This post by Ivan Bowley comments on the recent decision of the High Court in Hamilton v N G Bailey, which concerned the Court’s approach to the assessment of general damages for pain and suffering in a low-disability asbestosis claim and the Court’s analysis of the JC Guidelines for the Assessment of Damages in Personal Injury Cases (15th Edn).

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The claimant, who was aged 74 at the date of assessment, developed asbestosis as a result of exposure to asbestos during a period of employment with the defendant as an electrician between 1968 and 1981. Judgment was entered at the first CMC and the case was listed for an assessment of damages. The defendant chose not to put questions to the claimant’s medical expert and called no expert evidence of its own. The only factual evidence was from the claimant who was not required to give oral evidence at trial.

The claimant had a 10% respiratory disability due to asbestosis. His medical expert predicted that the respiratory disability would probably increase by a further 5% during the claimant’s remaining life expectancy of about 14 years. The claimant had minimal symptoms and only became aware of breathlessness, some chest tightness and fatigue when gardening. He had no other complaint. He also had small risks of more severe progression of asbestosis, lung cancer and mesothelioma. He sought a provisional damages award.

Both parties invited the court to use the JC Guidelines figures for non-malignant asbestos disease as a starting point, but disagreed about the appropriate bracket:

“£36,060-£99,330 Asbestosis and pleural thickening—where the level of disability attributable to asbestos will be in excess of 10% causing progressive symptoms of breathlessness by reducing lung function. Awards at the lower end of the bracket will be applicable where the condition is relatively static. Higher awards will be applicable where the condition has progressed or is likely to progress to cause more severe breathlessness. Awards at the top end of the bracket will be applicable where mobility and quality of life has or is likely to become significantly impaired and/or life expectancy significantly reduced. This is a wide bracket and the extent of respiratory disability will be highly significant with disabilities of 10–30% being at the lower end, 30–50% in the middle, and in excess of 50% at the higher end.

£14,140-£36,060 Asbestosis and pleural thickening—where the level of respiratory disability/lung function impairment attributable to asbestos is 1–10%. The level of award will be influenced by whether it is to be final or on a provisional basis and also the extent of anxiety.”

The claimant invited the Court to value the claim along conventional lines, having regard to the JC Guidelines and a number of previously decided cases. The defendant sought a more arithmetic approach, arguing that the Court should identify a full and final figure within the lower bracket but then discount that figure for the risks of more serious conditions to reflect the fact that the claimant was seeking a provisional damages award.

When considering the appropriate bracket, the Judge identified what he considered to be an anomaly in the JC Guidelines; specifically that if both brackets in the Guidelines reflected both provisional and full and final awards from previously decided cases there appeared, to the Judge, to be a discontinuity between the brackets (paragraph 33). His concern was that for similar men with 10% respiratory disability on either side of the threshold between the brackets, one would receive provisional damages and the other full and final damages of about the same amount (about £36,000).

The Judge adopted the defendant’s “arithmetic” approach, having decided that the starting point for damages should be a figure in the lower bracket, which he then adjusted down for the value of the risks of a more serious condition. He then stood back and adjusted that figure back up again to take account of the cases to which he had been referred, resulting in an immediate award of provisional damages of £32,000.

Comment

The defendant’s arithmetic approach to the assessment of damages for pain and suffering in non-malignant asbestos claims has its genesis in the judgment of Smith LJ in Rothwell v Chemical & Insulating Co [2006] Civ 25, at paragraphs 174-179. The case concerned the actionability of asymptomatic pleural plaques. The Court of Appeal was invited to consider how to increase a provisional damages award in an asymptomatic pleural plaques claim to compensate for the risks of more serious conditions developing in the future. The “principled approach” set out in the judgment of Smith LJ (with whom the majority agreed on this point) is to apply the percentage risk of the more serious condition (i.e. malignancy) to an assumed valuation of damages for pain and suffering for that condition, and then add that to the immediate award for the existing injury.

On a number of occasions since the decision in Rothwell, judges have been invited to adopt this approach when valuing damages in non-malignant asbestos disease claims. Frequently, however, they have not done so and have instead adopted the more traditional method of valuing the claim having regard to previously decided cases and the JC Guidelines.

In Hamilton, the claimant submitted that while it might be appropriate to increase the valuation of an immediate provisional damages award to compensate for future risks by applying Smith LJ’s methodology in order to reach a full and final valuation, it was not appropriate to carry out the same exercise in reverse to derive the current value of a provisional damages award from a full and final figure. The Judge did not entirely accept the claimant’s submission on this point, stating that provided it was clear how the starting figure was reached and what it contained, it could then be increased or decreased as appropriate (see paragraph 26).

With respect to the Judge, reducing a full and final figure on an arithmetic basis could lead to anomalous results. The following example illustrates the problem: assume two otherwise identical men of the same age and life expectancy etc. both of whom have asbestosis giving rise to a 10% respiratory disability causing identical symptoms. The only distinguishing feature is that the first man has much higher risks of malignancy (say 6%) because he had a far greater exposure to asbestos than the second man (whose risk of malignancy is say 3%). If the same judge in both cases started with a full and final valuation for a 10% disability of £36,000, and then discounted from that figure a sum to reflect the risks of malignancy to arrive at the value of the provisional damages award, each man would receive a different immediate award, despite the fact that both had the same injury and symptoms. The sum to be deducted from the award to the man with the higher risks would be say £90,000 x 6% = £5,400 and from the award to the second man £90,000 x 3% = £2,700. The first man would receive an immediate provisional damages award of £30,600 and the second man would receive £33,300 without any justification for the difference.

The answer to this problem might be that the situation described above would never in reality arise, because in each case the full and final award used as a starting point would reflect the difference in the risks of malignancy. However, there is a paucity of recent quantum reports for non-malignant asbestos disease, particularly for lower levels of disability, and many of the decisions do not provide sufficient information to enable direct comparison to be undertaken.

Practitioners should also bear in mind that Smith LJ recognised that her approach would not necessarily apply to every case: “I do not suggest that the calculation should be followed precisely in every case. There may be special circumstances in which it is not appropriate. For example, if the claimant has another morbid condition, unrelated to asbestos, which is likely to reduce his expectation of life substantially, it may well be appropriate to reflect that in the assessment of the damages for the risks of malignant asbestos disease.” (at paragraph 179). An example of this is Ibbs v Michelin Tyres [2010] EWHC 1389.

A further issue concerned the question of which of the JC Guidelines brackets the claim in question fell into. The claimant’s disability at the date of trial was 10%, which is not an uncommon finding in non-malignant asbestos disease claims. That level of disability could arguably have fallen within the top of the lower bracket (1 – 10%) or the bottom of the higher bracket (10% or above). What distinguished this case was that there was a probability of progression by a further 5% disability, but that was not sufficient to persuade the judge to place the case in the higher bracket. He focused instead on the current level of disability, finding that the lower bracket was for a respiratory disability of 10% and below and the higher bracket for disability in excess of 10% (paragraphs 43 – 44). The judge observed that for a man with an 8% disability which was predicted to increase by 5% damages would still fall within the lower bracket because the current disability was less than 10%.

If this analysis is correct, however, it follows that any current disability of 10% or less should be valued in the lower bracket, regardless of how rapid, severe or debilitating the future progression of that existing condition might be. A man with a current disability of 10%, but who was predicted to progress to a future disability of say 30%, would still fall within the lower bracket. In the writer’s opinion, while the judge’s 8% example would inevitably attract a lower award, his analysis cannot be correct for every case involving a current disability of 10%.

What is required in any given case is for the court to look at the evidence and then stand back and consider what is an appropriate immediate award for the injury in question having regard to the JC Guidelines and previously decided cases. The process becomes more difficult and prone to error when the judge is invited to compare the case before the court with previously decided awards made on a different basis (full and final rather than provisional) and then somehow adjust the award to make it comparable to the extant claim. The brackets are, as the judge noted, guidelines not tramlines, and the language used to define each bracket should not necessarily be applied too precisely.

