Occupational Diseases
Cases
Doherty & Ors v Rugby Joinery (UK) Ltd.
[2004] EWCA Civ 147 [2004] ICR 1272
Mr Justice Wilson:
“Eight appellants appeal against the dismissal of their claims against the respondent by His Honour Judge Moore in the Sheffield County Court on 30 January 2003. The claims had been consolidated for the purposes of the trial because they raised the same, or primarily the same, point. All of the appellants are women who, for different periods between 1970 and 1999, were employed by the respondent, which, until it closed them in 1999, operated two factories in Doncaster for the manufacture of doors and windows.
Each of the appellants suffers from vibration-induced white finger (VWF), the progressive disease which first manifests itself in episodic tingling or numbness of the fingers and can lead to painful and disabling vascular and sensorineural injury to the hands and arms. In their actions they claimed that their VWF was the result of negligence on the part of the respondent. In the course of their work, in which frequently, even within the course of one day, they worked at different stages of the production process, they used a variety of hand-held vibratory tools, such as nail guns, electric drills and screwdrivers, but usually only for a few seconds at a time.
Following its introduction for general use in the factories in 1983 they also used, by application of the palm of the hand, an orbital sander for making wood smooth and extricating excess filler from the interstices of the finished article. To this tool considerable attention was paid at the trial because it is now known that, of all the tools used by the appellants, it produced a surprisingly high level of vibration in the hand, from which the potential for development of VWF was substantial.
I turn to the issue whether, had the respondent been aware of the symptoms of VWF exhibited by the four appellants, its duty was only to ensure that none of them used vibratory tools, and in particular the orbital sander, for longer than the maximum periods recommended in the Guide. I agree with Mr Feeny that to rely in this regard on the statement of Judge L.J. in Armstrong v British Coal Corporation No.2 above, that “provided the condition is recognised in its early minor form, it will normally be cured by removing the employee in question from work with vibrating tools” would be improperly to import evidence from another case. But the same proposition is reflected, albeit in less direct terms, in the Draft for Development in which, in the passage quoted in paragraph 11 above, it recommended that, if the onset of VWF was observed, an operator should be transferred to other work before the condition became irreversible. The nature of the duty of employers referable to VWF, once triggered, is at any rate a matter of law; and it is noteworthy that, in Billington & Burrows v British Rail Engineering Ltd, 8 February 2002, unreported, Field J., determining an appeal from the decision of a circuit judge, rejected the contention that the employer’s duty to those known to be exhibiting symptoms of VWF was limited to ensuring that they were not exposed to vibrationfor longer than the recommended maximum. He pointed out that in that case the symptoms had developed notwithstanding exposure to levels of vibrationbelow the recommended maximum; and it seems to me that in the present case, notwithstanding the gap in the judge’s findings to which I have adverted in paragraph 19 above, the respondent, upon learning of the symptoms exhibited by the four appellants, might well also have concluded that they had arisen notwithstanding exposure for shorter periods than the successive recommended maxima. For that reason alone it would have been insufficient for the respondent to ensure only that the currently recommended maximum period was not exceeded. I agree with Mr Robertson that, following its discovery of the appellants’ symptoms, it would have been negligent for the respondent to cause them to work with vibratory tools at all and that, with respect, the judge’s reasoning in dismissing their claims is therefore flawed.
For the above reasons I would allow the appeals of the four appellants who are able to take advantage of the subsidiary point and would remit their claims to the judge for assessment of their damages consequent upon breaches of duty on the part of the respondent from 1991/92. I would dismiss the other four appeals.”
Lady Justice Hale:
“I agree that four of these appeals should be allowed as indicated by Wilson J. After some hesitation I also agree that the remaining four appeals should be dismissed for the reasons he gives. But in view of the way in which the case was argued before us, and the possible use to which this judgment may be put in future cases, I wish to emphasise certain points. This case does not hold that the ‘date of knowledge’ of the risk of VWF in the woodworking industry is as late as 1991/92. It holds simply that these particular employers were not in breach of their common law duty of care towards these particular employees in failing to monitor them for symptons of VWF until that date. In other words, there is a distinction between holding that a reasonable employer should have been aware of the risks and holding that certain steps should have been taken to meet that risk.
The date of knowledge that hand-held vibratory tools might lead to VWF is generally put in the 1970s. There was nothing in the pleadings to suggest that the date of knowledge was in issue in these actions. The Defence in all eight actions took issue with the level of exposure claimed by each claimant, but did not assert that at the date of their claimed exposure it was not reasonably foreseeable that the claimants might suffer VWF if over-exposed to vibration from the tools used at work.
