely to rise up towards the£7,000 ceiling...’
In addition, the debate over the adequacy of the Bill rumbled on, with claimant representatives arguing
it did not go far enough, particularly in relation to the level of payments, and insurer representatives
saying the Bill represented a fair compromise. Ian McFall, head of the asbestos team at Thompsons, said
the Bill was a ‘long time coming and fell a long way short of what victims and their families
expected…The Government did a deal behind closed doors with the insurers. It stacks up very heavily in
favour of the insurers and leaves the victims and their families short-changed’. Mike Klaiber, Zurich’s UK
disease claims manager, said the outcome was ‘not a perfect solution for claimants but not a perfect
solution for insurers either…It goes a long way to providing some remedy and provides additional
support for victims who would otherwise have received nothing. The 75% cap retains some incentive for
clients to trace their employer or their insurer, rather than defaulting to the scheme.’ And Malcolm
Tarling, of the Association of British Insurers, said the cap had been set at a level ‘the industry believes is
workable. Anything above that would not be sustainable.’
Royal Assent – The Mesothelioma Act 2014
Despite many attempts at amendment, the Bill completed its passage through Parliament with only
technical amendment. The final product is substantively an exact copy of the Bill as it entered
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Parliament. Royal Assent was granted on 30 January 2014, which formally enacted the Bill as the
Mesothelioma Act 2014. Sections 2 and 3 are the primary provisions. Section 2 of the Act provides that a
mesothelioma payment will be payable if:
(a) an employer has negligently or in breach of statutory duty caused or permitted a person to be
exposed to asbestos,
(b) the person has been diagnosed with diffuse mesothelioma on or after 25 July 2012,
(c) the person has not brought an action against the employer or any other insurer for damages in
respect of the disease;
(d) the person is unable to bring a claim (because the employer and insurer cannot be found or no
longer exist or for any other reason), and
(e) the person has not received damages or a specified payment in respect of the disease and is not
eligible to receive a specified payment.
Section 3 of the Act allows dependency payments. A dependency payment is payable if:
(a) the person who died of diffuse mesothelioma was eligible for a payment under section 2,
(b) no one has brought an action for damages under the fatal accidents legislation, or on behalf of
the estate of the person with the disease, against the relevant employer or any relevant insurer
in respect of the disease;
(c) no one is able to bring a claim (because the employer and insurer cannot be found or no longer
exist or for any other reason), and
(c) no one has received damages or a specified payment in respect of the disease or is eligible to
receive a specified payment.
The Scheme
As promised by Mike Penning MP, the details of the Diffuse Mesothelioma Payment Scheme itself were
enacted in secondary legislation in April: the Diffuse Mesothelioma Payment Scheme Regulations 2014.
In accordance with the provisions of the Mesothelioma Act 2014, claims may only be brought for
mesothelioma diagnosed after 25 July 2012 where there is no traceable or solvent employer or insurer
Regulation 4 and 5 of the Regulations confirms that there will be a scheme administrator, responsible
for processing applications. It must, when considering applications, apply the civil standard of proof and
must ensure that a sufficient number of persons with appropriate training and qualifications are
available to decide the matters likely to arise when determining applications.
Regulation 9 creates a limitation period as to applications for Scheme Payments. Applications must be
made within three years of the date on which the applicant was first diagnosed with mesothelioma, or,
if the applicant was diagnosed before the Regulations came into force, within three years of the date on
which the Regulations came into force.
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Under regulations 21-25, when a determination is made as to the applicability of the Scheme to a
particular individual, it will be possible for the applicant to request a review of the decision if they
disagree with it. An appeal ultimately lies from that review to the First-Tier Tribunal.
As to payments the payments that will be made, the amounts are set out in Schedule 4 of the
Regulations. The table in Schedule 4 has already been substituted by another table in the Diffuse
Mesothelioma Payment Scheme (Amendment) Regulations 2014, which, on average, increases
payments by £8,000. The payments will be as follows:
Age of the person with diffuse mesothelioma (see regulation 16(3))
Scheme Payment
40 and under £216,896
41 £213,951
42 £211,006
43 £208,062
44 £205,117
45 £202,172
46 £199,227
47 £196,282
48 £193,337
49 £190,392
50 £187,447
51 £184,502
52 £181,557
53 £178,612
54 £175,667
55 £172,722
56 £169,777
57 £166,832
58 £163,887
59 £160,943
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60 £157,998
61 £155,053
62 £152,108
63 £149,163
64 £146,218
65 £143,273
66 £140,328
67 £137,383
68 £134,438
69 £131,493
70 £128,548
71 £125,603
72 £122,658
73 £119,713
74 £116,768
75 £113,823
76 £110,879
77 £107,934
78 £104,989
79 £102,044
80 £99,099
81 £96,154
82 £93,209
83 £90,264
84 £87,319
85 £84,374
86 £81,429
87 £78,484
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88 £75,539
89 £72,594
90 and over £69,649
The Scheme in Practice
As to the Scheme in practice, Gallagher Bassett has been appointed as the scheme administrator. The
Payment Scheme’s website is available here and the application form for a scheme payment is available
here. The Government has also updated the GOV.UK website to reflect the availability of the scheme.
The Diffuse Mesothelioma Payment Scheme Regulations 2014 came into force, almost entirely, on 6
April 2014: regulation 2. The Diffuse Mesothelioma Payment Scheme (Amendment) Regulations 2014
come into force on 1 July: regulation 1. Therefore scheme payments can be made from this date
Future Developments
There remains the prospect that the Mesothelioma Act may be amended by the Mesothelioma
(Amendment) Bill which is currently proceeding through Parliament. The effect of this Bill would be to
require no more than 1% of the levy raised to be put towards research into mesothelioma. However, the
Bill is a Private Members’ Bill and they are notoriously unlikely to be enacted.
In the short term, changes can be expected to a dubious practice adopted by HMRC, who are refusing to
release records to the families of individuals who have died from asbestos related conditions without a
High Court order on the grounds of data protection. It is a curious decision which is prone only to waste
time and costs. Moreover, it is a baseless decision. Section 35 of the Data Protection Act 1998 (DPA)
essentially exempts personal data from the DPA when personal data is sought in connection with legal
proceedings, even if they are only anticipated proceedings. HMRC can seemingly legitimately release
such information without the need for a court order.
Case Note: Mesothelioma (BCDN Edition 47)
The High Court has handed down another decision in a mesothelioma claim, confirming that negligence
must still be proven, despite the relaxation of the causation test.
In McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB) the 58 year old claimant alleged she had
developed mesothelioma as a result of exposure to asbestos while working in a shoe concession of a
department store in 1976 during the removal and replacement of escalators.
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The claimant worked in a shoe section approximately within 10 feet of the works which lasted, it was
thought, between four and six weeks, if not longer. The works took place during opening hours and
created large quantities of dust. The claimant thought panels being dismantled from the old escalators
contained asbestos. She also recalled the cutting of boards for the new escalators. The claimant stated
that she was regularly required to dust the shoes and the glass shelves upon which the shoes were
displayed owing to a layer of dust settling. This cleaning and disposal of dust stirred the dust into the
atmosphere. The claimant did not recall the works area being boxed off; only a wooden barrier four feet
in height was thought to be present.
The defendant’s witness, on the other hand, recalled wall to floor timber screens being present during
the works in addition to the four foot barrier.
The experts were agreed that it was likely that asbestos insulating boards (AIBs) were used in the
construction of the escalators that were removed and installed. They further agreed (on the basis of HSE
guidance note EH35) that breaking and ripping AIBs was likely to be associated with the production of
asbestos dust concentrations in the order of 5-20 fibres per millilitre in the breathing zone of the works.
Circular sawing of AIBs was likely to produce concentrations in excess of 20 fibres per millilitre. It was
also agreed that if the works took place without a full enclosure then background concentrations of
asbestos would have been higher than in general buildings, including buildings containing asbestos
materials that were in good condition and where it was undisturbed. Further, the dust concentration
reduced with distance from the source, reducing to 10% at 20-30 feet.
As to the standards at the time, the experts agreed that it was likely that the relevant occupational
standards were those in Technical Data Note (TDN) 13. Exposure was in excess of the standard if it was
either in excess of 12 fibres per millilitre as an average over any 10 minute period or 2 fibres per
millilitre as an average over any 4 hour period. Although it was conceded that the TDN13 levels were
possibly exceeded, on the balance of probabilities it was unlikely.
Mrs Justice Patterson agreed the claimant had been exposed to asbestos; however, she preferred the
evidence of the defendant and concluded that there had been a floor to ceiling barrier in addition to the
barrier fence, although it was not airtight. Further, she was content to accept that the exposure caused
the claimant’s mesothelioma on the balance of probabilities.
Turning to the issue of whether the exposure was negligent, Patterson J confirmed that the test is still
the conduct of the reasonable and prudent employer, taking positive thought for the safety of his
workers in light of what he knows or ought to know; where there is developing knowledge the employer
must keep reasonably abreast of it and not be too slow to apply it. Further, if the employer has greater
than average knowledge of the risks, he may be obliged to take more than average or standard
precautions. Patterson J reviewed the development of the knowledge on the risks of exposure to
asbestos.
The claimant alleged that by 1976 it was clear that an employer had to make the workplace safe where
large quantities of dust were generated and that it was clear there was a real risk of injury as a result of
slight exposure to asbestos. It was contended the workplace had not been made safe. Relying on the
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1960 document ‘Toxic Substances in Factory Atmosphere’, which said no injurious dust should be able to
escape the work area, the claimant contended all practicable measures to reduce exposure had not
been taken.
The defendant contended that the issue was whether it was reasonably foreseeable that the defendant
might be at risk of injury in 1976 and TDN 13 represented what was regarded as safe at the time. There
was nothing which gave rise to a foreseeable risk of injury. Accordingly, no action was necessary.
Patterson J found that the exposure to asbestos was light for a matter of months. The question was
whether the works should have alerted the defendant to the fact that the claimant might be at risk
when she worked for them in 1976. It was found that the floor to ceiling enclosure would have been
regarded as adequate protection at the time, although by current standards that would be
unacceptable. There was no clear evidence about the amount of dust and nothing indicated there
should have been an understanding of the risk which was caused by the works. Accordingly, the
defendant should not have appreciated the risk of asbestos related injury and its failure to take what
would now be regarded as appropriate precautions was not negligent. With regret, the claim had to fail.
This case reaffirms the principle recently emphasised in Garner v Salford City Council [2013] EWHC 1573
(QB) that simply identifying exposure to asbestos is insufficient to result in liability. It also supports the
Williams v University of Birmingham [2011] EWCA Civ 1242 line of authority, which also found exposure
to asbestos to be non-negligent when it did not exceed the TDN 13 levels.
Duty of Care of a Parent Company (BCDN Edition 48)
The Court of Appeal had ruled again on the extent of a parent company’s liability for the tortious acts of
its subsidiary companies.
In Thompson v Renwick Group plc [2014] EWCA Civ 635 the claimant has been employed by two
companies between 1969 and 1970. His work involved handling raw asbestos. In 1975, the two
companies were acquired by a subsidiary of the Renwick Group and a new director took over the
running of the depot where the claimant worked. As a consequence of his exposure to asbestos, the
claimant developed pleural thickening. His employers did not have liability insurance and no financial
means to meet any award for damages. Accordingly, the claimant brought proceedings against the
Renwick Group, the parent company. At first instance, the judge agreed that Renwick Group, through
the new director, had taken control of the daily operation of the business to a sufficient extent to give
rise to a duty of care to the claimant.
The Court of Appeal disagreed. It was held that in appointing an individual as a director if its subsidiary
company the defendant had not assumed a duty of care to the claimant. Further, the evidence was not
sufficient to justify imposing a duty of care on the defendant. The appeal turned on the application of
the Caparo Industries v Dickman [1990] 2 AC 605 test – whether the harm was foreseeable, the
existence of a proximate relationship, and whether it was fair, just and reasonable to impose a duty –
and the application of Chandler v Cape [2012] EWCA Civ 525. In Chandler (which is discussed fully in this
article) it was held the law might impose on a parent company responsibility for the health and safety of
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the employees of a subsidiary, where the businesses of the two companies are in a relevant respect the
same and the parent:
(i) had, or ought to have had, superior knowledge on some relevant aspect of health and safety in
the particular industry;
(ii) knew, or ought to have known, that the subsidiary’s system of work was unsafe; and
(iii) knew, or ought to have foreseen, that the subsidiary or its employees would rely on it using that
superior knowledge for the employees’ protection.
The Court of Appeal held those test were simply not satisfied on the facts. The defendant did not carry
on any business, save for holding shares in other companies. Further the defendant did not have any
‘superior knowledge or expertise’ as the parent company regarding the risk of exposure to asbestos such
that they were better placed to protect the employees of subsidiary companies. Moreover, the
defendant did not have any knowledge of the hazards of handling raw asbestos superior to that which
the subsidiaries could be expect to have.
The evidence presented of the intermingling of the businesses, the interchangeable use of depots and
the sharing of resources which the first instance judge accepted was but no more than a finding that the
companies were operating as a division of the group carrying on a single business
This case demonstrates that it is a high threshold to meet the circumstances set out in Chandler. Liability
against a parent company will not readily be found. In essence, liability will only attach when a duty of
care arises in the traditional way.
Recovering Medical Costs in Asbestos Claims (BCDN Edition 57)
Introduction
A recent development in asbestos claims is the creation of schemes designed to allow the recoupment
from compensators of NHS medical costs associated with the treatment of victims of asbestos related
diseases. Notably, the Welsh Assembly has already passed a Bill to put such a scheme into effect. This
article considers where such schemes have been proposed, the detail of them, whether such a scheme
can be expected to be formulated in England, and the financial implications of such schemes.
Wales
The jurisdiction with the most developed scheme for the recovery of NHS costs from compensators for
the treatment of asbestos victims is Wales. The Welsh Assembly passed the Recovery of Medical Costs
for Asbestos Diseases (Wales) Bill on 20 November 2013.100 It was a private member’s bill introduced by
Assembly Member Mick Antoniw, a former partner at Thompsons.
100 See ‘Recovery of Medical Costs for Asbestos Diseases (Wales) Bill’ (National Assembly for Wales) <http://www.senedd.assemblywales.org/mgIssueHistoryHome.aspx?IId=4837&Opt=0> accessed 23 July 2014.
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Clause 2 of the Bill, which can be read here, provides: ‘Where a compensation payment is made to or in
respect of a person (the “victim”) in consequence of any asbestos-related disease suffered by the victim,
the person who is, or is alleged to be, liable to any extent in respect of the asbestos-related disease and
by whom or on whose behalf the compensation payment is made is liable to reimburse the Welsh
Ministers in respect of any relevant Welsh NHS services provided to the victim as a result of the
asbestos-related disease’.
A compensation payment is, under clause 3, a payment made (after the coming into force of the section)
by or on behalf of a person who is, or is alleged to be, liable to any extent for the disease. They can be in
money or money’s worth, made with or without an admission of liability, made voluntarily, made
anywhere worldwide and relate to a claim made before or after the coming into force of the section.
Under the Bill, relevant asbestos related diseases are mesothelioma, asbestosis, asbestos-related lung
cancer and pleural thickening, and include any psychological effects of any of those illnesses: clause 3(3).
Under clause 5, when a compensation payment is to be made to a victim, the compensator must apply
for a certificate from the Welsh Ministers. The certificate will specify the amounts to be paid back to the
Welsh Government. Where there is contributory negligence, the amount will be reduced by the
proportion of the contributory negligence: clause 6. Payment must then be made within 14 days of the
issue of the certificate: clause 7.
The Bill also provides, under clauses 9-11, a regime of reviews and appeals against certificates.
Finally, clause 14 confirms that where the defendant’s liability is covered by a policy of insurance, the
policy is to be treated as covering the liability to make payments to the Welsh Government under the
Act.
Although the Bill was passed on 20 November 2013, it is yet to receive Royal Assent. The Counsel
General for Wales, Theodore Huckle QC, has referred the Bill to the Supreme Court for a determination
on whether the Bill is within the Welsh Assembly’s legislative competence – a devolution matter. The
Assembly’s legislative competence to promulgate the Bill has been persistently questioned by insurers.
On referring the Bill, Huckle said: ‘Before the Supreme Court I will contend strongly that the Bill is within
the Assembly’s legislative competence…However, making a reference before it receives Royal Assent
enables the matter of the Bill’s competence to be determined without awaiting what I consider would
be the inevitable challenge in potentially far more expensive court proceedings in due course, perhaps
when substantial amounts of money had been recouped under the Bill’s provisions and would quite
likely be subject to repayment were the decision of the courts to be adverse…The litigation costs of a
reference being made during the intimation period are likely to be less than the costs of any challenge
brought once the Bill is enacted under the usual judicial review procedure, as Supreme Court rules
provide that orders for costs will not normally be made in favour of or against interveners [such as
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insurers’ representative]…It is in my view in the public interest for me to take the initiative in seeking the
Supreme Court’s decision on the Bill as it stands’.101
The Supreme Court heard the case on 14 and 15 May 2014 and judgment is awaited. In the event the Bill
is found to be within the competence of the Assembly, it is due to enter force on a date to be appointed
by order.
Scotland
Scotland has also indicated its intention to promulgate NHS costs recovery legislation. Stuart McMillan
MSP has said he will bring forward a Bill entitled the Recovery of Medical Costs for Asbestos Diseases
(Scotland) Bill, which will similarly allow the NHS in Scotland to recover treatment costs for asbestos
victims from employers and insurers.
The Bill has yet to be published so it is unknown what exactly its terms will be. However, it is thought the
costs of treatment will be calculated from the patient’s diagnosis. It would be surprising if its terms are
significantly different to the Welsh Bill.102
McMillan said of the proposed Bill: ‘We cannot underestimate the need for bringing the issue before the
Scottish Parliament. The emotional and physical cost of being diagnosed with an asbestos related
condition can be significant and it’s the welfare of the person with the illness that is paramount.
However, there is a substantial financial cost to the NHS in diagnosing and managing asbestos related
conditions and this is something that needs to be addressed as a matter of urgency’.
England and Northern Ireland – On the Horizon?
Unlike Wales and Scotland, there are no current proposals for recovery legislation in England and
Northern Ireland. Indeed, in the case of England, it is thought that the issue has not been actively
considered in Parliament. Similarly, there is thought to be no active consideration in Northern Ireland. In
consequence, there is no power to recoup NHS charges in respect of treatment for asbestos related
diseases. The only powers of recoupment in these jurisdictions are in relation to NHS expenditure in
respect of personal injuries, under Part 3 of the Health and Social Care (Community Health and
Standards) Act 2003, which explicitly excludes recovery in respect of diseases, unless the disease is
directly attributable to an injury suffered by the victim: sections 150(5) and (6) of the 2003 Act.
Is recovery legislation likely to arrive in the rest of the UK? Questions have certainly been asked as to
why the approach in Wales is not being adopted across the breadth of the United Kingdom.103 In reality,
101 Neil Rose, ‘Supreme Court to Rule on Welsh Bid to Recoup NHS Asbestos Costs’ (Litigation Futures, 16 January 2014) <http://www.litigationfutures.com/news/supreme-court-rule-welsh-bid-recoup-nhs-asbestos-costs> accessed 23 July 2014. 102 See CAA Press Release: New Asbestos Law Will Recover Millions for the NHS in Scotland (Clydeside Action on Asbestos, 21 February 2014) <http://www.clydesideactiononasbestos.org.uk/news/caa-press-release-new-asbestos-law-will-recover-millions-for-the-nhs-in-scotland> accessed 23 July 2014.
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it cannot be said whether such legislation will arrive in the remaining jurisdictions, it simply has not been
considered in any real detail. What can be said, however, is that there is an increasingly hardening
attitude exhibited by political parties and Parliament alike that seeks to ensure asbestos victims are
adequately and fairly compensated. The Mesothelioma Act 2014 is a product of that attitude. Coupled
with the increasingly crippled nature of public health expenditure, it is logical to expect that recovery
legislation will, in due course, present itself in England and Northern Ireland so that the NHS is not
unduly burdened.
Two further factors militate in favour of this conclusion. Firstly, there is already power, as we noted
above, to recoup NHS costs in relation to personal injuries. It if was palatable to enact such powers in
relation to injuries it is not a massive step to extend it to diseases, or at least asbestos-related diseases.
Secondly, now that one constituent jurisdiction of the United Kingdom has passed recovery legislation, it
is more likely that the remaining constituents will follow suit.
However, that one constituent jurisdiction has introduced such powers does not necessarily mean that
the remaining jurisdictions will inexorably follow. There remains an inconsistency with how asbestos
related conditions are treated across the United Kingdom. For example, pleural plaques are dealt with
differently across the range of jurisdictions in the United Kingdom. Following the decision of the
Supreme Court in Rothwell v Chemical and Insulating Company Limited [2007] UKHL 39, [2008] 1 AC 281,
pleural plaques were no compensable in the United Kingdom. However, Scotland reversed this position,
enacting the Damages (Asbestos-related Conditions) (Scotland) Act 2009 to reinstate recoverability.
Northern Ireland similarly reversed the position, enacting the Damages (Asbestos-related Conditions)
Act (Northern Ireland) 2011. Indeed in the Northern Irish context, the High Court of Northern Ireland has
recently ruled that, following the 2011 Act, pleural plaques are a statutorily actionable injury which is
not subject to de minimis arguments.104 Meanwhile, England and Wales have not enacted legislation to
reverse the House of Lords decision, so plaques are not compensable there. If there can be a difference
of approach in one respect, it is perfectly plausible that there will be a difference of approach on the
issue of NHS costs recovery legislation.
In short, it cannot be said with any certainty that recovery legislation will or will not be enacted in
England and Northern Ireland.
Costs Implications
In those jurisdictions where recovery legislation is due to come into force, what are the costs
implications?
103 See Robert Landman, ‘Justice for Asbestos Victims Moves Forward’ (Litigation Futures, 15 January 2014) < http://www.litigationfutures.com/blog/justice-asbestos-victims-moves-forward> accessed 23 July 2014. 104 See McCauley(as Personal Representative of the Estate of William McCauley) v Harland and Wolff Plc [2014] NIQB 91 <http://www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear/Documents/2014/[2014]%20NIQB%2091/j_j_OHA9310Final.htm> accessed 24 July 2014.
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In respect of Wales, it is estimated that the gross annual recovery under the scheme would £2.03
million.105 The actual costs of treating each patient are estimated at an average of £23,999 per patient.
In the case of 11 patients the total costs were £256,291. The highest cost for one patient was £53,035, a
consequence of significant inpatient treatment. The costs are shown in the following table:106
It is said that a tariff scheme would be used in practice to avoid the administrative expense of
determining actual treatment costs in each case. Applying the tariffs used in personal injury cases, the
impact assessment for the Welsh Bill showed the following costs:
105 Mick Antoniw AM, ‘Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Explanatory Memorandum Incorporating the Regulatory Impact Assessment’ (December 2012) [118] <http://www.assemblywales.org/bus-home/bus-business-fourth-assembly-laid-docs/pri-ld9122-em-e.pdf?langoption=3&ttl=PRI-LD9122-EM%20-%20Explanatory%20Memorandum%3A%20Recovery%20of%20Medical%20Costs%20for%20Asbestos%20Diseases%20%28Wales%29%20Bill%20> accessed 24 July 2014. 106 ibid [109]-[110].