The Judge probably got it about right when he said that the cases he had been referred to indicated that for a current 10% disability the range for a provisional award was about £28,000 – £34,000 and for a final award about £31,000 – £37,000 (paragraph 39), but there will still be cases which fall outside those ranges.

This post by Helen Waller explains the recent amendment to the Fatal Accidents Act 1976, which extends the eligibility for bereavement awards to those who cohabited with the Deceased for the two years up to their date of date.

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Whilst 2020 has been a bit of a stagnant year for so many and so much thanks to the pandemic, it has been a year of change for the Fatal Accidents Act 1976. As blogged about earlier in the year, the statutory award for bereavement damages increased to £15,120 for causes of action that accrue from 1 May 2020. Last week, on 6 October, the Fatal Accidents Act 1976 (Remedial) Order 2020 came into force, bringing in amendments for causes of action accruing on or after that date. 

The key change is that section 1A of the Act now benefits from the addition of a provision allowing cohabiting partners of the deceased entitlement to bereavement damages. The term, “cohabiting partner”, is further defined in the new section 1A(2A) of the Act. This is an amendment following Smith v Lancashire Teaching Hospitals NHS Foundation Trust [2017] EWCA Civ 1916. In that case the Court of Appeal made a declaration that the exclusion of cohabiting partners from the categories of persons entitled to bereavement awards was incompatible with Articles 14 and 8 of the ECHR. 

A second amendment that may be of relevance to fatal industrial disease claims is that at section 1A(4), which now provides that where more than one person is entitled to bereavement damages, the sum awarded shall be divided equally between them. Previously this section provided that any award must be divided between both parents of the deceased, where they were entitled. This will bite where the deceased was living separately – but not divorced – from his/her spouse and had been cohabiting with a new partner of long enough standing to satisfy the definition at section 1A(2A). The scenario of a deceased minor who had never married or entered into a civil partnership, but had cohabited with a partner for at least 2 years so as to satisfy section 1A(2A) seems unlikely to arise in the context of asbestos litigation.

This post was written by Spencer Turner

Introduction

In April 2013, the provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’) made fundamental changes to the way in which claims made in civil courts were funded. The Claimants in this case, the Asbestos Victims Support Groups’ Forum UK (‘the Forum’) challenged the Post Implementation Review (‘PIR’) of LASPO. The Forum’s case was that the PIR had not discharged the Lord Chancellor’s obligation to carry out a thorough and detailed impact assessment of the LASPO reforms with regard to asbestos related disease sufferers. A copy of the full judgment can be found here.

The background to the JR

From the Legal Advice and Assistance Act 1949 through to the advent of CFAs and then the Access to Justice Act 1999 the judgment provides a comprehensive background to the way in which funding in civil claims has developed over the last 70 years.

As is well known Lord Justice Jackson was appointed to conduct a review into the costs of civil litigation in November 2008 and he produced his report in December 2009. The MOJ subsequently issued a consultation paper in November 2010 titled ‘Proposals for Reform of Civil Litigation Funding and Costs in England and Wales’. That paper addressed the implementation of Jackson LJ’s recommendations and endorsed the view that if the recoverability of success fees and ATE insurance premiums was abolished, market forces would operate to bring both of those costs down because, as before 2000, they would be payable by claimants who would “shop around” for lower success fees and ATE insurance premiums.

In 2011 the LASPO Bill went before the House of Commons and subsequently the Lords. The pertinent parts of the Bill were the clauses which subsequently became sections 44 and 46:

“Section 44 … a costs order made in proceedings may not include provision requiring the payment by one party of all or part of a success fee payable by another party under a condition fee agreement. 

Section 46 … a costs order made in favour of a party to proceedings who has taken out a costs insurance policy may not include provision requiring the payment of an amount in respect of all or part of the premium of the policy, unless such provision is permitted by regulations under sub-section (2).” 

Concerns were raised during the debates in Lords as to the effect of these reforms on access to justice in mesothelioma cases. Lord Alton sought to exclude the operation of section 44 and 46 from cases of diffuse mesothelioma. The amendments were re-proposed in March 2012 and related to claims for respiratory disease generally. At the conclusion of the debates the amendments were carried, despite Government opposition.

It was eventually decided that the Government would not commence sections 44 and 46 in relation to mesothelioma claims, but those sections were brought in full force in relation to all other claims including other claims arising out of asbestos exposure. Section 48(1) of LASPO provided that:

“Sections 44 and 46 may not be brought into force in relation to proceedings relating to a claim for damages in respect of diffuse mesothelioma until the Lord Chancellor has a) carried out a review of the likely effect of those sections in relation to such proceedings, and b) published a report of the conclusions of the review.” 

LASPO and the PIR

LASPO came into effect on 1 April 2013 and the government said that a PIR would be undertaken of the LASPO reforms. In January 2017 Sir Oliver Heald QC MP said that the PIR process would begin with a Post Legislative Memorandum (‘PLM’) which would lead to an initial assessment of the way in which LASPO had met its objectives. This would be followed by the wider PIR. David Liddington subsequently told the Justice Select Committee in October 2017 that:

“The content and purpose of a post-implementation review is different to a post legislative memorandum: post-implementation reviews are primarily concerned with assessing the reforms from an analytical perspective, in the manner of an impact assessment, rather than reporting certain elements of the act’s implementation and operation. As such, the analysis provided in the preliminary assessment sections of this memorandum is at a high level. The Ministry of Justice intends to undertake a more thorough and substantive analysis in the post-implementation review.”

In June 2018 an initial assessment policy paper was published by the Lord Chancellor which stated that:

“The Ministry of Justice is committed to undertaking a post implementation review (PIR) of part 2 of [LASPO]. It is clearly good practice to examine whether the legislation has met its objectives, and whether there are unintended consequences that need addressing. That is what this PIR is intended to deliver. We are publishing a survey to seek stakeholder views: we hope as many people as possible will complete it.

In July 2018 ‘stakeholders’ were encouraged to complete an online survey to supply data and evidence which would help indicate the impacts of LASPO for the final review. The responses that concerned asbestos claims provided for some interesting reading:

• The Forum had seen 350 newly diagnosed cases of asbestos related diseases in 2017. 42% were mesothelioma, 33% were asbestosis, 17% were diffuse pleural thickening and 7% were asbestos related lung cancers.
• The responses of the Forum indicated that they had seen no evidence that the reforms under LASPO had resulted in a wider choice or cheaper litigation for asbestos victims. There were likely fewer firms pursuing this work as cases had become less profitable and riskier. Asbestos victims were experiencing deductions from their compensation that did not happen pre-LASPO and many potential claimants were being put off because of the risks.

Leigh Day also provided a response to the consultation. Within that response they set out, amongst other things, the following:

• As a result of commercial sustainability there was an increased reluctance amongst Claimant lawyers to run potentially meritorious but difficult claims for asbestosis, pleural thickening and lung cancer because of the impact of sections 44 and 46 of LASPO.
• Difficulties were created by QOCS as claimants could still be liable to pay the costs of defendants.
• Asbestosis, pleural thickening and lung cancer cases are all treated as divisible conditions. Claimants therefore have to frequently bring claims against multiple employers. Often as a result of EL insurance not being in place, it isn’t possible to bring every tortfeasor into proceedings.

The Defendant submitted to the court that no qualitative data was submitted which showed that asbestos victims’ access to justice had suffered disproportionately compared to other personal injury litigants as a result of LASPO. Various other comments were made in a series of meetings [35-36].

The full PIR was published on 7 February 2019. Although there was reference to some of the evidence submitted by both the Forum and Leigh Day, their concerns were merely noted but were not specifically analysed nor dealt with substantially. Subsequently the Claimant brought a claim for judicial review. It was alleged that the PIR had filed to contain any thorough or substantive analysis of the effect of LASPO or any assessment which was akin to an impact assessment. Specific criticism was made of:

The failure of the PIR’s conclusions to refer at all to the deductions from compensation experienced by asbestos victims or to the fact that victims with meritorious cases are being deterred from seeking justice. Nor, it was said, do the conclusions make reference to the alleged lack of evidence that the LASPO reforms had resulted in wider choice or cheaper litigation for asbestos victims.

