This is a joint blog post by Steven Snowden QC of 12KBW, Dushal Mehta of Fieldfisher, and John-Paul Swoboda of 12KBW, the team that acted for the Claimant at first instance and on appeal.

The judgment of the Court of Appeal can be read here.

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On 26 August 2021 the Court of Appeal handed down its judgment in this fatal mesothelioma claim. The appeal was brought by the Defendant in the action and at stake was the width and breadth of dependency claims under the Fatal Accidents Act (the FAA) and the proper method of valuing such claims. In addition, a personal tragedy for the Claimant (the removal of her foster children – A and B – from her care after trial) gave the Defendant a further argument; that the future loss of services dependency, in so far as it related to A and B, was no longer sustainable.

The facts of the case and analysis of the first instance decision of Anthony Metzer QC (sitting as a Deputy High Court Judge) can be found in this earlier blog post here.

The lead judgment was given by Nicola Davies LJ, with whom Stuart-Smith LJ and Sir Patrick Elias agreed, making this a powerful and unanimous decision of the Court of Appeal.

What qualifies as a recoverable dependency under the FAA?

The Defendant argued that the Claimant’s lost opportunity to return to work following the death of her husband, who was the homemaker and responsible for primary childcare, was not a recoverable loss under the FAA because: (a) it was properly characterised as the foster children’s loss, and (b) it arose from a business relationship (fostering). These arguments were rejected by Nicola Davies LJ. As Bedlam LJ had stated in Wood v Bentall Simplex Ltd [1992] PIQR 332 (CA): “No aspect of the law of damages has been found in practice to be more dependent upon the facts of each particular case than the assessment of loss of pecuniary benefit to dependants under the Fatal Accidents Act.” Neither Nicola Davies LJ nor any other member of the Court was willing to go behind the judge’s findings of fact in respect of this issue.

The judgment of Nicola Davies LJ goes beyond a refusal to interfere with factual findings made by the judge below and clarifies the law in a number of ways.

Firstly, where the deceased and their dependant (in this case a husband and wife) receive money for a service (in this case fostering), this does not necessarily mean that the provision of the service was a business decision, such that any loss arising from the death of the deceased is ‘incidental’ to the relationship. This is a question of fact which requires a determination of why the service was provided. In this case, the judge determined that the decision to foster was “at its core” a decision to have a family and therefore not incidental to the relationship of husband and wife. This finding was upheld by the Court of Appeal.

Secondly, in a situation where the same loss is suffered by a person who is eligible to bring a dependency claim under the FAA and a person who is not eligible to bring such a claim, the mere fact that a non-eligible person has suffered the same loss does not prohibit recovery by the eligible dependant. As Nicola Davies LJ put it, “The fact that the children [who by reason of being foster children were not eligible to claim under the FAA] also benefitted from the deceased’s care does not detract from, still less undermine, the claim of Mrs Witham.”

The third and final area of clarification which this part of the decision provides is that the s3(1) gateway under the FAA is wide and cannot be reduced to a simple formulation. The foundation of any claim under s3(1) is a dependant’s loss of expectation of future pecuniary benefit from the deceased and “there is no prescriptive method by which such damage is to be identified” (as Nicola Davies LJ emphasised at [43]). There is no rule that where the loss arises because the dependant has lost earnings it is not recoverable; in Witham the Claimant/dependant’s claim arose from her lost career (the pecuniary loss giving rise to the s3(1) claim being the loss of earnings) which was held by the Court of Appeal to be a recoverable dependency. The question of how a court should value such a loss is separate and considered immediately below.

How should a recoverable dependency be valued?

The judge at first instance valued the Claimant’s dependency on the deceased in providing childcare to A and B by costing the care on a commercial basis and without making a 25% deduction (as happens in personal injury cases where gratuitous care is provided to an injured claimant to reflect that no tax or NICs will be paid by the caregiver). The Defendant argued that as it was the Claimant who was now providing the care to A and B, the valuation should not have been at commercial rates and there should have been a 25% deduction.