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The average was slightly increased to £25,361 per case and it was this figure that was used to determine
the total £2.03 million recovered sum, based on 80 mesothelioma cases each (determined from CRU
data and settlements in Wales).107 It was said that an appropriate tariff would be developed.
In the case of Scotland, the detail is less clear in the absence of an impact assessment. However, Stuart
McMillan MSP estimates that over £20 million a year is spent by NHS Scotland diagnosing and treating
people suffering from asbestos related conditions which could be recovered. The cost of treatment
would be calculated from a patient’s initial diagnosis. In the case of mesothelioma and lung cancer, the
cost of care is estimated at £54,180 per individual, with a total expenditure of £3,955,140 in 2012 for
mesothelioma victims. For asbestosis and pleural thickening, the costs of care are estimated at £20,000
per individual, with total expenditure of £5,480,000 in 2012. Once the costs of initial diagnosis are
factored in, the total costs are thought to be £20 million annually.108
Accordingly, in total, recovery of NHS costs in Wales and Scotland could amount to £22 million annually.
This figure has to be set against a background of rising claims numbers. In the case of mesothelioma for
example, the number of claims is thought likely to peak in 2019 at 2,584 annual cases.109 In 2012, the
number of cases was 2,535; this was itself a substantial increase from 2011 where there were 2,291
cases.110 Accordingly the overall recoverable sum could be expected to rise further until the number of
cases peak.
Conclusions
It remains to be seen if the recovery legislation in Wales will survive the devolution challenge presently
before the Supreme Court. It is also unclear when the Scottish legislation will be enacted. Further, it
remains to be seen if such legislation will be promulgated in England and Northern Ireland. If the
legislation in Wales and Scotland does come into force, it could be expected to lead to the recovery of
£22 million annually, a figure that would rise as the number of cases increases to peak levels. Were such
legislation to arrive in England and Northern Ireland the costs could be very significantly higher. BC
Disease News will continue to update on any developments.
Case Note: Mesothelioma (BCDN Edition 59)
The High Court has once again confirmed the need in claims for mesothelioma to show on the balance
of probabilities that there was actually exposure to asbestos.
107 ibid [113]-[114]. 108 (n 100). 109 HSE, ‘Mesothelioma in Great Britain 2014’ (June 2014) Table MESO06 <http://www.hse.gov.uk/Statistics/causdis/mesothelioma/mesothelioma.pdf> accessed 24 July 2014. 110 ibid.
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In Atkinson v Secretary of State for Energy and Climate Change,111 the claimant (W) on behalf of the
estate of her deceased husband (H), brought a claim for damages for personal injury against the
defendant. H had been employed as a colliery worker in the 1970s and 1980s and died from
mesothelioma in 2008. Before his death he stated that he had been exposed to asbestos while
inspecting conveyor belts at a colliery between 1979 and 1984. H alleged that friction brakes containing
asbestos were used to control the belts during that period and that their pads created dust to which he
was exposed. The court heard evidence that those brakes were phased out and replaced with an anti-
rollback system which did not contain asbestos. It also heard that the brakes were protected by guards
and did not fail regularly, and while H inspected them, he was not a mechanic and did not carry out
repairs. The issue was whether H has been exposed to asbestos dust while working at the colliery and, if
so, whether he had been exposed to a level which was likely to be injurious. The defendant submitted
that H’s statement was riddled with errors and was undermined by previous inconsistent statements.
In an extempore judgment, HHJ Gore QC held that the defendant had owed H a common law duty of
care not to expose him to material which was likely to cause reasonably foreseeable injury, subject to
the standard of knowledge prevailing at the time, and a stricter statutory duty under the section 74 of
the Mines and Quarries Act 1954.
As to the evidence, a note from H’s solicitors to a coroner which stated that the anti-rollback system had
been in use during H’s employment was double hearsay which was unsworn and untested by cross-
examination. H had not had any opportunity to confirm or correct its contents and under section 4 of
the Civil Evidence Act 1995 it was to be given little or no weight. There were several errors of fact in H’s
statement which W contended could be excused by his age and poor health, but while that could be
taken into account, there were other matters which undermined his reliability. There was no reason to
doubt that friction brakes were in use in 1979, but the evidence was that they ceased to be used in 1982
or 1983. There was no evidence of regular brake failure and, while H would have occasionally observed
repairs, he would not have been close to any dust. While the actual level of exposure to asbestos dust
was never measured or monitored, there was no evidence that any, let alone significant, amounts of
brake-pad dust had been allowed by the mechanics who carried repairs to accumulate on the floor. H
had been very occasionally or intermittently exposed to dust on the very few occasions of brake failure
when the guards which prevented the dust from escaping were removed, but that exposure had
diminished over three years as the friction brakes were phased out of use. H had been exposed to
asbestos, but the level of exposure was considerably lower than he had claimed and the burden of proof
on W had not been discharged. Thus breach of duty was not established and the claim failed.
This is the latest is a line of decisions all confirming that exposure to asbestos must be proven on the
balance of probabilities. While the causation requirements might well have been relaxed in
mesothelioma claims, the need to prove actual exposure remains ever present.
Damages in a Fatal Mesothelioma Claim (BCDN Edition 60)
111 (QBD, 31 July 2014).
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Knauer v Ministry of Defence [2014] EWHC 2553 (QB) provides a recent example of awarding damages in
a fatal mesothelioma claim. The court was required to assess damages in a claim brought by the
claimant (K) against the defendant (MoJ) following the death of his wife (W).
W died from malignant mesothelioma in August 2009, aged 46. She had been exposed to asbestos while
working as an administrator for the MoJ between 1997 and 2007. She was diagnosed in March 2009. K
claimed as W's widower and as the administrator of her estate under the Law Reform (Miscellaneous
Provisions) Act 1934 and the Fatal Accidents Act 1976. The marriage had been traditional, with W
managing the household and being responsible for cleaning, cooking, laundry, ironing, shopping, walking
the dogs, gardening and decorating. D accepted liability.
Law Reform Act Damages
General damages of £80,000 for pain, suffering and loss of amenity would be awarded. The Judicial
College guidelines (12th edition) gave a bracket of £51,500 to £92,500. Though there were no appellate
decisions on quantum, two comparable first instance decisions were taken into consideration:
Zambarda v Shipbreaking (Queenborough) Ltd [2013] EWHC 2263 (QB) and Streets v Esso Petroleum Ltd
[2009] EWHC 3748 (QB).
Other Past Losses
The cost of W's care was agreed at £11,520, disbursements at £3,587.91, and loss of her income during
her illness at £2,313.112 £5,749.60 would be awarded for the loss of W's services during her illness. That
was broken down into £4,669.60 for general household tasks, £780 for gardening and £300 for
decorating.113
Fatal Accident Damages
There would be agreed awards of £11,800 for bereavement and £2,283 for funeral expenses. There
would be no award in respect of the wake: Gammell v Wilson [1982] AC 27.114
As to income dependency, had she not died, W would have worked for many more years. K therefore
claimed for income dependency and for loss of domestic services. He urged a departure from the
conventional method of calculating the multiplier. He submitted that losses up to the date of trial should
be treated as special damages, with a small discount for the uncertainties of life but none for
accelerated receipt, and that the multiplier for future loss should be calculated from the date of
judgment. The court would have followed that route had it been able to do so. However, it was bound
by Cookson v Knowles [1979] AC 556 and Graham v Dodds [1983] 1 W.L.R. 808 to adopt the conventional
112 [10]-[12]. 113 [13]. 114 [14]-[15].
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approach (which is to apply just one multiplier for the whole period, even though this discounts past
losses for accelerated receipt when there is in fact no accelerated receipt).115
For income dependency from 2009 to trial (2014), there would be an award of £23,182. A dependency
ratio of 75 per cent would be applied to past loss of income, and one of 66 per cent to future loss, to
reflect the fact that the youngest of K and W's three sons was 21 and was at university, applying Coward
v Comex Houlder Diving Ltd Independent, July 25, 1988 and Crabtree v Wilson [1993] PIQR Q24. Allowing
a three-month deduction for uncertainties, W's income up to trial would have been £59,522. K's would
have been £85,837. Thus the addition of those sums with a 25% discount resulted in £23, 182. As to the
source of their incomes, between 2007 and 2009, they had run a public house together, planning to sell
it in 2011 whereupon W would have returned to paid administrative work without much difficulty. In
fact, they disposed of it when W became ill.116
As to future income dependency there would be an award of £82,136. Up to W's retirement age there
was an annual loss of £5,835 with a multiplier of 10.93; from W's retirement age to K's retirement age
there was an annual loss of £7,026 with a multiplier of 1.34; and from K's retirement age onwards there
was an annual loss of £1,521 with a multiplier of 5.88.117
For past services dependency there would be an award of £88,160, calculated using a multiplier of 4.86
and a multiplicand of £18,140. W had spent 20 hours per week on household tasks, excluding gardening
and decorating, and, in calculating the multiplicand, K sought an amount equivalent to the annual cost
of engaging a resident housekeeper. However, it would not be reasonable to require the MoJ to meet
such a cost if broadly similar services could be obtained by other means. Such continuity of services
could be provided by an agency for £16,640 per annum. Gardening and decorating services would cost a
further £1,500 per annum. There would be no award for travel costs or online shopping delivery
charges. It was irrelevant that since W's death, K had not engaged a housekeeper, gardener or
decorator; he was entitled to the value of what he had lost: Hay v Hughes [1975] QB 790.118
As to future services dependency there would be an award of £329,241, calculated using the same
multiplicand with a multiplier of 18.15.119
Finally, the appropriate award for loss of intangible benefits (a Regan v Williamson award) was
£3,000.120
The total award excluding interest would therefore be £642,972.51.
This case will doubtlessly be seized upon by claimants to refute valuations of housekeeping services of
£8-9 per hour and to contend that such services are properly valued at double those figures. The
115 [16]-[17]. 116 [18]-[22]. 117 [23]-[24]. 118 [25]-[37]. 119 [38]. 120 [39].
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decision does at least, however, confirm the reasonably modest value of Regan v Williamson awards and
that that the cost of a wake is not recoverable.
Low Level Asbestos Exposure (BCDN Edition 67)
The High Court has ruled again on exposure to low levels of asbestos, specifically concerning exposure
during the currency of HSE Guidance Note EH10 1976 before its revision in 1984.
Note EH10 included advice to duty holders (employers and occupiers) that exposure to asbestos should
be reduced to the minimum reasonably practicable, and, in any event, should never exceed the
standards set down in the guidance. Consequently, claimants often contend that there is no defence to
a claim in negligence where some exposure to asbestos is proven but no precautions were taken to
reduce the exposure to the lowest reasonably practicable level.
Heward v Marks & Spencer plc [2014] EWHC 3183 (QB) concerned a deceased contractor who had
carried out property surveys for the defendant over many years in the North East of England. From 1984
onwards he wore a respirator when entering ceiling voids that contained asbestos debris but, between
1976-1984, he carried out this work without protection. Following the death of the deceased from
mesothelioma, his widow brought proceedings against the defendant alleging breach of the common
duty of care owed under the Occupiers Liability Act 1957. Although the experts agreed that the level of
exposure to asbestos did not exceed the levels set down in EH10, the claimant contended that in order
to discharge the duty of care, the defendant ought to have advised the deceased to wear a respirator,
failing which it had not reduced the deceased’s exposure to the lowest level reasonably practicable.
David Pittaway QC, sitting as a Deputy High Court Judge, applied Williams v Birmingham University
[2011] EWCA Civ 1242, which held that where there has not been exposure to levels of asbestos known
at the time to be hazardous there is not a foreseeable risk of injury. Since the exposure did not exceed
the EH10 guidance, there was no foreseeable risk of injury and thus no breach of duty. As to the
argument that exposure was not reduced to the lowest level reasonably practicable, and that use of a
respirator should have been enforced, the judge concluded that EH10 (1976), properly analysed, did not
extend to the use of a respirator or protective clothing. He made specific reference to part of the
guidance which required use of a respirator only if levels of crocidolite asbestos could not be kept below
the standards in the guidance. Since no reference was made to use of a respirator beyond these
circumstances it was held that the defendant was not in breach of duty in relation to the asbestos that
the deceased was exposed to. The claim was dismissed.
This judgment is likely to have an impact on claims alleging low level exposure after 1976 where the
exposed individual was not directly working with asbestos but was exposed to levels in excess of
background levels, such as from asbestos containing materials used in buildings such as schools. Low
level asbestos exposure claims will be considered in a forthcoming feature article.
Dusting Down Statutory Liabilities for Exposure to Asbestos – the Supreme Court’s
Decision in McDonald v The National Grid (BCDN Edition 69)
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Introduction
The Supreme Court has ruled upon the statutory obligations under regulation 2(a) of the Asbestos
Industry Regulations 1931 and section 47 of the Factories Act 1937, upholding the earlier ruling of the
Court of Appeal.
The Facts
In McDonald (Deceased) (Represented by Mrs Edna McDonald) v The National Grid Electricity
Transmission Plc [2014] UKSC 53, the claimant had been employed by the first defendant’s (D1)
predecessor from 1954 to 1959 as a lorry driver. He alleged his mesothelioma was caused by exposure
to asbestos dust when attending Battersea Power Station – owned and controlled by the second
defendant’s (The National Grid) (D2) predecessor – in his lorry to collect fuel ash. The claimant said he
would visit the power station about twice a month and would be there for 1-2 hours. On these occasions
he spent about an hour in the power station dealing with paperwork and would be regularly exposed to
asbestos from workers mixing, applying and removing asbestos based lagging within 10-15ft of him and
regularly exposed to ‘clouds of dust’. The defendants argued that on the majority of his visits there
would be no exposure as the claimant would have no need to go to areas where lagging/stripping took
place.
The Allegations
The claim was pursued in common law negligence only against the employer D1. Against D2, as the
occupier/controller of the premises, breaches of s.47 (1) of the Factories Act (FA) 1937 (the duty to
remove dust or fumes where these are likely to be injurious or substantial) and regulation 2(a) of the
Asbestos Industry Regulations 1931(the mixing of asbestos by hand shall not be carried on except with a
mechanical exhaust draught to ensure so far as practicable the suppression of dust) were pleaded.
The Decision at First Instance
The claim in common law negligence against D1 was dismissed as the judge accepted that the claimant’s
exposure was not greater than those levels which in the 1950s-60s were regarded as posing a risk to
health. The judge relied upon Williams v University of Birmingham [2011] EWCA Civ 1242 to find there
could be do duty upon D1 to act in respect of dangers not known to be dangers at the time.
In respect of the claim against D2 the judge found that:
(i) section 47 of the 1937 Act did not add materially to any common law duty of care which may have
existed. The statutory duty was itself dependent on what was reasonably foreseeable at the time; and
(ii) Regulation 2 of the Asbestos Industry Regulations 1931 applied to premises where mixing of asbestos
was being carried out but in the case of D2 it was exempt from the Regulations as the lagging work was
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likely to have been carried out ‘occasionally’ and/or for no more than ‘eight hours in any week’, thus
falling within the exemption in the Preamble to the Regulations.
The Decision of the Court of Appeal
On appeal, the Court of Appeal allowed Mr McDonald’s appeal against D2 under the 1931 Regulations
but dismissed his appeal under the 1937 Act. It also dismissed his appeal against D1 for the same
reasons as those given by the trial judge.
On the issue of regulation 2(a) (mixing of asbestos by hand shall not be carried on except with a
mechanical exhaust draught to ensure so far as practicable the suppression of dust), it was held the
regulation could apply to the mixing of asbestos with water in drums, following the decision in Shell
Tankers v Jeromson; Dawson v Cherry Tree Machine Co [2001] EWCA Civ 101 which the Court of Appeal
felt ‘constrained’ to follow even though its correctness was doubted on this point. The regulation did not
apply (according to the Preamble to Regulations) if mixing was carried on only occasionally and the
person was not employed at the factory for more than 8 hours per week. However, the judge was wrong
to hold that the claimant must prove the exception did not apply. Rather, on a natural reading of the
words, it was clear regulation 2 applied unless D2 proved otherwise (and D2 also had to prove it had
installed an exhaust to suppress dust so far as practicable). In addition, there was no issue of ‘reasonable
practicability’. The regulations recognised the risk of dust and regulation 2(a) provided that it should be
reduced so far as practicable, not so far as reasonably practicable, again following the decision in Cherry
Tree. The duty had been breached.
On the issue of section 47(1) there were two issues: firstly if it applied and secondly if it was breached.
The Court held that it could not be said that the claimant was employed at D2’s premises since he only
visited occasionally and he was not employed in any asbestos processes. The duty did not therefore
apply; even if the duty had applied it could not be said on the evidence that it had been established
there was a ‘substantial quantity of dust of any kind’ against which all practicable measures had to be
taken to protect the claimant. Accordingly that part of the claim failed.
D2 (The National Grid) appealed against the decision on the 1931 Regulations. The claimant passed
away in February 2014. His widow took his place and appealed against the ruling in respect of the 1937
Act. There was no appeal in relation to the claim against D1.
The Decision of the Supreme Court
The Supreme Court dismissed D2’s appeal and the claimant’s cross appeal. The decision was by a
majority of three (Lord Kerr gave the lead judgment and Lady Hale and Lord Clarke gave concurring
judgments) to two (Lord Reed, with whom Lord Neuberger agreed). On the cross-appeal, the decision
was by a majority of three to one, with Lady Hale in the minority (Lord Clarke did not rule on the cross-
appeal).
As to D2’s appeal against the Court of Appeal’s interpretation of the 1931 Regulations, the Supreme
Court made three determinations. Firstly, it was held that the Regulations apply to all factories and
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workshops processing asbestos, not just those that deal with asbestos in its raw, unprocessed condition
(paragraphs [27], [98] and [116] of the judgment). If the intention had been to so restrict the
Regulations, then that could have been stated. However, the preamble to the Regulations clearly said
they apply to all factories where asbestos processes are carried out ([27)]. Further, the Merewether and
Price Report, which ultimately led to the Regulations, did not focus exclusively on the asbestos industry
([28]). Indeed it was questionable whether it could be said there was a discrete ‘asbestos industry’ at
which the Regulations were aimed ([34]). In addition, the Regulations had to apply beyond the asbestos
industry otherwise the proviso in the Preamble to the Regulations (that they did not apply where the
work with asbestos was occasional and carried on for no more than 8 hours per work) would not make
sense, since it would never apply.
Secondly, the majority held that the mixing of asbestos during lagging work at a power station fell within
the meaning of paragraph (i) of the Preamble to the Regulations ([49], [100], and [124]. ‘Mixing’ was not
confined it its technical sense of the mixing of raw asbestos as a preparatory step to its use in the
manufacture of asbestos products. If that had been the intention, the Regulations would have clearly
said so. That outcome would be surprising in light of the knowledge at the time about exposure to
asbestos during lagging activities ([49]).
Thirdly, it was held that the Regulations apply to all those in a factory where asbestos is processed,
irrespective of whether they are involved in processing asbestos directly or employed by the occupiers
of the premises where asbestos was being mixed. Lord Kerr said the Secretary of State had made the
Regulations under section 79 of the Factory and Workshop Act 1901, which empowered him to afford
protection to those not engaged in asbestos processing. Therefore, since the risk of injury the
Regulations sought to protect against arose from inhalation of dust and fumes, there was no logical
reason to exclude those not directly engaged in asbestos processing but who were still liable to
exposure ([53]). Lady Hale concluded that liability under the 1901 Act is imposed on occupiers (not
employers) to protect those is the premises they occupied. Therefore the question was whether a
person was employed in the power station, not if they were employed by the occupier ([103]-[104]).
Lord Clarke deemed that Mr McDonald was ‘in a real sense’ working for the purposes of the power
station and agreed with Lord Kerr ([127]).
As to the dissenters on the issue of the Regulations, Lord Reed, with whom Lord Neuberger agreed,
concluded that the Regulations were not engaged as they are intended to apply solely to asbestos
processing with the asbestos processing industry. They held that the Regulations were penal legislation
which should be construed narrowly ([158]).
In respect of the claimant’s cross-appeal on the issue of section 47, the majority held that there was
insufficient evidence to rebut the Court of Appeal’s conclusion that the claimant had failed on the
evidence to establish that a substantial quantity of dust had been given off ([90], [209]). Lady Hale
dissented, holding there was sufficient evidence to determine that a substantial quantity of dust had
been given off ([109].)
The justices of the Supreme Court did not, however, all concur on the interpretation of the components
of section 47. For Lord Kerr, Lady Hale and Lords Reed and Neuberger, an individual could be a ‘person
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employed’ for the purposes of section 47 even if they were not engaged in the process creating the dust
([67], [108] and [210]-[216]). In that respect, the judgement of the Court of Appeal was overruled. The
four justices also held that the quantity of dust had to be substantial at the point it was given off, not at
the point it was inhaled ([76], [108], and [222]). However, they disagreed on whether Mr McDonald
specifically was a ‘person employed’. For Lord Kerr and Lady Hale an individual was a person employed if
they were employed and called upon to work in the factory; they did not have to be employed by the
occupier of the factory ([71] and [108]). Thus Mr McDonald was a person employed. Conversely, Lords
Reed and Neuberger considered that a person employed had to be employed for the purposes of the
factory to be a person employed. Since Mr McDonald was employed only for the purpose of his own
employer, he was not a person employed ([217]-[218]).
In summary, the claimant’s action succeeded against D1 under the 1931 Regulations but failed under
section 47 of the 1937 Act.
Comment
The majority of the Supreme Court has adopted a wide purposive interpretation of the 1931
Regulations. This purposive reasoning is best illustrated by the judgment of Lord Kerr. Although the
Court of Appeal expressed veiled dissatisfaction with the decision in Cherry Tree, the Supreme Court
unanimously approved it ([93]). The majority also accepted a wider interpretation of section 47 than the
Court of Appeal was prepared to countenance.
However, the judgment does leave some questions unanswered. Firstly, the Supreme Court has left
undetermined the issue of who is a ‘person employed’. While the Court agreed that a person need not
be employed in a dust creating process, it left undecided the issue of whether an individual simply must
have been employed merely in some capacity and called upon to work in the factory, or whether they
had to be employed for the purposes of the factory (there was a 2-2 split on this point). Thus there is
scope for further argument by defendants on this point.