At the judicial review hearing before Bean LJ and Martin Spencer J the submissions made on behalf of the Claimant were:

• That there was a legitimate expectation that the PIR would adequately examine the impact of the LASPO reforms on asbestos related victims. This expectation arose from the statements made to the Justice Select Committee in October 2017, the PLM and in the initial assessment.
• The Defendant had frustrated these promises by (i) not identifying asbestos related claims as a major issue of examination, (ii) not referring to deductions from compensation experienced by asbestos related disease victims and (iii) failing to engage with the evidence that asbestos related disease victims were being deterred from seeking justice.

The Defendant’s response was threefold:

• In R (Bhatt Murphy) v Independent Assessor [2008] EWCA Civ 755, Laws LJ made clear that a legitimate expectation only arises if there is a “promise or practice” which amounts to a “specific undertaking, directed at a particular individual or group”. No such expectation arose in this case because the Defendant’s representations were general in nature.
• The Defendant promised to carry out an evidenced-based review of the LASPO reforms in a more thorough manner than he did in the Post-Legislative Memorandum. He fulfilled this promise through the PIR. Therefore, in any event, the Claimant’s legitimate expectations had been met.
• Finally, it would not be unfair for the Defendant to resile from such a promise, if such a promise had been made.

The decision of the Court is set out in full at [55-65]. In summary, the Court found that contents of the PLM and the MoJ’s intention that the PIR would undertake ‘a more thorough and substantive analysis’ than the initial assessment did not come close to establishing a substantive legitimate expectation on the part of the Claimant that there would be a would be detailed consideration in the PIR of the alleged adverse effects of LASPO Part 2 on access to justice by claimants with non-mesothelioma asbestos related diseases:

• There was not a clear and unambiguous promise of any kind;
• There was no specific undertaking directed at a particular individual or group;
• The failure to deal with the concerns raised by the Forum and Leigh Day was not in any sense equivalent to a breach of contract or breach of representation;
• The Defendant’s actions could not be described as unfairness amounting to an abuse of power;
• In any event, the degree to which the PIR could have been completed depended upon the quality of data available to the MoJ at the time.

The court therefore dismissed the application for judicial review.

For those interested, Leigh Day has published a copy of a witness statement from Lord Alton which was used at the hearing and can be accessed via the firm’s website here.

Today we are publishing an article by Michael Rawlinson QC in which he examines a statutory regime which to his knowledge has never been considered in the context of asbestos exposure but which, he concludes, provides a strict liability regime for injuries arising from asbestos exposure in schools which were maintained by a Local Education Authority or in receipt of a grant direct from the Secretary of State between 1902 and 2012.

The abstract to the article is as follows:

Where material exposure to asbestos can, on balance, be demonstrated to have occurred in respect of either a pupil or an employee within the school environment, from 1902 to 2012, the liability for the same is strict where the school was either maintained by a Local Education Authority or was in receipt of a grant direct from the Secretary of State. This is laid out in a series of statutory instruments (and associated Judicial dicta) which have clearly been long forgotten but which I stumbled upon recently. Further, when properly understood, the scope of the common law duties on a school in respect of its duties to those so exposed is almost uniquely high. I seek to approach this topic by providing background to low exposure claims in asbestos generally, moving to exposure in schools, then dealing with the statutory duties and finally concluding with a review of the width of the common law duty of school occupiers. I have also provided a ‘ready reckoner’ setting out year-by-year and by school type which regulatory regime applied. 

The article can be read here. The appended table can be read here.

This post was written by Christopher Fleming.

This decision arises from the Asbestos Victims Support Groups Forum UK’s application under CPR 5.4C to access documents that had been produced by Cape in a previous set of proceedings to which the Forum had not been a party.

The application came before the Supreme Court in 2019 (see James Beeton’s blog post on the Supreme Court’s decision here, as well as his post on the Master’s decision at first instance here ).

Delivering the judgment of the Supreme Court, Lady Hale upheld the Court of Appeal’s decision that the Court should provide the Forum with copies of the parties’ statements of case and that Cape should provide copies of witness statements, expert reports and written submissions. However, she ordered that the matter be sent back to  a High Court judge, preferably Picken J (the trial judge in the previous proceedings) to determine whether the Court should require Cape to provide copies of all the other documents placed before the Judge and referred to in the course of the trial. This represented some 5,000 pages of documents contained in around 17 lever arch files.

The Forum duly applied to Picken J under CPR 5.4C. Picken J set out what he considered to be the correct application of the Supreme Court’s decision:

1. The Supreme Court’s decision should be regarded as having restated the open justice principle in a way which no longer makes it necessary to apply the ‘legitimate interest’ approach [¶61]. Put differently, whether an applicant has a legitimate interest in inspecting the document is no longer a significant factor in the court’s determination of such applications.
2. A third party making such an application should not merely show that access to documents would be in accordance with the open justice principle but also that such access would advance the open justice principle [¶78].
3. This is not a ‘prior hurdle’ to such an application, but rather a ‘sliding scale’. Where a particular case appears on that ‘sliding scale’ will depend on a range of factors, including whether access to the documents will advance the open justice principle and, if so, consistent with the concept of a ‘sliding scale’, to what extent. The Court should engage in the balancing exercise and, in so doing, accord appropriate weight to the various different factors. The fact that a third party is seeking documents for collateral purposes which have only a limited connection with advancing the open justice principle will be a factor which will weigh less heavily in the appropriate balancing exercise than if the position were otherwise and the documents sought would more significantly advance the open justice principle [¶81].

He went on to refuse the Forum’s application for the following reasons:

1. The documents sought were clearly not required by the Forum in order to understand what the issues in the underlying proceedings were and what the evidence concerning those issues constituted [¶98].
2. No evidence was adduced to show how such documents would advance the open justice principle. The focus of the evidence was rather on seeking to establish a ‘legitimate interest’, which, as already noted, was no longer the relevant question [¶99].
3. As per the approach explained by Lady Hale, it is incumbent upon an applicant to justify its application by reference to the open justice principle. He found that the Forum had not done so adequately [¶100].
4. Tellingly, the Forum already had documents, in the form of experts’ reports and the written opening and closing submissions, which enable it to understand the issues and the evidence adduced in support of the parties’ cases. [¶101].
5. The real motivation behind the application was a concern on the part of the Forum that it would be more useful from an evidential perspective were the documents to be available for use in other litigation. In that sense, the Forum was effectively making a third-party disclosure application in relation to other proceedings, but seeking to do so without regard to the constraints to which a genuine disclosure application would be subject [¶115]. The CPR have clear provisions for the obtaining of documents.
6. It was the Forum’s avowed intention that the documents should be used in other proceedings. Regard should be had to the fact that Cape would have no ability in such proceedings to put forward any explanation as to particular documents [¶118]
7. Had the Forum sought production of the relevant documents at trial on the same basis, Picken J was clear that the Court would have declined to order production [¶120].

While obviously interesting from a legal standpoint, particularly to keen observers of the principle of open justice, this decision is of practical significance to those seeking to pursue asbestos-related claims involving the Cape group of companies. The effect Picken J’s decision is that no further documents shall be provided by Cape to the Forum beyond those which fell within the scope of the Order made by the Court of Appeal in 2018.

Read the decision in full here.

Today’s post is by Michael Brace. It summarises a decision in proceedings in the Technology and Construction Court, which arise out of very recent alleged asbestos exposure following asbestos removal works. As Mike says, this is a case we may post on again because in June 2020, it is due to go to a four-day trial of the issue of whether the Defendant’s admitted breach of duty in respect of the control of asbestos caused asbestos contamination. It will be interesting to see how the Court approaches these issues in a commercial rather than a personal injury context.

