This blog post was written by Rebecca Henshaw.

Just before Christmas, the Court of Appeal handed down useful guidance on two issues which will be of interest to practitioners who regularly deal with grants of probate and letters of administration, in both industrial disease settings and elsewhere.

The Court was asked to determine both 1) the standing of foreign executors and 2) the role of CPR 3.10 in correcting claims which have been issued by representatives with no standing. 

The background to this case was that the Deceased was domiciled in South Wales, Australia. His widow was appointed his executrix under his will in New South Wales. She sought relief in respect of breaches of trust, claimed to be committed by her brother and sister in law, in connection with land the Deceased owned in England.

In February 2019, the Claimant issued proceedings. The Defence denied that the Probate conferred any jurisdiction to the Claimant regarding the Deceased’s estate. On 25 November 2019, the Grant was resealed by the High Court under the Colonial Probates Act 1892. The Defendants appealed to strike out the proceedings before the claim came on for trial at the County Court, which was dismissed. They appealed this both before the High Court and at the Court of Appeal.

Foreign executors

In the first half of the judgment, Lord Justice Newey gives a helpful summary of the standing of foreign personal representatives.

As readers will know, as a matter of domestic law, an executor is considered to gain title as soon as the testator dies, but an administrator acquires title only when letters of administration are granted. An executrix of a will of a person domiciled here, having title from death, need not wait for probate before issuing a claim, albeit that she will have to obtain probate by the time the case comes on for trial in order to prove her title.

However, a grant of representation under the law of a foreign country has no operation of itself in England. A person appointed as an administrator elsewhere than in the United Kingdom is not entitled to bring proceedings in that capacity in England and Wales until the letters of administration have been resealed under the Colonial Probates Act 1892.

The Defendants in this case had appealed this point in the High Court, asking His Honour Judge Pearce  to decide whether resealing had a retrospective affect, or whether it must be done before issuing a claim. If it was not retrospective, then the Claimant had no capacity and/or legal standing at the date of issue of the Claim Form and the Claim stood to be struck out as void and a nullity.

The Court of Appeal found that the Colonial Probates Act 1892 did not operate retrospectively.

On appeal, the Claimant argued that the Claim should continue notwithstanding this. The claimant derived her title to the claim against the defendants from the deceased’s will, not from the resealing of the Grant. The claimant needed either to have the Grant resealed or to obtain a grant of probate in this jurisdiction in advance of trial only so that she could prove her title. The Claimant relied on the 1916 case of Chetty v Chetty, in which the Privy Council appears to have found that the executor in that case, who had been domiciled in a territory different from that of the pending proceedings, derived his title and authority from the will. The Court of Appeal agreed.

Before doing so, they paused to consider whether Chetty applied to all foreign executors or only those in jurisdictions which followed the rule that executors acquire their title from the date of the testator’s death. The Court noted that the Privy Council may have assumed that the law of “British India” was the same as that of England and Wales. Back to New South Wales in this case, however, where the law, does not consider an executor who has not obtained probate to have legal title to the testator’s estate. In short, the executor does not gain title on death.

Here the Court looked to Dicey, Morris & Collins on the Conflict of Laws where they state at Rule 156, “any property of the deceased which at the time of his or her death is locally situate in England” “vests automatically in his or her personal representative by virtue of an English grant”. The law of England and Wales is applied to the issue of whether the Claimant acquired title to the deceased’s estate on his death and New South Wales law on the point was immaterial.

The Claimant thus had standing when the claim was issued.

CPR 3.10

The Court helpfully reviewed CPR 3.10 and asked, had the Claimant no standing to issue the claim when she did, could the Court nevertheless allow the proceedings to continue?

As a reminder, CPR 3.10 is the general power of the court to rectify matters where there has been an error of procedure, as follows:

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction:

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

The Court restated the following principles:

• The “wide discretion” conferred by CPR 3.10 cannot be used to validate a nullity;
• CPR 3.10 applies in relation to “an error of procedure such as a failure to comply with a rule or practice direction”;
• CPR 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings;
• It is not, following Stewart J in Kimathi v Foreign and Commonwealth Office (No 2) [2016] EWHC 3005 (QB), “a cure-all for every defect however fundamental, whether or not it is one of law, and whether or not the authorities have previously determined that there is a nullity”

The same conclusion was reached in August by the Privy Council in Jogie v Sealy [2022] UKPC 32. The line of cases culminating in Meerza v Al Baho [2015] EWHC 3154 (Ch), in which Part 3 was used to deal with errors regarding letters of administration “justly” was rejected.

In the case of a claim on behalf of an estate which, at the time of issuing, lacks standing, the claim is “born dead and incapable of being revived.”

In this article, pupil Jake Loomes looks at the recent case of Cuthbert in which Max Archer acted for the Claimant, Jennifer Cuthbert, the widow of Mr Derek Barry Cuthbert and executrix of his estate.

Background

Mr Cuthbert was employed by the defendant between 1956 and 1959 over which period he was engaged in the construction of the Queenswood School in Hertfordshire. Through this work he was exposed to asbestos dust from the cutting of asbestos insulation boards in his vicinity and from his sweeping up of the said dust. Sadly, on the 5 April 2022, Mr Cuthbert died as a result of his mesothelioma.

The claim against the defendant was brought by Mrs Cuthbert as the executrix of Mr Cuthbert’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 and also as his dependent under the Fatal Accidents Act 1976. The claim was brought both in common law negligence and under the Building (Safety, Health and Welfare) Regulations 1948.

The Issues

The court was required to determine the following issues. Firstly, the extent, the degree, and frequency of Mr Cuthbert’s exposure to asbestos dust. Secondly, whether that exposure amounted to a breach of duty by reference to what the defendant knew, or ought to have known as to the risk of injury from exposure to asbestos dust. The judge did not deal with quantum.

The Facts

Mr Cuthbert provided two witness statements prior to his death. The defendant did not put any Part 18 questions to him, nor was there a deposition of him prior to his death. Accordingly, the only evidence of fact was his. Against that backdrop, the court made the following findings of fact:

• The type of material being cut was Asbestolux (asbestos insulation boards), which generates concentrations between 5-10 fibres/ml [14, 21].
• Mr Cuthbert would have struggled to remember events from some 60 years ago, and was trying to remember them while ‘acutely unwell’ and in a ‘state of shock’ [31].
• It was highly debatable that Mr Cuthbert was a ‘trainee supervisor’ and far more likely that he was in fact a ‘general labourer’ [32].
• Mr Cuthbert had “no more than sporadic contact with the carpenters – perhaps, he did see them every day or most days”.
• The carpenters which Mr Cuthbert was working around were not engaged every day with cutting up asbestos materials [36].
• Mr Cuthbert had irregular and intermittent contact with the carpenters [36].
• Subject to weather, the cutting of asbestos boards took place outside [36].
• Mr Cuthbert did sweep up, however he was not always the person to sweep up after the carpenters once they had cut up their asbestos materials. “Experience would suggest that they probably did some of their own sweeping” [37]. In the court’s view, “perhaps, he spent in the order of ten minutes per day sweeping up [38].
• There were clouds of dust when the Abestolux was cut up [39].
• If there were clouds of asbestos dust, he would have expected Mr Cuthbert to keep his distance. There was no good reason for him to be standing so close to the carpenters so that he became covered in dust [39].
• Mr Cuthbert’s exposure was “of a low order, light and intermittent, and in the main, as a bystander” [40]