Moreover, the judgement did not satisfactorily deal with the issue of whether the second limb of section
47 (a substantial quantity of dust given off) imports the concept of foreseeability of harm and thus the
standard of knowledge at the material time. Lord Kerr (at [86]-[87]) was clear that the issue of a
substantial quantity of dust is simply a quantitative issue, nothing more. It does not involve a
consideration about the injurious nature of any dust (and thus what might be foreseeable about
exposure to particular levels of dust based on the standards of knowledge at the relevant time). Lords
Reed and Neuberger also appeared to adopt that position, without dealing with the point expressly (at
[208]). However Lord Kerr (at [86]) did leave open the possibility that the injurious propensity of the
dust may have a role to play in the issue of what are practicable measures of suppression. But of course
the injurious propensity of dust depends on what is known about the dust at certain times. Thus what is
practicable might well depend on the standards of knowledge at the relevant time. This would import
the standards of knowledge of the material time and the concept of foreseeability into the second limb
of section 47. A similar argument to this was made in respect of the 1931 Regulations (which also
referred to practicable measures being taken in regulation 2(a)) in the Court of Appeal in McDonald, but
it did not find favour with the Court (see [86]-[100] and [104] of the Court of Appeal judgment). But
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given that the Supreme Court has seemingly left the issue open, there remains scope for defendants to
contend that even the second limb of section 47 imports the concept of foreseeability (and thus the
standard of knowledge at the material time).
Although the Supreme Court adopted a wide interpretation of the statutory provisions, it must be
questioned if the decision in McDonald will have a significant impact in practice. It should be recalled
that both the 1931 Regulations and the 1937 Act apply only to factories and workshops. Thus the
decision would not have affected the outcomes in cases such as Williams v University of Birmingham
(concerning low level exposure at a university), Abraham v Ireson & Son (Properties) Ltd [2009] EWHC
1958 (QB) (concerning a plumber in the construction industry), and Hill v John Barnsley & Sons Ltd
[2013] EWHC 520 (concerning an individual testing the strength of materials in a power station under
construction), all of which did not concern factories. Thus cases of exposure in the construction industry
and cases concerning exposure in public buildings are unaffected by the decision. In addition, the 1931
Regulations ceased to apply on 14 May 1970 (they were repealed by regulation 1(2) of the Asbestos
Regulations 1969). They could not therefore affect decisions such as McGregor v Genco (FC) Ltd [2014]
EWHC 1376 (QB), which concerned exposure to asbestos in a store during the replacement of escalators
during the mid-1970s.
Furthermore, even where the 1931 Regulations have now been possibly brought into scope as a result of
the decision in McDonald, it must be recalled that many cases are now cases of low and infrequent
exposure to asbestos. These will be likely to fall within the exception in the Preamble to the Regulations,
which provides:
‘Provided that nothing in these Regulations shall apply to any factory or workshop or part thereof in
which the process of mixing of asbestos or repair of insulating mattresses or any process specified in (v)
[which includes sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed
wholly or partly of asbestos in the manufacture of such articles] or any cleaning of machinery or other
plant used in connection with any process, is carried on, so long as (a) such process or work is carried on
occasionally only and no person is employed therein for more than eight hours in any week; and (b) no
other process specified in the foregoing paragraphs is carried on.
Most claimants in cases of low level exposure will be simply unable to show that the processing of
asbestos occurred more than occasionally or that they were exposed for more than 8 hours in any
week.121
In short, the judgment of the Supreme Court in McDonald may well appear to be of benefit to claimants.
However, in practice, it may have relatively little impact at all.
Contributory Negligence in Asbestos Related Lung Cancer Cases (BCDN Edition 73)
121 Although it should be noted that it is for defendants to show the exceptions applies according to the Court of
Appeal in McDonald.
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The courts have again considered the issue of contributory negligence in asbestos related lung cancer
cases where the claimant smoked.
In Blackmore v Department for Communities and Local Government,122 the deceased claimant, Mr
Blackmore, was exposed to asbestos while removing it and sweeping it up after others had worked with
it. The exposure was relatively heavy and occurred over a period of about five years of the claimant’s
employment.
The claimant was a moderate, but long term, smoker, with a 20 a day habit for 60 years. This had
declined somewhat in the claimant’s final few years.
The defendant’s expert used epidemiological evidence to contend that the claimant’s smoking was the
overwhelmingly more significant contributor to the risk of him developing lung cancer. Indeed, even
after discounting the first 25 years of smoking – which occurred at time when the claimant could not
have been regarded as knowing the dangers (because of the level of scientific knowledge at the time) –
smoking caused 90% of the claimant’s cancer risk. The remaining 10% risk was attributable to the
exposure to asbestos. The defendant contended that a commensurately large deduction to the damages
ought to have been made for contributory negligence, namely a deduction of 85% or 90%.
The court rejected that argument on two principal grounds. Firstly, it criticised the basis of the
defendant’s figures. The judge accepted criticism directed at the defendant’s expert that their figures
were unreasonably precise. Secondly, and more importantly, the defendant’s argument was rejected on
the basis of a review of the law of contributory negligence.
The judge found that the negligent smoking (after the first 25 years) was between two and three times
more potent a cause of the claimant’s cancer than his exposure to asbestos. As to the law on
contributory negligence, the judge emphasised that assessment of contributory negligence is a jury
question, rather than one which relies on identifying the precise degree of contribution to an injury. The
exercise comprised two components; first, considering the level of causative potency of the claimant’s
actions, and, secondly, considering the overall relative blameworthiness between the claimant and the
defendant.
Taking that test into account, the court emphasised the policy considerations behind imposing statutory
duties on and employers and noted that they had been repeatedly breached by the defendant.
Relatively, the claimant’s actions were morally less blameworthy.
Against those findings, the court ruled there would be a 30% deduction from the claimant’s damages on
account of his contributory negligence in smoking after the risks were well known. This is somewhat
higher than the deduction in earlier cases. For example, in Badger v Ministry of Defence [2005] EWHC
2941 (QB) the deduction was 25%, while in Shortell v Bical (QBD, 16 May 2008) the deduction was 20%.
Causation in lung cancer claims is considered further in the below article.
122 (Exeter County Court, 23 October 2014).
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Causation in Lung Cancer Claims (BCDN Editions 73 and 74) This is a consolidated version of three articles that appeared in editions 73 and 74 of Disease News.
Introduction
The issue of causation in lung cancer claims, indeed cancer claims more generally, has vexed the courts
and practitioners in recent years. In this series of articles we seek to chart the development of the case
law in an accessible way to elucidate the present state of the law. In this first part of the series, we
uncover the so-called ‘doubling of risk’ test of causation, and examine its early application in the courts.
Tests of Causation
There are three well-recognised legal tests of causation that are deployed in personal injury claims. The
first, and traditional test, is the ‘but for’ test. Here, the courts ask whether, on the balance of
probabilities, the claimant can establish that but for the breach of duty the injury or disease would not
have occurred. If the injury/disease would have occurred in any event then causation is not established.
If the injury/disease would not have occurred then causation is established.
The second test is the test of material contribution, which was first applied in Bonnington Castings Ltd v
Wardlaw [1956] AC 613, a case that concerned pneumoconiosis resulting from exposure to silica dust
from two concurrent sources, one of which was tortious and the other innocent. It was not possible to
determine which source had resulted in the disease on the traditional but for basis, indeed the two
sources had acted cumulatively to cause the disease. But it was clear that the tortious exposure had
materially contributed to the disease, for without it the claimant may not have developed the disease
when he did or at all. The House of Lords accepted that in cases where there are multiple sources of
exposure to the same causative agent, causation is satisfied when the tortious exposure made a material
contribution to the disease. It was essentially an extension of the but for test. It is worth noting by way
of an aside that the House of Lords treated the disease in Bonnington as an indivisible condition,
resulting in the claimant making full recovery. However, the condition would today be treated as a
divisible condition that is capable of being apportioned according to the different sources of exposure;
thus the claimant would have recovered damages for the proportion of his exposure that was tortious.
The third test of causation, the ‘Fairchild’ test, is more limited in scope, applying only in mesothelioma
claims. In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 the House of Lords accepted a
relaxation of the but for test so that causation would be satisfied where a defendant’s tortious activity
materially increased the risk of mesothelioma occurring.
The Cancer Problem – Doubling the Risk?
While these tests are well defined, the courts have had difficulty determining which applies in lung
cancer cases, indeed cancer cases generally. This is because science does not presently permit ready
identification of the cause of cancer since its development is fundamentally stochastic – that is, random.
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But science has identified certain exposures which are likely to increase the risk of certain cancers
developing.
How then are the courts to approach causation in cases where the claimant has been tortiously exposed
to a substance that is known to significantly increase the risk of cancer, but where the claimant cannot
show that their cancer would have occurred ‘but for’ the exposure? On the face of it, the Fairchild test
appears to be the most suitable test. But the courts have so far only permitted the use of that test in
mesothelioma cases; in Sienkiewicz v Greif [2011] 2 AC 229 Lord Brown expressed concern at extending
the remit of the test, as did Lord Phillips. Indeed he suggested the time may come when the test is
abolished. Similarly, in the Court of Appeal in Ministry of Defence v AB [2010] EWCA Civ 1317 (the
Atomic Veterans case) the Court considered there was no foreseeable possibility of an extension to the
Fairchild test where there were multiple potential causes. The Supreme Court agreed ([2012] UKSC 9).
Thus as Swift J noted in Jones v Secretary of State for Energy and Climate Change [2012] EWHC 2936
(QB) (the Phurnacite litigation), there has been no appetite in the appellate courts to extend the remit of
the Fairchild test. In the absence of that test what, then, is the appropriate test?
The test that appears to be finding some favour in the courts is the so-called ‘doubles the risk’ test, a
test which relies on epidemiological data and asks if a claimant can show that the tortious exposure
more than double their risk of contracting a particular disease. Epidemiology is the science of studying
populations and the incidence of diseases within populations. It establishes, firstly, the underlying
incidence of a disease in a non-exposed population and then, secondly, the incidence of disease in an
exposed population. It allows the presentation of relative risk (RR) ratios: if an individual is as likely to
develop a condition as the rest of the population then it is said the RR is 1.0. If an individual has been
exposed to substance that increases the risk of a condition by 60%, the RR is 1.6. Thus the doubles the
risk test asks if an individual is more than 100% more likely to develop a condition compared with the
underlying risk of developing the condition, or if the RR is 2.1 or more.
How has this test fared in the courts? With respect to cancer, the test had its first significant application
in Shortell v BICAL Construction Ltd (QBD, 16 May 2008), a case concerning a claim for lung cancer
caused by exposure to asbestos. The claimant had also smoked heavily – a known risk factor for lung
cancer. The epidemiological evidence was that asbestos and cigarette smoke have a multiplicative effect
on risk, such that, when both factors are present, the risk of contracting lung cancer is 50 times greater
than the risk in a non-smoker who is not exposed to asbestos. In that case the defendant conceded that
causation would be established if the claimant could prove on the balance of probabilities that the risk
factor created by its breach of duty had more than doubled the claimant’s relative risk of contracting
lung cancer. On the evidence Mackay J found this test satisfied and the claimant recovered damages,
although there was a deduction of 15% for contributory negligence on account of the claimant’s
smoking.
In Norvartis Grimsby Ltd v John Cookson [2007] EWCA Civ 1261, a case concerning a claim for bladder
cancer allegedly caused by tortious exposure to aromatic amines used in the manufacture of azo dye.
The claimant had also smoked – again, a known risk factor for bladder cancer. The parties agreed the
exposure to amines and carcinogens in cigarette smoke would have an additive effect – if not a
multiplicative effect (where the overall risk is the sum of the multiplication of the component risks). At
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first instance, the Recorder accepted there was a doubling of risk in consequence of tortious exposure to
amines, but his finding on causation in fact rested upon the Bonnington test, on the basis that the
medical experts agreed the tortious exposure and smoking were additive factors in the causation of
bladder cancer and so the tortious exposure must have made a material contribution to the
development of the claimant’s cancer. The defendant had argued Bonnington could not apply as it only
applied in divisible disease cases where there had been cumulative tortious and non-tortious exposure;
it did not apply in indivisible disease cases where there were different types of exposure. The defendant
submitted that it could not be said that either of the exposures had made the disease more severe.
Therefore it could not be said that either exposure had ‘contributed’ to the disease. Each exposure had
contributed only to the risk that the disease would develop. The claimant meanwhile had argued
that Bonnington remained good law, although it was conceded that it was usually applied to divisible
diseases and was then subject to apportionment. In the Court of Appeal, the Court considered it was
unnecessary for the Recorder to concern himself with Bonnington since his finding on the doubling of
risk was sufficient to show causation. Smith LJ observed that it was not certain whether the principle
in Bonnington applied only to divisible conditions where the various exposures had contributed to the
severity of the condition, or whether the principle applied also to indivisible conditions where the
exposures had contributed only to the risk that the disease would develop. However, it was not
necessary to decide the point given the findings on the doubling of risk;123 that was the test that applied.
Trouble Ahead for Doubling the Risk?
Up to this point, then, it appears the courts had certainly accepted the application of the doubling of risk
test, at least in relation to lung cancer cases. However, while the Court of Appeal had been prepared to
countenance its application without concern, the same cannot be said for Supreme Court, where the
validity of test was questioned altogether in Sienkiewicz v Greif [2011] 2 AC 229.
Questioning the Doubling of Risk
In Sienkiewicz, a case concerning light exposure to asbestos dust in the course of the claimant’s
employment allegedly resulting in mesothelioma, the judge at first instance found the claimant could
not satisfy the doubling of risk test, so the claim failed. In the Court of Appeal, it was contended for the
claimant that Fairchild ought to have been applied. The defendant resisted this on the basis that there
had been occupational exposure only with one employer to asbestos and therefore the claimant did not
face the impossible task of proving that any one period of tortious exposure had caused the claimant’s
mesothelioma, as was the case in Fairchild, where there were multiple occupational exposures across
different employers. Instead, it was argued ordinary causation principles applied. Giving the judgment of
the Court, Smith LJ referred to the application of the doubling of risk test in earlier cases and said: ‘In my
view, it must now be taken that, saving the expression of a different view by the Supreme Court, in a
123 It is worth noting that the Court of Appeal revisited the application of Bonnington in the Atomic Veterans case and said it only applied in divisible disease cases, so that an increased dose of the harmful agent worsens the disease.
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case of multiple potential causes, a claimant can demonstrate causation by showing that the tortious
exposure has a least doubled the risk arising from the non-tortious cause or causes’. Nevertheless, in
relation to mesothelioma, the Court of Appeal accepted the claimant’s argument that Fairchild should
have been applied given that Parliament had enshrined the test in section 3 of the Compensation Act
2006.
The Supreme Court in Sienkiewicz ultimately agreed with the Court of Appeal that Fairchild ought to be
applied in all mesothelioma cases, albeit it for different reasons. However, in reasoning that decision,
Lord Phillips spent some considerable time examining the doubling of risk test, not least to discount its
application in mesothelioma cases. In relation to its application in Shortell, his Lordship concluded that it
had been unnecessary to rely on the test because the case fell within the Bonnington principles. As Swift
J subsequently noted in the Phurnacite litigation, given that Shortell concerned lung cancer (an
indivisible condition) it is difficult to reconcile Lord Phillips’ view with the Court of Appeal’s view in the
Atomic Veterans case that Bonnington only applies in divisible disease cases.
For Lord Phillips, in multiple cause cases there was no scope for the application of the doubling of risk
test in cases where two agents had combined "cumulatively and simultaneously" to cause the onset of a
disease. In such a case, the rule in Bonnington would apply. Where the disease was indivisible (as with
lung cancer), a defendant who had tortiously contributed to the cause of the disease would be liable in
full. Where the disease was divisible (as with asbestosis), the defendant would be liable in respect of the
share of the disease for which he was responsible.
In cases where the initiation of a disease is dose related, and there have been consecutive exposures
(one non-tortious and one tortious) to agents that cause the disease, Lord Phillips said the position
would depend on the order of the exposures. Where the tortious exposure was first, it was axiomatic
that it would have contributed to the disease, even if it was not the sole cause. Where the non-tortious
exposure was first, there may be an issue as to whether it was sufficient to trigger the disease or
whether the subsequent tortious exposure contributed to the cause. Lord Phillips accepted there was no
reason in principle why the doubles the risk test could not be applied in such circumstances, but
cautioned the courts must be astute to see that epidemiological evidence provides a ‘really sound basis’
for determining the probability of the cause/s of the disease.
Finally, in cases where there are competing alternative (rather than cumulative) potential causes of a
disease, Lord Phillips could see ‘no reason in principle’ why the doubling of risk test could not be
adopted.
Aside from Lord Phillips’ specific analysis, the members of the Court expressed reservations about
epidemiological evidence more generally, although it was equally clear the Court did not endorse
eradicating the use of such evidence when determining causation. That said, it was not altogether clear
that the doubling of risk test had survived its visit to the Supreme Court.
The Return of Doubling the Risk
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The treatment of the doubling of risk test in the Supreme Court in Sienkiewicz was not particularly
favourable. Was there scope for its application after that decision? The issue was given significant
consideration in the Phurnacite litigation. Swift J tried eight lead actions in respect of workers’ exposure
to pitch, dust and fume containing polycyclic aromatic hydrocarbons. Claims were brought for lung
cancer, bladder cancer and non-melanoma skin cancer, and for various respiratory diseases. Swift J was
required to decide, amongst other things, whether exposure to the various carcinogenic substances had
caused the lung and bladder cancers. She embarked on a detailed analysis of the development of
causation principles and noted that the observations made in Sienkiewicz were obiter.124 She
determined that she had to decide whether to apply the Bonnington test or whether to apply the
doubling of risk test. Having heard significant evidence about the process of carcinogenesis, Swift J
concluded that it was simply not possible to say, in relation to any individual cancer, which factor or
factors had caused or contributed to its development. It was only possible to say what increased the risk
of cancer. For that reason, it would not be possible to apply the Bonnington test. Moreover, to apply
that test would have far-reaching consequences: it would mean that in any case of cancer where a
claimant could establish material exposure to a carcinogen, the claimant would succeed in establishing
causation and recover 100% of damages; that would not be fair in many cases where the actual
occupational exposure may have had a small part or, perhaps, no part at all in the development of the
cancer.
Accordingly, it was necessary for Swift J to adopt an alternative test of causation. The ‘obvious
alternative’, she said, was the doubling of risk test. In her view it was plain that a majority of the
Supreme Court in Sienkiewicz considered the test can be used in appropriate circumstances, despite the
obvious concern about over-reliance on epidemiological evidence alone. Noting that she had heard high-
quality expert evidence that was considered to be authoritative, Swift J concluded that the doubling of
risk test was the appropriate test of causation to adopt. Applying that test on the evidence, Swift J held
that two claimants had established causation of lung cancer, while one did not. Further, the claimants
had not proven that bladder cancer, or the skin cancers had been caused by the tortious exposure.
Thus the decision of Swift J decidedly carved out the doubling of risk test from the rock of causation. The
criticism and concerns outlined by the Supreme Court in Sienkiewicz were chipped away and cast aside
as obiter dicta. It is clear from the judgement that Swift J was manifestly content with the application of
the test, and did not share the concerns of the Supreme Court before her. Doubling of risk therefore
now stands alongside the other tests of causation, at least in relation to a limited class of cancer claims
where the traditional tests of but for causation and material contribution cannot apply. Fairchild
causation remains ring-fenced, destined only to apply in mesothelioma claims. Of course the pertinent
question is whether the doubling of risk test will survive a future visit to the higher courts. The issue has
not been adjudicated upon in the courts since the Phurnacite decision. So its future is unclear. For now
at least, it applies in a limited class of cancer cases.
Other Issues – Multiple Exposures
124 Swift J’s analysis of the causation principles, in section 6 of her judgment, is particularly comprehensive and recommended for further reading.
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A feature of many of the cases in which the doubling of risk test has been considered is the presence of
other exposures that are likely, too, to increase the risk of the claimant developing cancer. More often
than not, this is a history of significant smoking on the part of the claimant. How does this interact with
the doubling of risk test?
In Shortell the High Court accepted evidence that smoking increased the background risk of lung cancer
by a factor of 10 (from 0.5% to 5%) and asbestos exposure increased the background risk of developing
lung cancer by a factor of 5. It is widely understood that there is a synergistic relationship between
smoking and asbestos in relation to the risk of subsequently developing lung cancer. That is to say that
where both those factors are present, the risk of contracting lung cancer is greater merely than the sum
of the risks posed by smoking and asbestos. In Shortell it was accepted that the relationship was
multiplicative, such that the resulting risk is the sum of the multiplication of the individual risks [the
relationship may in fact, the evidence indicates, be somewhere between additive and multiplicative].
Therefore the risk factor from exposure to asbestos (estimated at a five-fold increase) acted
synergistically – indeed multiplicatively – with the 5% risk of lung cancer from smoking, a total risk of
25%. Expressed differently, the 10 fold increase in risk from smoking multiplied by the 5 fold increase in
risk from asbestos meant the risk of contracting lung cancer was 50 times greater, exponentially greater
than a mere doubling of risk.
In smoking cases where asbestos has doubled the underlying risk of disease, a reduction may be made
be possible for contributory negligence. In Shortell the deduction was 15%. In Badger v Ministry of
Defence [2005] EWHC 2941 (QB) the deduction was 20%. It should be remembered in relation to
contributory negligence that the aim of the deduction is not merely to calculate the claimant’s and
defendant’s respective contributions to the disease and to make a commensurate deduction from the
claimant’s damages on account of their contribution. Rather, as the recent decision in Blackmore v
Department for Communities and Local Government makes clear, the claimant’s share of the
responsibility is determined through consideration of the causative potency of their actions and their
relative blameworthiness.125 In that case, the deduction was 30%.
Accordingly, in cases of multiple exposures, the touchstone is always whether the tortious exposure
doubled the underlying risk of developing the cancer.
Conclusions
The doubling of risk test of causation appears to have been carved out of the rock of causation for use in
lung cancer claims, indeed cancer claims more generally. That is notwithstanding the lack of
endorsement from the Supreme Court. The test recognises that the traditional tests of causation are
simply ill-suited to cases at the outer reaches of medical knowledge, where it impossible to say with any
real certainty what caused, or contributed to, a disease. In the absence of the Fairchild test being
extended beyond mesothelioma cases into other challenging causation areas, the doubling of risk test
125 (Exeter County Court, 23 October 2014).
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has presented itself as a suitable alternative. Whether the test survives future visits to the appellate
courts remains to be seen.
Causation and Apportionment in Asbestos Related Lung Cancer Claims (BCDN
Edition 76)
Introduction
Yesterday the High Court handed down judgment in the fatal asbestos related lung cancer claim of
Heneghan v Manchester Dry Docks Ltd & Others [2014] EWHC 4190 (QB) in which Mr Justice Jay gave
judgement for the 6 defendants, finding that each defendant was liable only for a portion of the
damages rather than damages in full.
The issues
In 2011 Mr James Heneghan developed lung cancer from which he died on 3 January 2013. He had been
occupationally exposed to asbestos and his estate pursued a claim for damages against 6 defendants
who had employed him on a sequential basis between 1961-1974 and exposed him to asbestos in
breach of duty.
There had also been exposure with earlier employers who were not sued.
It was agreed between the parties that the deceased’s exposure with the defendants amounted to
35.2% of his overall occupational exposure. The non-sued exposure accounted for the majority of his
overall exposure.
It was further agreed by the parties that if the claimant succeeded full damages would be £175,000. On
the defendants’ case the claimant would only receive £61,600 based on a 35.2% share of the gross
valuation.
The court had to determine the appropriate test of causation in a multi-defendant lung cancer claim and
whether the defendants, if liable, should be liable in full or only for a proportion of the damages – i.e.
should there be apportionment of damages.