The Defendant’s arguments were dismissed on the basis that under the FAA a judge has a discretion to find the measure of loss most appropriate to the facts of the case. Further, and importantly, the Claimant’s argument that the valuation is of the deceased’s services, rather than the replacement services, was also accepted. As Nicola Davies LJ put it at [52]:“It is the value of the services lost which requires assessment and compensation, not the value of how the dependant manages following the death.” The Court of Appeal confirmed that there is no principle which means that commercial rates cannot be used to value the service provided by the deceased and there is no requirement for a 25% discount where care is subsequently provided on a gratuitous basis. A trial judge has a discretion as to the measure of loss and there is no “prescriptive method by which such damage is to be … calculated.”

Can loss of earnings, in principle, be used as the measure of loss in circumstances where a dependant gives up work to replace a service previously provided by the deceased? This is a point which has often been taken by defendants following Rupasinghe v West Hertfordshire Hospitals NHS Trust [2017] P.I.Q.R Q1. Although the Court of Appeal did not deal squarely with this issue, at [51] Nicola Davies LJ indicated that the judge did not choose loss of earnings as the measure of loss which would have given rise to the highest level of damages, thus presupposing that this option was open to him. Further the Court of Appeal’s restatement that there is no “prescriptive method by which such damage is to be identified, or calculated…” (this being a quote from Cape Distribution v O’Loughlin [2001] EWCA Civ 178 [11]) means that any alleged principle that loss of earnings cannot be used as the measure of loss cannot be right as such a principle would amount to a prescriptive method by which damage is, or is not, to be calculated.

Remission to the High Court

An extraordinary turn of events happened to the Claimant after the conclusion of the trial but before the decision on whether to grant the Defendant permission to appeal. A and B were removed from her care so she no longer acted as their foster carer. This was unexpected and unforeseen. It would be wrong to go into detail on this issue here as (a) the Court of Appeal has remitted the matter to High Court to determine how this change of circumstances should affect the Claimant’s dependency on the deceased, in so far as it related to A and B and (b) the Claimant hopes to have A and B returned to her care.

However, this extraordinary turn of events meant that the Court of Appeal considered two principles of general importance: in what circumstances should fresh evidence be permitted after a trial but before an appeal, and to what extent can post death events be taken into account in valuing a dependency under FAA.

Whilst accepting the general principle that there must be an end to litigation save in very exceptional circumstances (which augurs strongly against the admission of new evidence), the Court of Appeal restated its broad discretion to admit new evidence. As the first instance judge had found that the foster care arrangement would continue until 2029, Nicola Davies LJ held that to refuse to admit the evidence “would affront common sense [and] a sense of justice.”

Further, whilst the Court of Appeal’s judgment reiterates that dependency is valued at the date of death, it is also acknowledged that “post death events which are relevant are those which affect the continuance of the dependency…” (cf. Welsh Ambulance Services NHS Trust and another v Jennifer Mary Williams [2008] EWCA Civ  81). On the facts of this case, the Court of Appeal found that the new evidence was directly relevant to the continuance of the dependency and that it was a post death event which was relevant.

Upon these findings, the Court of Appeal remitted the matter to the High Court to determine the valuation of the Claimant’s services dependency upon the deceased, in respect of his childcare for A and B after 19 May 2021 (the date upon which the children were removed from the Claimant’s care) only.

On 23 August 2021, the Court of Appeal refused the defendant permission to appeal Johnson J’s reassessment of the lost years claim in Head v Culver Heating.

The defendant sought permission to appeal on two grounds. The first was that the judge wrongly interpreted and therefore misapplied the judgment of the Court of Appeal in carrying out his reassessment. The second was that the judge wrongly attributed to Mr Head an intention, had he lived, gradually to transfer the entirety of his and his wife’s shareholding to his sons.

The application for permission to appeal came before Bean LJ, who gave the lead judgment of the Court of Appeal when Claimant’s appeal was granted in January of this year.

In respect of ground one, Bean LJ held that “Johnson J correctly applied the guidance which we gave. The distinction which the Appellant Defendant draws in ground 1 between Mr Head’s income or earnings received in the sense of being taken out of the business and those earned but ploughed back into the company seems to me to be flatly contrary to paragraph 33 of the judgment handed down on 18 January 2021, and Johnson J was unarguably right to reject it.”

In respect of ground two, Bean LJ held that “this was a finding of fact which the judge was entitled to make on the evidence before him and was consistent with the guidance given in paragraph 35 of the judgment of this court.”