Expert evidence

In addition to written reports, the court heard oral evidence from the two occupational hygienists, Ms Conroy for the Claimant and Dr Phillips for the Defendant. The court held that:

“Assuming that the deceased was indirectly exposed to asbestos dust for one and a half hours per day as a result of the carpenters cutting up AIBs (and I have already found this to be inherently improbable) and, assuming that he spent approximately ten minutes per day sweeping up asbestos dust, Ms Conroy agreed with Dr Philips that his average daily exposure was in the order of two fibres/ml” [43]

The judgment went on to state that:

“It needs to be seen in the context that, whilst, at the time of his employment, there were no threshold limits in place, as at 1960, the threshold limit equated to 30 fibres/ml (see “Toxic Substances in Factory Atmospheres” published by HMSO in March 1960). It can be seen, therefore, on any view of the evidence, that the deceased’s exposure was very substantially below the limits set by the 1960 publication, both in the short term and over the daily average levels which have to be calculated to make meaningful comparison with the 1960 limits” [44]

Knowledge of risk and breach of duty

Having heard submissions from both counsel, the court made the following findings:

• At the heart of the case was the issue of knowledge of risk. The test set out in Swanwick J’s judgment in Stokes v Guest[1] remains helpful [74].
• The “recognised and general practice at the material time is of relevance and importance, although it may not be the sole test.”. Further, foreseeability should not be referenced by hindsight and should be by reference to standards at the time[75].
• The judge rejected the Claimant’s reliance on the higher authorities Maguire v Harland and Wolff Plc [2005] EWCA Civ 1 (“Maguire”) and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101 (“Jeromson”). It is not clear why he felt Maguire was of no application, Jeromson was distinguished on the basis that he felt that its dicta should be confined to cases where exposure was very heavy. In so doing the judge placed reliance on Abraham v G Ireson & Sons (Properties) Limited [2009] EWHC 1958 (QB) (“Abraham”)[2], the message taken from the literature from the mid to late 1950’s was that asbestos dust was highly dangerous and that its inhalation was highly dangerous. However, that was only delivered in the “context of the known risk of asbestosis and of occupational exposure to significant quantities of asbestos dust” The question that should be asked is “whether the information then available should have alerted an employer to the possibility that an employee whose exposure to asbestos was light and intermittent might have been at risk of contracting an asbestos related injury” [76, 77].
• The judge rejected the suggestion that when viewed in the context of the higher authorities Bussey, Jeromson and Maguire. It was suggested at trial that Maguire, in which the dicta of Hale LJ in Jeromson was approved and said to be binding in relation to lower exposure cases, was not cited in Abraham. The judge held that it was inconceivable that Swift J in Abraham would not have been familiar with Maguire even though it is not cited in the judgment.
• Accordingly, the court concluded that a “reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e more than fanciful) risk of injury as a result of the exposure to asbestos at the [levels Mr Cuthbert was exposed to]”. The court went on to state that whilst there was no safe level of exposure in 1956-1959, the fact that the levels Mr Cuthbert were exposed to fell below those levels set in 1970 was highly relevant (but not conclusive). They pointed strongly to the defendant not having the requisite knowledge of a foreseeable risk of injury.
• Accordingly, the court concluded that there was no breach of duty in the circumstances where the exposure was light and intermittent.

Comment

This case provides an insight into the possible judicial approach to uncontested factual evidence in asbestos cases and pre-1965 exposure. Claimant practitioners will need to be alive to the risk that although Abraham may seem an outlier, it has not been examined by the higher courts in detail and may continue to inform the approach to some cases pre-1965. Further, simply because the defendant has not adduced their own evidence of fact, it does not follow that the court will adopt the claimant’s evidence without scrutiny.

That notwithstanding, some of the findings of fact are difficult to square away with one another. The view that the reliability of Mr Cuthberts evidence was in question, partially because he was ‘acutely unwell’ and in a ‘state of shock’ seems odd [31] in light of the absence of any evidence to that effect. The conclusion that Mr Cuthbert was in all likelihood a ‘labourer’ rather than a ‘trainee supervisor’ is perhaps understandable [32] and open to the judge. However, the judgment went on to reject the evidence that Mr Cuthbert spent 1-2 hours a day assisting carpenters [34] and that he helped them with sweeping on more than an intermittent basis [37]. Such seems strange given that these might be jobs that a labourer would be doing on a regular basis- further there was no evidence to base these conclusions on, the factual findings arose out of skepticism alone. Finally, it is worth noting that it was accepted by the court that there were clouds of dust when the Asbestolux was cut up and that the claimant might have been sweeping up for 10 minutes a day.

Perhaps more problematic though is the analysis of knowledge of risk. The judgment places significant reliance on the case of Abraham. This is problematic for two reasons. Firstly, the case of Maguire was not cited in Abraham. In Maguire, a case also concerning mid-1950’s exposure, the court held that exposure should have been kept to the lowest possible level. Secondly, the judgment in Abraham is at odds with the dicta of Jeromson and Maguire. Neither, in this author’s view, explicitly restrict the duty to instances where there is substantial or prolonged exposure or where there is ‘frequent, heavy and regular exposure’.

Finally, the judgment seems to drift into the ‘bright-line’ approach that was seen to TDN13 in Williams v University of Birmingham [2011] EWCA Civ 1242. That ‘bright-line’ approach in this case relates to the 1960 publication ‘Toxic Fumes in Factory Atmospheres’ which set out a 30 fibres/ml limit and to which the court made several comparisons against [44, 55, 56]. This is tempered slightly by comments that it was ‘not conclusive’ of the issue [83]. However, it does suggest a steer towards the kind of approach that the Court of Appeal explicitly rejected in Bussey v Anglia Heating Limited [2018] EWCA Civ 243.

Permission to appeal is outstanding so watch this space!

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[1] Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776

[2]. HHJ Freedman further placed reliance on Owen v IMI Yorkshire Copper Tube, 15 June 1995; and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101

This blog post was written by Dr David Sharpe KC and Corinne Novell.

Introduction

The decision concerns an unsuccessful claim for secondary exposure to asbestos, which the plaintiff alleges occurred in his family home for the period of 1951 to 1974, during which the plaintiff’s father worked as a pipe lagger for the defendants on a Belfast shipyard. The plaintiff alleges that this exposure caused him to develop bilateral pleural plaques, a dose related condition dependent on cumulative exposure. By the time of trial, the claim was only being pursued against the first and third defendants.

In essence, the claim failed because the plaintiff had not adduced sufficiently cogent evidence as to the duration, intensity and timing of the alleged exposure. Specifically, he had failed to establish that the level of exposure post-1965, following whichsecondary exposure was reasonably foreseeable and thus could accrue liability (as per Maguire v Harland and Wolff plc and another [2005] EWCA Civ 1), was high enough to have materially contributed to development of the plaintiff’s condition. This failure to establish ‘culpable’ exposure led to dismissal of the case.  