Tests of causation
There are 3 basic tests of legal causation:
the conventional ‘but for’ test
But for the defendant’s exposure would the claimant have developed injury? The
claimant must prove on a simple balance of probabilities – i.e. greater than 50% – that breach
caused injury.
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the ‘material contribution’ test
Also commonly referred to as the Bonnington Castings test,126 where defendants are liable for
contribution to the overall damage – usually restricted to dose related and divisible diseases
where the severity of the injury itself is related to cumulative exposure.
the Fairchild test127
Where defendants are liable for contributing to the risk of injury only (rather than damage)
because of the impossibility of the ‘but for’ test proving who caused injury – to date restricted
only to mesothelioma cases. The Fairchild test was further extended in Barker,128 such that
where it applied, defendants would only be liable to the extent that the exposure they were
responsible for had contributed to risk – i.e. apportionment of damages applied (which in the
case of mesothelioma was subsequently reversed by the Compensation Act 2006).
Which test applies to occupational disease claims appears to depend on whether:
there is a single or multiple causes of disease; there is a single or multiple sources of exposure; In cases of multiple causes whether these act independently or somehow together to cause
disease; scientific knowledge of the aetiology of disease is well known or poorly understood; the disease is divisible or indivisible.
Where there is a single cause of disease and single exposure to the same then the ‘but for’ test is easily
applied. The courts however have had difficulty in recent years in applying the correct test of causation
where there are (i) multiple sources of exposures to one known cause of disease, or (ii) multiple
exposures to multiple causes of disease, or (iii) scientific and medical knowledge of aetiology of the
disease is simply not sufficiently developed to say precisely how a disease has developed or how
potential multiple causes of the same may have contributed either to the disease itself or the risk of
developing the disease.
The relaxed Fairchild test has traditionally been sought by claimants in disease cases to overcome
causation issues where claims would fail on the traditional but for test. In Sienkiewicz the Supreme Court
appeared to firmly restrict the Fairchild test to cases of asbestos related mesothelioma and re-
emphasised the relaxed causation test was an exception made for this disease alone.129
Causation of lung cancer generally
126 The test derives from Bonnington Casting Ltd v Wardlaw [1956] AC 613. 127 First posited in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32. 128 Barker v Corus (UK) plc [2006] UKHL 20, [2006] 2 AC 572. 129 Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229.
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The vast majority of the 41,000 lung cancers diagnosed each year in the UK (85-90% or so) are
attributable to smoking.
Where there is asbestos exposure then, according to the Helsinki Criteria 1997,130 attribution is made
where (i) there is a cumulative exposure to asbestos of 25 fibre/ml years and, (ii) there is a minimum 10
year interval from 1st exposure to onset of the cancer. At such an exposure threshold the underlying risk
of lung cancer in the non-smoker / non-exposed is more than doubled – i.e. on balance of probabilities
caused by the asbestos exposure.
These criteria were subsequently modified in 2000 such that the 25 fibre/ml years’ threshold only
remains appropriate if exposure involved a preponderance of amphiboles.131 Where exposure is to equal
quantities of amphiboles and chrysotile fibres then the cumulative threshold is 40 f/ml years.
Engineering evidence in Heneghan
This was agreed evidence provided by John Raper who found:
-the deceased’s aggregate asbestos exposure was 133 f/ml years;
-exposure with other employers not sued was 86.2 f/ml years;
-the 6 defendants’ cumulative exposure was 46.9 f/ml years, or 35.2% of overall exposure;
-the exposure with each individual defendant ranged from 2.5% to 10.1%;
-the vast majority of the deceased’s exposure was to amphibole fibres.
The parties agreed that given the significant amphibole exposure, the causative threshold was likely to
be below 40 f/ml years and the overall occupational exposure of 133.1 f/ml years increased the
underlying risk of lung cancer fivefold.
The medical evidence
This was given by Dr Rudd for the claimant and Dr Moore-Gillon for the defendant.
It was common ground that:
-the deceased’s lifetime risk of developing lung cancer had he not smoked or been exposed to
asbestos was c. 0.5% (‘background risk’);
-The deceased smoked and this increased the ‘background risk’ by a factor of 4 to 2%;
-Asbestos and smoking exposures interact synergistically (more than the sum of the
individual parts) to increase risk;
130 A Tossavainen, ‘Asbestos, Asbestosis, and Cancer: the Helsinki Criteria for Diagnosis and Attribution’ (1997) 23 Scand J Work Environ Health 311. 131 D Henderson et al, ‘The Diagnosis and Attribution of Asbestos-Related Diseases in an Australian Context: Report of the Adelaide Workshop in Asbestos-Related Diseases. October 6-7, 2000 (2004) 10 Int J Occup Environ Health 40.
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-The synergistic interaction was multiplicative – in other words the asbestos exposure increased
the background / smoking risks by a factor of 5.132 So the overall risk was now 10%.
This agreed position is represented in the figures below:
Expressed in another way, 80% of the increased risk of cancer arose from the synergistic interaction of
asbestos upon the deceased’s existing risk (from background / smoking). On the balance of probabilities
the deceased would not have developed lung cancer but for his overall asbestos exposure.
However whilst overall exposure had more than doubled the risk could the same be said for the
individual exposures with each of the 6 defendants sued?
Mr Justice Jay found that all that could be said was that each exposure had increased the risk of
developing the lung cancer but individually (or even together) they did not double the underlying risk of
disease.
The Parties’ submissions
It was common ground between the parties that lung cancer is an indivisible disease because its severity
does not depend on the asbestos dose.
It was also common ground that if the claimant was able to prove some causation of damage against any
individual defendant on conventional principles then that defendant would be liable in full.
132 Some recent studies suggest that the interaction is more than additive but less than multiplicative (so sub-multiplicative) – see for example Yano et al, ‘Lung Cancer Mortality from Exposure to Chrysotile Asbestos and Smoking: a Case Control Study Within a Cohort in China’ (2010) 67 Occup Environ Med 876; Wraith, ‘A Bayesian Approach to Assess Interaction Between Known Risk Factors: the Risk of Lung Cancer from Exposure to Asbestos and Smoking’ (2008) 17 Stat Methods Med Res 171; Frost et al, ‘The Effect of Smoking on the Risk of Lung Cancer Mortality for Asbestos Workers in Great Britain (1971-2005)’ (2011) 55 Ann Occup Hyg 230.
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The claimant argued that (i) applying the ‘but for’ test asbestos had caused the lung cancer, and (ii) each
of the defendants’ respective exposures had made a ‘material contribution’ to damage.
The defendants’ case was that asbestos had caused the lung cancer but who had caused it could not be
answered with reference to epidemiological evidence alone. Either the claim had to fail in its entirety or
the Fairchild exception, which currently only applies to cases of mesothelioma, had to be applied here.
As in Fairchild there were multiple exposures to the same causative agent (asbestos). The exposure with
the 6 sued defendants only gave rise to 35.2% of that overall causative agent. It could not be said that
exposure with the defendants – individually or cumulatively – had, on the balance of probabilities,
caused the lung cancer. All that could be said was that the exposures to the same causative agent had
increased the risk of disease. If the Fairchild test of causation applied then, following Barker, the
defendants would not be liable in full but only to the extent that their culpable exposure had
contributed to the risk; that is to say liability would be apportioned.
The test in Heneghan
Mr Justice Jay considered a 2 stage test to causation: firstly what caused the cancer; secondly who
caused the cancer?
The first question to ask was whether, on the balance of probabilities, the overall exposure to asbestos
had caused the lung cancer – applying the usual ‘but for’ test. The answer here was yes.
The next question to ask is whether any of the defendants’ individual exposure had caused the cancer
on the balance of probabilities.
In this case the aggregate exposure with the 6 defendants accounted for 35.2% of the overall asbestos
exposure and the answer was no – on balance the cancer was not caused by the defendants either
individually and / or on aggregate. These exposures had increased the risk of disease and all that could
be inferred was the possibility of these causing the disease.
Exposure with one of the non-sued employers (W. Blackwell) gave rise to 56% of the overall
occupational exposure. If a claim had been pursued against that employer alone then it could have been
found on conventional principles that the employer had caused the lung cancer on the balance of
probabilities.
The material contribution test in Bonnington Castings could not be invoked because the aetiology of
lung cancer was different from the cumulative / dose related conditions where this test had been
applied, such as silicosis or pneumoconiosis. In those diseases the condition depended upon the
cumulative exposure to dust which incrementally worsened the condition. In lung cancer the exposures
only add to the risk – not to damage.
Instead, the ‘benevolent’ test of causation in Fairchild could be extended to non-mesothelioma cases
because if it was not applied here (and the conventional common law approach was adopted) the
claimant would have zero recovery.
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Mr Justice Jay in extending the Fairchild test also applied the Barker principle of apportionment with the
defendants only liable to the extent that they had contributed to the risk. The claimant was only entitled
to damages of £61,600 – this being 35.2% of the overall agreed damages of £175,000.
Comment
It is not clear why Fairchild needed to be invoked at all given Mr Justice Jay’s finding at paragraph [61] of
the judgment that, on balance, the lung cancer was caused by a non-sued employer which accounted for
56% of the overall asbestos exposure. The claimant failed on the 2nd part of the causation test applying
the conventional but for principles. This was not a case factually akin to Fairchild where proof of
causation was an impossibility.
The extension of Fairchild beyond mesothelioma claims is potentially worrying.
Have arguments on apportionment succeeded by conceding application of a diluted test of causation?
How will this decision now play with other types of cancer claims?
Leave to appeal has been given to the claimant.
Recovering Medical Costs in Scottish Asbestos Claims (BCDN Edition 78)
Introduction
Last year we dealt with the issue of governments recovering the medical costs of treating those with
asbestos related conditions from defendants who are found to be liable for the development of the
condition. We focused in particular on developments in Wales, where the Welsh Assembly had passed
Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (on 20 November 2013) that would permit
such recovery. However, that Bill has yet to receive Royal Assent as it has been referred to the Supreme
Court for a determination of whether the provisions it will enact are within the scope of the Welsh
Assembly’s devolved powers. The judgment of the Supreme Court is awaited and expected to be handed
down in the early part of this year.
We noted at the time that similar legislation in Scotland had been proposed by Member of the Scottish
Parliament Stuart McMillan. When he spoke initially about the prospect of proposing a Bill in the
Scottish Parliament, he said: ‘We cannot underestimate the need for bringing the issue before the
Scottish Parliament. The emotional and physical cost of being diagnosed with an asbestos related
condition can be significant and it’s the welfare of the person with the illness that is paramount.
However, there is a substantial financial cost to the NHS in diagnosing and managing asbestos related
conditions and this is something that needs to be addressed as a matter of urgency’.
A formal proposal for legislation in Scotland has now been made by Mr McMillan. In this article we
consider the Scottish proposals.
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Background and Reasons for the Proposal
In his document, ‘Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill: A proposal for a Bill to
enable Scottish Ministers to recover, from anyone responsible for paying compensation to a victim of
asbestos-related disease, certain costs incurred by the NHS in Scotland in providing care and treatment
to that victim’, McMillan contends that ‘Scotland’s proud industrial history is scarred by the legacy of
asbestos related disease which has caused so much harm to so many over the years’.133
Explaining the justification for the Bill, he says: ‘It is easy to assume that the health impact of our
industrial past is nearing an end; and the number of Scottish citizens and families who will be damaged
and killed by asbestos related diseases will diminish in number to zero in the near future. That is not,
however, the nature of the diseases. Scottish families and communities will continue to suffer because
of asbestos related disease and the NHS who provide the immeasurable care and support to those
families will continue to bear the financial cost for decades to come.
‘Everyone in Scotland agrees that what the victims of asbestos related disease have been forced to
suffer is wrong. Everyone in Scotland agrees that they require the best care and attention that only the
Scottish NHS can provide. Nevertheless, I do not think that it is fair that the financial burden of providing
that cost should rest solely on the taxpayer when the companies who exposed our workers to asbestos
are well insured’.
Specifically, McMillan provides two key reasons for proposing the legislation. He says:
‘Firstly, Scottish society, industry and our economy have benefited from a proud industrial history. It is a
history however scarred by industrial injury and disease seen none more acutely than our workers who
were exposed to asbestos at work. That is why the Scottish Parliament has always been quick to act to
support victims of asbestos related disease.
‘In that spirit, it is entirely right and proper that victims of asbestos related disease are put on an equal
footing with victims of road traffic and other accidents.
‘Secondly, I believe it is wrong that the tax payer should bear the full financial burden of caring for
victims of asbestos related disease when there are compensators who have insurance and on whom the
burden ought more fairly and appropriately fall.
‘It is important to recognise that my proposal will not create any new class of person who requires to
pay compensation arising from asbestos related disease. The obligation to repay the NHS benefits will
only arise where there is negligence or a breach of a statutory obligation which gives rise to a primary
133 Stuart McMillan, ‘Recovery of Medical Costs for Asbestos Diseases (Scotland) Bill: A proposal for a Bill to enable Scottish Ministers to recover, from anyone responsible for paying compensation to a victim of asbestos-related disease, certain costs incurred by the NHS in Scotland in providing care and treatment to that victim’ (January 2015) <http://www.scottish.parliament.uk/S4_MembersBills/20150105_consultation_final.pdf> accessed 8 January 2015.
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obligation to compensate the victim or, in cases where exposure to asbestos has caused death, the
victims’ families.
‘Under the rules which currently exist in relation to recovery of NHS charges for injury, the money which
is recovered by the state is repaid to the health board which provided the original treatment. That
would be the intention in relation to recovery in respect of asbestos related disease’.
Aim of the Proposed Legislation
The overriding objective of the proposed legislation is simply stated in the consultation paper. It is to
‘place an obligation on compensators to repay, to the Scottish Ministers, the cost of NHS charges
associated with the care and treatment of victims of asbestos related disease:’.
Thus, as the consultation explains, the proposed Bill seeks to:
Impose a statutory obligation on compensators to repay NHS charges associated with the care
of victims of asbestos related disease.
Allow Scottish Ministers to exclude certain payments and charges from the obligation to repay
by secondary legislation.
Create a framework for certifying the amount which requires to be repaid, calculating that sum
and the basic means of recovery by the Scottish Ministers.
Create an appeal and review process including an appeal on a point of law to the Social Security
Commissioner.
Specifically extending insurance cover.
Provide statutory framework for recovery, via the courts, in circumstances where the
compensator does not fulfil their obligation voluntarily.
Administration Provisions
As to the administration of the scheme, Mr McMillan explains in the consultation document that the
scheme would be administered in the same way that NHS charges are recovered in accident and injury
claims under the Health and Social Care (Community and Standards) Act 2003 by the Compensation
Recovery Unit (CRU). Thus the systems and processes are already in place to administer any scheme.
The consultation document also deals with the position of insurers. The proposed Bill would legislate
explicitly to extend the liability of the liable defendants to their insurers. Specifically, the consultation
says: ‘There have been many examples of insurance companies seeking to avoid making certain types of
payments of compensation on the basis that their individual policy did not cover particular wrongs. This
practice has been seen in many occasions over the years in relation to “long tail” compensation claims
such as industrial disease and in particular asbestos related disease claims. It would be wholly
inappropriate if such an approach was taken to the recovery of NHS charges in my proposal. To avoid
that, my proposed Bill will contain specific provisions to extend the liability of a liable person to their
insurer’.
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Meanwhile, as to the destination of the recovered funds, Mr McMillan proposes that recovered monies
are placed into the general health budget and allocated to the health board which provided the care to
the claimant. He does, however, concede an alternative possibility: that the money is wholly or in part
used specifically for the purpose of providing treatment and other services relating to asbestos related
diseases, including research.
Next Steps
There is to be a minimum consultation period of 12 weeks. All responses will then be analysed and a
summary of them lodged in the Scottish Parliament. If the proposal secures the support of at least 18
other members of the Scottish Parliament from three or more political parties or groups, and the
Scottish Government does not indicated that it is intends to legislate in the area, Mr McMillan will then
have the right to introduce a Members’ Bill into the Scottish Parliament.
In the event the proposal becomes a formal bill, it will follow a three-stage scrutiny process where upon
it may be amended or rejected. If it complete its passage through the Scottish Parliament then it will
become an Act of the Scottish Parliament.
Costs Implications
If the proposed Bill becomes an Act of the Scottish Parliament, how much might be recovered under its
provisions? Mr McMillan has estimated previously that over £20 million per year is spent by NHS
Scotland diagnosing and treating people suffering from asbestos related conditions which could be
recovered. The cost of treatment would be calculated from a patient’s initial diagnosis. In the case of
mesothelioma and lung cancer, the cost of care is estimated at £54,180 per individual, with a total
expenditure of £3,955,140 in 2012 for mesothelioma victims. For asbestosis and pleural thickening, the
costs of care are estimated at £20,000 per individual, with total expenditure of £5,480,000 in 2012. Once
the costs of initial diagnosis are factored in, the total costs are thought to be £20 million annually.134
The potential recoverable costs have to be set against a background of rising claims numbers. In the case
of mesothelioma for example, the number of claims is thought likely to peak in 2019 at a maximum of
2,584 annual cases.135 In 2012, the number of cases was 2,535; this was itself a substantial increase from
2011 where there were 2,291 cases.136 Accordingly the overall recoverable sum could be expected to
rise further until the number of cases peak.
Conclusions
The proposed Scottish Bill mirrors the provisions of the Welsh recovery Bill which is currently before the
Supreme Court. That such a Bill has already garnered support in one part of the UK may indicate that
this Bill will similarly find support. Moreover, the devolution issues currently plaguing the Welsh Bill may
134 ibid. 135 HSE, ‘Mesothelioma in Great Britain 2014’ (October 2014) Table MESO06 <http://www.hse.gov.uk/Statistics/causdis/mesothelioma/mesothelioma.pdf> accessed 8 January 2015. 136 ibid.
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not affect any Scottish Bill since the devolution arrangements are different between Wales and Scotland.
The consultation close at 5pm on 30 March 2015 and can be read here.
Supreme Court Rules Welsh Assembly Lacks Competence to Enact Asbestos Bill
(BCDN Edition 83)
Introduction
The Supreme Court has ruled that the Welsh Assembly does not have legislative competence to enact
the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill.
In this article we consider what the Bill would have legislated for, what the costs implications would
have been, and the judgment of the Supreme Court.
The Recovery of Medical Costs for Asbestos Diseases (Wales) Bill
The Welsh Assembly passed the Recovery of Medical Costs for Asbestos Diseases (Wales) Bill on 20
November 2013.137 It was a private member’s bill introduced by Assembly Member Mick Antoniw, a
former partner at Thompsons.
For these purposes, the provisions of importance are clauses 2 and 14. Clause 2 provides: ‘Where a
compensation payment is made to or in respect of a person (the “victim”) in consequence of any
asbestos-related disease suffered by the victim, the person who is, or is alleged to be, liable to any
extent in respect of the asbestos-related disease and by whom or on whose behalf the compensation
payment is made is liable to reimburse the Welsh Ministers in respect of any relevant Welsh NHS
services provided to the victim as a result of the asbestos-related disease’.
Clause 14 confirms that where the defendant’s liability is covered by a policy of insurance, the policy is
to be treated as covering the defendant’s liability to make payments to the Welsh Government under
the Act.
In short, the Bill would enact a scheme whereby those compensating a victim of an asbestos-related
disease are required to reimburse the Welsh government for the costs expended by the NHS in treating
the victim. Employers’ liability insurance policies would be treated as having to respond to the
requirement to reimburse the Welsh government.
Although the Bill was passed on 20 November 2013, it did not immediately receive Royal Assent. The
Counsel General for Wales, Theodore Huckle QC, referred the Bill to the Supreme Court for a
determination on whether the Bill was within the Welsh Assembly’s legislative competence – a
137 See ‘Recovery of Medical Costs for Asbestos Diseases (Wales) Bill’ (National Assembly for Wales) <http://www.senedd.assemblywales.org/mgIssueHistoryHome.aspx?IId=4837&Opt=0> accessed 12 February 2015.
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devolution matter. The Assembly’s legislative competence to promulgate the Bill had been persistently
questioned by insurers.
On referring the Bill, Mr Huckle said: ‘Before the Supreme Court I will contend strongly that the Bill is
within the Assembly’s legislative competence…However, making a reference before it receives Royal
Assent enables the matter of the Bill’s competence to be determined without awaiting what I consider
would be the inevitable challenge in potentially far more expensive court proceedings in due course,
perhaps when substantial amounts of money had been recouped under the Bill’s provisions and would
quite likely be subject to repayment were the decision of the courts to be adverse…The litigation costs
of a reference being made during the intimation period are likely to be less than the costs of any
challenge brought once the Bill is enacted under the usual judicial review procedure, as Supreme Court
rules provide that orders for costs will not normally be made in favour of or against interveners [such as
insurers’ representative]…It is in my view in the public interest for me to take the initiative in seeking the
Supreme Court’s decision on the Bill as it stands’.138
Costs Implications
In the event that the Bill was passed into law, it was clear that it would have had significant costs
implications for compensators and insurers. It had been estimated that the gross annual recovery under
the scheme would have been £2.03 million.139 The actual cost of treating each patient was estimated at
an average of £23,999 per patient. In the case of 11 patients the total costs were £256,291. The highest
cost for one patient was £53,035, a consequence of significant inpatient treatment. The costs are shown
in the following table:140
138 Neil Rose, ‘Supreme Court to Rule on Welsh Bid to Recoup NHS Asbestos Costs’ (Litigation Futures, 16 January 2014) <http://www.litigationfutures.com/news/supreme-court-rule-welsh-bid-recoup-nhs-asbestos-costs> accessed 12 February 2015. 139 Mick Antoniw AM, ‘Recovery of Medical Costs for Asbestos Diseases (Wales) Bill: Explanatory Memorandum Incorporating the Regulatory Impact Assessment’ (December 2012) [118] < http://www.assemblywales.org/bus-home/bus-business-fourth-assembly-laid-docs/pri-ld9122-em-e.pdf?langoption=3&ttl=PRI-LD9122-EM%20-%20Explanatory%20Memorandum%3A%20Recovery%20of%20Medical%20Costs%20for%20Asbestos%20Diseases%20%28Wales%29%20Bill%20> accessed 12 February 2015. 140 ibid [109]-[110].
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It was said that a tariff scheme would have been used in practice to avoid the administrative expense of
determining actual treatment costs in each case. Applying the tariffs used in personal injury cases, the
impact assessment for the Welsh Bill showed the following costs:
The average was slightly increased to £25,361 per case and it was this figure that was used to determine
the total £2.03 million recovered sum, based on 80 mesothelioma cases each (determined from CRU
data and settlements in Wales).141 It was said that an appropriate tariff would be developed.
The Judgment of the Supreme Court
The Supreme Court heard the case on 14 and 15 May 2014 and judgment was handed down on 9
February 2015. It unanimously ruled that the Bill is outside the legislative competence of the Welsh
Assembly. The judgment can be read here.