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This is a commercial claim in which the defendant’s admitted breach of duty in respect of the control of asbestos during  works which it carried out on the claimants’ properties is alleged to have resulted in asbestos contamination (which is denied).  The parties had permission to rely upon expert evidence.  In April 2020, the defendant served a witness statement from a non-expert explaining measurements taken in the course of testing carried out at the properties and whether the same amounted to “traces” of asbestos.   The claimants objected to the defendant’s reliance on the statement.  The objection was upheld on the following grounds: (1) the statement was from a new witness not an existing one and thus the defendant needed permission to rely on it; (2) the statement did not comply with the requirements of CPR PD32 para 18 in that it failed to  indicate which of the statements in it  were made from the witness’ own knowledge and which were matters of information or belief and the source of any such matters; (3) the witness, a non-expert, was expressing his opinion on the interpretation of the results, which was a matter solely for the parties appointed experts; (4) the statement alluded to a defence which was not pleaded.  When/if  the causation trial takes place and is reported, this case may be one to watch as it will consider  asbestos contamination in a commercial, as opposed to a personal injury  context.

This is the third and final post on Bannister v Freemans Plc, written by Michael Rawlinson QC with the assistance of Samuel Cuthbert. This post deals with the topic of epidemiology.

The three parts of this blog series can be viewed and downloaded in one PDF by clicking here.

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The test promulgated by the medic

Dr Rudd is immensely experienced. The test which was adopted by the Court had been first put to him in cross examination by Mr Platt QC in the case of Sloper. He agreed with the formulation. The same happened again in Bannister. I will deal with the test in three stages:

(a) As a proposition of law;

(b) As a matter of practicality;

(c) The use of epidemiology.

The difficulty in adopting the test can swiftly be put: it is no more permissible to tie the what is de minimis question (which is, after all, an issue relevant to both breach and causation) to the notion of ‘an average response to worrying news’ than it is to assume an average strength and thickness of a skull where the skull has been negligently struck. The relevant passage from Clerk & Lindsell (22^nd Ed – 2^nd Cum. Supp) 2-166 to 2-170), viz.

“2-166 The Eggshell Skull Rule Long before Wagon Mound, it was an established doctrine that a defendant has to take his victim as he finds him, which means that if it was reasonable to foresee some injury, however slight, to the claimant, assuming him to be a normal person, then the defendant is answerable for the full extent of the injury which the claimant may sustain owing to some peculiar susceptibility. The rule applies only when the claimant’s pre-existing hypersensitivity is triggered into inflicting the injury complained of…2-169….The Canadian courts refer to such cases as “crumbling skull” cases. In Athey v Leonati⁵⁷¹ the Supreme Court of Canada observed that: “As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions: defendants remain liable for all injuries caused or contributed to by their negligence.” 

(a) The analogy is precise: since there is no known limit of exposure below which mesothelioma cannot be caused, every exposure must be deemed capable of being a cause. Thus in every low exposure case in which mesothelioma arises out of individual susceptibility (whereas in other persons such exposure would be tolerated) D cannot be heard to say ‘but my exposure would not have caused disease in some others’: D takes the victim’s body as he finds it. Therefore must he take the victim’s reaction to information imparted by the medic.

(b) I respectfully suggest that a test relying on what the average patient should worry about is wrong in law. If it were ever capable of being the test (and it isn’t because it is an overall impermissible attempt to create an objective shining path as we have already seen), then it would have to be cast in subjective terms: what would this victim have worried about?

(c) Now, it might be argued that I have misunderstood the role of words ‘should not’ within Dr Rudd’s formulation of the test. Let us remind ourselves again of the wording:

“..[de miminis could be] defined as a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about”.

Ds may argue ‘well, the role of ‘should not’ in that sentence means ‘should not worry about because objectively there is nothing to worry about’. But that cannot be right for two reasons:

• Since there is no dose which can be excluded as being small enough as not to be physically capable of causing mesothelioma, then as a matter of strict fact, there is no dose which should not be worried because there is objectively nothing to worry about.
• This reality was adverted to by Underhill LJ in Bussey

“I say ‘significant’ only so as to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant”.

Until medicine can set a dose below which mesothelioma simply cannot be caused, then what dose, I ask rhetorically, can properly be called ‘fanciful?’

As a matter of practicality, how could the test ever operate?

(a) The test would quickly break down into one which was personal to the victim before the medic and not some notional ‘average’:

• Age makes a difference: a person exposed at 20 has many decades of the fibre burden on their lungs. A person at 90 would almost certainly be dead before clinical manifestation of mesothelioma arising from such exposure. Thus the approach to what they should worry about would differ;
• The same can be said for antecedent family history: a person might well be entitled to worry more if their father and grandfather had died from mesothelioma following asbestos exposure;
• The same can be said for antecedent fibre history before the index exposure: a man aged 50 who had just had 1 day’s exposure and no other might very well be less ‘entitled’ to worry than one who was 60 but had suffered 10 fibre/ml exposure prior to the index exposure;
• The same can be said for gender since the Darnton & Hodgson paper relied upon by Dr Moore-Gillon – which was the same as the one he relied upon for de minimis – states that up 1/3 women have idiopathic mesothelioma.

Thus the test would have to be formulated in subjective terms ‘De minimis is the level below which an informed medic would consider a person of the victim’s own gender and age and exposure and family history should be worried about’.

(b) In fact there are multi – layers of subjectivity in this test:

• What does the Judge consider that;
• The medic should have considered that the;
• Victim should have worried about.

Thus, as a shining bright line, it is quickly rendered lost to the subjective undergrowth of weeds.

(c) Finally, when would the test be being administered? The day after the exposure? The day after a sinister cough developed decades after the exposure? Some intermediate point? If it is the day after symptoms commenced then which medic would ever say ‘well I would have told him not to worry had he asked me the day after the exposure, but now I know he has a cough and a shadow on the lung, I think he should worry’? It would quickly then be seen that the test simply demonstrated that no medic can ever inform safely a victim that they have no chance of developing mesothelioma after an exposure.

Epidemiology:

(a) My respectful criticism of the Judgment is not that the Court failed to note that epidemiology was capable of being a false guide [173-175] but that it relied upon epidemiology at all to seek to answer what constitutes ‘de minimis’. This is because epidemiology, being the study of cohorts, cannot inform in an individual case whether or not a genetic factor has been at play. Thus it cannot be known in the low exposure cases, whether or not a person developed mesothelioma having inhaled (let us say) 1,000 fibres because that is an amount which might cause mesothelioma in anyone. Equally, owing to a genetic risk factor being present, 1,000 fibres will be sufficient in some whereas in those without the risk factor 5,000 fibres would otherwise be necessary.

(b) Let me take an analogy across 2 scenarios:

First Scenario:

• Sam and I each buy a single lottery ticket with a single line on Sunday.
• On Monday at 9 00 am, each brandishing our ticket, we attend at our mutual accountant and ask him ‘how will we account to HMRC for our winnings at the next lottery? Is it capital gains or income – a lot rides on this for the next tax bill’. Our accountant looks at us both and says ‘Gents, since the chance of either of you winning is 14 million to 1, you have nothing to worry about’.

Second Scenario:

• This scenario is identical to the first, but this time our accountant has heard a rumour that one barrister at 12 KBW has struck a secret deal with the Lottery – namely that for each ticket bought, the lottery will print another million tickets for that barrister each with their own unique number sequence.
• Now, when Sam and I attend, the accountant cannot know whether the ticket we are each waving represents 1 line or 1 million and 1 lines. He does not know if either of us have struck the secret deal and if so, which?
• Now when we ask him our question, he must answer differently because there is a risk that one of us is actually very much more likely than is obvious to win.

It is statistically valid to add up lots and lots of independent chances and see overall what the combined risk is. Test the matter in your mind in this way: if I toss one coin and ask myself the question: what are the chances that I will turn up a head, then the answer is 50:50. But if I toss 2 coins (either together or separately) then the chance of my turning up a head is 75:25.

And so it is with asbestos fibres. Each individual fibre is very, very unlikely to cause mesothelioma, but the risk is cumulative with each extra fibre ingested. And hence why the medical position given is that the risk of mesothelioma is proportionate to the dose.

The analogy with genetic susceptibility is a close one. Science cannot say who has it and who has not; science cannot say how the susceptibility works or at which stage – whether it renders 1 fibre as potent as it were 50 fibres or whether it makes the usual limit of 50 fibres to cause mesothelioma drop to 1 fibre or any combination in between.