The Evidence

The plaintiff alleged that exposure came from two key sources. Firstly, the plaintiff’s father’s ‘great coat’ which he wore over his overalls on his way to and from work. Once the father came home, this was always placed over the bannister at the bottom of the stairs, which the plaintiff would frequently pass by. Both the plaintiff and his brother adduced evidence to the effect that they would play and hide under this coat and that this coat was sometimes placed over their bed for extra warmth.

The second source of exposure was alleged to have come from the father’s work overalls, which he would wear whilst having dinner with the family. These would be washed in the kitchen sink and which the plaintiff’s mother would beat dust off of and dry indoors hanging from the kitchen ceiling when the weather was poor.

The problems with the evidence establishing that these sources amounted to sufficiently intense culpable exposure such as to have materially contributed to the plaintiff’s condition were as follows:

• The plaintiff admitted in evidence that in his teenage years following 1965, it was possible that his risk of exposure was lower than in his childhood years during which he would have been playing under the coat and would have been in the house more often [26, 22].
• The plaintiff had given an account to his respiratory expert, Professor McGarvey, that exposure continued ‘until he was 12 or 13 years of age’, which entailed exposure ending in early 1965 [23]. If this account was correct, all exposure would have been non-culpable exposure.
• In cross-examination, the plaintiff accepted that he was unclear on the dates of exposure but stated of the period following 1965: “I was still in the same house where the same things were still happening, so you have to assume that I was still exposed” [26].
• The plaintiff and his brother gave different accounts of when the coat was placed over their bed, with the plaintiff stating that this occurred only on particularly ‘cold nights’ whilst his brother said this was done every evening during winter [79].

Further, the Judge was unimpressed with the difference in the two reports provided by Professor McGarvey. The first of these, written following a meeting with the plaintiff, set out that the plaintiff had said that exposure had occurred “for most of his childhood through the mid-1950s and early 1960s” [82]. The second report, apparently prepared without a second consultation with the plaintiff and without any justification or source being accredited for the change, said that the plaintiff was “likely to have been exposed [to asbestos dust] at home up until his father stopped working or Mr Moore left the family home” [83].

Mr Justice McAlinden determined that this shift from exposure prior to 1965 to exposure through to 1975 was due either to Professor McGarvey having read the pleadings or an attendance note from June 2016 which set out the chance of exposure following 1965. The Judge stated that he could not ignore the materially different histories and opinions on exposure between the report, particularly since the second report (in the Judge’s view, erroneously) set out that “the sources of all information” used had been indicated [90] and the plaintiff’s solicitors were adamant that they had not given the expert a history.

Commentary

This is an interesting judgment from the Northern Ireland High Court and it is noted that historically the Harland & Wolff Shipyard in Belfast was the largest in the world and that the Titanic was built there. The law in Northern Ireland relating to personal injury arising from asbestos exposure is essentially identical to that of England & Wales except to note that the devolved Assembly passed legislation to permit proceedings for asymptomatic pleural plaques ((the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011)) following the House of Lords judgment in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39.

This case focusses upon the ruling in Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 in which the deceased contracted mesothelioma from washing the overalls of her husband which were contaminated by asbestos dust as a result of his work in the defendant’s shipyard. The exposure occurred between 1961 and 1965, but, significantly, it ceased prior to the publication of Newhouse and Thompson’s article on the links between domestic exposure to asbestos and mesothelioma. The Court of Appeal determined that liability in such secondary-exposure cases could be established only for post-1965 exposure.

In Moore the case did not succeed due to the factual matrix relating to asbestos exposure becoming mired in confusion and the plaintiff having failed to satisfy the standard of proof in establishing a material contribution from the secondary exposure to the development of the pleural plaques. The plaintiff appears to have established a prima facie case of secondary exposure from his father’s overalls and great coat but failed in respect of the requirement that such exposure was post-1965. The genesis of the confusion and ultimate failure of the case was the medical reports – there were two reports containing a record of the plaintiff’s observations on exposure and the first suggested that exposure had effectively ended in 1965 whereas the second report concluded there had been post-1965 exposure without any explanation or justification. There were also differences between witness and concessions by the plaintiff and his brother.

This case failed on the basic premise that a Claimant must prove their case and serves as a reminder that evidence must always be directed to proving the core issues and satisfying the necessary legal requirements. In this instance that amounted to convincing the court that there was sufficient secondary exposure to asbestos post-1965 to materially contribute to the development of pleural plaques.

McAlinden J set out this conclusion fully at [96]:

“In relation to the issue at the heart of this case which is an issue of fact I find that the plaintiff has failed to satisfy me on the balance of probabilities that the exposure to asbestos dust and fibres in the domestic environment in the period subsequent to the end of 1965 made a material contribution to the risk of the plaintiff developing pleural plaques. There are just too many short-comings, deficits and contradictions in the plaintiff’s case for me to be able to simply sweep them all aside and conclude that because there was a period between 1965 and 1974 when the plaintiff probably experienced some exposure to asbestos dust and fibres then that exposure must have materially contributed to the risk of him developing pleural plaques, particularly when that period followed on from a 14 year period of what was in all likelihood a longer period of more intensive exposure.”

This post was written by Mike Brace.

A recent decision which demonstrates the dangers inherent in attempting to undermine an opponent’s expert evidence without serving your own or even requiring that the opposing expert attend  for cross examination.

The Case.

The claim was brought under the Law Reform (Miscellaneous Provisions) Act 1934 in respect of the death of  Mr White from mesothelioma.  The Claimants, Mr White’s executors, alleged that he was exposed to asbestos whilst working at Sefton General Hospital Liverpool during 2 discrete periods:

• 1949 – 1960 (as a junior lab technician); and
• 1973/74 – 1991/92 (as a senior biochemist)

The Defendant was the successor body upon which any liability of the Hospital had devolved.

The Lay Evidence and the Medical Evidence.

The Claimants served 2 statements: one by Mr White a few weeks before his death and one from his daughter (one of the Claimants).  The Defendant served no witness evidence and did not require Mr White’s daughter to give evidence.

The medical experts were not required to give evidence. A joint statement had been provided in which there were no areas of disagreement.   The medical experts agreed that:

“if the information available to us is found by the Court to be broadly correct, then there was probably a medically significant increase in risk of mesothelioma attributable to his work with the Defendant”

The potential sources of asbestos exposure in both the discrete periods were protective asbestos mats placed under “Bunsen” burners in the laboratories.

The Defendant’s position was:

“..the Claimant’s evidence establishes low level exposure during the course of his employment during the first period of his employment, up to 1960, and not the second from 1973, at a time when the risk of injury in the form of mesothelioma from low levels of exposure was not generally known”

Central issues in the claim were thus the amount of asbestos dust which Mr White was exposed to in each period and whether that level of exposure posed a foreseeable risk of injury when judged against the “standards of the day”

Occupational Hygiene Evidence

The parties had each been given permission to obtain and rely upon expert evidence from an engineer/occupational hygienist.

