David Kearns v Delta Steeplejacks Ltd [2017] EWHC 149 QB

This blog post was written by Max Archer.

In February of this year, David Pittaway QC handed down his decision in the case of Kearns v Delta Steeplejacks, a case that explores important issues in relation to apportionment.

The claimant, who was 63 years old at the date of trial, was a steeplejack who had worked for the defendant for a period of around seven or eight years between 1981/82 and 1990/1991. Over that period he worked on chimneys, power station cooling towers, power station buildings, flare stacks and on an asbestos roof. The action had originally also been brought against another of the claimant’s employers, this was discontinued before the commencement of the trial.

In 2007 the claimant was diagnosed with smoking-induced chronic obstructive pulmonary disease (COPD). However, he had also developed bilateral asbestos-related pleural plaques and diffuse pleural thickening in his right lung.

The claim was brought under the Asbestos Regulations 1969 and the Control of Asbestos at Work Regulations 1987.  Breach of duty was explored at trial but ultimately conceded by the defendant: the defendant was in breach of its duty to reduce the claimant’s exposure to asbestos dust as far as was reasonably practicable.

Though the claimant had discontinued against his other employer, the issue of apportionment was before the court. There was no evidence as to the extent of the claimant’s exposure whilst working with his other employer. In spite of this, the joint expert report had made a dose-based and a time-based assessment of the respective exposures as best as it could. The judge accepted the time-based assessment and apportioned liability on the basis that the defendant was responsible for 39% of the claimant’s exposure.

The primary issue for the court was causation: whether the damage to the claimant’s lungs a result of his exposure to asbestos or whether it stemmed from other causes. The judge found that the diffuse pleural thickening in the claimant’s right lung had been caused by asbestos exposure. However, the position with regards to his left lung was different: the damage here was not asbestos related and did not constitute pleural thickening.

The judge accepted the finding in the experts’ joint report that the claimant was suffering from a respiratory disability of 60%, 40% of which was from cigarette induced COPD and 20% being asbestos related. This conclusion was reached by reference to a detailed analysis of the radiography both in the expert’s reports and at trial.

As to the court’s valuation of the case, the JC Guidelines recommended a bracket of £29,900 to £80,4500 in respect of “Asbestosis and pleural thickening”. Given the finding that 20% of the claimant’s respiratory disability was due to asbestos, general damages were assessed at £40,000. Given the apportionment as between the defendant and the claimant’s other employer the claimant recovered £15,717. The Claimant was