(d) It was this failure to analyse the role of the genetic factor, notwithstanding that it was raised in submissions and in cross examination of the Defendant’s expert who, perfectly reasonably, could not say from the medical perspective what the safe limit of exposure was to someone with a genetic susceptibility, that led the Court to accept evidence which was an exercise in comparing apples with pears. The Court accepted that the Deceased’s dose would, had it been asbestos, have been insufficient to raise the risk of developing mesothelioma above 0.2 deaths per 100,000 and amount to a risk 3,000 times lower than the annual risk of being in a road traffic accident. The criticisms here are several:

• First, as a matter of law, this is an analysis that the increased risk was ‘acceptable’. Why else draw the analogy with the risk of road traffic accidents? But, in this, the Court accepted a line of logic expressly rejected by the majority in Bussey. There is no test of the creation of ‘acceptable risk’ which is not actually ‘de minimis’. Thus de minimis remains the only measure of actionability (ie if the exposure is above it);
• Second the risk of road traffic accident death is not uniform. My copy of ‘The Grim Reaper’s Road Map’ (2008) shows that the risk of dying in an RTA is three times greater for men than for women; greater for men in their teens to 30s; and greatest still in rural areas where cars are the only way of travelling, pavements absent, lighting poor and, in Scotland where the highest rate of deaths occur, the nights are long. The standard mortality rate in northern Scotland approaches 400 (as compared to the national average of 100). Thus comparing mesothelioma in a susceptible individual with the risk of an octogenarian lady living in well-lit Surrey suburbia is far greater than being 1/3000^th;
• Third, and with profound respect, he criticised Dr Rudd for expressing the orthodoxy which I have set out so exhaustively above:

“187.  By contrast, Dr Rudd conceded that there were some cases where exposure was so trivial that he would regard them as not material but he could not explain on what principled basis I could assess whether there was a material increase in risk. Moreover, his evidence made no attempt to assess what level of risk, if any, was created by any exposure to asbestos whilst the Deceased was in the employment of the Defendant or whether such risk was more than de minimis…. do not accept Dr Rudd`s evidence and I felt that he was straining logic and common sense to regard an annual risk of 1 in 50 million as a material increase in risk and I am satisfied that in making any such assertion that there was no material increase in risk, Dr Rudd was hoping that I would rely on his consummate experience to justify an assertion which he realised could not properly be made.”

It is right that what is material is a matter for the Court and not for medics as materiality is a purely legal concept.

It is right that he could not provide an objective measure for materiality – the appellate Courts have rejected such measures.

It is right that the level of materiality could not be measured in any one case because the effects of genetics (and the stochastic nature of carcinogenesis generally) rendered such an exercise impossible.

It was wrong for the Learned Judge to first caution himself on the ‘dangers’ of the epidemiology and then to apparently rely on it entirely when rejecting Dr Rudd’s evidence on the basis that the risk was only 1 in 50 million (not least because that was, at best, the excess risk beyond that which we all face).

It may be that it will be necessary for these matters to be considered again by the Appellate Courts. Full and proper consideration would require epidemiology, the evidence of chest physicians and evidence in respect of carcinogenesis. With profound respect to the engineers, their evidence would be of marginal utility at best in such a case.

The is the second of three posts on Bannister v Freemans Plc, written by Michael Rawlinson QC with the assistance of Samuel Cuthbert.

In today’s post, Mike introduces the concept of the “iron triangle” and the relationship between breach of duty, exposure and causation.

Part 3 on epidemiology will follow tomorrow.

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The Iron Triangle as a thing and as an analytical tool

Let me explain what the diagram shows and how it does so. It is, in essence, the refinement of the argument put by Gemma Scott and me to the Court of Appeal in oral submissions in Bussey and put again (in other ways) by Gemma Scott and Harry Steinberg QC in Bannister. The diagram both demonstrates the closed logical loop (to mix my metaphors) trapping the Defendant employer who exposes the victim after 1965 and is intended as a map for how the Court should seek to analyse the issue of de minimis.

Commence with Side A: this demonstrates the applicable law (Jeromson; Maguire)

(a) Suppose all reasonably practicable steps had been taken by an employer but that some exposure to fibres (“y”) was, even then, not avoidable.

(b) Now suppose that there has been a failure to take all reasonable steps and so the dose was in fact the higher dose of (“x”)

(b) The Defendant’s breach lies in the exposure of the victim to (x-y) fibres.

Now consider Side B:

(a) Since the risk of developing mesothelioma is proportionate to the dose received;

(b) And the test for legal causation generally in mesothelioma is the tortious creation of excess risk,

(c) then it follows from our consideration of Side A of the iron triangle, that the employer’s breach lies in creating a risk in the proportion of (x/y).                                                                            

Side C:

(a) This deals with individual causation in fact.

(b) Since there is no known lower limit below which asbestos fibres cannot cause mesothelioma then individual causation is proven by simply demonstrating that x is greater than y.

(c) Subject to de minimis below, one does not also need to prove that x is greater than y by any fixed amount: that is the importance of the analysis of the majority in Bussey.

Before going on to consider the issue of de minimis, and harking back to my observation that the Court had not concentrated on the role of breach in the light of D’s concession in this case, the analysis of the iron triangle above immediately makes clear that proof of breach marches in perfect lock-step with proof of legal causation as a matter of logic because risk is proportionate to dose and the proof of causation in mesothelioma claims is the proof of the increase of risk.

(a) Put another way, once it is proven that breach has occurred (ie that there has been a material increase in the dose which could have pertained with the taking of risks: x-y,) then it necessarily follows that causation has been proven to precisely the same degree. Conversely, if there is a failure to show that a material increase in dose has occurred sufficient to found breach, then there is also a necessary failure to show that causation has been proven.

(b) Put yet another way (and this is the cornerstone of this part of the argument) one cannot test the question ‘what is de minimis for the purpose of proving breach?’ by cross referencing (either as a reality check or otherwise) on ‘what is de minimis for the purpose of proving causation’ or vice versa. To do so is a tautology since they are necessarily and directly proportionately connected findings.

(c) This last point was effectively argued by Harry Steinberg QC in Bannister as can be seen from paragraphs 193-194. It was rejected by the Judge. With respect to the Judge, I agree that where liability is based upon a failure to comply with a ‘yes/no’ statutory duty (such as a failure to keep an asbestos register under the 2002 Regulations) then it does not necessarily follow that an increased risk has been created. However, where I respectfully disagree with the Judge is that where common law principles of negligence are relied upon to prove breach then any finding by the Judge that causation had not, by the same evidence also been proven, cannot easily be justified. That is the effect of the iron triangle.

A principle of de minimis also operates within the iron triangle. That much is a matter of fixed law. But how is it to be identified?

There are only 3 methods by which it could ever be identified:

• By reference to some principle or definition as enunciated by the Courts;
• By reference to some objective bright line;
• By reference to the operation of the internal logic of the iron triangle. 

De minimis in high authority

(a) As the Judge in this case seems to have acknowledged by his citations, high authority does not assist in identifying, as a practicality, what constitutes de minimis. Representative of this lack of assistance is the following passage from Sienkiewicz (cited at [27] of this Judgment) in which Lord Phillips stated:

“108.  I doubt whether it is ever possible to define, in quantitative terms, what for the purposes of the application of any principle of law is de minimis. This must be a question for the judge on the facts of the particular case. In the case of mesothelioma, a stage must be reached at which, even allowing for the possibility that exposure to asbestos can have a cumulative effect, a particular exposure is too insignificant to be taken into account, having regard to the overall exposure that has taken place. The question is whether that is the position in this case”

(b) This amounts to a circularity: what is de minimis? Anything which is less than material. Then what is material? Anything which cannot be dismissed as being de minimis.

(c) There is thus no help to be gained there.