However, at trial the only expert occupational hygienist evidence before the court  consisted of the written report of the Defendant’s expert Mr Graeme Hughson which was “accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time”

The Claimants having:

• not served any expert occupational hygiene evidence of their own;
• not put Part 35 questions to the Defendant’s expert; and
• not sought an order permitting the Defendant’s expert to be cross-examined

nonetheless sought to “impugn the evidence or expertise of the Defendant’s expert on the matters in his report” and in particular argued that:

(a)        where Mr Hughson’s evidence of fact was in conflict with that of Mr White the latter should be preferred; and

(b)        insofar as Mr Hughson’s evidence of opinion was no more than an unreasoned assertion, or based on assumptions other than those accepted by the Court, it should be rejected and

(c)        where Mr Hughson gave a reasoned opinion on a matter within his expertise the Court could accept it but was under no obligation to do so.

The Judge noted that in Griffiths v TUI [2022] 1 WLR 973 the majority of the Court of Appeal  held “that there was no strict rule that the court was bound in all circumstances to accept the uncontroverted evidence of an expert witness which complied with the formal requirements of CPR Pt 35; that, rather, such evidence fell to be evaluated and assessed by the court in the usual way, and the approach to be taken, and weight to be given, to such evidence would depend on the circumstances of the individual case, the nature of the report itself and the purposes for which it was being used in the claim.”

The Judge stated that he intended to take the approach indicated in Griffiths.  He observed that whilst he was “not bound to reach conclusions which accord with the views of Mr Hughson, any departure from a properly reasoned opinion of his on matters of expert assessment which are within his expertise would require cogent explanation”.  Further, in his view the decision of the Claimants not to serve evidence of their own, not to pose Part 35 questions, and not to seek to cross examine Mr Hughson were relevant to a proper evaluation of Mr Hughson’s evidence and weight that may be given to it as part of all the circumstances.

The Result

Unfortunately, the Claimants tactical approach failed and Mr Hughson’s evidence proved decisive.

In approaching his factual findings, the Judge observed:

“Mr Hughson is not a witness of fact, but does have very considerable expertise in assessing likely exposure to asbestos dust in claims of this type. He has previously been employed as a scientific technician and a senior scientist by the Institute of Occupational Medicine advising clients on management of asbestos in buildings routine air monitoring for verification of asbestos containment, and assessment of operator exposures.”

The Judge expressed himself  “greatly assisted by  Mr Hughson’s report” when reaching conclusions as to the likely level of exposure in the first period of employment.  The Judge observed that  “although use of the mats, abrasion of their surfaces by moving them, or dropping such mats is likely to have caused asbestos dust to be emitted into the air in the locality where the deceased was working such emissions were not constant but intermittent, and probably at very low levels. In terms of actual periods of emission Mr Hughson who himself has worked in scientific labs, estimated a period as probably for no more than for 12 minutes in an 8-hour working day.  Although not a witness of fact, this estimate seemed a reasonable estimate from a highly experienced expert who had relevant experience of working in and advising on, similar environments. There was no expert evidence from the Claimants to suggest to the contrary.”

 In relation to the second period of employment the Judge agreed with Mr Hughson that friable forms of “Bunsen” burner  mats would not have been used but rather  harder, less dusty ones and also agreed that any exposure of Mr White to asbestos from the harder mats in the second period would have been insignificant/de minimis and not sufficient to give rise to a material increase in the risk of development of asbestos related injury.

In relation to the issue of breach of duty and applicable “standards of the day” the Judge also found  Mr Hughson’s evidence compelling.  He contrasted this with  the position of the Claimants:

“In the absence of any expert evidence to support their case, ….driven to rely in submissions on propositions of general applicability as to the state of knowledge in respect of asbestos which it was argued could be taken from the relevant case-law and read directly across to the present situation”

The Judge concluded “….having regard to the evidence of Mr Hughson, and in the absence of any expert evidence from the Claimants to the contrary, my answers to the questions derived from Jeromson and Bussey are as follows:

(i)         Should Sefton Hospital in either the first period of employment (1949-1960) or the second period of employment (1973 to 1990) have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? No: in respect of both the first and second period. I have found that the exposure to dust was not more than minimal and certainly not at a level which would have triggered a duty on the Defendant to take precautions or seek advice on what precautions to take.

(ii)        If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take. Not applicable.  There was insufficient exposure to trigger the duty to take precautions or seek advice.”

The claim was dismissed.

In this blog Cressida Mawdesley-Thomas considers the decision of HHJ Lickley KC in Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB).

Introduction

The decision concerns an unsuccessful claim for contribution under s. 1(1) of The Civil Liability Act 1978, following the settlement of a claim for mesothelioma (‘the substantive action’), by the owners and operators of a dockyard. It is a salutary reminder of what any claimant in asbestos litigation must prove to succeed in a claim, particularly in the context of naval dockyard exposure.

Summary

The contribution claim was for £190,696.12, being the costs and damages incurred in settling the substantive claim for mesothelioma that was brought against Bae Systems as the owners and operators of the Barrow-in-Furness Dockyard between 1970-1975. To be successful in the claim for contribution, Bae Systems (‘the Cliamant’) needed to prove, on the balance of probabilities, that when the deceased was employed by the Defendant, Alfa Laval Ltd, which was between 1974 and 1975, he was exposed to asbestos. However, the claimant failed to prove their case.

The Judge was unimpressed by the lack of evidence and the fact that the claimant’s case in the contribution claim was directly contrary to their Defence in the substantive action (they never admitted liability and the settlement was recorded in a Tomlin order). The claimant in the contribution claim adopted the allegations made by the Claimant in the substantive action: that the Deceased was exposed to asbestos at the Barrow-in-Furness Dockyard when working on the design and installation of filtration systems, which included the application of asbestos lagging, on HMS Sheffield (a type 42 Destroyer) and a nuclear submarine.

Substantive Action

In the substantive claim the Defence made the following points:

(i) Denied that the deceased was exposed to such levels of asbestos dust that there was a foreseeable risk of injury at that time [5].

(ii) Averred that ‘it is highly unlikely that the filtration system which the deceased was charged with designing and overseeing would have been assembled inside the hull as late as 1974’ [6.5(a)].

(iii) Averred, in any event, that any filtration system and/or pipework servicing such a system would not require insulation [6.5(b)].

(iv) Relied upon the survey of HMS Cardiff of 14th January 2008 to show the lack of asbestos used in lagging [6.6].

(v) Relied upon the research by Geoffrey Slee of 28th February 2005 who reported that the only asbestos used at the Dockyard in the 1970s was compressed asbestos fibre used in gaskets between sections of pipe [6.9].

(vi) Averred the deceased would not have been employed to design the filtration system at the Dockyard at the time alleged [7.1].

(vii) If the deceased was at the Dockyard at the date alleged, he would not have been present when the filtration system was designed [7.2].

The above summarised position was adopted by the Defendant to the contribution claim.

The Evidence

This was a case where there was very little evidence. There was a witness statement from the Deceased and from two others who were not called to give live evidence. The Judge found that the Deceased’s evidence was of limited value, noting that there were factual errors relating to his “age, date of birth and daily commuting.” The statement was also made shortly before the Deceased’s death when he was very unwell and was trying to describe events that occurred more than 40 years before.