Our post about the Court of Appeal’s decision in respect of the Claimant’s appeal can be read here and our post about Johnson J’s re-assessment of the lost years claim can be read here.

This blogpost by David Green considers Calver J’s judgment in Moutarde v (1) SIG Logistics (2) Transplastix [2021] EWHC 1670 (QB).

The case was an appeal from a decision of Master Rowley, on a short, discrete issue: when the parties settled all heads of quantum in a mesothelioma case at the door of court in the minutes before an assessment of damages hearing was due to begin, and the hearing was used only to approve a Tomlin order and to determine one question of the incidence of costs for that day: had the case settled “at trial”, giving rise to a 100% success fee, or before trial, giving rise only to a 27.5% success fee?

Negotiations over settlement had continued literally outside the court until approximately 20 minutes before the assessment of damages hearing was due to begin. The cost of immunotherapy for the claimant (a living mesothelioma victim) was apparently the source of most of the contention.

Counsel (Aliyah Akram of 12KBW for the Claimant; Jayne Adams QC for the Defendant) were able to agree a Tomlin order in respect of virtually all contested issues. But the Defendant wanted an order that the Claimant should pay the Defendant’s costs of the trial date, on the grounds that failure to achieve agreement until that late stage was caused by the Claimant’s unreasonableness.

Counsel therefore went before Stewart J at the appointed time for the assessment of damages and presented the Tomlin order for approval, and asked him to adjudicate the sole outstanding costs issue. He did so in very brief terms and in the Claimant’s favour, leaving the order in the Tomlin order (that the Defendant pay the Claimant’s costs, to be assessed) untouched.

In the Senior Courts Costs Office, Master Rowley was invited by the Claimant to find that the matter had concluded at trial, within the meaning of the former CPR r45.15(6) (which continues to apply to mesothelioma claims), because the listed assessment of damages hearing had in fact opened, and had been used to determine an outstanding issue of costs which the parties had been unable to agree.

Master Rowley did not agree with the Claimant’s submission on this point. In his judgment the success fee system was provided to compensate claimants for going to a contested trial where there was a significant risk that they might lose; this wasn’t the case here. The matter would have already met with “success” within the meaning of the CFA before the hearing began, for instance. But in any event, the incidence of costs is a matter which (at least in theory) has to be determined at the conclusion of every hearing. The mere making of a costs order could not, without more, cause a hearing to become a “final contested hearing”.

On appeal, the Claimant relied on obiter observations of Wilson LJ in Thenga v Quinn [2009] EWCA Civ 151, that a final contested hearing referred to a hearing of the substantive claim, “albeit probably […] including a hearing referable to a disputed claim for an award of costs in principle”.

Calver J had no difficulty in dismissing the appeal. The wording of the former CPR r45.15(6) refers to the final contested hearing of “the claim”, and the claim is the claim for damages for breach of duty – i.e. the substantive claim. By the time the hearing before Stewart J had opened, that claim had already been completely compromised. “The claim” did not encompass a claim for costs to be paid by or to either party, once the substantive claim was already disposed of.

Were this otherwise: a 100% uplift would become payable even if there was a trivial dispute about costs left after the conclusion of the substantive claim. There would be an incentive for claimants to leave small matters outstanding, in order to recover their 100% success fees.

On its face this is a sensible decision which – Thenga notwithstanding, which Calver J disapproved – accords with the thrust of the decisions on the opening of final contested hearings from the pre-2013 days when success fee recovery was widespread. It does, however, mean that claimants and defendants need to be clearsighted about the consequences of settling, or not settling, as the day and hour of the final contested hearing looms nearer.

This blog post by Cressida Mawdesley-Thomas considers the judgment of HHJ Bird in the case of Jackman v Harold Firth & Son Ltd.

This was a mesothelioma trial in which the central issue was whether the deceased, Bernard Jackman, had been employed by the Defendant, Harold Firth & Son whilst working at Imperial Chemical Industries (“ICI”) in Huddersfield. The Defendant accepted, without formally admitting liability, that if this was established liability would likely follow.

The available evidence

There was no evidence from the deceased. HMRC records showed that the deceased started to work for the Defendant at some point between April 1968 and April 1969 and left at some point between April 1972 and April 1973. There were medical records which notably included a letter, from the date of the Deceased’s diagnosis, recording that he “worked in construction industry and also worked with asbestos pipes in the 1970’s at ICI”.