De minimis by reference to some objective bright shining line

(a) It was precisely Ds’ collective leap upon the judgment in Williams as warrant for the proposition that a bright shining line existed (in that case exposure to 2 fibre/ml because of the terms of TDN 13) which was unanimously rejected in Bussey. Jackson LJ doubted that that was the meaning of Aikens LJ in Williams in any event but that if it was, then such an assertion was wrong (Bussey [51]). The other two LJJ were even clearer that no such bright line existed. The appropriate questions were set out by Underhill in Bussey [63]

“…In my view the right approach in principle to the necessary inquiry is twofold: (a) the first question is whether Anglia should at any time during Mr Bussey’s employment—that is, between 1965 and 1968 (the precise dates are not known)—have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury. (I say “significant” only so as to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant.) That will depend on how quickly the knowledge, first widely published in 1965, of the fact that much lower exposures than had previously been thought to be dangerous could cause mesothelioma was disseminated among reasonable and prudent employers whose employees had to work with asbestos. One aspect of this question is whether, even though Anglia may have been aware of the risk in general terms, it was reasonable for it at the material time to believe that there was a level of exposure below which there was no significant risk, and that Mr Bussey’s exposure was below that level. (b) If the answer to the first question is that Anglia should have been aware that Mr Bussey’s exposure gave rise to such a risk (including that there was no known safe limit) the second question is whether it took proper precautions to reduce or eliminate that risk. 

(b) We should draw several conclusions from this:

(c) When searching for the answer ‘how do we know when (x-y > de minimis) it matters not that the issue under consideration in Williams was a bright shining line in the context of breach of duty (ie what amount of exposure constituted breach of duty) and the focus of the debate in Bannister was a bright shining line in respect of causation. As we have already seen above, since breach and proof of causation (albeit separate issues) are in complete and necessary lockstep, there is no distinction of principle to be drawn between them.

(d) It follows that there can be no call by the Court upon either the presence or absence of an ‘objective’ state of affairs in order to determine whether or not de minimis operates: such a circumstance is not a route out of the iron triangle.

(e) As such, therefore, the first criticism of the Learned Judge’s acceptance of the test for de minimis promulgated by the medic namely,

‘…a dose which a medical practitioner who is aware of the medical risks would define as something the average patient should not worry about’ (emphasis added)

is that, in disguise, this is another attempt to identify an objective bright shining line – in this case ‘the average patient’. As we shall see later, there are many other reasons why this test must be wrong (principally, it doesn’t work in fact; it ignores genetic disposition and it contravenes the ‘thin’ or ‘crumbling’ skull rule).

De minimis via the internal logic of the iron triangle:

(a) We have already seen that one cannot test whether a tortious dose constitutes a breach by asking whether it constitutes sufficient exposure to amount to proof of causation. This is because (to repeat) the test for causation relies upon the legal foundations that the creation of risk is taken to be proof of causation and the risk is proportionate to the (excess/tortious) dose. Thus it is only to the third arm of the iron triangle, that is medical causation in fact, to which we must turn. And this is a source of bad news for those seeking comfort on behalf of Ds within Bannister. This is because:

• The Court expressly noted the orthodoxy that there is no safe limit of exposure;
• D’s medical expert could not in cross examination set out what level of exposure could not cause mesothelioma in a susceptible person (we will return to this when we consider epidemiology and genetic susceptibility).

(b) It therefore follows that when testing for the purpose of determining whether or not an excess dose constitutes breach (and for that matter as a corollary, proof of causation) the only test that can be applied by way of cross check is ‘is the excess/tortious dose sufficient to be able to cause mesothelioma in a susceptible individual?’ since that is the only other parameter available to the analyst within the iron triangle. Since no medic can yet say that any excess dose is insufficient to cause mesothelioma it would appear that whilst the existence of de minimis is legally well established, as a matter of medical evidence it cannot actually be identified and proven by any D.

(c) This is not as extreme as it sounds. Each arm of the triangle represents either now well established law or trite fact trotted out in case after case. Also look to the reality of exposure: no exposer at the time they expose the victim can know whether or not their dose is the only dose which the victim will ever have or whether, in combination with past or future doses, the index dose was the difference between developing mesothelioma or not. Again, that last proposition is a matter of settled law (per Hale  LJ, Jeromson).

It is for this reason, together with reasons of practicality, that the Appellate Courts have predominantly held that no precise figure for exposure is necessary, still less desirable: it is a matter of impression for the Judge. The error which, respectfully, is identified in the approach of Mr Tattersall QC is not that he failed to appreciate that that was the law (he expressly reminded himself that this was indeed the law at [171]) but rather he sought to answer the impressionistic question of whether the exposure would have been material by reference to a pseudo-objective standard set out by C’s expert, namely what a medic informed about the risks would consider an average patient should worry about. In turn, he sought to determine what such a medic would do by a reference to epidemiology [cf 173-175]. Will turn to that issue in part 3, tomorrow.

Today is the first instalment in a three-part series of blog posts on Bannister v Freemans Plc, a decision of Geoffrey Tattersall QC (sitting as a Judge of the High Court) handed down on 19 May 2020. The trial was heard over three days from 16 to 18 May 2020, probably the last asbestos trial to be heard before the country entered into lockdown.

Michael Rawlinson QC kindly agreed to write a piece on the case for this blog with the assistance of Samuel Cuthbert, a pupil at 12KBW. What they have produced is a little longer than our usual posts, so we are going to publish it in three parts starting today and continuing tomorrow and Thursday.

Today’s instalment sets out a full summary of the facts and considers the orthodox approach to evidence in low dose mesothelioma cases. In part 2, Mike introduces the concept of the “iron triangle” and the relationship between breach of duty, exposure and causation. In part 3, he considers the use of epidemiology.

First, a very brief introduction to the case for those who have yet to read it. It was alleged by the Claimant that her husband died of mesothelioma as a result of exposure to asbestos dust following asbestos removal carried out at his place of work in the early 1980s. It was conceded by the Defendant that if asbestos exposure was proved as alleged, breach of duty would be established. However causation was disputed, the Defendant arguing that the alleged exposure did not constitute a “material increase in risk”, i.e. it failed to meet the modified causation test which applies in mesothelioma cases following the House of Lords’ decision in Fairchild.

The Judge found on the facts that the Deceased had not been exposed to asbestos dust as alleged and accordingly the claim failed. However, the Judge went on to consider the causation question notwithstanding this finding. As Mike explains, this gave rise to some interesting evidential and legal analysis.

This analysis should be read with the following in mind:

1. It is obiter, the Judge having found that the allegation of asbestos exposure was not made out.
2. The Judge’s obiter finding on the extent of the asbestos exposure was that the cumulative dose would have been “in the region of no more than 0.0004 fibre/ml years”, i.e. extremely low.
3. The Judge’s obiter finding in respect of causation was founded on the specific expert medical evidence in the case.

Over to Mike.

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A:        Introduction

I should make clear at the outset:

(a) I am immensely grateful for the close collaboration and hard work of Samuel Cuthbert (one of our pupils at 12KBW) in the construction of this piece.

(b) Although this is being drafted within the period of time during which a notice of appeal could still be filed, I have not asked the Counsel team representing the family (namely Harry Steinberg QC and Gemma Scott) whether the same is contemplated and, if so, on what basis. This blog piece represents the views of Sam and me and, insofar as we detect heterodoxy within the Judgment (and, respectfully, we most certainly do) they should not be necessarily imputed to the trial Counsel team.

Low dose mesothelioma claims form an ever-greater proportion of the workload of any asbestos lawyer. When, therefore, a decision of the High Court is handed down dealing with issues of proof and causation and particularly where the Court had the benefit of full submissions from two silks highly experienced in the area, it commands careful consideration. The judgment of Mr Geoffrey Tattersall QC (sitting as a Judge of the High Court) in Bannister v Freemans plc [2020] EWHC 1256 (QB) is just such a decision. The need to analyse it with care is heightened further by some of the commentary it has attracted so far. One commentator has been moved to opine that “It should promote a more sceptical…approach” to the evidence of victims. This is, of course, wrong.

If brevity is the soul of wit, then, once again, I shall show myself to be witless. This piece is necessarily long. It is right therefore that I provide an executive summary at once.

(a) So far, at least, this is a first instance judgment which sits within the framework of the common law in respect of personal injury generally and mesothelioma claims in particular, as handed down by the appellate Courts. Any expressions of law contained within it must be construed accordingly

(b) The ratio of the decision is purely factual: on the facts, the family did not prove that the victim had been exposed to asbestos fibres at all during the course of his employment with the Defendant (“D”)[1]. All else is simply obiter.