It was also noted that the other evidence from Mr Armstrong and Mr Carruthers did not support the claimant’s case on the time of the Deceased’s exposure, i.e., that it was from 1974 during the installation of a filtration system on HMS Sheffield and/or a submarine.  It was also noted that their evidence did not detail asbestos being used on a filtration system.

The Judge noted that the following, which would have been of assistance, was not before the Court:

• Evidence from a naval architect commenting on ‘when during construction a filtration system was or would be installed’.
• Diagrams, plans, or build specifications for a Type 42 Destroyer / submarines demonstrating where the filtration system was and how it was lagged.
• Asbestos surveys of HMS Sheffield or any submarine under construction at the time.
• Evidence that HMS Sheffield was fitted with a filtration system and that such a system involved a ‘hot’ component that required insulation which included asbestos.
• Evidence as to when during the process of the building of a ship or submarine, any filtration system is installed and operational: The same points apply to any nuclear submarine under construction at the relevant time.
• Build specifications, design or drawing for a Type 42 Destroyer or submarines built at the relevant time.

Occupational Hygiene Evidence

The court had the benefit of written occupational hygiene evidence (the experts were not called to give live evidence), however, the evidence of Martin Steer for the Defendant was preferred to that of Mr Glendenning for the Claimant.

It was noted that Mr. Steer’s conclusion [which assumed the filtration system was installed before the ship’s launch in 1971]; the deceased was employed by the Defendant in the tax year 1974-1975) whereas “Mr Glendenning has no knowledge of when such a system would be installed and, despite that, says that installation and further work ‘is likely to have occurred during the commissioning period which extended to 1975′.”

Takeaway Points

Whilst this was a claim for contribution made by the Defendant in the substantive mesothelioma action against one of the Deceased’s former employers there are a number of useful practice points for Claimant practitioners in asbetos disease litigation.

It should always be remembered what must be proved. In this case it needed to be proved that there was (i) a filtration system on the relevant ships (ii) that required insulation, i.e. because it contained a hot component (iii) that insulation contained asbestos (iv) that the claimant was exposed to it, i.e. when was the insultation installed. Evidence was needed on all of these issues but was distinctly lacking: the deceased’s evidence contained limited detail and contained a number of errors and other ‘supporting’ statements did not provide evidence of (i-iv) above. Taking care to avoid simple factual errors in witness statements will help prevent a Defendant taking easy points on credibility.

Dockyard / Naval Construction

There are a number of points particularly pertinent to dockyard / naval construction claims:

• Gather as much publicly available information on the ship(s) as possible (or the same class of ship built in the same year). The type of evidence that will be helpful includes: build-specifications, diagrams and asbestos surveys. Consider instructing an expert naval architect and rely on this case in support of any application.
• Test the evidence of your occupational hygienist / experts against the known facts of when the ship was launched and commissioned.
• Try and obtain details regarding the colour of the asbestos used. In this case the deceased’s statement contained no such details and Mr. Stear noted: “The Royal Navy instruction issued in 1969 referred to the discontinued use of crocidolite (blue) and amosite asbestos at that time and trials were then in hand to reduce the use of chrysotile (white) asbestos.”
• The Slee report on ‘The Study of the Historical Use of Insulation Materials’ dated 28th February 2005 may be helpful in cases concerning naval vessels which were built between 1943 and 1970: ‘the vulnerable period’.

Finally, it must be acknowledged that Defendants such as Bae Systems Marine Ltd, the owners and operators of the dockyard, are likely to be more reluctant to settle claims following this decision. It is therefore more important than ever to build a strong case and success will require the best evidence possible. As asbestos practitioners will be acutely aware, the days of heroic findings of fact are long since over. However, this case will be of assistance if seeking to rely on expert evidence from say, a naval architect and a different outcome may have been secured had evidence been placed before the court regarding filtration systems lagged with asbestos on other similar vessels.

This blog was written by Ivan Bowley who appeared for the successful Claimant. He is instructed by Tom Bradley of Simpsons Solicitors.

A recent decision of the High Court considers whether the right to seek further damages under a provisional damages order passes to the injured victim’s estate on his death.

Mr Hammacott developed asbestos related pleural plaques and minor asbestosis as a result of asbestos exposure sustained during various periods of employment with the defendants. In 1991 he issued a claim for provisional damages pursuant to section 32A of the Senior Courts Act 1981. The immediate award was determined at trial in 1993 and the parties subsequently agreed a consent order (PDO) which gave Mr Hammacott the right to seek further damages if he developed any of a number of risk conditions, including deterioration of his asbestosis or pleural thickening.

The PDO provided that: “The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or any of them.” Attached to the order was an agreed statement of facts which recorded that: “It is agreed between the parties that the Plaintiff can apply for further damages at any time during his life”. Many years later Mr Hammacott developed more serious asbestos disease but died in 2017 without having issued an application for further damages. It was alleged that his asbestos disease caused his death.

The executor of Mr Hammacott’s estate issued an application under CPR 19.2 to be substituted as Claimant in Mr Hammacott’s claim so that he could then pursue an application for further damages on behalf of the estate pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and a claim on behalf of Mr Hammacott’s widow pursuant to section 1 of the Fatal Accidents Act 1976. The question for the court was whether the benefit of the PDO survived and passed to Mr Hammacott’s estate pursuant to section 1(1) of the 1934 Act or, as the Defendants contended, it died with him.

The Defendants opposed the application on a number of grounds. Mr Hammacott’s original cause of action had “merged” with the judgment and so no longer existed. The right to seek further damages was therefore to be determined in accordance with the PDO together with the agreed statement of facts which limited the right to seek further damages only to Mr Hammacott and only during his lifetime. The statutory scheme did not envisage anyone other than the injured victim having the right to seek further damages.

The Claimant argued that the PDO comprised part of Mr Hammacott’s original cause of action, relying on the decision of HHJ Roberts in the County Court case of Guilfoyle v North Middlesex University Hospitals NHS Trust (2018). That cause of action therefore survived for the benefit of Mr Hammacott’s estate. The Judge agreed and considered that Guilfoyle had been correctly decided.

The Judge found that the term “without time limit” in the PDO did not restrict the right to apply for further damages only to Mr Hammacott. The reference in the agreed statement of facts to the application being made in the deceased’s lifetime did not appear in the PDO itself, and, even if it had, it was only a stipulation as to time and did not prescribe who was permitted to make the application. The Judge also rejected the argument that the right to claim further damages ended with Mr Hammacott’s death. The term “without time limit” meant exactly what it said and was not restricted to Mr Hammacott’s lifespan.

It was not in dispute that the relevant procedure was contained in CPR 41 which had replaced RSC Order 37 under which the original consent order had been made. The Judge found that the statutory scheme under section 32A of the Senior Courts Act 1981 and the procedural rules for provisional damages in CPR 41 did not limit the award of further damages only to the injured victim. Nothing in the legislation and the rules prevented the injured victim’s rights passing to a third party, including the victim’s estate.

