This blog post was written by Megan Griffiths. It concerns the High Court’s judgment in the asbestosis case of Balls v Reeve & Thurlow [2021] EWHC 751 (QB). The successful Claimant was represented by Max Archer.
The Claimant alleged negligent exposure to asbestos whilst working as a carpenter for the Defendant between 1979-1984. He was set to work smashing and asbestos roofing and removing and cutting asbestos panels. This period represented 16% of his total employment period with the Defendant, there being no insurance in place for the remainder of his employment period. He was diagnosed with asbestosis in 2017, although there were references to asbestos related disease and fibrosis in earlier records and a history of chest issues stretching back to the 1990s. The claim was issued in October 2019. The Defendant contested breach, causation and limitation.
In particular, the Defendant argued that the Claimant’s date of knowledge was in the 1990s or alternatively 2013 when a note accompanied a scan made reference to ‘previous asbestos exposure’. The Defendant challenged the Claimant’s account of exposure to asbestos. It was conceded that if the Court accepted the Claimant’s account then breach of duty would follow. The Defendant challenged causation, arguing that causation in-fact could not be proven without the evidence of an occupational hygienist to confirm exposure to asbestos above the levels described in the Helsinki Criteria.
The Court found for the Claimant on every point.
Limitation
Primary limitation turned on date of knowledge, either actual or constructive. This was contested on the basis that the Claimant’s evidence was that he was aware of respiratory problems since the 1990’s; records in 2013 referred to fibrosis and bilateral pleural calcification “in keeping with previous asbestos exposure”; the Claimant’s expert opined that the Claimant had had respiratory disability since at least 2016; and the IIDB assessment recorded a date of onset of 2015.
The Defendant submitted that the Claimant’s actual knowledge was when he suffered symptoms, given that he knew that had respiratory problems dating back many years he must have known that they were both significant and attributable to his exposure whilst working for the Defendant. Alternatively, it was submitted that the Claimant had constructive knowledge when he first experienced symptoms, the Claimant should have asked if that might have caused his respiratory problems.
The Claimant submitted that time started to run with the diagnosis in 2017 and that it was relevant that asbestosis was “gradual and insidious” in its onset. There were no references to ‘asbestosis’ prior to 2017, the references to fibrosis before this point were a hypotheses and ought not to be treated as a diagnosis given the potential differential diagnosis of idiopathic pulmonary fibrosis. On constructive knowledge the Claimant submitted it was hard to see how he could have done more, having sought medical attention when he experienced symptoms, no treating doctors diagnosed their cause until 2017. Therefore the Claimant submitted that constructive knowledge began with diagnosis also.
On section 33, the Defendant submitted there was no contribution to the delay by the defendants, no adequate explanation for the delay and an evitable compromise of the cogency of the Claimant’s recollection. The Claimant submitted that failure to exercise section 33 discretion would deny him his meritorious claim, causing significant prejudice. There was no forensic prejudice to the Defendant as there was no documentary evidence before the Court, the position was unlikely to have been different if the claim had been intimated in 2013.
The Court found that there was no actual knowledge until the date of diagnosis in 2017 and that the earlier references to respiratory difficulties did not preclude this as he “clearly considered they were not sufficiently serious to bring them to the attention [of] his GP” [43]. The Court also accepted the Claimant’s submission of the “insidiously progressive” nature of the illness which the Court found was promptly diagnosed once manifested. Without a diagnosis he could not be said to have actual knowledge. The Court also found that constructive knowledge did not arise until the date of diagnosis [44], it was noteworthy that in spite of ongoing investigations into his chest issues no treating doctor made a diagnosis until 2017. Therefore, the claim was issued in time.
But for the findings on primary limitation the Court made clear that it would have exercised its section 33 discretion in the Claimant’s favour on the basis that it would be “unjust” to deprive the Claimant of a remedy and there was no serious prejudice to the Defendant caused by the delay [45].
Causation and the Helsinki Criteria
The Defendant conceded that if the Court found for the Claimant on limitation then breach of duty would follow. It disputed causation however, on the basis that there was no expert evidence from an occupational hygienist and so it would be “unsafe” for the Court to presume that the Helsinki Criteria were met to prove that the exposure caused the asbestosis [47]. The Defendant highlighted that Professor Maskell, consultant chest physician, said that whilst his view was that the Claimant’s exposure was likely to meet the criteria, it “obviously would be for an occupational hygienist to confirm” [49].
The Claimant submitted that the nature of the Claimant’s asbestos exposure was moderate to heavy, evidenced by the Claimant’s evidence of fact and Professor Maskell’s expert opinion. He submitted that the Helsinki Criteria required 25 f/ml years of asbestos or “one year of heavy exposure or five to ten years of moderate exposure” [50]. The evidence in this case amply satisfied the second alternative even without occupational hygienist evidence on f/ml years. It was submitted that there was no attempt to go behind the diagnosis, this was medical question and an alternate diagnosis (namely IPF) had never been suggested by the Defendant.
The Court found that the combined evidence of the Claimant and Professor Maskell was “sufficient to prove, on the balance of probabilities, that he had moderate to severe exposure to asbestos … consistent with the Helsinki Criteria” [53]. The Court was particularly persuaded by the Claimant’s evidence that he used to blow asbestos dust away after cutting into asbestos materials with a handsaw so that he could make the next cut [52]. Other relevant factors were that the Claimant had not been exposed to asbestos in any other employment and that the diagnosis of asbestosis was not disputed.
Comment
This judgment is likely to be seen by claimant asbestos litigators as an extremely promising one on limitation. The meaning of date of knowledge in asbestosis cases, where the onset is so gradual, has not always been clear. It was a curious feature of this case that the Defendant sought to challenge causation in fact (therefore challenging the diagnosis of asbestosis) whilst simultaneously arguing that the Claimant ought to have brought his action earlier on the basis that he knew that he had asbestosis. The Court’s finding that time does not run until the date of diagnosis on these facts is a welcome one. The decision on section 33 is similarly reassuring.
The findings on causation without occupational hygiene evidence are also extremely valuable. In many asbestos exposure claims occupational hygiene evidence is obtained as a matter of course which, provided it shows the Helsinki Criteria are met, strengthens a claimant’s case on causation. However, this judgment shows that such evidence is not always necessary where (i) the claimant’s factual account and medical evidence supports one year of continuous exposure or five to ten years of moderate exposure and (ii) that where the diagnosis of asbestosis is not challenged.
A copy of the judgment can be found here
ASBESTOS LAW 