Giving the leading judgment, Lord Mance (with whom Lords Neuberger and Hodge agreed), noted that
the Bill would impose new ‘quasi-tortious’ liabilities on compensators in respect of past conduct and on
liability insurers under past insurance contracts; although it was not retrospective in the fullest sense, it
significantly restructured both the consequences of actual or possible negligence or breach of statutory
duty committed long ago by compensators, and the terms of and liabilities attaching under insurance
policies also underwritten years ago to cover any such negligence or breach of statutory duty ([7]).
He explained that the Supreme Court was required to determine, firstly, whether the Bill’s provisions
came within the legislative competence of the Welsh Assembly concerning the ‘organisation and funding
of [the] national health service’ under the Government of Wales Act 2006 (GOWA) (sections 108(4)-(5)
and paragraph 9 of Part 1 of Schedule 7), and, secondly, if they did, whether the Bill was nevertheless
outside the legislative competence of the Assembly by reason of section 108(6) of the 2006 Act, on the
ground that it was incompatible with the rights of compensators and insurers under article 1 of Protocol
1 of the European Convention on Human Rights (ECHR) to peaceful enjoyment of their possessions ([9],
[35]).
141 ibid [113]-[114].
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As to the first issue, Lord Mance said the critical phrase, in determining the legislative competency of the
Welsh Assembly to enact the Bill, was ‘Organisation of funding of the National Health Service’ in
paragraph 9 of Part 1 of Schedule 7 to the GOWA 2006 ([13]). It was common ground that Welsh
Ministers do not have general fiscal powers ([17]) and even assuming – without deciding – that the
Welsh Assembly had competence to levy charges for Welsh NHS services, the Bill was not sufficiently
‘related to’ the ‘organisation of funding of the National Health Service’ under section 108(4) of the
GOWA 2006 to come within that competence. The charges provided for by the Bill were to be imposed
on compensators and insurers rather than patients and lacked any direct or close connection with the
provision of Welsh NHS services. The Bill sought to impose what were in effect new tortious or statutory
duties on third parties to pay for the relevant Welsh NHS treatment ([24], [27]).
As a result of the decision on the first issue, the second issue did not strictly arise for consideration.
Nevertheless Lord Mance expressed his views. His Lordship held that the Bill interfered with the article 1
of Protocol 1 rights of compensators and insurers to the peaceful enjoyment of their possessions. The
new financial liabilities of compensators and insurers imposed by the Bill would arise from asbestos
exposure and liability insurance policies which long pre-dated the Bill ([36], [41]). The retrospective
effect of the Bill required special justification and that was absent in the present case ([53], [57] and
[65]-[69]).
Lord Thomas (with whom Lady Hale agreed) concurred with the result in the judgment of Lord Mance,
but for significantly narrow reasons. Lord Thomas agreed that the Bill was beyond the competence of
the Welsh Assembly, but on narrower grounds. He held that clause 2 of the Bill was within the
competence of the Welsh Assembly, because the “organisation of funding of the National Health
Service” encompasses a general power to raise funds for the Welsh NHS through the imposition of
charges on patients, who could recover those charges from an employer who had exposed him to
asbestos. The employer could then claim indemnification from its liability insurer ([83], [96]). It was
therefore open to the Welsh Assembly to impose charges directly on the employer/compensator ([100]-
[102]). Further, the interference of the Bill with the article 1 of Protocol 1 rights of
employers/compensators was proportionate to its economic and social purpose of funding Welsh NHS
services for asbestos victims ([108], [124], [128]). However, clause 14 of the Bill was outside the
competence of the Welsh Assembly because its effect was retrospectively to extend or override the
provisions of existing liability insurance policies, contrary to section 108(5) of the GOWA 2006 and the
article 1 of Protocol 1 rights of insurers ([133] and [138]-[140]).
Discussion and Conclusion
In consequence of the Supreme Court’s decision, the Bill cannot now be enacted in its current form.
However, the Standing Orders of the Welsh Assembly permit it to reconsider a Bill if the Supreme Court
finds that it is beyond the legislative competence of the assembly.142 Therefore it is possible, albeit
142 ‘Statement by the National Assembly’s Presiding Officer Dame Rosemary Butler AM, in response to the Supreme Court Judgment on the Recovery of Medical Costs of Asbestos Diseases (Wales) Bill’ (National Assembly for Wales, 9 February 2015) <http://www.assembly.wales/en/newhome/pages/newsitem.aspx?itemid=1397> accessed 12 February 2015.
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unlikely, that the Bill may be reconsidered and amended into a form that is considered within the
legislative competence of the Assembly. Assuming it is the end of the line for the Bill, compensators and
insurers have been relieved of a significant liability.
The decision of the Supreme Court may also have implications for other asbestos costs recovery
legislation in British jurisdictions, such as the legislation formally proposed in Scotland (see edition 78 of
Disease News). Given that the Supreme Court ruled that the Bill would infringe article 1 of Protocol 1 of
the ECHR because of its retrospective effect, then others Bill in Scotland – or England or Northern
Ireland for that matter – would theoretically be open to successful challenge on the same human rights
grounds. The Supreme Court has seemingly insulated compensators and insurers from such legislation in
any British Jurisdiction through its judgment. Having said that, the ruling on the human rights issue is
strictly obiter and will not bind any future court.
It remains to be seen if further asbestos costs recovery legislation will be promulgated.
A Review of Low Level Exposure Mesothelioma Claims (BCDN Editions 89 and 91) This is a consolidated version of three articles that appeared in editions 89 and 91 of Disease News.
Introduction
A common feature of many present day mesothelioma claims is the low level nature of the alleged
exposure to asbestos. This can manifest itself in two ways. Firstly, the level of the exposure may have
been demonstrably low by reference to the available evidence, such that the claimant’s exposure was
not above the level regarded as ‘safe’ at the material time. Secondly, the level of exposure may have
been so low that it is difficult for the claimant to prove there was exposure to asbestos at all.
What is the approach of the courts to such claims? That is the issue that will be explored in this two part
article.
Williams v University of Birmingham
Perhaps the seminal decision on low level exposure is Williams v University of Birmingham [2011] EWCA
Civ 1242. In that case the deceased had been exposed to asbestos in a service tunnel at the defendant
university while an undergraduate physics student in 1974. The deceased had been exposed to a level of
asbestos fibres exceeding 0.1 fibres/ml2, but less than 0.2 fibres/ml2, for a period between 52 and 78
hours in total. At first instance, the judge held the defendant liable at common law, holding that the
exposure materially increased the risk of the deceased contracting mesothelioma. On appeal however,
the Court of Appeal held that the test is whether the degree of actual exposure made it reasonably
foreseeable to the employer that as a result of its conduct the employee would be exposed to a risk of
contracting an asbestos-related condition. That was to be based on the available knowledge at the
relevant time. At the time, Technical Data Note 13 (published by HM Factory Inspectorate, March 1970)
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set levels of 0.2 fibres/ml2 for crocidolite and 2 fibres/ml2 for amosite and chrysotile as maximum safe
exposure levels. The deceased’s exposure had not exceeded this so there was no breach of duty; the
employer at the time on the available knowledge would not have foreseen – and could not have
reasonably been expected to foresee – a risk of contracting an asbestos-related condition.
As to official publications stating there was a ‘safe’ level of exposure, the following documents are
notable:
March 1960 – Toxic Substances in Factory Atmospheres (Ministry of Labour)
Set a safe level of exposure as the equivalent of 30 fibres/ml2.
March 1970 – Technical Data Note 13 (HM Factory Inspectorate)
Made a distinction between the different types of asbestos for the first time. A level of 0.2
fibres/ml2 was set for crocidolite and a level of 2 fibres/ml2 was set for amosite and chrysotile.
December 1976 – Guidance Note EH10 (Health and Safety Executive (HSE))
Set the same levels as in TDN 13 but also mandated, for the first time, that exposure to all forms
of asbestos should be reduced to the minimum that is reasonably practicable. Accordingly,
where an employer is held to have required knowledge of this document, it will not be sufficient
to simply show that exposure was kept below the ‘safe’ levels. Rather it is necessary to show
that all practicable and reasonable steps were taken to eradicated exposure.
1983 – EH10 (Revised)
The 1983 edition of EH10 made a further distinction between the different types of asbestos and
reduced the ‘safe’ exposure levels further. A level of 1 f/ml2 was set for chrysotile, 0.5 f/ml2 for
amosite and 0.2 f/ml2 for crocidolite. The Guidance still mandated reducing exposure to the
minimum that is reasonably practicable.
1984 – EH10 (Revised)
The 1984 edition reduced the ‘safe’ exposure levels even further. A level of 0.5 f/ml2 was set for
chrysotile and 0.2 f/ml2 for amosite and crocidolite. Of course, the guidance still mandated
reducing exposure to the minimum that is reasonably practicable.
So in summary, Williams confirmed the test for breach of the common law duty is: was a risk of injury
reasonably foreseeable to an employer in the relevant industry based on the knowledge that they knew
or ought to have known at the relevant time?
Garner v Salford City Council
The next case of interest is Garner v Salford City Council [2013] EWHC 1573 (QB), which falls into the
category of cases where the exposure was so low that it was difficult to prove at all.
Ms Garner, aged 45, was diagnosed with mesothelioma in May 2011. When asked about exposure to
asbestos, she recalled that during her time at school some swimming baths located next door were
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demolished and generated an enormous quantity of dust. She contended that she would not have been
exposed elsewhere to asbestos and that the dust generated from the demolition must have contained
asbestos which subsequently caused her mesothelioma. She brought proceedings against the owners of
the swimming baths, Salford CC, and the contractors charged with the demolition works, the second
defendant.
Keith J accepted that lagging on the pipework in the baths was likely to contain asbestos, however he
held that it was more probable than not that when the lagging was removed it was hosed down and
soaked before it was removed. The effect of this would be that the release of asbestos fibres into the
atmosphere would be minimal. That effectively disposed of the claim. There was no other evidence
suggesting any occupational or other exposure to asbestos, but this did not undermine the conclusion
that the removal of the lagging was not responsible for Ms Garner’s exposure. To hold otherwise would
be to hold that once the impossible has been eliminated then whatever remains, however improbable,
must be the cause. It would be to conclude that the asbestos in the lagging was responsible for the
claimant’s mesothelioma when it had previously been held that was unlikely. Moreover, there were
other possible exposures to asbestos that could not be eliminated, such as atmospheric exposure. It
could not be said with the degree of likelihood demanded by the law – the balance of probabilities –
that the claimant was exposed to asbestos when the baths were demolished. The claim was dismissed.
What Garner tells us is that all cases, irrespective of the natural sympathy for mesothelioma victims,
must be proven to the requisite standard. If the nature of a low level exposure case is such that it is not
possible to prove, on the balance of probabilities, the exposure occurred at all, then the claim must fail.
McDonald v Department for Communities and Local Government
The next decision of interest is found in the judgements of the High Court and Court of Appeal in
McDonald v Department for Communities and Local Government [2013] EWCA Civ 1346.
The claimant had been employed by the first defendant’s (D1) predecessor from 1954 to 1959 as a lorry
driver. He alleged his mesothelioma was caused by exposure to asbestos dust when attending Battersea
Power Station – owned and controlled by the second defendant’s (D2) predecessor – in his lorry to
collect fuel ash. The claimant said he would visit the power station about twice a month and would be
there for 1-2 hours. On these occasions he spent about an hour in the power station dealing with
paperwork and would be regularly exposed to asbestos from workers mixing, applying and removing
asbestos based lagging within 10-15ft of him and regularly exposed to ‘clouds of dust’. The defendants
argued that on the majority of his visits there would be no exposure as C would have no need to go to
areas where lagging/stripping took place.
A claim in common law negligence was brought against D1. The claim against D2 is irrelevant for these
purposes, though the issues there resulted in a decision of the Supreme Court (see [2014] UKSC 53). At
first instance the judge accepted the defendants’ analysis of the real extent and duration of the
exposure and concluded that ‘any exposure was at a modest level of a limited number of occasions over
a relatively short period of time’. Indeed the judge accepted that the claimant’s ‘likely exposure when
exposed was not greater than those levels thought of in the 50s and 60s as being unlikely to pose any
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real risk to health’. Accordingly, relying upon Williams v University of Birmingham, the judge held there
could be no duty on D1 to act in respect of dangers not known to be dangers at the time. In the Court of
Appeal, the Court agreed with the trial judge that on the state of knowledge at the time there was no
foreseeable risk of injury. Therefore there could be no duty on the employer in this respect; the decision
accorded entirely with Williams v University of Birmingham.
McGregor v Genco (FC) Ltd
Moving on, the next decision of importance is that of the High Court in McGregor v Genco (FC) Ltd
[2014] EWHC 1376 (QB). In that case, the 58 year old claimant alleged she had developed mesothelioma
as a result of exposure to asbestos while working in a shoe concession of a department store in 1976
during the removal and replacement of escalators which took between four and six weeks, if not longer.
The works created larger quantities of dust during opening hours, which were believed by the claimant
to contain asbestos. The claimant was required to clean shelves and shoes as layers of dust settled,
liberating the dust into the air. The claimant did not recall the works being boxed off, only the presence
of a barrier fence. The defendant’s witness on the other hand, recalled floor to ceiling timber panel walls
being erected around the works.
The experts were agreed that it was likely that asbestos was present. They agreed (on the basis of HSE
guidance note EH35) that breaking and ripping asbestos insulation boards was likely to be associated
with the production of asbestos dust concentrations in the order of 5-20 fibres per millilitre in the
breathing zone of the works. Circular sawing of the boards was likely to produce concentrations in
excess of 20 fibres per millilitre. It was also agreed that if the works took place without a full enclosure
then background concentrations of asbestos would have been higher than in general buildings, including
buildings containing asbestos materials that were in good condition and where it was undisturbed.
Further, the dust concentration reduced with distance from the source, reducing to 10% at 20-30 feet.
As to the standards at the time, the experts agreed that it was likely that the relevant occupational
standards were those in Technical Data Note (TDN) 13. Exposure was in excess of the standard if it was
either in excess of 12 fibres per millilitre as an average over any 10 minute period or 2 fibres per
millilitre as an average over any 4 hour period. Although it was conceded that the TDN13 levels were
possibly exceeded, on the balance of probabilities it was unlikely.
Mrs Justice Patterson agreed the claimant had been exposed to asbestos, but concluded that there had
been a floor to ceiling barrier, albeit not airtight. Further, she was content to accept that the exposure
caused the claimant’s mesothelioma on the balance of probabilities. On the issue of whether the
exposure was negligent, Patterson J confirmed that the test (first espoused in Stokes v Guest, Keen and
Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776) is still the conduct of the reasonable and prudent
employer, taking positive thought for the safety of his workers in light of what he knows or ought to
know; where there is developing knowledge the employer must keep reasonably abreast of it and not be
too slow to apply it. Further, if the employer has greater than average knowledge of the risks, he may be
obliged to take more than average or standard precautions.
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Patterson J then reviewed the development of the knowledge on the risks of exposure to asbestos. The
claimant alleged that by 1976 it was clear that an employer had to make the workplace safe where large
quantities of dust were generated and that it was clear there was a real risk of injury as a result of slight
exposure to asbestos. It was contended the workplace had not been made safe. Relying on the 1960
document ‘Toxic Substances in Factory Atmosphere’, which said no injurious dust should be able to
escape the work area, the claimant contended all practicable measures to reduce exposure had not
been taken.
The defendant contended that the issue was whether it was reasonably foreseeable that the defendant
might be at risk of injury in 1976 and TDN 13 represented what was regarded as safe at the time. There
was nothing which gave rise to a foreseeable risk of injury. Accordingly, no action was necessary. The
argument, in effect, deployed Williams v University of Birmingham.
Patterson J found that the exposure to asbestos was light for a matter of months. The question was
whether the works should have alerted the defendant to the fact that the claimant might be at risk
when she worked for them in 1976. It was found that the floor to ceiling enclosure would have been
regarded as adequate protection at the time, although by current standards that would be
unacceptable. There was no clear evidence about the amount of dust and nothing indicated there
should have been an understanding of the risk which was caused by the works. Accordingly, the
defendant should not have appreciated the risk of asbestos related injury and its failure to take what
would now be regarded as appropriate precautions was not negligent. The claim failed.
McGregor is a clear affirmation of the principles in Williams v University of Birmingham and Garner v
Salford City Council, which are, respectively, that test for breach of the common law duty is whether the
risk of injury was reasonably foreseeable to an employer in the relevant industry based on the
knowledge that they knew or ought to have known at the relevant time, and that simply identifying
apparent exposure to asbestos is insufficient to result in liability. Interestingly, the decision placed
emphasis on prevention measures that would have been regarded as satisfactory at the material time,
not merely the apparent ‘safe’ levels of exposure.
Atkinson v Secretary of State for Energy and Climate Change
The decision of the High Court in Atkinson v Secretary of State for Energy and Climate Change (QBD, 31
July 2014) is the next to merit consideration, being concerned again with limited evidence of low level
exposure.
In that case the claimant (W) on behalf of the estate of her deceased husband (H), brought a claim for
damages for personal injury against the defendant. H had been employed as a colliery worker in the
1970s and 1980s and died from mesothelioma in 2008. Before his death he stated that he had been
exposed to asbestos while inspecting conveyor belts at a colliery between 1979 and 1984. H alleged that
friction brakes containing asbestos were used to control the belts during that period and that their pads
created dust to which he was exposed. The court heard evidence that those brakes were phased out and
replaced with an anti-rollback system which did not contain asbestos. It also heard that the brakes were
protected by guards and did not fail regularly, and while H inspected them, he was not a mechanic and
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did not carry out repairs. The issue was whether H has been exposed to asbestos dust while working at
the colliery and, if so, whether he had been exposed to a level which was likely to be injurious. The
defendant submitted that H’s statement was riddled with errors and was undermined by previous
inconsistent statements.
HHJ Gore QC held that the defendant had owed H a common law duty of care not to expose him to
material which was likely to cause reasonably foreseeable injury, subject to the standard of knowledge
prevailing at the time (in accordance with Williams v University of Birmingham), and a stricter statutory
duty under the section 74 of the Mines and Quarries Act 1954.
As to the evidence, there were several errors of fact in H’s statement which W contended could be
excused by his age and poor health. But while that could be taken into account, there were other
matters which undermined his reliability. There was no reason to doubt that friction brakes were in use
in 1979, but the evidence was that they ceased to be used in 1982 or 1983. There was no evidence of
regular brake failure and, while H would have occasionally observed repairs, he would not have been
close to any dust. While the actual level of exposure to asbestos dust was never measured or monitored,
there was no evidence that any, let alone significant, amounts of brake-pad dust had been allowed by
the mechanics who carried repairs to accumulate on the floor. H had been very occasionally or
intermittently exposed to dust on the very few occasions of brake failure when the guards which
prevented the dust from escaping were removed, but that exposure had diminished over three years as
the friction brakes were phased out of use. H had been exposed to asbestos, but the level of exposure
was considerably lower than he had claimed and the burden of proof on W had not been discharged.
Thus breach of duty was not established and the claim failed.
Heward v Marks & Spencer plc
The final, and most recent, decision to be considered is Heward v Marks & Spencer plc, which ruled
specifically on low level exposure during the currency of HSE Guidance Note EH10 1976 before its
revision in 1984.
As we noted in Part 1, EH10 1976 included advice to duty holders (employers and occupiers) that
exposure to asbestos should be reduced to the minimum reasonably practicable, and, in any event,
should never exceed the standards set down in the guidance. Consequently, claimants often contend
that there is no defence to a claim in negligence where some exposure to asbestos is proven but no
precautions were taken to reduce the exposure to the lowest reasonably practicable level.
Heward v Marks & Spencer plc [2014] EWHC 3183 (QB) concerned a deceased contractor who had
carried out property surveys for the defendant over many years in the North East of England. From 1984
onwards he wore a respirator when entering ceiling voids that contained asbestos debris but, between
1976-1984, he carried out this work without protection. Following the death of the deceased from
mesothelioma, his widow brought proceedings against the defendant alleging breach of the common
duty of care owed under the Occupiers Liability Act 1957. Although the experts agreed that the level of
exposure to asbestos did not exceed the levels set down in EH10, the claimant contended that in order
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to discharge the duty of care, the defendant ought to have advised the deceased to wear a respirator,
failing which it had not reduced the deceased’s exposure to the lowest level reasonably practicable.
David Pittaway QC, sitting as a Deputy High Court Judge, applied Williams v Birmingham University.
Accordingly, since the exposure did not exceed the EH10 guidance, there was no foreseeable risk of
injury and thus no breach of duty. As to the argument that exposure was not reduced to the lowest level
reasonably practicable, and that use of a respirator should have been enforced, the judge concluded
that EH10 (1976), properly analysed, did not extend to the use of a respirator or protective clothing. He
made specific reference to part of the guidance which required use of a respirator only if levels of
crocidolite asbestos could not be kept below the standards in the guidance. Since no reference was
made to use of a respirator beyond these circumstances it was held that the defendant was not in
breach of duty in relation to the asbestos that the deceased was exposed to. The claim was dismissed.
The decision in Heward somewhat emasculates the prima facie effect of EH 10 in 1976, holding that all
practicable measures did not encompass provision of respirators when the note was properly analysed.
Discussion and Conclusion
The recent case law demonstrates two very clear principles threaded through the common law in low
level asbestos exposure cases. Firstly, the test for breach of the common law duty of care is whether the
risk of injury was reasonably foreseeable to an employer in the relevant industry based on the
knowledge that they knew or ought to have known at the relevant time. As Denning LJ (as he then was)
colourfully said in Roe v Minister of Health: ‘we must not look at [an earlier accident] with [present day]
spectacles’. That is a principle that was clearly espoused in Stokes v Guest, Keen and Nettlefold (Bolts
and Nuts) Ltd. And it is a principle that has found favour in related areas, not least in relation to the
meaning of ‘safety’ in section 29 of the Factories Act 1961 (on which see the decision of the Supreme
Court in Baker v Quantum Clothing Ltd [2011] UKSC 17). It is, moreover, an inherently just principle. It
cannot be right that defendants should be liable for risks they could never have been expected to
foresee.
The second principle is that exposure to asbestos, caused by the defendant, must be proven to the
requisite standard of proof, namely the balance of probabilities. There is no laxity in the standard of
proof in asbestos cases, notwithstanding the natural sympathy to the plight of victims of mesothelioma.
Again, this is a just position to adopt. It is not fair to hold defendants liable when they are not
demonstrably at fault. This involves not only proving exposure but proving significant exposure, namely
exposure that it is more than de minimis and beyond reach of liability.
Accordingly, in cases of low level exposure, defendants should be astute to the possibility that the
exposure did not exceed the apparent ‘safe’ level of exposure at the material time. Moreover, the
evidence should be anxiously scrutinised to determine whether the standard of proof can be satisfied.
As this article has considered the development of knowledge about the risks of exposure to asbestos, we
include below as an appendix a graphic timeline of legislation and publications concerning asbestos.
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Insurers Only Liable for Proportionate Share of Exposure in Mesothelioma Claims,
Supreme Court Rules – Zurich Insurance PLC UK Branch v International Energy
Group Limited [2015] UKSC 33 (BCDN Edition 96)
Introduction
The Supreme Court has ruled in a landmark judgment that an employer’s liability insurer which covered
an employer for only part of the period during which the employer tortiously exposed a victim to
asbestos is liable in a mesothelioma claim only for a pro rata part of the employer’s liability to the
victim, equivalent to the period of exposure to asbestos covered by the insurer as a percentage of the
total exposure.