Because of the Judge’s findings on the effect of the statutory scheme, CPR 41 and the language of the PDO, it was not necessary for the Judge to go on to consider whether an application to extend time to apply for further damages was necessary. Under Order 37 Rule 8(3) any application to extend the time within which a party could seek further damages had to be made before the expiry of the existing period. However, CPR 41 contained no similar stipulation. In Blythe v Ministry of Defence [2013] All ER 326, the Master had ruled that an application by a living victim to extend time made 2 years after the initial period had expired was permissible. That decision was upheld on appeal to the single judge and subsequently by the Court of Appeal.

Having made the findings summarised above the Judge found that the requirements of CPR 19.2 had been satisfied and the Claimant could be substituted so that the claim under section 1(1) of the 1934 Act claim could proceed.

Although not central to the issue before the Court the Judge also heard submissions about the impact of limitation. He found that no new limitation period applied in respect of the estate claim. This decision is consistent with Lloyd v Humphries [2015] EWHC 525 (paras 89 – 90). The time period within which an application for further damages could be made was determined by the terms of the PDO. If he was wrong about that the Judge stated that CPR 19.5 applied. CPR 19.5 permits substitution after the expiry of a relevant limitation period, and for personal injury actions provides that the court may defer resolution of that issue to trial.

A further question concerned a proposed amendment of the original claim to join the Fatal Accidents Act claim on behalf of Mr Hammacott’s widow. Section 3 of the Damages Act 1996 expressly permits a claim by the dependants where a provisional damages order has previously been made. CPR 17.4(2) permits the addition of a new claim after limitation has expired where it arises out of the same or substantially the same facts as the existing claim. The Judge stated that it was not necessary for him to rule on the question of whether it would be appropriate to permit an amendment of the existing proceedings to add a claim under the 1976 Act but nevertheless went on to consider the point. He stated that in order to succeed it would have to be shown that Mr Hammacott’s death arose out of the original tort; those facts were no part of the proceedings that were brought by Mr Hammacott and therefore the 1976 Act claim did not arise out of substantially the same facts as the existing claim.

Commentary

The Judge rejected the Defendants’ argument that the meaning of the PDO was to be found in the agreed statement of facts. By contrast, in Green v Vickers  [2003] EWCA Civ 904, the Court of Appeal determined the meaning of a term dealing with causation in a provisional damages claim by reference to the agreed statement of facts in that case. Inevitably each case will turn on its own facts, but where the language of the order appears inconsistent with the agreed statement of facts it should be the order that prevails.

The author also respectfully suggests that the Judge was wrong about the application of CPR 17.4(2). That rule states: “The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” In the present action the claimant is seeking further damages because of the Mr Hammacott’s more serious asbestos disease and consequent death. The 1976 Act claim on behalf of his widow arises precisely because, it is alleged, Mr Hammacott died as a result of his asbestos related injury. Both claims arise out of the same tortious exposure to asbestos dust and concern the same asbestos disease. It is difficult to see how the two claims do not arise out of the same or substantially the same facts.

The issues that arose in this case are not uncommon in asbestos litigation, but they can also arise in other provisional damages claims. They concern the interpretation of provisional damages orders made many years earlier and under a rules regime that has since been replaced by the CPR. Language that was thought to be watertight when the original order was made may now be found not to achieve the result originally intended.

Problems can easily be avoided if the language of the provisional damages order specifically provides for claims by the injured victim’s estate (and/or dependants). When required to do so the Courts have provided for this outcome. The judge in Guilfoyle ordered that any further application for damages had to be made within 12 months of the victim’s death. In Prater v British Motor Holdings Ltd [2016] Lawtel, the judge specified a period of 3 years after the date of death.

This blog is written by John-Paul Swoboda and Cressida Mawdesley-Thomas. John-Paul Swoboda successfully acted for the Claimant, instructed by Shaheen Mosquera of Fieldfisher, in Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB).

Keegan is the first case to go to trial, so far as we are aware, to consider the application of The Third Parties (Rights against Insurers) Act 2010 (‘the 2010 Act’) in the context of claims for mesothelioma. Regular readers of this blog will no doubt remember the case of Brooks (link to blog here) which considered the issue through the prism of a strike out application.

It is, we think, a significant decision:

• It makes any argument that the cause of action is complete in mesothelioma cases years before the onset of symptoms hard, if not untenable.
• Arguments against suing an insurer(s) directly in mesothelioma claims (where the employer is no longer a live entity) on the basis that the cause of action was complete before 1 August 2016 are therefore hard, if not untenable.

Background

Claimant

Mr Keegan was exposed to asbestos whilst working for his employer Jas. C. Flaxman & Sons Ltd at various Marks & Spencer stores between 1972 and at least 1984. He began to suffer from symptoms of mesothelioma in about January 2021. His claim was supported by witness statements and also medical evidence. To avoid the delay of restoring Jas. C. Flaxman & Sons Ltd to the register Mr Keegan brought his claim directly against their insurers (IICL and Zurich), relying on the 2010 Act. This was particularly important as he was paying for expensive dual agent immunotherapy from his own funds.

First Defendant

The First Defendant, an insolvent insurer, did not respond to the claim and took no part in the proceedings. That is not to say there is no potential paymaster however, as the FSCS agreed in principle to indemnify but took issue with the fact that an action had been brought directly against the insolvent insurer. That issue of whether the FSCS is liable for the judgement against the insolvent insurer was not resolved during the current action.

Second Defendant

The Second Defendant expressly denied that the 2010 Act applied or operated to confer any cause of action against the insurers. The Second Defendant contended that any liability of the insured to the Claimant was incurred prior to the commencement of the 2010 Act and accordingly it did not apply.

Settlement was reached with the Second Defendant shortly before trial for £650,000 plus an indemnity for future treatment costs. This left a shortfall of about £200,000 on the total claimed (which was £854,076.23 per the schedule of loss) which is the sum which the Claimant went to trial on in the action against the First Defendant.

The 2010 Act

The 2010 act operates to transfer to third parties’ the rights against the insurer that the ‘relevant person’ has when that relevant person incurs an insured “liability”. This is set out in section 1 of the 2010 Act which provides (emphasis added):

(1) This section applies if—

(a) a relevant person incurs a liability against which that person is insured under a contract of insurance, or

(b) a person who is subject to such a liability becomes a relevant person.

(2) The rights of the relevant person under the contract against the insurer in respect of the liability are transferred to and vest in the person to whom the liability is or was incurred (the “third party”).

(3) The third party may bring proceedings to enforce the rights against the insurer without having established the relevant person’s liability; but the third party may not enforce those rights without having established that liability.

What this means in the context of a Claimant suing an insurer directly in a PI action is that the Claimant is vested with the right to bring a claim directly against an insurer who provided relevant EL / PL cover so long as the employer/occupier is a relevant person (i.e., either in some kind of insolvency situation or dissolved). The rights are enforceable once liability is established and liability is established under the 2010 Act by a declaration of the insured’s liability. It should be noted that this marks an important departure from the 1930 Act, which the 2010 Act repealed, which required liability to be established against the insolvent company/person before the claim could be brought against the insurer and before details of applicable insurance could be obtained.