The written expert evidence was accordingly addressed to the issues arising from the pleadings and dealt only briefly with foreseeability. Mr. Glendenning, for the claimants, said this:
“4.27 Knowledge of the risks from vibrating hand tools has developed over the period of the various claimants employment. The principle developments were the publication of BS DD43: 1975 and the subsequent British Standard and Health and Safety Executive publications. The ‘date of knowledge’ for any particular employer is a matter for legal expertise. Although, in our experience the publications of BS DD 43 is often taken as the start point from which an employer should have known about VWF and begun to take action. In our opinion Rugby Joinery should have become aware of the risks associated with uses of vibrating hand tools and begun to take action … during the mid to late 1970s.”
Mr. Beauchamp said this:
“8.1 The earliest date of knowledge in industry has generally been established as round about the mid 1970s (1976) and a summary of the situation is provided at Appendix C.
8.2 Considering the date of knowledge in connection with the various claims … in this action I would have expected the relevant guidance/documentation would be the British Standard Draft for Development BSDD 43: 1975 superseded by British Standard 6842: 1987 followed by the more recent publication HS(G)88 which was published, I understand, in June 1994 …
8.3 There are many documents in the public domain relating to the subject of hard-arm vibration. The documents to which I have referred are not intended to represent an exhaustive list but are merely the documents most commonly referred to in cases of this nature.”
In Appendix C, Mr. Beauchamp summarised the contents of various publications, including the classic book by Taylor and Palmear, Vibration White Finger in Industry, published in 1975; BS DD 43: 1975, from which he made extensive quotation; and Professor Griffin’s Handbook of Human Vibration,published in 1990. The Appendix concluded:
“In the majority of the vibration cases which have been heard in the Courts and in which this office has been involved the state [date] of the knowledge has been in round about the mid-1970s. This was in respect of cases where the Claimants made regular use on a daily basis of vibratory equipment.
There are of course the now more recent cases involving the British Coal Corporation, British Gas and British Rail.”
Nothing in those reports would have led the claimants to believe that the defendants were contending for a date of knowledge later than the mid 1970s. This is scarcely surprising, as BS DD43: 1975 is the sort of official publication which large employers are routinely expected to scan to see whether it contains advice which might affect them. It was not an obscure article in some medical or scientific journal but official advice. Had there been any suggestion of a later date of knowledge, both experts might have produced a more thorough survey of the literature. That such literature exists is within the knowledge of any court which has dealt with other cases of this nature (and is apparent from the reported cases).
The disagreement between the experts in their written evidence was not about whether a reasonable employer should have been aware of the risk of VWF in employees using hand-held vibratory tools but what such an employer should have done about it. In their Joint Engineers Statement they wrote:
“Mr. Glendenning believes that at the date of knowledge the Defendant should have made positive enquiries of their workforce using vibratorytools with regards to symptoms and made an assessment of the vibration levels. Dependent on the results of these enquiries and assessments further action may have been necessary. Mr. Beauchamp believes that if the vibration exposures did not exceed levels given in the guidance relevant at the time of exposure then the Defendants would be justified in taking no further action to control vibration risks unless they were aware of any problems. We accept however that these, strictly speaking, are matters for the Court to decide.”
The experts are right, of course, that these are matters for the Court to decide: even if a reasonable employer in any industry ought to have been alive to the risk of VWF by the mid 1970s, the Court has to decide what would be taking reasonable care for his employees in all the circumstances. What would be reasonable care for one employer might not be reasonable care for another, even if both could foresee that there might be a problem.
In favour of Mr. Glendenning’s proposition are some of the contents of BS DD43: 1975. The guidance given is not limited to heavy industry but applies to industry generally. It is a ‘draft for development’ because so little was then known about the ‘dose-response relationship’. It was hoped that the draft would help clarify the situation for those concerned with the problem
‘and encourage monitoring so that, if the onset of VWF is observed, operators may be transferred to other work before the condition becomes irreversible. This would be of particular value in the case of operatives who may be especially susceptible to injurious effects from vibrationthough it is well within the limits recommended …’ (p4, para 1)
BS DD43: 1975 also recommended that operators were asked about symptoms before being engaged for employment entailing exposure of the hands to vibration (Appendix B).
Because of the complexity of the problem and the paucity of information, there was still considerable uncertainty by the time that the British Standard was promulgated in BS 6842: 1987. This also advised in B2.1:
“When medical screening is judged to be necessary for workers whose hands may be exposed to potentially harmful vibration then it should be done:
(a) prior to employment in this type of work;
(b) at regular intervals thereafter for as long as the worker continues to be exposed to vibration.”