However, an insurer is liable for 100% of the defence costs, notwithstanding that it did not cover the
defendant for the full period of exposure to asbestos.
In this article we consider the judgment of the Supreme Court in Zurich Insurance PLC UK Branch v
International Energy Group Limited [2015] UKSC 33 (‘Zurich v IEG’), reaction to it, and its implications in
practice.
Legal Background
In the seminal decision of Fairchild v Glenhaven Funeral Service Ltd [2002] UKHL 22, [2003] 1 AC 32, the
House of Lords decided that a victim can hold liable all employers who negligently exposed him or her to
asbestos if the exposure materially increased the risk of harm to the victim. But the House of Lords later
decided, in Barker v Corus UK PLC [2006] UKHL 20, [2006] 2 AC 572, that each such employer was only
liable pro rata for the period which exposure by it bore to the total of all periods of exposure.
Parliament reversed the decision in Barker in the UK by the Compensation Act 2006, making each
employer liable in full, with rights of contribution among themselves. In BAI (Run Off) Limited v Durham
[2012] UKSC 14, [2012] 1 WLR 867 (the ‘Trigger’ litigation), the Supreme Court held that an employer’s
liability insurer must indemnify the employer against exposure-based liability incurred under the
principle in Fairchild.
Issues
Zurich v IEG was an appeal from Guernsey, where there is no equivalent of the 2006 Act. The common
laws of England and Guernsey were agreed to be identical in this area. The principal issues were:
(1) whether the reasoning in Barker still applied in Guernsey (paragraph [8] of the judgment), and
meant that an employer’s liability insurer covering an employer for only part of the period
during which the employer exposed a victim is liable for only a pro rata part of the employer’s
liability to the victim ([9]);
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(2) if Barker did not apply and the position in Guernsey was now the same as in the UK under the
2006 Act, whether such an insurer is liable in the first instance for the whole of the employer’s
liability to the victim; and
(3) if so, whether the insurer has pro rata rights to contribution from any other insurer of that
employer and/or from the employer in respect of any periods not covered by the insurer ([9]).
There were parallel issues regarding such an insurer’s responsibility for defence costs incurred in
meeting the victim’s claim.
Factual Background
For 27 years from 1961 to 1988, Mr Carré was negligently and consistently exposed to asbestos dust by
his employer, Guernsey Gas Light Co Ltd (‘GGLCL’). He later contracted mesothelioma, from which he
died ([10]). Before his death, he sued the Respondent, International Energy Group (‘IEG’), as successor in
title of GGLCL, and recovered compensation of £250,000 damages and interest plus £15,300 towards his
costs. IEG also incurred defence costs of £13,151.60 ([11]). During the 27 years of exposure GGLCL had
two identifiable liability insurances, one with Excess Insurance Co Ltd, for two years from 1978 to 1980,
the other with Midland Assurance Ltd, for six years from 1982 to 1988 ([12]). The Appellant, Zurich
(‘Zurich’), as successor to Midland’s liabilities, maintained that it was only liable to meet 22.08% of IEG’s
loss and defence costs, based on the fact that Midland only insured GGLCL for 6/27ths of the 27-year
period of exposure ([14]).
At first instance, the trial judge ordered Zurich to meet 22.08% of the compensation but 100% of
defence costs. The Court of Appeal reversed that decision, ordering Zurich to pay 100% of both the
compensation and defence costs ([15]). Zurich appealed in relation to both compensation and defence
costs.
Judgment
The Supreme Court unanimously held that the common law rule of proportionate recovery established
in Barker continues to apply in Guernsey; it accordingly allowed Zurich’s appeal in respect of
compensation, restoring the order that it should pay 22.08% of the compensation ([27]-[31], [35] and
[100]).
However, it dismissed the appeal in relation to defence costs. There was nothing to suggest that IEG’s
costs would have been less if the claim had been confined to the six-year period covered by Zurich’s
(Midland’s) policies. More significantly, the costs were incurred by IEG with Zurich’s consent, and were
covered by the policy wording. There was no reason to construe the policy wording as requiring some
diminution in IEG’s recovery, merely because the defence costs also benefitted IEG for an uninsured
period of time ([36]-[38]). There was no right of contribution in respect of defence costs ([94]-[95]).
The decision on the first issue disposed of the appeal. However, because of the general importance of
the other issues, the Supreme Court stated its opinion on them. By a majority of 4-3 the Court concluded
that, had the position in Guernsey been the same as in the UK under the 2006 Act, Zurich would have
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been liable in the first instance to meet IEG’s claim in respect of the compensation paid by IEG in full,
but would have been entitled, in respect of the 21 years not covered by the Midland insurance, to claim
a pro rata contribution from Excess and IEG.
Lord Mance (with whom Lords Clarke, Carnwath and Hodge agreed) gave the leading majority judgment
on these issues. Lord Mance said the case illustrated some of the problems arising from the special rule
applied in Fairchild and Trigger, namely that a victim could hold liable all employers who negligently
exposed him to asbestos. The rule allowed a person responsible for exposure to select any year during
which he could show that he carried liability insurance and to pass the whole liability to the liability
insurer on risk in that year, without regard to other periods of exposure. The anomalies of such an
approach were self-evident. Firstly, it was contrary to principle for insurance to operate on a basis which
allows an insured to select the period and policy to which a loss attached. Further, a liability insurance
would cover losses arising from risks extending over a much longer period than that covered by the
policy, in respect of which no premium had been assessed or received by the insurer. In addition, an
insured was able to ignore long periods in respect of which he had not taken out insurance. Finally, an
insured had no incentive to take out or maintain continuous insurance cover.
While an insurer, on the face of it, was liable for all of the victim’s loss, the analysis could not stop there.
Those anomalies required a broad equitable approach to be taken to contribution. A sensible overall
result was only achieved if an insurer held liable in such a situation was able to have recourse for an
appropriate proportion of its liability to any co-insurers and to the insured as a self-insurer in respect of
periods of exposure for which the insurer had not covered the insured. The fact that the parties might
not have contemplated or made specific provisions about co-insurance and self-insurance was no
obstacle to the court doing so. An employer therefore had a right to contribution against any other
person who was, negligently or in breach of duty, responsible for exposing the victim to asbestos. After
meeting the insurance claim, the insurer would be subrogated to that right to contribution against the
other responsible source of exposure. Zurich was also entitled to look to IEG to make a proportionate
contribution as a self-insurer ([42]-[43], [52]-[53], [63], [75]-[78], [96]).
Lord Sumption (with whom Lords Neuberger and Reed agreed) gave the leading minority judgment. He
was of the view that Zurich was only liable to IEG in the first instance for 22.08% of the full loss, rather
than being responsible on the face of it for all of the loss.
Lord Mance also discussed the position under the Third Party (Rights Against Insurers) Act 1930 in the
event that IEG had been insolvent. He concluded that it was probable that Mr Carré would in such a case
have been able to look to Zurich for his full 100% loss. It would then be for the insurer, here Zurich, to
enforce any claim to contribution which it may have against anyone separately, and ordinarily,
subsequently ([83]-[93]).
Reaction
Mike Klaiber, disease claims manager at Zurich UK, said in response to the judgment: ‘We are delighted
that the Supreme Court has found in our favour on all substantive points. This judgment fully endorses
our decision to challenge this issue and supports existing claims handling practice that has existed in the
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insurance market for many years. We believe this landmark ruling is a fair outcome in that insurers will
not be required to meet a liability beyond the period for which they accepted a premium and provided
cover’.143
As to the issue of defence costs, Klaiber said that Zurich accepted the Court’s decision. ‘We are a bit
disappointed but we recognise that that was probably the weaker limb of the arguments that we
presented’, he said. ‘The primary decision, that a solvent employer should pay a contribution for their
uninsured years of the compensation claim itself, is the main prize as far as we are concerned’.144
Comment and Conclusion
This decision is the latest in a long line of decisions on mesothelioma emanating from the House of Lords
and Supreme Court. The ratio of the decision – that Barker still applies in Guernsey in the absence of the
2006 Act – is of limited interest and importance for most disease practitioners. It is a narrow decision,
applying only to the facts in Guernsey. But the decision does at least confirm that it is the view of the
Supreme Court that Barker remains good law beyond the reach of the Compensation Act 2006,
fortifying, for example, the recent decision of the High Court in Heneghan v Manchester Dry Docks Ltd
[2014] EWHC 4190, which prayed in aid of the Barker principle to hold that lung cancer claims ought to
be apportioned between defendants according to the extent to which each defendant contributes to the
risk of the development of lung cancer.
However, the remainder of the decision – about the position in the event that Guernsey had the
equivalent of the 2006 Act – which is important for disease practitioners in England and Wales, is all
entirely strictly obiter dicta. It is not a binding decision and may, theoretically at least, not be followed
by future courts, though it will be strong persuasive authority. Assuming that the decision is followed,
what will be its impact in practice? For the victims of mesothelioma there will be no change. They will
continue to be able to pick an insurer and require it to answer the claim in full. However, insurers will
now be entitled subsequently to seek a contribution from any other insurer, or the defendant itself as a
period of self-insurance. That will allow insurers to recoup some of the losses for which they have had to
pay despite not receiving a premium for the entire period of loss. The decision represents a rebalancing
of interests.
Pleural Thickening: The Importance of Blunting of One or More of the
Costophrenic Angles of the Lung (BCDN Edition 106)
Introduction
Pleural thickening is the consequence of excess pleural fluid. The pleura is the membrane lining the
inside of the ribcage and surrounding the lungs – it is lubricated by pleural fluid. Inhaled asbestos fibres
may penetrate the lungs and irritate the pleura, causing additional pleural fluid to collect. When that
143 ‘Zurich UK wins asbestos claim court battle with IEG’ (Insurance Times, 20 May 2015) <http://www.insurancetimes.co.uk/zurich-uk-wins-asbestos-claim-court-battle-with-ieg/1413998.article> accessed 21 May 2015. 144 ibid.
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fluid is reabsorbed inside the body the pleura is thickened, limiting the normal expansion of the lungs
and resulting in shortness of breath. Pleural thickening is generally considered a dose related,
cumulative disease. The greater the exposure to asbestos, the worse the condition will be. The latency
period for pleural thickening is long: it is around 20 years or more. As to the incidence of pleural
thickening, the number of cases assessed for disablement benefit has more than trebled since 1991:
there were 150 cases in 1991 and 430 cases in 2013.145
Pleural plaques are localised areas of thickening of the pleura. They are asymptomatic and do not
become malignant. They merely indicate exposure to asbestos. However, there may well be a risk of
other asbestos-related conditions developing in any event owing to the exposure to asbestos. Pleural
plaques are often discovered incidentally, for example during an x-ray of the lung for other reasons. The
latency period for pleural plaques is 20 or more years. With respect to the incidence of pleural plaques,
there were an estimated 686 cases of non-malignant pleural disease mainly caused by asbestos in 2012
and a substantial proportion of these cases were pleural plaques. The HSE suggests that this is an
underestimate and that there are substantially more individuals in the population with pleural plaques. 146
This article provides an analysis of how the medical literature defines pleural thickening and pleural
plaques and whether either are capable of causing a respiratory disability. In doing so there will be an
examination of whether blunting of the costrophrenic angle is a prerequisite for establishing a
respiratory disability by considering the courts approach to such cases.
Division in the literature- size v blunting
There have consistently been two definitions of pleural thickening within the medical literature, one
based on the depth and extent of pleural changes seen on x-ray or CT scans and the second, based on
the blunting of one or more of the costophrenic angles of the lung.
In 1984, the only definition in the radiological literature to distinguish diffuse pleural thickening from
pleural plaques was that of Sargent et al147 who characterised diffuse pleural thickening as a uniform,
homogeneous density without nodularity of contour, with accompanying costophrenic angle
obliteration. In 1985, McLeod defined diffuse pleural thickening on a chest x-ray as a smooth density
occupying at least one quarter of the chest wall, with or without costophrenic angle obliteration.148
McLoud did not include costophrenic angle obliteration as an absolute requirement, the paper does
however give support for the contention that there is loss of FVC where costophrenic angle obliteration
is seen, but not where pleural plaques that would meet the definition of pleural thickening based on size
were seen.
145 HSE, ‘Non-Malignant Pleural Disease’ < http://www.hse.gov.uk/Statistics/causdis/pleural/index.htm> accessed 4 August 2015. 146 ibid. 147 Sargent EN, Gordonson T, Jacobson G, Birnbaum W, Shiub M, ‘Bilateral Pleural Thickening: A Manifestation of Asbestos Dust Exposure’ (1978) 131 AJR 579. 148 McLoud TC, Woods BO Carrington CB et al, ‘Diffuse Pleural Thickening in an Asbestos Exposed Population: Prevalence and Causes’ (1985) 144 Am J Roentgen 9.
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Perhaps the leading paper on defining pleural thickening based on the radiological extent of pleural
changes seen, comes from Lynch149 . Lynch defined pleural plaques as discrete linear structures, in the
expected position of the parietal pleura up to 8 cm in dimension. If the dimension was greater than 8
cm with the same features as severe plaques, then he called it diffuse pleural thickening, provided it was
more than 5 cm wide. Identical shadowing, but less than 8 cm in extent was deemed to be a pleural
plaque. Lynch failed to place any significance on the blunting of the costophrenic angles.
More critical, in a legal context is the cause of disability, as the definition of pleural thickening is of little
significance if the radiological changes are insufficient to cause a disability above de minimis, as
established in Johnson v NEI,150 and Cartledge v Jopling.151 In a paper entitled “Asbestos-Related Pleural
Diseases: Dimensional Criteria Are Not Appropriate to Differentiate Diffuse Pleural Thickening From
Pleural Plaques”,152 Approximately, 287 subjects with asbestos related pleural thickening were assessed
against the criteria based on size, and costophrenic angle blunting. The results were quite stark. When
the size definition was used, there was no difference from pleural plaques in the prevalence of
respiratory symptoms or in pulmonary function tests. However, when diffuse pleural thickening was
defined as obliteration of the costophrenic angle, chronic sputum, breathlessness and chest pain were
more readily seen. Most significantly, clear deterioration of lung function was seen on lung function
testing as FEV1, FVC and TLC were all shown to be significantly lower in those where blunting was
present.
Movement towards costophrenic angle blunting as the appropriate definition
The 2002 update of the International Labour Office defined pleural thickening as diffuse ‘only in the
presence of and in continuity with, an obliterated costophrenic angle’.153 In a 2004 publication, the
American Thoracic Society titled, ‘Diagnosis and Initial Management of Non-Malignant Diseases Related
to Asbestos’, recorded that, ‘loss of lung function (forced vital capacity) is unrelated to the radiographic
extent of pleural thickening: a similar reduction in FVC was seen with little more than costophrenic angle
blunting as with extensive involvement’.154 The Industrial Injuries Advisory Council (‘IIAC’) in 2005 also
changed their definition for the diagnosis of diffuse pleural thickening and thus changed the DWP
criteria to establish eligibility for a state pension to: ‘unilateral or bilateral diffuse pleural thickening with
obliteration of the costophrenic angle(s)’.
We would be loath to put too much emphasis on the definition given to pleural thickening by the DWP,
as there is an obvious attraction to a body tasked with the administration of benefits on a limited
budget, to a simple test that can be undertaken with the most basic x-rays. Indeed this was identified by
149 Lynch DA, Gamsu G, Aberle DR, ‘Conventional and High Resolution Computed Tomography in The Diagnosis of Asbestos Related Diseases’ (1989) 9 Radiographs 523. 150 [2007] UKHL 39. 151 [1963] AC 758. 152 Ameile J, Matrat M, Paris C, et al., ‘Asbestos-Related Pleural Diseases: Dimensional Criteria Are Not Appropriate to Differentiate Diffuse Pleural Thickening From Pleural Plaques’ (2004) 45 Am J Ind Med 289. 153 International Labour Office, ‘International Classification of Radiographs of Pneumoconioses’ (Geneva, Switzerland, International Labour Organisation, 2002) 154 American Thoracic Society, ‘Diagnosis and Initial Management of Non-malignant Diseases Related to Asbestos’ (2004) 170 Am J Respir Crit Care Med 691.
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HHJ Bullimore in England v Foster Wheeler (County Court (Sheffield), 14 August 2009, ([para 55]) of his
Judgment and it is clear the Courts can adopt a more scientific approach.
The medical literature is clearly split as to how pleural thickening and pleural plaques are defined, but
the crucial question for the Courts to decide, is whether the pleural changes, whether plaques or
thickening, are capable of causing a respiratory disability. On this point the literature appears to support
the contention that blunting of the costophrenic angle is an essential requirement of disability.
What is the costophrenic angle and how does blunting cause a disability?
The difference between a blunted and a sharp costophrenic angle
is seen here in the adjacent image. Key to understanding the cause
of disability from conditions of the pleura is the understanding of
the interaction between the diaphragm and the lower rib cage
expanding into the thorax155. Pleural plaques or visceral pleural
thickening without obliteration of the costophrenic angles have
normal lower rib cage expansion and thus the lung is able to
expand as it normally would and as such no loss is generally seen
on FVC or TLC156 or loss that is not considered significant.
How have the Courts dealt with the issue?
It is trite law that pleural plaques are not generally actionable, as they do not generally cause respiratory
disability. The only reported case on the issue as to the significance of the costophrenic angle to
respiratory disability is that of England v Foster & Wheeler. Dr Greenstone gave evidence for the
claimant and Drs Butland and Hind for the Defendants. Dr Greenstone was of the view that the claimant
suffered from pleural thickening causing a respiratory disability and felt that the pleural changes could
be categorised as pleural thickening based on size but admitted that pleural plaques without blunting of
the costophrenic angle do not cause a disability and that no blunting of the costophrenic angle was seen
in this case. Dr Butland was of the view that in the absence of costophrenic angle blunting the claimant’s
condition could not be categorised as pleural thickening and there was no evidence of disability. Dr
Hind’s view was that pleural thickening is possible without blunting of the costophrenic angle, but
without such blunting there could be no disability. Dr Hind also examined the size of the changes seen
and felt the condition could not be categorised as pleural thickening. HHJ Bullimore gave his Judgment
based more on the quality of oral evidence he had heard, than the medical literature. He took the view
that the radiology did not support the contention that this was pleural thickening. It is unclear from the
Judgment as to whether this was due to the absence of costophrenic angle blunting but stated the
radiological evidence ‘…does not indicate such extensive PP as in effect to mimic PT’ ([Para 56(g)]). It
155 Cleemput, J V, De Raeve J, Verschakelen J A, Rombouts J, Lacquet L M & Nemergy B, ‘Surface of Localised Pleural Plaques Quantitated by Computed Tomography Scanning’ (2001) 163 Am J Respir Crit Care Med 705. 156 Singh B, Eastwood PR, Finucane KE, Panizza JA & Musk AW, ‘Effect of Asbestos-Related Pleural Fibrosis on Excursion of the Lower Chest Wall and Diaphragm’ (1999) 160 Am J Respir Crit Care Med 1507.
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would seem that neither on size, nor costophrenic angle obliteration criteria did the claimant satisfy the
test.
Conclusion
It may be argued the reliance on costophrenic angle blunting is overly prescriptive, but the alternative is
the size definition of Lynch, in which the 8 x 5cm was the crucial criteria, for which the criticism of being
overly prescriptive seems just as apt. The issue is still to be finally determined by the Courts , but
certainly there is a strong evidential base in the medical literature that unless there is costophrenic
angle blunting, there is no impact on the lungs’ ability to function, no matter what the extent of the lung
is covered in pleural plaques/thickening.
Fatal Damages and The Application Of The Ogden Tables: Multipliers For Future
Dependency Must Be Assessed As At The Date of Trial And Not Death (BCDN
Edition 130)
Introduction
In Knauer v Ministry of Justice [2016] UKSC 9, the Supreme Court overturned two previous House of
Lords judgments in unanimously ruling that the multiplier in assessing damages for fatal accident claims
should be calculated from the date of the trial, not the date of death. In this article we provide a brief
outline of the decision and follow on in the article below with an in-depth analysis of its impact on the
assessment of fatal damages, with working examples. We have previously considered the first instance
decision of the High Court in edition 60 (here).
Background
Since the House of Lords’ decisions in Cookson v Knowles [1978] and Graham v Dodds [1983] there has
been a distinct approach to the calculation of damages in fatal accident claims. This approach is that
damages ought to be split into two parts, pre-trial loss and future loss. Pre-trial losses will attract
interest at half the normal rates from death until trial, but the latter will attract neither interest nor an
allowance for inflation. In addition, one must take the multiplier for the calculation of future
dependency as at the date of death and then deduct from it the number of years that has elapsed
between the death and the trial to reflect the deduction for early receipt.
However, this has since been the subject of academic criticism and judicial scrutiny, particularly in the
case of the Law Commission, who recommended in their report Claims for Wrongful Death (1999, Law
Com No 263),i that the law in this area was in need of reform. The Law Commission recommended that
Ogden Table multipliers should be assessed as at the date of trial and not death-the latter methodology
was actuarially flawed and incorporated a ‘discount’ for early receipt in the period prior to trial and
resulted in under compensation for claimants. Further, it was suggested that the application of the
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multiplier from the date of trial might be thought simpler and/or more accurate than date of death
assessment.
The Ogden Working Party from as long ago as 2000 considered these criticisms valid and had set out
alternative guidance on how multipliers for fatal damages should be assessed-see A8 Section D, pages
68-72 of ‘Facts and Figures’ 2015/2016.ii However, until February 2016, when faced with future loss of
dependency claims the courts have found themselves bound by the decision of the House of Lords in
Cookson and have not followed the approach recommended by the Ogden Working Party-see the 3
leading judgements of White v ESAB Group (UK) Ltd [2002] P.I.Q.R. Q6, H (A Chid) v S (Damages) [2002] 3
W.L.R. 1179 and Fletcher v A Train & Sons Ltd [2008] EWCA Civ 413.
The facts of Knauer
Mrs Knauer was employed by the Ministry of Justice as an administrative assistant at Her Majesty’s
Prison, Guy’s Marsh. In the course of her employment, she contracted mesothelioma, from which she
died in August 2009. Her husband, Mr Knauer, made a claim for future loss of dependency under the
Fatal Accidents Act 1976. The Ministry of Justice admitted liability for Mrs Knauer’s death in December
2013. In a hearing before Bean J in July 2014, the parties agreed the annual figure for the value of the
income and services lost as a result of Mrs Knauer’s death-the “multiplicand”. A dispute arose between
the parties as to whether the number of years by which that figure is to be multiplied-the “multiplier”,
should be calculated from the date of death or from the date of trial. The trial judge held that he was
bound to follow the approach adopted by the House of Lords in the cases of Cookson v Knowles [1979]
AC 556 and Graham v Dodds [1983] 1 WLR 808 and to calculate the multiplier from the date of death.