The Issue

The central issue was whether the former employer had “incurred a liability” (that phrase being used in s1(1) of the 2010 Act) before 1 August 2016, the date that the 2010 Act came into force, such that the Claimant was entitled to bring the claim against the insurers directly.  

That task was made  easier  as Redman v Zurich Insurance Plc [2017] EWHC 1919 (QB) had already decided what the phrase “incurs a liability” means in section 1(1) the 2010 Act:

“Liability is incurred when the cause of action is complete and not when the claimant’s rights against the wrongdoer are thereafter crystallised whether by judgment or otherwise.”  [23]

In Keegan, there was no issue that the negligence occurred long before 1 August 2016 (the tortious exposure was between 1972 and 1984). The issue was when was damage, sufficient to complete the cause of action, sustained.

Discussion of the case

The Court considered the relevant case law on actionable damage fully and thoroughly the cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758; Pirelli General Cable Works Ltd v Oscar Faber & Partners (A firm) [1983] 2 AC 1; Hicks v Chief Constable of South Yorkshire Police [1992] P.I.Q.R. p433; Rothwell v Chemical & Insulating Co Ltd [2008] AC 2981; Dryden v Johnson Matthey PLC [2018] UKSC 18 all being considered. The Court also considered the insurance cases, and in particular The Trigger litigation and whether that shed light on when actionable damage arose in the context  of mesothelioma.

This is accordingly a fully considered decision albeit one-sided as the First Defendant was unrepresented and the Second Defendant did not, and could not, make any submissions to prejudice the position of Zurich in light of the agreement with the Claimant. Accordingly, Yip J’s finding that it is only when the mesothelioma “manifests itself by radiological changes and/or symptoms that actionable damage occurs. Until then, the claimant is not appreciably worse off either physically or economically.” is a decision to be treated with the utmost respect. Following this decision, it is our view that the mere fact that an insurer has been sued directly is no reason for judgment not to be entered at the show cause stage.

Further Yip J’s indication that where symptoms onset after 1 August 2016 it is for the Defendant to prove that actionable damage in fact occurred is important. It is no longer tenable, it is suggested, for a Defendant to baldly assert at a show cause that the cause of action was complete before 1 August 2016 where symptoms onset much later: such an assertion would fail to meet the burden (whether evidential or legal) which Yip J indicated applies.

Finally it would be churlish to quibble with Yip J over whether actionable damage occurs at the point of asymptomatic pleural effusion or the onset of symptoms as it will be irrelevant to the question of whether the cause of action was complete before or after 1 August  2016: as Yip J noted, “… On either basis, I am satisfied that there was no actionable damage until long after the commencement date of the 2010 Act.” That, it is suggested, will be the same in any mesothelioma diagnosed in the past few years.

The wait is over. After much hard work by 12KBW barristers, and in particular the general editors, Harry Steinberg QC, Michael Rawlinson QC, and James Beeton, Sweet & Maxwell have published the second edition of ‘Asbestos: Law & Litigation’.

The new edition is essential reading for all those practicing in this area. It features key updates on damages in fatal asbestos disease claims, litigation concerning exposure in schools, costs and procedure, and much more.

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John-Paul Swoboda acted for the Claimant and is instructed by Melloney Harbutt of Boyes Turner.

On 1 August 2016 the Third Parties (Rights against Insurers) Act 2010 came into force. That, on the face of it, was a big moment in civil litigation as with the passing of that Act there was, or should have been, a significant reduction in the time taken to resolve complex litigation involving an insolvent or dissolved company. On the face of it, therefore, the passing of the 2010 Act was a big moment for mesothelioma[1] victims because where it had often proved difficult to resolve the thorniest claims in life previously there was now an Act which could save a lot of the time: the roughly six months needed to get a company restored to the register; however long it took to get judgment against the restored company (which admittedly can be a very quick process because of the asbestos list), and perhaps years to resolve any insurance coverage disputes[2]. The 2010 Act allowed three sets of proceedings to be brought in one, and what’s more the proceedings could be brought in the highly efficient asbestos list which oozes with experience and undoubtedly gives claimants the best shot of resolving claims in life if that is what they want.

On 20 May 2022 Master Davison handed down judgment in a strike-out application in Brooks v Zurich v Aviva where the defendants sought to argue that the claim under the 2010 Act was misconceived on the basis that the claimant’s cause of action was complete prior to 1 August 2016 and therefore the 2010 Act did not apply. It did not matter that the claimant did not have any symptoms until March 2020 said the defendants as it became inevitable that the claimant would suffer mesothelioma from the date of angiogenesis (the date where the tumour in the body develops its own blood supply) and this they asserted was prior to 1 August 2016. This argument was made on the basis not so much of the law of the Trigger litigation but on the discussion of the science and medicine. The defendants argument in an nutshell is that once the mesothelioma is inevitable the Claimant is worse off and his cause of action complete even though he may not know about the disease for perhaps 5 or 10 years.

Master Davison summarised the Claimant’s position as follows:

1. A physical change, or even something that might properly be called an “injury” did not necessarily amount to actionable damage.  In each case, the question was whether that change was “material” or left the claimant “appreciably worse off”.
2. The words used by the House of Lords in Rothwell and other high authorities to define the concept of actionable damage such as “appreciably”, “perceptibly” or “materially worse off” all necessarily implied that damage was detectable or capable of measurement.  For example, “appreciable” meant “capable of being estimated or assessed”.
3. Relying on the medical evidence in this case and on paragraph 52 of the judgment of Rix LJ in the Durham v BAII trigger litigation, Mr Swoboda said that the pathogenesis of mesothelioma was, until its late stages, undetectable and undiagnosable and so, by definition, incapable of measurement or assessment.
4. At the (still relatively early) stage of angiogenesis, the tumour would cause no symptoms and would be undetectable.  Although that state of affairs might constitute a physical change in the body (albeit an unknowable one), the claimant was not appreciably / perceptibly / materially worse off because there were as yet no deleterious effects and no damage that was susceptible to detection or measurement.
5. It did not matter that at that stage the “die was cast”, (if it was).  The inevitability of progression of the disease was, by itself, irrelevant.  A latent injury or a latent loss of amenity did not sound in damages; see Guidera v NEI Projects (India) Ltd (1988) (an asbestosis case).
6. In any event, whether there was actionable damage was, in each case, a question of fact.  Here, there was no medical evidence relating specifically to the claimant as to the precise date of angiogenesis.  Dr Rudd’s evidence about the date of angiogenesis was only an approximation based upon epidemiological evidence.  The date of angiogenesis in the claimant’s case might have been less than 5 years prior to clinical manifestations.  Although the claimant would bear the legal burden of proving his claim, he would discharge that burden by reference to the fact that liability was admitted and that he first manifested symptoms in March 2020, (see the speech of Lord Pearce in Cartledge at 784).  On the basis of the maxim “he who asserts must prove” it would then be for the defendants to show that he suffered damage at a date earlier than 1 August 2016 – a burden which, on the present state of the medical evidence, they would not be able to discharge.
7. There was, similarly, no evidence specific to the claimant of the point in time when the progression of his disease became inevitable, whether that point in time was (as the defendants contended) angiogenesis or some other time.  Thus, even if the defendants were correct in their contention that actionable damage occurred when the “die was cast”, they had not shown when it was cast.