Mrs Jackman’s evidence went to the central issue of whether the Defendant employed the deceased. Her evidence consisted of two witness statements. In the first statement she recalled that her husband worked for the defendant at ICI in Huddersfield, that he did not like the work and talked about Eddie Firth (his boss) “for ages afterwards”. She recalled that when he was given his diagnosis he told her that “he would have been exposed to asbestos when he worked at ICI cleaning pipes out”. She goes on to say: “when he told me this, I remembered that he had mentioned at the time, in the 1970’s while he had been working at ICI that he had been working cleaning out pipes. …” When cross examined about this part of her evidence Mrs Jackman said that her husband “had mentioned over the years working at ICI. It was a filthy job – he said this quite often. He would chunter on about it.”

The Judge read witness statements from two men who worked at ICI Huddersfield, one from 1969 to 1970 and the other from 1956 to 1981. Whilst both witnesses had sadly died before trial it was agreed that their evidence could be relied upon in the proceedings. Their statements described the general working conditions at the plant at those times and the Judge held that: “the clear impression from each statement is that over a long period and at least covering the period from 1969 to 1972 labourers, laggers and maintenance engineers working at the ICI plant at Huddersfield were exposed to asbestos fibres.”

The proper approach to witness evidence

The Judge reminded himself of the principles summarised by Geoffrey Tattersall QC in Bannister v Freemans [2020] EWHC 1256 QB:

“i) A strong recollection of events expressed in evidence with confidence is not a reliable guide to the accuracy of the recollection (see paragraphs 74 and 75)

ii) The fact that a witness has a considerable amount to gain if his or her recollection of events is accepted by the court as fact, means that the witness’ recollection is very likely to be biased towards that which supports the outcome he or she seeks (see paragraph 75)

iii) When a witness recalls events from the past, he or she is in fact unconsciously reconstructing those events. … (see paragraphs 73 to 77 but in particular paragraph 76).

iv) Testing recollection against contemporaneous documentation is a very useful and important exercise (paragraph 77).”

HHJ Bird also reminded himself that he: “must not allow the tragedy inherent in every mesothelioma case and the natural “desire to assist in any proper way” to lead to a “lax” approach to fact finding”.

Analysis of the evidence

The Judge considered the Mrs Jackman’s evidence in three chronological parts: (1) her recollection of events post 2016 and the conversations she had with her husband up to his death on 4 November 2016; (2) her recollection of conversations from 1968 to 1973; and (3) her general recollection of matters after 1973, namely the deceased’s complaining about the Defendant and the unpleasant and dirty job he did for him.

The Judge treated the second part of her evidence with caution as “it seems that her recollection of events about the second part was triggered by what Mr Jackman said after his diagnosis.” The Judge was impressed with the third part of her evidence, “I was struck that Mrs Jackman recalled in evidence that her husband would “explode” if the name “Firth” was mentioned and that she went out of her way not to mention a relative by marriage who had the same surname.” He also noted that her evidence was in part supported by the medical notes.

HHJ Bird concluded that the claimant had “the hallmark of a careful witness” having marked up her statement by hand before signing it.

The findings

On the basis of the evidence the Judge came “to the clear view that on the balance of probabilities, Mr Jackman was exposed to asbestos fibres whilst working at ICI for the defendant.” The Judge had no difficulty subsequently finding “that in the circumstances the defendant was in breach of the duty owed to Mr Jackman and that that breach caused Mr Jackman to suffer personal injury.”

General damages for PSLA

The appropriate starting point for cases of mesothelioma is chapter 6 (C) of the JC Guidelines (15^th ed.) which provides a bracket of £59,730 to £107,410. It is stated (emphasis added):

“There are a large number of factors which will affect the level of award […]  duration of pain and suffering; extent and effects of invasive investigations; […]  level of the symptoms; domestic circumstances; age, level of activity, and previous state of health; extent of life loss; and concern for spouse and/or children following death. Most reported decisions other than those involving extremely short periods of symptoms or very elderly claimants fall within the middle and upper parts of the bracket. Note that where mesothelioma cases are still dealt with under pre-LASPO conditional fee agreements, the column without the 10% uplift is applicable.”