Further, the ‘Administrative preventive measures’ at B3 included:
“(a) All individuals who use vibrating equipment should be advised of the risk of exposure to hand arm vibration.”
Among the ‘Advice to individuals who use vibrating tools’ at B4 was this:
“(d) Should attacks of white or blue finger or long periods of tingling and/or numbness occur, seek medical advice.”
It is clear from both documents that the state of knowledge was not sufficient to lay down a safe standard of exposure. The variables were too complex, and included individual susceptibility. Thus it could be suggested that any employer whose employees regularly used hand-held vibratory tools should at the very least take steps to warn them of the possible dangers and advise them to report any symptoms when they occurred.
On the other hand, both documents are intended, as their titles state, as guides to the measurement and evaluation of exposure of the human hand-arm system to vibration. The levels of exposure to vibration which they discussed are way beyond most of the levels to which these claimants were exposed. If these employers had addressed their minds to the risks at an earlier stage and taken the step of having their tools examined they would not have been alerted to the risks except within the recommended levels.
If we assume, therefore, that these employers should have been alive to the problem and addressed their minds to it, what should they have done? The only answer which would have made a difference to these claimants would have been to warn them to be on the lookout and report the symptoms if they occurred. But the law of negligence requires only that employers take such steps as are reasonable in all the circumstances to protect their employees from foreseeable harm. In asking whether it was reasonable in all the circumstances, the fact that it would not have crossed these experts’ minds that any such steps might be necessary must be relevant, albeit not determinative. When added to the low levels of exposure, the much higher levels of exposure discussed in the official publications, and the lack of any suggestion of complaint from any of the appellants, the judge was entitled to reach the conclusion that there was no breach of duty until 1991/92.
For those reasons, I agree that four of these appeals should be dismissed.”
Allen & Ors v British Rail Engineering Ltd & Anor
[2001] EWCA Civ 242
SCHIEMANN LJ
“Before the Court is an appeal on quantum by Mr Allen against a judgment delivered by Mrs Justice Smith after a 4 week trial of four cases of which Mr Allen’s was one. They were chosen as lead or test cases for hundreds of cases involving similar points. Each of the Claimants suffers from Vibratory White Finger (“VWF”) and was employed by the Defendants British Rail Engineering Ltd. (“BREL”). In each case the injury arose out of the relevant claimant’s employment. Points which were common to all cases were the date by which BREL should have realised that the use of vibrating tools might involve some risk to their employees and what the nature of BREL’s duties to their employees was after that date. BREL submitted before her that they were not liable at all. They lost. Her decision on those important points is not the subject of this appeal. There is however a cross appeal on a limitation issue to which we will turn later in this judgment.
We are concerned with two questions which arise out of the following findings by the Judge. The employee suffered injury as a result of carrying out his work with vibrating tools. The state of knowledge as to the dangers inherent in carrying out this work changed during the course of the employee’s employment. The employer’s negligence ar
Causation and apportionment : The issue of principle
The issue of principle between the parties can be stated shortly. Mr David Stembridge Q.C., who appeared for Mr Allen,contended that, once it had been shown that the defendants’ negligence made a material contribution to the injury suffered by the claimant, the defendants were liable to compensate him for the whole of his injury save in so far as it was shown or accepted that this had been aggravated by non-negligent exposure pre-1973 by BREL or by post 1987 exposure by Mr Allen’s new employers. Mr William Norris Q.C., who appeared for BREL on the appeal (Mr Allen having been represented by Jonathan Playford Q.C. before the Judge), contended that in principle an employer was only liable to his employee for that part of the harm suffered by the employee which is attributable to the employer’s negligence. It was this principle which led to the exclusion of liability for damage suffered prior to 1976 and after 1987. The same principle logically led to the exclusion of liability for damage which was caused by doing work which the employer was under no obligation to prevent. That submission succeeded before the Judge – hence the appeal.
The argument on either side referred to a number of cases. The most significant of these for present purposes are Bonnington Castings Ltd. v Wardlaw [1956] AC 613 H.L., Thompson v Smiths Ship Repairers (North Shields) Ltd. [1984] Q.B. 405 and Holtby v Brigham & Cowan (Hull) Ltd. [2000] 3 All ER 421 C.A.