(c) The judgment contains no warrant for a general approach whereby the evidence of victims (often given in the context of nil disclosure from D and always in respect of relative mundane matters occurring several decades prior) should be treated automatically with scepticism. The proper approach is to evaluate all the evidence before the Court neutrally, to test it for what may fairly be accepted either as to primary fact or reasonable inference and then apply to it the usual burden and then standard of proof.

(d) The Judge appears to have resolved the issue of what constitutes an exposure which materially increases the level of risk of developing mesothelioma by the adoption of a test suggested by a medic, namely a level of dose above that which  “… a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about” [168] (emphasis added). Perhaps unsurprisingly the medic’s formulation of the answer includes a frank error of law – namely the failure to take into account either the ‘eggshell skull’ rule (Smith v Leech Brain & Co Ltd) or the ‘crumbling skull’ rule (Environment Agency v Ellis/Athey v Leonati) (in the form of the known existence of genetic susceptibility of certain people to asbestos giving rise to mesothelioma). Perhaps more surprisingly, the test promulgated by the medic seems to not have been thought through as to how it would ever have been applied in practice.

(e) The Judge was led by D’s concession that if the facts alleged could be proven they constituted a breach of duty, into considering only (a) the issue of whether (and, if so, to what degree) exposure had occurred – proof of exposure and (b) whether such exposure (if proven) materially increased the risk of mesothelioma – proof of individual causation. In this, he concentrated on two sides of a triangle, but not the third, namely the test for breach. It is true that he briefly cites a short passage from Lord Phillips in Sienkiewicz on breach [107 of the Judgment in Sienkiewicz] and [27] of the Judgment in Bannister, but he rather skates over at [32] the role of material increase in creating a ‘foreseeable risk’ which is the essence of the proof of breach at common law in mesothelioma cases. Hence with respect, he did not fully express within the judgment an appreciation of how this third side of the triangle creates an iron logic in post 1965 cases which employers cannot evade by reference to some pseudo-objective test for de minimis. I return to the nature and effect of this ‘iron triangle’ in part 2.

In short therefore, the Judge’s obiter analysis of what constitutes material breach is contrary to appellate decisions eschewing objective dividing lines howsoever devised, ignores Hughes v Lord Advocate and the presence of genetic susceptibilities as a confounding factor when seeking to use epidemiology as a disproof of individual causation.

I approach the matter by summarising the case and then seeking to analyse where commentary on behalf of the insurance industry is not justified, and where the Judge’s obiter reasoning went awry.

B:        Summary of the Judgment

Dennis Bannister (“the Deceased”) died of malignant mesothelioma after a prolonged illness. The claim was brought by his widow, Valerie Bannister (“the Claimant”) and alleged that he had been exposed to asbestos whilst working as a manager in the accounts department under the employment of Freemans Plc (“D”). The allegation of exposure was that a partition wall had been removed from the Deceased’s office over the course of a weekend, following which the Deceased was exposed to a residue of asbestos dust in his office which was cleaned up over the course of a matter of days by the cleaners. As we have seen from the above summary it was admitted that, if proven to be asbestos, such exposure was tortious.

Evidence was given by the Deceased’s former colleague, Mr Ford. Mr Ford had met with the Deceased following the Deceased’s diagnosis, and reminded him both of the removal of the partitions and that a memo had been issued by the Defendant identifying and warning of the presence of asbestos containing infill panels. Expert engineering evidence was provided by Mr Raper for the Claimant and Mr Stear for D. Expert medical evidence was provided by two respiratory physicians; Dr Rudd for the Claimant and Dr Moore-Gillon for D. D denied that the dust contained asbestos and, in the alternative, that any exposure amounted to no more than non-actionable de minimis amounts.

The Judge outlined that, in making his findings of fact, there was need for particular care as regards the accuracy or reliability of the evidence of lay witnesses in historic disease claims. Such principles are derived from the dicta in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066, Gestmin SPGS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 and Sloper v Lloyds Bank Plc [2016] EWHC 483. The Judge made three preliminary findings:

• He drew an adverse inference as to the Deceased’s credibility (NB not honesty: credibility) from his denial of exposure to asbestos to treating medics on 3 separate occasions
• Further, the Deceased’s evidence was largely prompted by Mr Ford’s recollection of the memo;
• But for Mr Ford reminding the Deceased in early 2018 of the existence of the memo or the removal of the partition containing asbestos, the Deceased had no independent recollection of being exposed to asbestos.

The Judge found that, on balance, a memo was sent to the Deceased and that it referred to the infill panels in the partition being removed as having contained asbestos. He then went on to conclude that having identified the presence of asbestos and having sent a memo about the same it was probable that D also would have appreciated the need to engage a specialist contractor to undertake the removal of the asbestos with the appropriate precautions pertaining.

The Judge found that only the infill panels of the partition had been removed and not the central panels. He found that the infill panels were removed the weekend immediately after the memo was circulated to the Deceased. This would have created dust, and it is possible that the Deceased could then have been exposed to asbestos dust upon arriving back to work. However, the process of replacing the infill panels with non-asbestos material would also have created dust free from asbestos.

The Judge found overall that the Deceased was more likely to have been exposed to non-asbestos dust from a different but related process when he told Mr Ford that he could taste dust in his mouth (which was taken as an evidential token of having been exposed to some dust). Overall therefore on the facts the Deceased failed.

The Judge then turned to his obiter considerations. He went on to consider what the Deceased’s exposure would have been had he found that the Deceased was so exposed. He asked himself (i) how a court should assess the Deceased’s exposure and, (ii) what in law constitutes a material increase of the risk of the Deceased developing mesothelioma?

 The Judge recognised that the experts’ calculation of the cumulative dose has a limited value, albeit that it does have some value. Pursuant to the dicta of Aikens LJ in Williams, the Judge sought to make findings as to the Deceased’s actual level of exposure to asbestos, whilst accepting that this might be imprecise. The two experts, after cross examination, settled on very similar dose estimates such that they were effectively in agreement as to the Deceased’s cumulative exposure to asbestos. In any event the Judge preferred the evidence of the Mr Stear, given that Mr Raper’s estimates for both the lower and upper ends of exposure did not withstand close scrutiny. The Judge therefore found “in round terms”, in line with Mr Stear’s evidence that the Deceased’s exposure was no more than 0.0004fibre/ml years.

It was held that the test of causation is one of mixed fact and law because any assessment by the court had to reflect what test to apply in the assessment of the risk and what weight to give to epidemiological evidence. Following Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10, what constitutes a material risk must be for a judge on the facts of the particular case. The Judge found the test set in Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB) was an appropriate means of determining material increase in risk:

“a dose of asbestos which was properly capable of being neglected could be defined as a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about.”

The Judge preferred the evidence of Dr Moore-Gillon because he had attempted to evaluate the significance of the cumulative dose at 1 in 50 million, subsequently describing the increase in risk as “vanishingly low”. Dr Rudd’s evidence was criticised for not assessing the level of risk created by any exposure to asbestos whilst the Deceased was in the Defendant’s employment, and for “straining logic” regarding an annual risk of 1 in 50 million as a material increase.

The Judge rejected the submission that it would be an unusual situation where an exposure to asbestos which constituted a breach of duty was deemed not to be a material increase in risk. This was deemed to erroneously conflate breach and causation. Instead, the judge found that the burden was on the Claimant to show, on a balance of probabilities, that any exposure to asbestos suffered by the Deceased in the course of his employment by the Defendant gave rise to a material increase in the risk of the Deceased developing mesothelioma. Given the Judge’s preference for Dr Moore-Gillon’s evidence, it was found that such burden was not discharged and any exposure would have been de minimis.

 In sum, it was held on the balance of probabilities that the Deceased was not exposed to asbestos dust during his employment by the Defendant. In any event, had such exposure been proved, it did not represent a material increase in the risk of the Deceased developing mesothelioma.

C:        Comment

C1. The approach to evidence

 This requires consideration in respect of both lay and expert evidence separately.