The deceased died at the age of 76 having suffered seven months of symptoms. The Judge noted that his “decline was particularly steep in the last 6 weeks of his life” and he suffered from “faecal incontinence, collapses and pressure sores.”

The Judge made an award of £75,000. This award is surprising low – in the last ten years general damages awards in mesothelioma cases have very rarely fallen below £90,000 (after adjustment for inflation). The closest comparable case appears to be Zambarda v Shipbreaking (Queenborough) [2013] EWHC 2263 (QB) in which John Leighton Williams QC awarded £77,500 (£93,701 when adjusted for inflation) in respect of a mesothelioma victim who died aged 70 after a 7 month illness. HHJ Bird made no reference to any comparable cases and it may be that he was not taken to any in the course of argument.

Loss of intangible benefits

HHJ Bird accepted that this head of loss was recoverable in the light of the “overwhelming” trend of the case law against Mosson v Spousal.

Comment

This case is a helpful reminder that witness evidence must be looked at in context and as part of the entire evidential picture. This includes looking at the contemporaneous evidence as well as the fact that the Defendant failed to produce any evidence of its own. The evidence of a single, detailed and careful, witness which is consistent with the documentary evidence (even when there is no other live evidence) should be sufficient to establish key facts on the balance of probabilities.

There are three upcoming hearings in the Court of Appeal which will be of interest of those who follow this blog. Here is a reminder of what each case is about and the dates on which they are due to be heard, according to the Civil Appeals Case Tracker. 

We will blog about each decision once handed down. 

Sivaji v Ministry of Defence

CA hearing date: 15 or 16 June 2021 

First instance judgment

A fatal mesothelioma claim brought on behalf of the deceased and his dependants. The Deceased’s alleged exposure to asbestos took place in the Sembawang naval dockyard in Singapore between 1953 and 1968. The case gave rise to various issues including whether the applicable law was the law of England or the law of Singapore and whether the action was time-barred. 

The issue before HHJ Allan Gore QC (sitting as a High Court Judge) at first instance was whether the Claimant should have permission to amend the Claim Form and Particulars of Claim. On the MOD’s case, these amendments were outside the limitation period under Singaporean law and the effect of giving permission for the amendments would be to deny the MOD the benefit of that limitation defence, at least in respect of the dependency claim, due to the doctrine of relation back, The Judge granted permission for the amendments. 

Rix v Paramount Shopfitting Company Limited 

CA hearing date: 23 or 24 June 2021 

First instance judgment

Mr Justice Cavanagh’s decision concerned the scope of the Fatal Accidents Act 1976. The Deceased was a successful businessman whose business had continued to thrive after his death from mesothelioma. The Judge held that notwithstanding the ongoing success of the business, his widow had a substantial financial dependency claim. 

John-Paul Swoboda and Cressida Mawdesley-Thomas previously blogged about the first instance decision here and Rachit Buch spoke about the case at 12KBW’s Asbestos Webinar Day 2020 which you can watch here. The permission hearing before Lord Justice Bean can be viewed here. 

Witham v Steve Hill Limited

CA hearing date: 6 or 7 July 2021 

First instance judgment

Another mesothelioma case concerning the scope of the Fatal Accidents Act. Anthony Metzer QC (sitting as a Deputy High Court Judge). As a result of the untimely death of the Deceased, his widow had been forced to give up work to look after her foster children. The Judge held that there was dependency claim, which he assessed on the basis of the cost of care to replace the services the Deceased would have provided but for his death. 

Steven Snowden QC and John-Paul Swoboda (who acted for the Claimant at trial) blogged about the case here. Kate Boakes spoke about the case at 12KBW’s Asbestos Webinar Day 2020 which you can watch here.

This post by Kate Boakes is about the recent decision of Mr Justice Murray by which he reversed Master Thornett’s dismissal of the Claimant’s non-party disclosure application in a mesothelioma claim arising out of alleged asbestos exposure in a school.

The Claimant was represented by Harry Steinberg QC and Aliyah Akram.

The claim

The facts are summarised at [6]-[10].

It was alleged that the Deceased was exposed to asbestos while working as a teacher between 1970 and 1975. It was said that asbestos was in the fabric of the school building and that the Deceased would “almost inevitably” have been exposed to asbestos during the construction of a new schoo l building in 1973.