The trial judge made it clear that, absent that authority, he would have preferred to calculate the
multiplier from the date of trial in line with the approach recommended by the Law Commission in their
report Claims for Wrongful Death (1999, Law Com No 263). Bean J granted a certificate under section 12
of the Administration of Justice Act 1969 to enable Mr Knauer to leapfrog the Court of Appeal and for
the matter to be considered again by the Supreme Court.
Supreme Court Decision
It was unanimously held that calculating damages for loss of future dependency from the date of death,
rather than the date of trial, meant that the claimant was suffering a discount for early receipt of
compensation which would not in fact be received until after trial. In most cases it would result in the
claimant being under-compensated.
What does this mean for the assessment of damages for dependency in fatal accident claims and should
such losses now be calculated? We will compare the old and new methodologies to assess the future
loss multipliers in the below article.
It is important to note that this decision impacts on all Fatal Accident claims that are currently
proceeding.
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Most fatal occupational disease cases arise from asbestos related mesothelioma and lung cancer. The
HSE have reported that the majority of mesothelioma deaths in recent years has been in those aged 75
and above.iiiThe Institute of Actuaries Asbestos Working Party,iv suggests that most asbestos lung
cancers are diagnosed around the age bracket of mid-60s to early 70s and that a typical age of claiming
compensation for lung cancer is about 67 / 68.
In the article below we consider some fuller worked examples using these age parameters to see how
the decision affects the typical values in mesothelioma and lung cancer cases.
The judgment in Knauer v MOJ can be downloaded from here.
Fatal Damages and The Application Of The Ogden Tables: The Impact of Knauer In
Fatal Disease Claims (BCDN Edition 131)
Introduction
In the previous article we provided a case comment on the decision of Knauer v Ministry of Justice
[2016] UKSC 9, in which the Supreme Court overturned two previous House of Lords judgments and
unanimously ruled that the multiplier in assessing damages for fatal accident claims should be calculated
from the date of the trial, not the date of death. We have previously considered the first instance
decision of the High Court in edition 60 (here).
In this article we consider what the decision means for the assessment of damages for dependency in
fatal accident disease claims and how should such losses now be calculated? We start by broadly
comparing the methodologies to assess the future loss multipliers pre and post Knauer. We then provide
a matrix range of old and new valuations in asbestos related mesothelioma cases in which such
dependency claims most typically arise.
The old methodology
Let us take as an example a male diagnosed with asbestos related mesothelioma who dies from the
condition aged 70 in 2013. The medical evidence is that the deceased had a normal life expectancy and
would have lived for a further 17.2 years to age 87 but for the mesothelioma.
The claim is pursued by the deceased’s wife. She was aged 60 at the time death and included within the
claim is a dependency claim on the deceased’s pension income he would have provided for life. The
claimant’s life expectancy is to 88 and she would have outlived the deceased in any event. The
dependency would therefore have come to an end of the deceased’s death at age 87. The trial and
assessment of damages takes place 3 years after death in 2016. The key dates within our example are
represented on the timeline below.
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The pre-Knauer method of calculating dependency was as follows:
1. Calculate the overall period of dependency
In this case the overall period of dependency is the same as the deceased’s ‘but for’ life expectancy of
17.2 years (as determined by the medical evidence). In some cases it may be shorter-for example the
dependent may have a reduced life expectancy and would have died before the deceased or the
deceased’s health may have prevented services being provided beyond a certain age.
2. Calculate the multiplier for the overall period of dependency
Given the medical evidence of life expectancy the multiplier is taken from Ogden Table 28 (a term
certain). For a period of 17.2 years the multiplier is 14.01 (2.5% discount rate and interpolation).
3. Calculate the pre-trial dependency
This is £10,000 over 3 years or £30,000. The 3 year loss from death to date of trial is effectively treated
as special damages attracting interest of £225.
4. Calculate the post trial dependency.
The 3 year period is subtracted from the overall multiplier of 14.01 to calculate the multiplier for post
trial dependency. The balance of the multiplier is 11.01 (14.01-3).
The post trial dependency is therefore 11.01x £10,000=£110,100. No interest is awarded on this future
loss.
5. The overall claim
The overall claim=(i) Pre trial dependency (+interest) + (ii) Post trial dependency=
£30,000+ £225+£110,100= £140,325
To our timeline we have now added the overall duration of dependency and Table 28 multiplier and
further broken this down to show the pre-trial and post trial multipliers.
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The new methodology
How does the approach differ post Knauer?
The Justices appear to advocate the methodology provided by the Ogden Working Party and set out in
the Explanatory Notes to the Ogden Tables-see the current 2015/16 edition of Facts and Figures at
section A8, paragraphs 64-91 (pages 70-79) and also paragraphs 64 to 81 of the seventh edition of the
Ogden Tables downloaded here from. It is referred to as the ‘actuarially recommended approach’.
This new approach assesses the multiplier as at date of trial and applies discount factors to both pre-trial
and post-trial losses to reflect the risk that the deceased may have died in any event and not survived to
provide the dependency. These discount factors are found at Table E for pre-trial dependency and Table
F for post-trial dependency.
Part of Table E is replicated below and in our example of a male aged 70 at death and a 3 year period
lapsed between death and trial the discount factor is 0.97.
Table: Extract from Ogden Table E for males showing discount factor for 3 year pre-trial losses
dependent on age
Age of deceased at date of death 3 year period from death to trial
60 0.99
65 0.98
70 0.97
75 0.94
80 0.90
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The multiplier for future dependency is then assessed from date of trial and not death. That multiplier
also has to be discounted by the Table F factor to reflect the risk that the deceased might have died
anyway before the trial and not survived to provide any post-trial dependency.
Part of Table F is replicated below and in our example of a male aged 70 at death and a 3 year period
lapsed between death and trial the discount factor is 0.93.
Table: Extract from Ogden Table F for males showing discount factor for post-trial damages where 3
years period from death-trial
Age of deceased at date of death 3 year period from death to trial
60 0.97
65 0.96
70 0.93
75 0.88
80 0.83
So in our example the dependency is assessed as follows:
1. Pre-trial dependency
3 years x £10,000 x 0.97 Table E discount factor = £29,100.
Interest of £218 would be awarded on this past loss in the usual way.
2. Post-trial dependency
Determine the multiplier from trial and not death. The deceased would have been aged 73 with a life
expectancy of 14.9 years.
The Ogden Table 28 multiplier (2.5% discount rate and with interpolation) is 12.48.
Future dependency=£10,000 x 12.48 x 0.93 Table F discount factor=£116,064.
No interest is payable on future loss.
3. The overall claim
The overall claim=(i) Pre trial dependency (+interest) + (ii) Post trial dependency=
£29,100+ £218 +£116,064.=£145,382.
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The Impact on Quantum
In our worked example the dependency claim has increased by £5,057 or 3.6% - a modest increase
individually but not necessarily insignificant across a large book of mesothelioma claims.
Range of Impact in mesothelioma claims
Most fatal occupational disease cases arise from asbestos related mesothelioma. The HSE have reported
that the majority of mesothelioma deaths in recent years has been in those aged 75-80.v
In the table below we show the impact of the new methodology on dependency claims for deceased
males with age ranges of 65-80 at the time of death. We assume for all ages:
- dependency multiplicand on pension income = £10,000.
- dependency multiplicand on services until age 80 = £1,500.
AGE RANGES (AGE AT DEATH)
DEPENDENCY MULTIPLIER ON PENSION
DEPENDENCY MULTIPLIER ON SERVICES
DEPENDENCY INCREASE
Pre – Knauer
Post - Knauer
Increase £/% Pre – Knauer
Post - Knauer
Increase £/%
£ %
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Ready Reckoner Reserve Uplift
How do these increases in dependency impact upon the typical overall value of mesothelioma claims?
We show the £ and % uplift to the typical overall claim values in our Ready Reckoner Uplift table below.
We assume typical dependency claims as above plus the following heads of loss which will be fixed and
applicable to all the claims:
- General Damages (PSLA) = £75,000
- Past Care = £15,000
- Other Past Losses = £10,000
- Bereavement Award = £12,980
Total =£112,980
Ready Reckoner Uplift Table
Deceased age at death
Pre Knauer valuation-Overall Claim Post Knauer valuation-Overall Claim
Increase in Overall Valuation
£ %
65 £299,348 £307,636 £8,288 2.77%
70 £267,528 £271,728 £4,200 1.5%
75 £232,888 £233,937 £1049 0.4%
80 £199,405 £200,440 -£665 -0.7%
The % increases in the final column could be used to provide a quick and broad-brush indication of the %
uplift to be applied to reserves across a book of mesothelioma claims. Ironically it appears the new
methodology has a negative impact on the dependency claim where the deceased was near the end of
normal life expectancy and will reduce the claim value slightly.
It is important to note that this decision impacts on all Fatal Accident claims that are currently
proceeding.
65 £167,525
£175,252
£7,727
4.6%
£18,843
£19,404
£561
2.9%
£8,288
4.9%
70 £141,225
£145,382
£4,157
2.9%
£13,323
£13,366
£43
0.3%
£4,200
3.0%
75 £112,825 £113,771 £946 0.8% £7,083 £7,186 £103 1.4% £1049 0.82%
80 £88,125 £87,460 -£665 -0.7%
N/A N/A N/A N/A -£665 -0.7%
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The judgment in Knauer v MOJ can be downloaded from here.
Low Exposure Mesothelioma Judgment: Case Comment on Smith v Portswood
House Ltd (BCDN Edition 138)
In a ruling handed down by the High Court, Smith v Portswood House Ltd [2016] EWHC 939 (QB), an
employer has successfully defended a fatal mesothelioma claim arising from factory exposure during the
1970s.
The deceased was a wood working machinist, employed in the defendant’s joinery shop from 1973 to
1977. It was alleged he was exposed to asbestos dust from the manufacture of fire doors containing
asbestos cement sheets which he would cut to size using an electric saw connected to a dust extraction
system. As a result of this he developed mesothelioma in 2013 and sadly died in 2015.
The defendant’s witnesses (including the joinery shop manager) could not recall asbestos being used in
the manufacture of any item in the joinery shop. At the relevant time two types of fire door were
produced, half hour fire doors containing no asbestos and one hour fire doors containing an asbestos
sheet underneath the plywood facing. The defendant’s witnesses could not exclude the possibility that
one hour fire doors were made occasionally within the joinery shop.
It was alleged that the exposure was negligent and in breach of the Asbestos Regulations 1969 and
section 63 of the Factories Act 1961 in terms of inadequate control of dust given off by the processes
involved.
At the material time the Asbestos Regulations 1969 were accompanied by the Factories Inspectorate
Technical Data Note (TDN13), which set limits for ‘safe’ asbestos dust concentrations of 2 fibres/ml for a
four hour time weighted average (TWA) concentration and 12 fibres/ml for a 10 minute TWA.
Section 63 of the Factories Act required employers to remove dust or fumes by all practicable measures
where the same was ‘likely to be injurious’ or of a ‘substantial quantity’.
‘In every factory in which, in connection with any process carried on, there is given off any dust or fume
or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the
persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken
to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent
its accumulation in any workroom, and in particular, where the nature of the process makes it
practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of
origin of the dust or fume or other impurity, so as to prevent it entering the air of any workroom’.
The court found that the deceased making a fire door containing asbestos was an exceptional
occurrence and, when he used the saw, the extraction system collected the dust, keeping the dust levels
below the concentrations specified in the Factories Inspectorate TDN13. As such there was no breach of
the Asbestos Regulations 1969.
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Further on the issue of s. 63 of the Factories Act, it was held that: ‘Any woodworking machine with
reasonable exhaust properties would discharge some dust as the irreducible residue implicit in the data
set out in TDN42. No doubt such residual dust could “fly up in the air” and (if so) it might well be difficult
for the operator to avoid inhaling some of it. Mr. Upton said that the extraction was very efficient so that
there was little in the way of dust in the air in the shop. He was not directly challenged on that
statement. In the circumstances, the evidence does not support a finding that there was a “substantial
quantity of dust” given off, and thus there is no basis for a finding of breach of section 63’.
The rationale of this decision focused very much on whether visible dust is the test of significance. On
the facts of this case there was evidence of extraction with little dust in the air and this seems to be the
reason that there was no ‘substantial quantity of dust’ found. It is unclear, if that were not the case,
whether the outcome would have been the same. Due to the lack of guidance in McDonald around this
issue more clarity around the statutory interpretation of s.63 would be useful and it is yet to be reported
if this decision will be appealed.
We have previously discussed the topic of low exposure mesothelioma in editions 89 (here) and
91(here) of BC Disease News, these will be followed shortly by an updated feature on low exposure. In
addition, there will be a future feature in BC Disease News discussing the statutory interpretation of s.63
of the Factories Act 1961.
S.63 Factories Act 1961: The Statutory Interpretation of ‘Substantial Quantity of
Dust’ (BCDN Edition 139)
Introduction
In the previous article we provided a case comment on the recent low exposure mesothelioma
judgment in Smith v Portswood House [2016] EWHC 939. Whilst this decision is welcomed by employers
and insurers as evidence that such claims can be successfully defended, it has once again raised
questions regarding the interpretation of s.63 of the Factories Act 1961. In this feature we will provide
an overview of the judicial interpretation of s.63 thus far with a particular focus on how ‘substantial
quantity’ is defined. The key issue which we will be considering is does s. 63(1) import the concept of
foreseeability such that breach only arises where injury was reasonably foreseeable to the reasonably
well informed factory occupier - whether by actual or constructive knowledge?
The Factories Act 1961
Section 63 of the Factories Act (FA) 1961 (formally s.47 of the Factories Act 1937) required employers to
remove dust or fumes by all practicable measures where the dust was ‘likely to be injurious’ or of a
‘substantial quantity’.
The section states:
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‘In every factory in which, in connection with any process carried on, there is given off any dust or fume
or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the
persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken
to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent
its accumulation in any workroom, and in particular, where the nature of the process makes it
practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of
origin of the dust or fume or other impurity, so as to prevent it entering the air of any workroom’.
It is clear then that there are two succinct limbs to the test in s.63. Firstly, is the character of the dust
that the claimant alleges to be exposed to ‘likely to be injurious’ and secondly is the dust of ‘substantial
quantity’.
The separate limbs of the test in s.63 was considered by Lord Evershed in the silicosis case of Richards v
Highway Ironfounders (West Bromwich) Ltd [1955] 1 WLR 1049, where he said:
‘The first thing to notice…is the dichotomy, which the judge observed, between cases of the emission “of
dust or fumes of such a character as to be likely to be injurious” on the one hand and “substantial
quantities of dust of any kind” on the other hand. In my judgment, the dichotomy was correctly noticed
by the judge. Having regard to the state of knowledge, it may be taken that the dust, with which we are
here concerned, was not at any material date dust within the first branch of the section, since it could not
fairly be regarded then as likely to cause silicosis. On the other hand, there is no doubt that the dust was
emitted in substantial quantities, so that it fell within the second branch of the language which I have
read’.
However, the questions which we seek to address is whether foreseeability is only relevant to the first
limb where dust exposure is ‘likely to be injurious’ but not to the second limb where the exposure is
‘substantial’? In order to answer this question, one must look at how ‘likely to be injurious’ or
‘substantial quantity’ is defined.
Injurious v Substantial Quantity
It is generally accepted that the condition and duty of care in the first limb of s.63, that the dust is ‘likely
to be injurious’ only arises where there is a reasonably foreseeable risk of injury. As such the employer
can rely upon official guidance and standards of the time to establish what was considered to be safe at
the time and that their behaviours and practice were therefore reasonable.
However, there are no qualifying words in the second limb and so it has been argued that this is
absolute in its terms and does not require a foreseeable risk of injury. However, if the section is broken
down into two distinct parts and the duty in respect of ‘substantial exposure’ is not determined by
knowledge, than what does the word mean and when does a breach arise?
There appears surprisingly little judicial interpretation of the word’s meaning. In Wallhead v. Ruston and
Hornsby Ltd [1973] 14 KIR 285, Bagnall J (p. 293) described substantial as follows:
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“‘Substantial’, in my view, does not mean merely ‘not negligible’: there must be, to use a common
phrase, ‘a lot of dust’; and it must be substantial when given off, not substantial merely by accumulation
over a period.”
Ambiguous and subjective assessments of ‘substantial’ dust however serve little purpose (not least to
employers at the time with responsibility to safeguard the health and safety of their employees). In
Boyle v Laidlaw & Fairgrieve Ltd [1989] SLT 139, Lord Morrison whilst agreeing that a ‘substantial
quantity’ of dust means ‘a lot of dust’ went on to say:
‘In determining whether the defenders’ processes gave off such a quantity, it is in my opinion reasonable
to have regard to what is said in the Health and Safety Executive’s guidance note entitled ‘Occupational
Exposure Limits’ published in 1985. This document provides that: ‘Where there is no indication of the
need for a lower value, personal exposure should not exceed 10mg/m3 8 hour TWA (time weighted
average) total dust and 5 mg/m3 8 hour TWA respirable dust’. Mr Kelly’s view was that a figure in excess
of this 10 mg limit would constitute a substantial quantity of dust, and I accept this view as indicating a
reasonable standard for determination of the question’.
In Carmichael v. Cockburn [1955] SC 487, in relation to s. 47 of the Factories Act 1937 (the predecessor
of section 63), Lord Thomson at (p. 490) said:
“Section 47 (1) appears to deal with two separate matters. Measures of protection are to be taken (1)
when there is an injurious element present and (2) where what is present is a substantial quantity of dust
of any kind. The contrast appears to be between something which has an injurious quality and something
where mere quantity has the injurious effect.”
Lord Thomson’s view suggests that in relation to the second limb (substantial quantity), a quantity can
only be regarded as substantial when its quantity is what makes it harmful – in other words, it is large
enough to have a known injurious effect. A quantity of asbestos dust could therefore only be regarded
as substantial if it was of an amount known at the time to have an injurious effect. Knowledge of its
effect (and so whether it was substantial) would be determined by available guidance documents.
In recent authorities, attention has turned to the question of whether the visibility of the dust the
claimant was allegedly exposed to is sufficient to satisfy the second limb of s.63.
Visible Dust Requirement
In McDonald (Deceased) (Represented by Mrs Edna McDonald) v The National Grid Electricity
Transmission Plc [2014] UKSC 53, the claimant was pursued in common law negligence, breaches of s.47
(1) of the Factories Act (FA) 1937 (subsequently s.63 of FA 1961) and regulation 2(a) of the Asbestos
Industry Regulations 1931(the mixing of asbestos by hand shall not be carried on except with a
mechanical exhaust draught to ensure so far as practicable the suppression of dust).
The trial judge dismissed all Mrs McDonald’s claims. On appeal, the Court of Appeal allowed Mrs
McDonald’s appeal under the 1931 Regulations (“the first appeal’” but dismissed her appeal under the
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s.47 1937 Act (subsequently s.63 of FA 1961) (“the second appeal”). National Grid appealed to the
Supreme Court in the first appeal and Mrs McDonald cross-appealed in the second appeal. The Supreme
Court dismissed both appeals.
The second appeal was dismissed by a majority of four to one, Lady Hale dissenting. The majority agreed
that, while the rest of the statutory criteria are met, there was no sufficient evidence to rebut the Court
of Appeal’s conclusion that Mr McDonald had failed to establish that a “substantial quantity of dust” had
been given off by an asbestos mixing process at the power station. In reaching this conclusion the
Supreme Court gave some guidance regarding the judicial interpretation of the word ‘substantial’.
At para 86, Lord Kerr confirmed that the phrase ‘any substantial dust of any kind’ in s.63, does not mean
a substantial quantity of injurious dust. He went on in paragraph 87 to say that proper application of the
statutory words requires a staged approach: (i) is the dust, fume or other impurity which is given off of
such a character and given off to such an extent as to be likely to be injurious or offensive to the persons
employed? (ii) if not, has any substantial quantity of dust of any kind been given off in the workroom
where the claimant was a person employed? (iii) if the answer to (i) or (ii) is “yes” are there practicable
measures which can be taken to protect the persons employed against inhalation of the dust or fume or
other impurity and to prevent its accumulation in any workroom? And (iv) if the answer to (iii) is “yes”
have they been taken? In paragraph 88 he said that the question whether the dust is asbestos or other
injurious dust should therefore not obtrude into the initial assessment of whether the second limb of
section 47(1) is engaged. To do this conflates consideration of the second limb with considerations that
are relevant to the first limb.
It was submitted by the claimant’s counsel that as no reliable scientific means existed at the time of
exposure for measuring the concentrations of dust in the atmosphere, in those circumstances, the
assessment of dust levels had to be by reference to a ‘visible dust cloud’ even though the hazardous
proportion of the dust would be invisible to the naked eye. Further, he submitted that there was enough
evidence for the Supreme Court to conclude that such a visible dust cloud was present and that as a
result the substantial quantity of dust was made out.
Lord Kerr identified the following issues with this argument;
- There was no examination before the trial judge or the Court of Appeal of the issue whether the
only means of assessing whether dust levels were substantial was by visible assessment.
- There was no evidence given of how dense the cloud would have to appear to be.
It was therefore concluded that the Supreme Court were not in a position to conduct retrospectively the
type of investigation that would be needed to solve these issues and so found that the second limb test
had not been satisfied. Lord Kerr was not therefore dismissing the claimant’s argument in its entirety
but instead simply stated that there was insufficient evidence to support it.
As such, the judgement did not satisfactorily deal with the issue of whether the second limb of section
63 (a substantial quantity of dust given off) imports the concept of foreseeability of harm and thus the
standard of knowledge at the material time. Lord Kerr (at [86]-[87]) was clear that the issue of a
substantial quantity of dust is simply a quantitative issue, nothing more. It does not involve a
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consideration about the injurious nature of any dust (and thus what might be foreseeable about
exposure to particular levels of dust based on the standards of knowledge at the relevant time).
Lords Reed and Neuberger also appeared to adopt that position, without dealing with the point
expressly (at [208]). However Lord Kerr (at [86]) did leave open the possibility that the injurious
propensity of the dust may have a role to play in the issue of what are practicable measures of
suppression. But of course the injurious propensity of dust depends on what is known about the dust at
certain times. Thus what is practicable might well depend on the standards of knowledge at the relevant
time. This would import the standards of knowledge of the material time and the concept of
foreseeability into the second limb of section 63.
Lady Hale, in her dissenting judgment said that whilst she agreed with Lord Kerr that this limb of s.63
required only a quantitative assessment of the amount of dust, she disagreed with the conclusion of the
majority that there was no evidence that the quantity of dust given off at the relevant time was
‘substantial’. In Lady Hale’s opinion the evidence of both experts as to the amount of dust likely to have
been given off by the various activities carried on at the power station (for example, asbestos powder
had been mixed in oil drums, pre-formed sections had been cut and old lagging removed) were all
activities which would have given rise to high concentrations of asbestos dust. “In my view,” she said, “it
shows that the amount of dust given off was substantial.”
As such the question of what method should be adopted when assessing whether the dust given off was
substantial remains unanswered. It was suggested in McDonald that where there are no scientific means
available at the time to measure the level of exposure, reference should be had to the visibility of the
dust. However, it remains unclear what level of visibility would be needed in this scenario.