Against this backdrop, Master Davison, dismissed the defendant’s strike out application. Deciding the point at which the Claimant suffered compensable damage to complete his cause of action was ‘medically and legally controversial’ and therefore not susceptible to a strike out application. Further the law was still developing.

This is then, just the first round and not a determination of whether the Defendant or Claimant’s argument is correct. That will have to be determined at the trial in late July or in another case. But it can no longer be asserted that a claim under the 2010 Act is misconceived as leading counsel for the defendant contended in this case. The consequence of that is that claimants ought not to face delay from interlocutory applications where the 2010 Act is relied upon. And in many cases involving a defunct past employer where a claimant’s top priority is resolution in life the 2010 Act still provides the best shot of achieving that aim. This judgment then takes mesothelioma victims a step closer to using the 2010 Act as it was intended to be used.

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[1] Or indeed any complex asbestos litigation

[2] Relying on the Third Parties (Rights against Insurers) Act 1930

Elle Duckenfield and Michael Rawlinson QC considers the Scottish judgment of Lord Uist in the case of Watt v Lend Lease Construction (Europe) Ltd [2022] CSOH 23.

On 3 March 2022 the Outer House of the Court of Session gave judgment in this fatal Scottish mesothelioma case. The judgment can be read here. 

Background

The late Mr Watt was employed by the defenders, formerly known as Bovis Construction Limited (“Bovis”), as a joiner between January and June 1963. 

Mr Watt died from mesothelioma in January 2017. Mr Watt’s widow, Nicola Watt, brought an action against his former employer for negligence and breach of Regulation 20 of the Construction (General Provisions) Regulations 1961 (“the 1961 Regulations”). Regulation 20 (since repealed) held that:

“where in connection with any grinding, cleaning, spraying or manipulation of any material, there is given off any dust or fume of such a character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall be taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.”

Prior to his death, Mr Watt provided a statement describing significant exposure to asbestos dust during his period of employment with Bovis. Bovis disputed this and argued that Mr Watt had experienced secondary, intermittent and low-level exposure for 3 or 4 days only. Damages were agreed last minute, subject to the finding on liability. 

The main issue in this case was foreseeability; whether Bovis were or ought to have been aware that Mr Watt was exposed to asbestos levels giving rise to a risk of asbestos-related injury whilst in their employment. 

To establish the date of knowledge of the dangers of asbestos as 1960-63, the pursuer relied upon Wagner’s 1961 paper, the mid-1950’s Annual Report of the Chief Inspectors of Factories and the HM Factory Inspectorate guidance on working with asbestos. The Defenders greatly relied on Swift J’s judgment in Abraham v G Ireson and Sons (Properties) Ltd [2009] EWHC 1958 (QB), in which Her Ladyship held that the earliest date for which employers can be fixed with foreseeable knowledge is the 1965 Newhouse and Thomson paper.

The Judgment 

Lord Uist commented that it was not necessary for him to reach a decision on the degree of Mr Watt’s exposure to asbestos in terms of fibres/ml. The judge did however accept the broad brush description of Mr Watt’s asbestos exposure provided by Professor Willey, the defenders’ occupational safety and health consultant, as “secondary, intermittent and low level over a period of 3 or 4 days” [16]. 

Lord Uist held that Wagner’s 1961 paper was not sufficient to prove that Bovis ought to have reasonably foreseen a risk of injury to Mr Watt. Adopting the approach of Swift J in Abraham, Lord Uist upheld the 1965 Newhouse and Tomson paper as marking the point at which employers could, or ought to, have knowledge that lower-level exposure to asbestos gave rise to the risk of injury. 

Therefore, Lord Uist found that it was not reasonably foreseeable for Bovis to have known that Mr Watt was exposed to the risk of asbestos-related injury. Their failure to take steps to protect Mr Watt against exposure was not negligent. For the purposes of the 1961 Regulations, it followed that Bovis could not have been aware that the asbestos exposure was “likely to be injurious” to Mr Watt. As such, it was not reasonably practicable for Bovis to take steps to protect Mr Watt from it. 

Comment

This is a reminder of the significance of the level of exposure when determining the date of knowledge for breach. The key document that continues to be heavily relied upon by judges is the Newhouse and Tomson’s 1965 paper. It appears that claimants will continue to encounter an uphill challenge in establishing knowledge in low-level exposure cases prior to 1965. There is no doubting the importance of this document: it was described by HHJ Hickinbottom (as he then was) in Jones v Metal Box as a ‘watershed’. It has become a trope of mesothelioma litigation that almost every employer from that date onwards is stuck with the constructive knowledge that there was no safe level of exposure to asbestos and that even trivial exposures could cause that disease. What perhaps is less well known is that the paper published in 1965 was given a prior airing at the 1964 WHO Symposium on the “Biological Effects of Asbestos’ held in New York. Morris Greenberg has written of the Symposium

“Contributors to the  report,  with  its 705  pages  of  text ,constituted  a  contemporary  International  Who’s  Who  of academics, industry experts, and civil servants involved in the fields of research and control of asbestos and its effects. Its contributions varied qualitatively and quantitatively, but overall it constituted an excellent compendium of the state of knowledge of the physical and health aspects of exposure to dusts containing asbestos”^[1]

It must raise the question (since the UK was present via members of its civil service)  whether UK bodies under public ownership at the time of 1964 can be taken to have acquired their ‘watershed’ constructive knowledge qua employers in 1964 rather 1965. Such an argument against a public body has not yet been run at trial to the best of our knowledge.

Additionally the case raises issues on causation of how to establish that exposure represents a material increase in risk and whether a detailed quantitative finding is necessary. Lord Uist’s comment that a detailed quantitative finding on exposure was not required is an interesting point. On its face this is inconsistent with Geoffrey Tattersall QC’s approach in Bannister v Freemans [2020] EWHC 1256 (QB) where the latter  concluded that he should “make findings as to the deceased’s actual level of exposure to asbestos” [157]. Despite this specific comment, Tattersall QC went on to accept that this quantitative finding may be imprecise. This leads to the question of whether an imprecise quantitative finding is adequate for a detailed quantitative finding or whether it is simply a qualitative finding masquerading as one. On balance, it would seem relatively clear that Lord Uist’s approach more closely reflects the orthodox and authoritative guidance provided by Maurice Kay LJ in Cox v Rolls Royce of India @ [21]; by Sedley LJ in Willmore (CA) @ [7-12]; by Lord Phillips in Sienkiewicz(@ [108] and (by implication) by Underhill LJ in Bussey @ [62] namely that only qualitative findings as to dose should be made. With respect, Mr Tattersall QC’s approach now appears to be the outlier.

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^[1] Biological Effects of Asbestos: New York Academy of Sciences 1964 (AMERICAN JOURNAL OF INDUSTRIAL MEDICINE 43:543–552 (2003)