The Defendant was the London Pension Funds Authority, which had inherited the relevant contingent liabilities. The Respondent to the disclosure application was the Leigh Academies Trust (“the Trust”) which, according to information obtained by the Claimant’s solicitors, had “boxes of old documents” relating to building and maintenance works at the school.

Disclosure requests

The background to the application is set out at [12]-[15]. The Claimant’s solicitors sought disclosure from the Trust and were provided with 46 pages of documents. They wrote to the Trust saying that they considered it likely that there were more relevant documents in the light of the information they had been given as to the quantity of documents the Trust held. They offered to attend the Trust’s site to inspect the documents. A representative of the Trust telephoned the Claimant’s solicitors and stated that it had provided all of the documents relevant to the 1970s. After consultation with counsel, the Claimant’s solicitors made a wider disclosure request for documents regarding building, maintenance, renovation, or demolition works at the School before and after the Deceased’s period of employment. There was no response to this request and a non-party disclosure application was filed pursuant to CPR 31.17.

Application hearing

The decision of Master Thornett is summarised at [16]-[26].

Master Thornett dismissed he application on the basis that it was too broad, vague, and unfocused. The Master held that it would impose a disproportionate and unfair burden on the Trust, particularly bearing in mind that it was a third party respondent. His overall conclusion was that:

“… this application is hopelessly vague and lacking in specificity. It is unworkable from a Respondent’s viewpoint and it is disproportionate to expect a third party to try to respond to it. … I cannot, sympathetic as I am to the principle as to how certain documentation could be relevant, today grant this application as it stands. Neither am I able to identify a shape or form of an order that could be intelligible.”

The appeal

The Claimant pursued four grounds of appeal which are set out at [33].

The Judge summarised the legal framework at [27]-[32] and the Claimant’s submissions at [34]-[44].

Murray J found for the Claimant on all four grounds. His reasons are at [45]-[53]:

“45. Acknowledging the broad discretion that the Master should be accorded in making a case management decision, I am nonetheless forced to the conclusion that he was wrong in his application of the test under CPR r 31.17(3) to the relevant facts, took into account irrelevant factors, gave insufficient weight to relevant factors, and failed to balance the relevant factors fairly in the scale. His decision was wrong, and therefore the Order had to be set aside.

[…]

51. For the reasons given by Mr Steinberg, documents regarding building, maintenance, renovation, or demolition works at the School, both before and after [the Deceased’s] period of employment, were potentially relevant, satisfying the “may well” test referred to in Three Rivers (No 4). Properly understood, the Disclosure Application did not seek to require the Trust to undertake a disproportionate, onerous, vague, or unfocused search. All the potentially relevant documents were in boxes at the School’s premises, and RWK was offering to pay copying costs or to attend and physically inspect the boxes themselves.

52. Moreover, it is clear that there was a reasonable possibility that in those boxes there would be documents that were decisive of the claim, one way or the other, and therefore that disclosure was necessary in order to dispose fairly of the claim and/or to save costs.

53. Because the Master appears to have misunderstood the scope of what was requested in the Disclosure Application, which in my view is clear from the statement supporting the Disclosure Application, he did not exercise his discretion on a proper basis and therefore made the wrong decision.”

Costs

Unusually, the Claimant was awarded the costs of making the application on the basis that the Trust had “not put forward any good reason why, from the end of October 2019 onwards it failed to engage with the appellant’s reasonable and several times repeated request for disclosure, which included reimbursing the Trust for its copying costs or attending to conduct a physical inspection, further minimising cost to the Trust.”

Comment

Applications of this sort are heard by Masters on the mesothelioma list day-in-day-out but it is rare for them to be considered in an appeal. This decision therefore provides a useful reminder of the legal framework and how those principles should be applied in practice.

In particular, it is a reminder of the threshold that is set by CPR r31.17(3), which is that documents “are likely to support the case…” if they “may well” do so as opposed to it being “more probable than not” that they will do so.

As per the Judge’s findings in this case, documents from an earlier period than the employment period may have showed asbestos being installed, or documents from a later period may have showed asbestos being removed. In either case, such documents “may well” have supported the Claimant’s case.