This issue arose again in the recent decision of Smith v Portswood House Limited, in which the deceased
was a wood working machinist, employed in the defendant’s joinery shop from 1973 to 1977. It was
alleged he was exposed to asbestos dust from the manufacture of fire doors containing asbestos cement
sheets which he would cut to size using an electric saw connected to a dust extraction system. As a
result of this he developed mesothelioma in 2013 and sadly died in 2015.
The defendant’s witnesses (including the joinery shop manager) could not recall asbestos being used in
the manufacture of any item in the joinery shop. At the relevant time two types of fire door were
produced, half hour fire doors containing no asbestos and one hour fire doors containing an asbestos
sheet underneath the plywood facing. The defendant’s witnesses could not exclude the possibility that
one hour fire doors were made occasionally within the joinery shop but it was found that there were
extraction devices attached to the wall saws.
The defendant’s counsel submitted that the only guidance from the authorities is that ‘substantial
quantity’ involves a quantitative assessment and that there must have been ‘lots of dust’ or ‘clouds of
dust’.
In relation to the visibility test of substantial quantity, HHJ Curran pointed out that the deceased’s
evidence as to the dust given off had been that the suction device did not take away all of the dust that
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was given off. When he said, “[t]he dust would fly up into the air when I was operating the wall saw and
I could not avoid inhaling it….” he did not specifically refer to the dust as being either visible or dense,
nor did he refer to it as “a cloud of dust”, nor was any other description of its appearance given.
He went on to say at para 131 that:
‘It will be remembered that Lord Kerr in McDonald (above) had said that there had apparently been no
examination before the trial judge or the Court of Appeal of the issue whether the only means of
assessing whether the dust given off had been ‘substantial’ was by visible assessment. Nor had any
evidence been given of how dense the cloud would have to appear to be. These, and “doubtless many
other issues” he said, would have been canvassed before the trial judge if there had been a clear
confrontation of the question whether, merely on its appearance, the quantity of dust which was
generated in the workroom satisfied the statutory requirement of being substantial.’
It appears from this that HHJ Curran is of the opinion, due to the lack of guidance in McDonald, that the
visibility of dust is not the only measure of substantiality. As such the judge turned his attention to the
standard of ventilation and extraction. In this regard the claimant’s expert said the following:
“… only primitive and unreliable methods of quantifying dust concentrations in air were available. Due
to inadequacies in the available dust measurement equipment, the majority of employers would not
have had access to any reliable means of measuring dust concentrations in the air and literature which
published asbestos dust concentrations from various work processes with asbestos was not generally
available until the early 1970s.”
As such he felt that in the absence of reliable methods of measurement the presence of visible clouds of
dust from work processes seemed to him to be the only method available to make any assessment of
the quantities of dust. He submitted that as the deceased had described dust ‘flying up into the air’
when he operated the wall saw, even thought it had extraction equipment fitted to it, then if the
deceased’s evidence was accepted it must also be concluded that there must have been substantial
quantities of dust.
HHJ Curran did not appear to be comfortable with this conclusion and stated that ‘it comes close to
reversing the burden of proof in circumstances in which the evidence of the discharge of substantial
quantities of dust rests upon a single sentence in the witness statement of Mr Smith, when it was
impossible for him to be cross-examined’. He also pointed out that there was no evidence given of how
dense any ‘cloud of dust’ would have to appear to be to arrive at the view that there was a substantial
quantity.
It would appear that Lord Kerr’s approach in McDonald has been followed here, in that simply stating
there was a presence of dust will not be sufficient, as Lord Kerr stated, if the issue had been addressed
sufficiently these and ‘doubtless many other issues’ would have been examined. As such to establish a
‘substantial quantity’, there must be a reference to the dust being visible or dense and some further
description of the dust. As in McDonald there was no such evidence.
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HHJ Curran QC then turned to the approach of Lady Hale in McDonald in which he stated at para 139:
‘If one were to take the approach favoured by Lady Hale in McDonald by having regard to the opinions of
both experts as to the amount of dust likely to have been given off by the various activities shown to
have been carried on at Millbrook, namely sawing of wood of all kinds, and on exceptional occasions
sawing of asbestos for a single one-hour fire-check door (as I have found to be the most which can be
established on the evidence) it cannot in my view be said to have been shown on the balance of
probabilities that the amount of dust given off was substantial.’
Despite the fact that this approach formed part of an obiter judgment HHJ Curran appears to have
adopted this test in the current case, notwithstanding its failing to meet the requisite standard.
As a result, it was found that the claimant had not proven on the facts that there was any ‘substantial
quantity’ of dust. What can we conclude about the definition of ‘substantial quantity’ from these
authorities?
Conclusion
It appears from the judgment in Smith that HHJ Curran QC was attempting to establish whether the
second limb of the test contained in s.63 FA was satisfied using the very limited guidance contained in
McDonald. It seems well established that the assessment of the second limb is purely quantitative.
Additionally, it appears that the courts will consider the availability of any scientific means of measuring
dust at the time of exposure and if this is not available they will then turn their attention to the evidence
given of the visibility of the dust. However, there remains a number of questions, including:
- What level of description is required regarding visible dust?
- What is meant by ‘doubtless many other issues’, as mentioned in McDonald?
- Will the test advocated by Lady Hale in McDonald regarding the dust given off being assessed by
reference the activities being carried out continue to be adopted?
- If s.63(1) has 2 separate limbs and the duty in respect of ‘substantial’ exposure is more absolute
- in the sense that foreseeability of injury is irrelevant - what is meant by an employer’s duty
under the section only to take ‘all practicable measures’? Does this mean that an employer can
only take measures against such risks which it ought reasonably to know about?
Whilst this was a significant win for defendant practitioners, it should be borne in mind that the majority
of the reasoning in this decision was based on the evidence of the extraction procedure. This will not
always available where breach of statutory duty under the FA is alleged and so the outstanding
questions identified in relation to the interpretation of s.63 will eventually need to be addressed.
Material Contribution to Low Disability Asbestos Claim: Mayne v Atlas Stone
Company Ltd [2016] EWHC 1030 (QB) (BCDN Edition 140)
This was an asbestos related pleural thickening claim pursued by the estate of Keith Norman, who,
during his lifetime, commenced proceedings against three former employers in respect of his exposure
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to asbestos in the 1950s and early 1960s. No insurance cover was found for the first defendant, Atlas
Stone, and third defendants, Walker Bros (Darlington) Ltd and the claim was served only against the
second defendant, Wheatley Winton Hayes Ltd. Mr Norman worked as a labouring assistant for Atlas
Stone, during 2 periods between 1951 and 1953, removing chunks of rubble and asbestos cement
roofing sheets from their factory. He then worked as a driver for the Defendant, a building company, for
a period of eight months between 1958 and 1959. He then went to work as a driver for Walker Bros.
between 1959 and 1962, collecting asbestos sheets from a factory. During his period of employment
with the Defendant, in addition to transporting asbestos sheets, he was regularly involved in the
demolition of prefabricated buildings which contained various asbestos products. He attended the site
on a daily basis, loading the broken debris on to his lorry, stamping it down to compact it and driving it
away.
The claim was solely in respect of Mr Norman’s pain, suffering and loss of amenity. The defendant
admitted that it was in breach of common law and statutory duty in relation to Mr Norman’s exposure
to asbestos during his employment with them. However, causation was denied.
The medical experts in the case were agreed on all matters relating to Mr Norman’s condition. Mr
Norman had pleural plaques and diffuse pleural thickening with associated infolded lung, attributable to
occupational asbestos exposure.
The percentage contributions of the three employers to his total asbestos exposure was agreed
between the parties as follows: Atlas Stone – 55.1 (that is, two periods at 24.49 and 30.61 combined);
the Defendant – 8.16; and Walker Bros. – 36.73. The medical experts agree that Mr Norman’s cardio
respiratory disability was between 70% and 80%. The vast majority of that disability, however, was due
to very significant co-morbid medical conditions, principally obesity, severe obstructive sleep apnoea,
diabetes and chronic heart failure. His death was unrelated to his asbestos induced disease. If diffuse
pleural thickening had been present on its own, without the co-morbid conditions, the experts agree
that this would probably have resulted in a 15% disability in an otherwise active and unrestricted
individual. The severity of his comorbid conditions means that the additional disability caused by
asbestos induced diffuse pleural thickening was only very minor, at around 5% of the 70% - 80%
disability. As a result the defendant was only responsible for 8.16% of a 5% disability. This was
calculated as being an overall contribution of 0.4%.
The experts agreed that this 5% asbestos-attributable disability would probably not have prevented Mr
Norman from undertaking any specific activity, but would have made him a little more breathless when
undertaking those activities of which he was capable.
Mrs Justice Cox DBE, pointed out that, in industrial disease claims based on negligence and breach of
statutory duty it is trite law that the claimant must prove on a balance of probabilities that the
Defendant’s breach of duty caused or materially contributed to his injury, as per Bonnington Castings
Ltd v Wardlaw [1956] AC 1956. Also, she highlighted that the claimant must show that he has suffered
an actionable injury, as explained in Rothwell v Chemical and Insulating Company Ltd and Another
[2008] 1 AC 281.
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The question was then posed - what is the position where an actionable injury has been materially
contributed to by a number of different tortfeasors?
The defendant submitted that since diffuse pleural thickening is a divisible and cumulative condition the
defendant could only be held liable for the additional damage, if any, that can properly be attributed to
its own breach of duty, which it was claimed did not result in an actionable injury.
The judge placed emphasis on the decision of Carder v University of Exeter [2015] EWHC 2399 (QB), in
which the claimant’s overall disability was assessed at 60 per cent, 40 per cent being due to asbestosis
and 20 per cent to other, unrelated causes. The expert engineer estimated that the second defendant’s
contribution to his total asbestos exposure was 2.3 per cent and that figure was agreed. Part of the
agreed medical evidence was that this 2.3 per cent contribution would not have made any noticeable or
measurable difference to the objective appearance and condition of the claimant’s lungs, or to his
perception of his symptoms and his ability to cope with daily tasks. Relying on this evidence the
defendant contended that because its asbestos exposure made no addition to the claimant’s symptoms
and disability it had not caused any actionable damage to the claimant, whose claim therefore failed on
causation. Rejecting this argument, which it was noted had not previously been advanced in a claim for
asbestos induced disease, HHJ Gore QC sitting as a Judge of the High Court found on the evidence, inter
alia, that the 2.3 per cent contribution to exposure was more than de minimis; that it did make a
contribution to the claimant’s development of asbestosis and his overall disability; and that the claimant
was properly to be regarded as ‘worse off’ in Rothwell terms. He had therefore suffered an actionable
injury which sounded in damages.
The defendant submitted that the present case was distinguishable from Carder on the facts,
alternatively, he claimed, the judge should decline to follow it since it is inconsistent with more recent
appellate authority, for example, Williams v Bermuda Hospitals Board [2016] UKPC 4.
This was rejected by Mrs Justice Cox DBE, who stated that the essential question in this case, is whether
it has been proved that Mr Norman suffered an actionable injury as a result of the totality of his
exposure to asbestos, to which this Defendant made a material contribution.
The judge decided that as a result of his total exposure over the specified periods, his overall 5 per cent
disability was clearly actionable, notwithstanding his substantial co-morbidities and a contribution of
8.16 per cent to that actionable injury which was small but nevertheless material.
In coming to this decision she stated:
‘The suggestion that a claimant seeking damages for asbestos-related disease must go on to prove in
addition that a particular defendant made a material contribution to his disease process, in the sense
that the contribution of itself gave rise to a discernible or measurable injury, is unwarranted and is in my
view unsupported by authority. Such a requirement would ignore the totality of the claimant’s exposure
to asbestos during his working life and the quantifiable disability caused by that exposure. It would not
accord with either the reality of this industrial disease or, as Stuart Smith LJ saw it, “common sense”. It
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would lead, in my view, to uncertainty and to arbitrary results and unfairness, both to claimants and
among defendants’.
Therefore the claimant was awarded 8.16% of £12,600, namely, £1,028. It should be noted that the
decision of Carder is due to be heard in the Court of Appeal in July 2016. As such, depending on the
outcome of this appeal, decisions such as this may yield a different result in future. We will continue to
update readers on developments in this area.
Court of Appeal Ruling On De Minimis In Asbestosis Cases: Carder v University of
Exeter (BCDN Edition 152)
Introduction
In the 1st instance decision of Carder v University of Exeter, the claimant had been exposed to asbestos
during employments as an electrician giving rise to asbestosis. 97% of the claimant’s exposure arose
with an employer from the 1950s which was no longer in existence. The claimant initially pursued a
claim against both a Hospital Board, which was responsible for 0.3% of the overall exposure, and the
University of Exeter, responsible for 2.3% of overall exposure. The claimant discontinued against the
Hospital Board on the basis that its contribution to the overall asbestos exposure was de minimis. The
claimant was successful in his claim against the University as despite its contribution to the asbestosis
being ‘very small’ it was still ‘material’. The University appealed on the basis that its exposure had not
caused or contributed to the claimant’s symptoms and disability.
In this article, we discuss the judgment of the Court of Appeal and consider its implications for ‘material
contribution’ defences in low exposure asbestosis claims.
Background
Asbestosis is fibrosis of the lung tissue and is a dose related disease. This means that the inhaled
asbestos fibres operate cumulatively to cause the disease and the extent and severity of the disease is
related to the quantity of fibres inhaled. In general, the greater the asbestos exposure the worse the
disease becomes. For that reason, asbestosis is sometimes describes as a ‘divisible’ disease, i.e. it can be
divided into the proportions attributable to different dose exposures. This is to be contrasted with
indivisible diseases, such as asbestos related lung cancer and mesothelioma, where the severity does
not depend on the asbestos dose.
The test of causation for divisible diseases is known as the ‘material contribution’ test, also commonly
referred to as the Bonnington Castings test, where a defendant is liable if it is shown that it materially
contributed to the overall damage. A defendant is only severally liable to the extent of its contribution
to damage and apportionment of damages can apply as per Holtby v Brigham and Cowan (Hull) Ltd
[2000] ICR 1086.
Carder v University of Exeter
1st Instance
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Mr Carder was 87 years old at the time of judgment and claimed damages for asbestosis
caused by his exposure to asbestos for two periods in the 1980s and 1990s by Exeter University. His
overall disability was assessed at 60 per cent, 40 per cent being due to asbestosis and 20 per cent to
other, unrelated causes. It was agreed evidence that the Universities’ contribution to the claimant’s
total occupational asbestos exposure and the asbestosis was 2.3%.
The University conceded it had made a ‘material though very small’ contribution to the asbestosis, but
this made no addition to the claimant’s symptoms/disability and had not caused him to be worse off
physically or economically. There was no actionable damage and it was wrong to treat a contribution to
a disease process as sufficient to found a claim for damages where such contribution did not make the
claimant ‘appreciably worse off’ - as per Lord Hoffman’s test in Rothwell v Chemical and Insulating
Company Ltd [2007] UKHL 39.
In doing so the defendant relied on the statement of the medical expert Dr Rudd, who said:
‘Having been asked whether the asbestosis fibre contribution of the defendant would have a) made the
objective condition and appearance of the lungs ‘notably different’, or (b) made lung function test results
‘materially different’, or (c) made subjective perception of symptomatology ‘noticeably different’, or d)
made the claimant’s ability to cope with daily tasks ‘measurably or demonstrably different’ for quite
different measures, he opined ‘I suspect the questioner wants to know whether without the exposure
with either or both of the defendants would any of items a) to d) inclusive be any different? The answer is
they would not’.
The judge at first instance, HHJ Gore, identified 8 factors which he considered made the claimant ‘worse
off’.
These factors included:
- In the opinion of Dr. Rudd, from a medical perspective, 2.3%, though very small was material
and beyond de minimis.
- The risk of development and the extent of asbestosis increase in relation to dose, which is an
indicator that the claimant has become worse off physically as a result of the 2.3% contribution.
- Because each source of asbestos will have contributed to the development of asbestosis in
proportion to the dose, the 2.3% contribution has made a contribution to the overall condition,
albeit one that does not sound in the appearance of the lungs, the lung function test results,
perception of symptoms, or ability to cope with tasks of daily living.
- Persons with asbestosis are at an increased risk of lung cancer compared with persons with a
similar history of exposure who have not developed asbestosis. The condition will progress, and
there is a 50% risk that it progresses so seriously as to leave the claimant bed and chair ridden
and totally dependent.
- The jointly instructed engineer had asserted that the even smaller contribution of exposure by
one of the other small exposures was ‘probably not significant’ at 0.1 fibre ml years, he
expressed no such qualification in respect of the defendant’s exposure, perhaps because it was
estimated at eleven times greater, at 1.2 fibre ml years.
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- The fact that the likely progression of asbestosis, together with the risk of it progressing to the
point that the claimant is virtually confined to bed and chair and dependent upon others, are to
be taken into account in the immediate award of damages, represents, in my judgment, being
worse off.
- Even if asbestosis in this case is asymptomatic in the way that pleural plaques in Johnston were,
on no view can this condition be described as benign.
As such HHJ Gore concluded para 34:
‘For all those reasons, I find that the claimant did suffer damage and injury that was actionable, and that
he has so proved as against this defendant even though its contribution was very small. He is therefore
entitled to damages’.
The full liability value of the claim was assessed at £67,500, and 2.3% of this was calculated as £1,552.50.
Court of Appeal Decision
On appeal, the defendant submitted that the judge at first instance should have concluded that, whilst it
had made a ‘material though very small’ contribution to the asbestosis, this had made no addition to Mr
Carder’s disability and had not caused him to be worse off, physically or economically, as required by
Rothwell. It was also submitted, that the judge had wrongly treated contribution to a disease process as
sufficient to found a claim for damages. Finally, the defendant claimed that HHJ Gore had considered
the effects of asbestosis as a whole, including the risks of malignancy associated with it and its current
symptoms when there were all factors which would have existed but for the appellant’s breach of duty
and were not increased by it.
The Master of the Rolls, in delivering a unanimous judgment, considered Rothwell and Holtby and noted
at para 22, that:
‘It can be seen that, in the context of asbestosis, the words ‘disease’, ‘impairment’, ‘injury’, ‘disability’ are
used interchangeably. I do not find this helpful. With respect to the House of Lords in Rothwell, it is
unprofitable to consider whether a particular medical condition should be characterised as a ‘disease’ or
an ‘injury’. Instead, the focus should be on whether, to use the language of Lord Hoffmann, the medical
condition has made the claimant worse off’…In my view, the use of labels to describe a medical condition
may be convenient; but it must not distract attention from the only relevant question, namely whether
the claimant is materially worse off a result of the alleged tort, i.e. whether he has suffered damage’.
[Emphasis added].
Lord Dyson accepted that most of the 8 factors relied upon by the judge at 1st instance to find actionable
damage ‘were of little weight’. However, the defendant’s concession that the 2.3% exposure was a
material contribution i.e. not de minimis, to the asbestosis, was a ‘critical’ concession. Therefore he held
that the judge was correct in deciding that Mr Carder was slightly worse off. The severity of the disease
had been increased to a small, albeit not measurable extent.
‘It seems to be that there is a fundamental contradiction in the appellant’s case. On the one hand, Mr
Kent submits that Dr Rudd’s answers to the four questions show that the asbestos dust attributable to
the appellant made no material contribution to Mr Carder’s asbestosis: the 2.3% has made, and will
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make, no difference to Mr Carder’s symptoms, disability or prognosis. On the other hand, he accepts that
(i) 2.3% is a material contribution to the entire dose of asbestos dust; (ii) each source of asbestos
exposure will have contributed to the development of Mr Carder’s asbestosis (including the risk of his
developing it) in approximate proportion to the dose of exposure received in each; and therefore (iii) the
2.3% made a material contribution to Mr Carder’s asbestosis. It is not in dispute that asbestosis is a
condition which, if more than negligible in severity or extent, causes an individual to be worse off or to
suffer damage. It is to be distinguished from benign conditions such as pleural plaques’.
Comment & Conclusion
Shortly before Carder reached the Court of Appeal, we reported in edition 140 of BC disease news on
the High Court decision in Mayne v Atlas Stone Co Ltd, which concerned a multiple exposure asbestos-
induced diffuse pleural thickening case. The medical evidence in this claim was undisputed; pleural
thickening accounted for a 5% disability of an overall disability of between 70% and 80% and the
defendant was responsible for 8.16% of the 5% disability-so only 0.62% disability. It was also concluded
that the individual contribution to the pleural-thickening disability of any employer (including the
defendant in this case) would not have been perceptible by the deceased.
The judge found that the overall 5% disability attributable to asbestos was clearly actionable and the
defendant’s contribution of 8.16% of the overall 5% disability was small but nevertheless material. In
coming to this conclusion, the judge specifically stated:
‘The suggestion that a claimant seeking damages for asbestos-related disease must go on to prove in
addition that a particular defendant made a material contribution to his disease process, in the sense
that the contribution of itself gave rise to a discernible or miserable injury, is unwarranted and is in my
view unsupported by authority. Such a requirement would ignore the totality of the claimant’s exposure
to asbestos during his working life and the quantifiable disability caused by that exposure. It would not
accord with either the reality of this industrial disease or, as Stuart Smith LJ saw it, ‘common sense’. It
would lead in my view to uncertainty and to arbitrary results and unfairness, both to claimants and
among defendants’.
The court held that if it accepted the defendant’s submissions that would mean the claimant had no
cause of action despite suffering an actionable injury and that this was never the intended outcome of
the decision of Holtby v Brigham & Cowan (Whole) Limited [2000] 3 All E.R.421 and that this did not lend
support to the defendant’s submissions.
The defendants in Carder and Mayne attempted to distinguish between contribution to a disease
process and contribution to the disability/symptoms. A material contribution to a condition which in
itself makes no difference to a claimant’s symptoms or prognosis is de minimis and not actionable. The
claimants were not appreciably or materially worse off.
This recent line of authorities in asbestos cases say that a material contribution to a condition in the
absence of contribution to symptoms or disability is sufficient to make someone ‘appreciably worse off’
for which damages can be paid and may reflect more on policy than legal principles. This will
undoubtedly be relied upon by claimants in other disease areas where de minimis arguments are raised.
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ii Professional Negligence Bar Association, Facts & Figures: Tables for the Calculation of Damages, 2015/16, Sweet
& Maxwell iii Health and Safety Executive, ‘Mesothelioma: Statistics’
http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm> accessed 26 February 2016. iv Institute of Actuaries Asbestos Working Party, ‘Update from the UK Asbestos Working Party (GIRO 2015) –
Notes Pages’ https://www.actuaries.org.uk/practice-areas/general-insurance/research-working-parties/uk-asbestos
accessed 26 February 2016. v Health and Safety Executive, ‘Mesothelioma: Statistics’
http://www.hse.gov.uk/Statistics/causdis/mesothelioma/index.htm> accessed 26 February 2016.
Disclaimer
This newsletter does not present a complete or comprehensive
statement of the law, nor does it constitute legal advice. It is
intended only to provide an update on issues that may be of
interest to those handling occupational disease claims. Specialist
legal advice should always be sought in any particular case.
© BC Legal 2016.
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