Lay evidence:

(a) It is possible to spill a considerable amount of ink considering to what degree Gestmin principles should be applied outside of commercial litigation (in which usually there is a plentiful substrate of contemporaneous documentation) and personal injury claims. Doubt has been expressed in this regard in at least one decision of the High Court (CXB v North West Anglia NHS Trust [2019] EWHC 2053 QB) (but it is readily accepted that equally there are other Courts which have accepted its application in such cases).

(b) However, it is never more than an approach: to elevate into an evidential principle that lay evidence must always give way to written evidence, or that long term memory being relied upon by a witness is inherently unsafe owing to the passage of time takes matters too far. First, insofar as such a purported principle was to be justified on the grounds that there is a growing realisation that Judges as a body are no better interpreters of human fallibility and recall than any other interlocutor (which is often the justification) then I am afraid the medical, sociological and empirical underpinnings of such an assertion would become fair game and relevant issues of proof in any low level case. This cannot be right.

(c)  Second, it would create an exquisite trap for any victim: if they gave general evidence about what happened in a mundane factory 40 years ago, D would argue ‘ah, the lack of detail betokens want of real recall’. Conversely, if the victim gave an account in which there were elements of vivid detail, D would respond ‘ah, that detail is an after-acquired trick of the memory which betokens that the victim’s evidence is unreliable’.

(d)  The Judgment in Bannister itself records:

82. Moreover, although Mr Steinberg stated that Lord Rodger`s dicta in Sienkiewicz were simply ‘a reminder that the relaxation of the causation test did not apply to or eliminate the other ingredients of tortious liability’, I am satisfied that such dicta and the other judicial observations in Kimathi, Gestmin and Sloper , whilst in no way binding on me, are important as a helpful and cautionary general guide to evaluating oral evidence and the accuracy or reliability of memories and I do not propose to allow the Defendant, in Mr Steinberg’s words ‘to convert one of the inherent difficulties in asbestos litigation – the inevitably long latency periods of the disease – into its first line of defence.’

(e)  Thus there is no warrant from this Judgment for the D commentary promulgated online that victims’ evidence should be viewed sceptically as a species. D’s protection is that the burden lies on the victim to prove all elements of his case and to do so on the balance of probabilities. In looking at the evidence, the Court will take all relevant aspects into account. This may be other lay evidence presented by either side; this may be contemporaneous or subsequent documentation; this may include expert comment where such evidence is relevant and admissible. It will be a matter for the Judge to sift and give such weight to each element of the evidence as she deems proper. D should recall however, that where the only evidence is that of the victim themselves, the minatory words of the Court of Appeal in Brett v University of Reading per Sedley LJ:

“where the evidence points neither way a straw in the wind may be decisive” (see also Hughes v Liverpool City Council, The Times 30   March 1988 per May LJ where he said “The onus was on the plaintiff to make out her case. If there had been only a scintilla of evidence called on her behalf tending to support the fourth inference to which I have referred, then in the absence of any contrary evidence, because no witness was called for the defendants, the judge would have been entitled to find even that scintilla sufficient to make out the plaintiff’s claim”.

Expert evidence:

(a)  The Judge effectively accepted a ‘back calculation’ regarding the level of exposure to asbestos which the Deceased experienced and did so by reference to figures suggested by D’s engineer. He did so:

• Having determined as a matter of law that he was required to make findings of fact as to the level of exposure (citing and following Aikens LJ in Williams v University of Birmingham – who said that that was indeed the task of the Court; citing and not following Maurice Kay LJ in Cox v Rolls Royce to the contrary effect that no specific finding was necessary beyond a general finding that it was material [153-157]); and
• Having acknowledged that the experts evidence had ‘limited’ value [151].

(b)  With respect to the Learned Judge, he appears not to have taken full consideration of Bussey.

• First, he did not cite, nor apparently have in mind, the cautionary words of Underhill J about the exercise undertaken of ‘back calculation’ of dose by experts:

“[62] …Attempting to answer the issue in this case by comparing back-calculations (it might be fairer to say ‘back-guesstimations”) of Mr Bussey’s exposure against subsequently published figures of the kind appearing in TDN 13 is in my view unsound.”

It matters not whether the purpose of the Court was to test the level of exposure against a document such as TDN 13 or for the purpose of determining whether or not a ‘material’ risk had been created, the whole exercise is unsound and should not be undertaken to the point where experts are providing apparently detailed figures or even ranges.

• Why? Because of the old computing acronym GIGO ‘Garbage In Garbage Out’. Such ranges/values are usually calculated using an evidence stock of an impressionistic history contained in lay witness evidence. At best the experts then seek to draw on analogies of exposure with the closest studies which ever measured such exposure. However, measurement did not become a precise science until instrumentation in the 1970s became available.
• The preponderance of appellate authority (Bussey/Cox) is against the making of a precise finding of exposure because such precision is spurious when compared to the likely accuracy actually achieved. This is the practical reason why such exercises should not be undertaken. The deeper, structural reason why this should be so will be addressed in part 2, tomorrow.

This article was originally posted on the 12kBW website but we are re-posting here in case you missed it the first time around. It was written by John-Paul Swoboda and Lynn Yeates of Novum law. They acted for the  successful Claimant in this appeal against a decision to refuse to disapply section 33 of the Limitation Act in a pleural thickening claim.

This claim was, on the claimant’s own case, nearly 6 years out of time. Bearing in mind that a decision under section 33 is an evaluative judgment, such that, as Mann J put it, it “should be impeached only if it betrays an error of principle, takes into account an irrelevant factor or fails to take into account a relevant one” (para 6 of the judgment) it might be thought that any appeal would be difficult to sustain. But the sense of injustice which drove this appeal was that the learned judge below (District Judge Ball, exercising the jurisdiction of a circuit judge) weighed in the scales, when making his s33 decision, a period of time over which neither Mr Gregory nor his solicitors at the time had any control. Namely the period of time when no insurer could be traced against the defunct and dissolved Defendant company[1]. That period accounted for 3 out of the 6 years beyond the limitation period and 6 out of the 9 years from Mr Gregory’s date of knowledge which is to say a significant proportion of the period of delay in prosecuting the action. It was only by luck that the solicitor then instructed by Mr Gregory identified the insurer when he did in 2014 as an employer’s liability tracing office (‘ELTO’) search in respect of a different client revealed the material insurer in Mr Gregory’s claim.

Mann J found “I do not consider that the claimant could be in any way to blame for the delay in this period, and that it was wrong [of the judge below] to characterise the delay as culpable on the part of the claimant” (para 10). As Mann J noted the Defendant was dissolved at the time (such that proceedings would have been a nullity), and any attempt at restoration would have been futile as the Defendant was penniless.

But just because it was shown that the decision below was wrong does not necessarily mean that a different conclusion ought to be reached when the decision is retaken. Mann J set out the passage from Carroll v Chief Constable of Greater Manchester Police [2014] 4 WLR 1 (CA) in which the Master of the Rolls set out the key principles in a section 33 trial. As the MR noted in Carroll “the essence of the proper exercise of the judicial discretion under section 33 is that the test is a balance of prejudice…”. Mann J agreed with the judge below that there had been an inexcusable delay in the prosecution of the claim after the insurer had been traced (a period of about 3 years). But delay does not equate to prejudice and at para 25 Mann J found (as the judge below had also found) that all the prejudice had effectively been accrued prior to 2014 which is to say before the period of culpable delay in prosecuting the claim. Further Mann J found, as the judge below had also found, that a fair trial was still possible. These findings were sufficient for him to reach the conclusion that the claim should be allowed to proceed.

In a parting shot to any who may read this judgment as endorsing a lax approach to bringing a personal injury claim within the limitation period Mann J stated, “it will normally behove a claimant who discovers a late claim to get on with its pursuit. Even if things are so delayed already that additional delay does not cause any identifiable prejudice, a claimant cannot expect to delay as long as he/she likes on that basis. There will come a point at which the claimant’s own delay… will make it unfair to extend the period” (para 32)

[1] In fact, the Defendant had been restored to the Companies Register to allow a different action to proceed.