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