The decision also exemplifies the importance of giving a respondent to a non-party disclosure application adequate time to respond, or chasing for a response before issuing an application, and, where possible, of seeking to relieve the burden of compliance with the request by offering to pay for copying or even of attending to carry out the inspection. In this case, not only did the taking of these steps contribute to the success of the appeal, they also led to the Claimant recovering the costs of the application.

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

This post by Ivan Bowley – who acted for the claimant in the case – comments on the recent decision of the High Court in Pinnegar v Kellogg International & ICI. This case was a decision on the facts but dealt with a number of issues that sometimes arise in very old asbestos claims.

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The deceased, Mr Skeen, worked for Kellogg International as a pipe fitter at ICI Wilton for about 6 – 8 months in the tax year 1966/67. He alleged that during this employment he had worked alongside laggers who were stripping old asbestos lagging and preparing replacement lagging, mixing asbestos paste and cutting asbestos sections. The deceased stated that at the end of a typical working day he was covered in white asbestos dust. He developed mesothelioma and died in 2017.

The only factual evidence on exposure was a single statement from the deceased taken shortly before he died. In that statement the deceased provided detail about his entire working life including his work at ICI Wilton. Some 50 years after the alleged exposure took place he recalled particular details about the site, the work that was generally taking place on site at that time and a number of specific details that were of limited relevance to the facts in issue but nevertheless demonstrated the quality of his recollection.

At an early stage the claimant sought judgment on Show Cause against both defendants, but this was successfully resisted. The defendants relied upon a preliminary report from their expert engineer, Dr Alan Jones of the IOM, who questioned the reliability of the deceased’s account. In common with many such claims with limited factual evidence the presentation of a preliminary report by defendants, questioning the veracity of that evidence, was sufficient to persuade the Master that the defendants had overcome the threshold test in Silcock v HMRC and should avoid judgment.

ICI’s defence asserted that at the material time it was aware of the dangers of asbestos, had in place suitable guidance about the risks of asbestos exposure and effective precautions designed to protect its own employees and the employees of contractors working on its sites. ICI’s disclosure supported this assertion, but it did not serve any witness evidence to show that such guidance had been given to workers or that precautions had been implemented.

ICI also disclosed a number of other important documents, one of which, a spread sheet showing the dates of the construction of various buildings at ICI Wilton, indicated that the deceased had probably worked on the construction of a particular building that had not been lagged with asbestos. A further document, described as an “as built” specification for the lagging within that building, recorded that all the lagging materials used were non-asbestos. Armed with this evidence the defendants denied exposure to asbestos and continued to deny the claim.

After exchange of experts’ reports and the preparation of their Joint Statement the Claimant’s expert engineer, Chris Chambers, identified an ICI document that had not been disclosed by ICI but which demonstrated that the non-asbestos lagging alleged by the defendants to have been used on site had only been developed close to the end of the tax year in which the deceased was exposed. The claimant’s case at trial was that the deceased must therefore have been describing exposure to asbestos lagging (a) because the non-asbestos alternative was not yet available commercially when he was on site, and (b) because the deceased had described being covered in “white” asbestos dust whereas the new non-asbestos lagging being developed at that time was coloured either “yellow” or “pink”.

It was against this background that the Judge had to consider the quality and reliability of the deceased’s original statement. As can been seen from the judgment (paras 6 and 42) the judge accepted that the deceased’s recollection was reliable.

At trial the defendants attacked the reliability of the deceased’s statement. They relied upon the decision of Leggatt J in Gestmin SGPS v Credit Suisse (UK) Ltd [2013] EWHC 3560, and in particular his comments at paras 16 – 20 of his judgment about the questionable reliability of claimant lay witness evidence. Gestmin is frequently relied upon by defendants, particularly at the Show Cause stage, to seek to undermine a claimant’s lay witness evidence and avoid judgment, often in circumstances where the defendant in question has no witness evidence of its own. A number of other judges have made similar comments to Leggatt J. However, more recent decisions, including CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 and Smith v Secretary of State for Transport [2020] EWHC 1954 (QB) provide helpful commentary on the limitations of what was said in Gestmin. Ultimately, as HHJ Platts observed in the present case (para 5), these judgments do no more than remind judges of their fact-finding obligations. They do not provide statements of legal principle.

As part of the process of seeking to undermine the deceased’s evidence, at an early stage in the litigation the defendants sought disclosure of attendance notes prepared by the claimant’s instructing solicitor at the time the deceased’s statement was taken. This request was unsurprisingly refused on grounds of legal professional privilege. At trial the defendant brought the relevant correspondence to the attention of the judge and invited him to take the claimant’s refusal into account when assessing the deceased’s evidence. The object of this exercise was to add weight to the defendant’s assertion that the deceased’s statement may have been the product not only of his own recollection but was drafted with assistance from his solicitor. Correctly, in the writer’s opinion, the judge refused to attach any weight to the claimant’s refusal to disclose the relevant attendance notes (para 6).

The claimant succeeded at trial. Damages were agreed but the claimant’s solicitor had made an effective Part 36 Offer and the claimant therefore recovered an additional sum pursuant to CPR 36.17(4). This case is a useful reminder of the potential benefit to claimants using the Part 36 procedure.

This post was written by Aliyah Akram, who acted for the Claimant in this case.

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This was a claim brought under the Law Reform (Miscellaneous Provisions) Act 1934. 

The Deceased, Mrs Weyer, was exposed to asbestos through washing her husband’s overalls. Mr Weyer worked for the Defendant, formerly known as Kitsons Insulations Limited, for almost 20 years. He was a thermal insulation engineer, or lagger, and so he worked extensively with asbestos insulation. 

In this assessment of damages, judgment having previously been entered against the Defendant, Michael Ford QC, sitting as a Deputy Judge of the High Court awarded the sum of £90,000 for pain, suffering and loss of amenity. 

In determining quantum the judge heard that prior to the onset of the disease the Deceased had been fit and healthy. He found that she was a brave and stoical woman who first saw her GP many months after she began to experience symptoms as a result of the disease. In total she suffered from symptoms as a result of the disease for around 14 months. 

She underwent chemotherapy but was not fit enough to continue with her treatment. Towards the end of her life she suffered from severe weight loss and struggled with intense pain. The judge noted that there were difficulties with controlling her pain and she struggled to sleep. He also commented on the tragic family circumstances, her husband had himself died as a result of lung cancer. Two of their children had also worked for the Defendant and been exposed to asbestos. The Deceased had lost around 10.6 years life expectancy. 

The judge also made awards for care (£9,250), travel expenses (350), miscellaneous expenses (£560) and funeral expenses (£4,284).

The case will be on Lawtel shortly.

This post was written by Aliyah Akram, who was on the advisory group to the study.

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In a study published this month, a research team from the University of Sheffield examined gendered experiences of mesothelioma. The full report is certainly worth a read by anyone practicing in this area but a number of findings are of particular interest to asbestos lawyers. 

The study relied on quantitative and qualitative data, both from interviewing patients with mesothelioma and from analysing results from the MORE survey and data from HASAG. 

Statistics show that mesothelioma is a significantly more common in men (83% of cases) than in women. The difference in experiences of the disease go beyond occurrence, however. Mesothelioma tends to be more aggressive in men, more invasive and metastasising. Unsurprisingly, therefore, women tend to have far higher survival rates. But further evidence shows that there may a steeper dose-response curve in relation to asbestos exposure for women. This would suggest that women are more susceptible to developing mesothelioma. 

This seems of particular relevance when the report considers how women are exposed to asbestos. Men tended to be exposed in construction-related occupations where they directly handled asbestos. For women para-occupational exposure via a family member’s overalls was common, but a significant proportion were exposed through their work. That exposure tended to occur due to asbestos materials in the working environment, rather than because they worked with asbestos directly. As we know, certain occupations which are dominated by women put them in the types of buildings in which asbestos use was especially prevalent, particularly schools and hospitals. 

The study also noted that women are less likely to seek legal advice and when they do are less likely to receive compensation. Female interviewees expressed concern that seeking compensation is too costly, time-consuming or would make the experience of living with mesothelioma more challenging than it already is. The researchers noted different societal expectations, where men are expected to provide financially but women were concerned about avoiding the emotional burden of legal action.

For asbestos lawyers, two of the report’s practice notes are worth bearing in mind:

• It is important to take an occupational history which assesses the working environment as well as the work which was carried out. 

• Further steps need to be taken to raise awareness of compensation routes for those who have not worked with asbestos directly.