The facts of Bonnington were as follows. The employment of a steel dresser exposed him to silica dust emanating from the pneumatic hammer at which he worked and also from swing grinders. No dust extraction plant was known or practicable for use with the hammer but, though the swing grinders were fitted with such equipment, they were not kept free from obstruction and in this respect the factory owners were in breach of their statutory duty under some regulations. The steel dresser, having contracted pneumoconiosis in the course of his employment, sued the employers for damages. He admitted that he could not complain insofar as his disease was caused by the dust from his own or any of the other pneumatic hammers. Nonetheless he recovered in full. The employers appealed on the basis that the claimant had failed to discharge the onus of proving that his contraction of the disease was caused by the employer’s fault or breach of statutory duty or materially contributed to by them. He submitted that on the evidence the claimant had failed to connect causally his ailment with the employer’s negligence. He submitted that the proper inference was that the source of the disability was the hammer and not the swing grinders. The question of apportionment was not ventilatedat all.
It was in that context that Lord Reid said at page 622:
“I think that the position can be shortly stated in this way. It maybe that, of the pneumoconiosis dust in the general atmosphere at the shop, more came from the pneumatic hammers than from the swing grinders, but I think it is sufficient to prove that the dust the grinders made a substantial contribution.”
Lord Keith of Avonholm said at page 626:
“As there was no evidence to show the proportions of the dust emanating from the various sources in the dressing shop inhaled by the pursuer, his case, it was said, must fail. The pursuer has, however, in my opinion, proved enough to support the inference that the fault of the defenders has materially contributed to his illness…. It was the atmosphere inhaled by the pursuer that caused his illness and it is impossible, in my opinion, to resolve the components of that atmosphere into particles caused by the fault of the defenders and particles not caused by the fault of the defenders, as if they were separate and independent factors in this illness. Prima facie the particles inhaled are acting cumulatively, and I think the natural inference is that had it not been for the cumulative affect the pursuer would not have developed pneumoconiosis when he did and might not have developed it at all.”
Thompson v Smiths Ship Repairers (North Shields) Ltd. [1984] Q.B. 405 was a test action concerning plaintiffs who had been engaged in the ship repair industry where they had been exposed to excessive noise over extended periods of their employment which had resulted in deafness. The problem arose because all excessive noise had contributed to their disability, but the defendant employers were not guilty of negligence until 1963, by which time considerable damage had been done, though it was not necessarily recognisable. There was also the problem of successive employers.
Mustill J. said at page 437D:
“The starting point for any enquiry into the measure of damages is the principle that the Court should as far as possible endeavour to restore the plaintiff to the position in which he would have found himself but for the defendants wrongful act.”
At page 438F he said:
“Next, one must consider…. a case where either (a) there are two successive employers, of whom only the second is at fault, or (b) there is a single employer, who has been guilty of an actionable fault only from a date after the employment began…. Employer B has,…, ‘inherited’ a workman whose hearing is already damaged by events with which that employer has had no connection, or at least no connection which makes him liable in law. The fact that, so far as the worker is concerned, the prior events unfortunately give him no cause of action against anyone should not affect the principles on which he recovers from employer B. Justice looks to the interests of both parties, not to those of the plaintiff alone. This solution pre-supposes a division of responsibility between A and B, or (in the case of the second example) between non-blameworthy and blameworthy sources of noise. How precise must this division be, before it can found an apportionment in law? What happens if the apportionment is insufficiently precise? To the latter question, general principle supplies only a guarded answer. In strict logic, the plaintiff should fail for want of proof that the breach has caused the damage. Yet this seems too strict, for the plaintiff has proved some loss: perhaps it should all be attributed to the fault, simply as a matter of policy. The answer to the first question seems less difficult. The degree of accuracy demanded should be commensurate with the degree of accuracy possible, in the light of existing knowledge, and with the degree of accuracy involved in the remainder of the exercise which leads to the computation of damages. It is senseless to demand the utmost accuracy at one stage of a calculation, which involves the broadest assumption at another stage, and the application of conventional measures of recovery at yet another.”
At page 443D Mustill J said:
“The defendants as well as the plaintiffs are entitled to a just result. If we know… that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position….. Thus, whatever the position might be if the Court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiff in full, or on some wholly arbitrary basis such as an award of 50%, I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the Court should make the best estimate which it can, in the light of the evidence, making the fullest allowance in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that it has to be regarded as a jury question, and I propose to approach it as such”.
In Holtby the claimant, H, was exposed to asbestos dust while working for several years as a marine fitter. For about half the period that he worked as a fitter, his employer was B Ltd. For the remainder, he was employed by other employers doing similar work in similar conditions; in some cases for periods of years, in others for periods measured in months. He developed asbestosis and brought an action for personal injury against B Ltd.. At trial, the Judge held that B Ltd. had been negligent and in breach of statutory duty, but that it was liable only for the damage which it had caused. He further found that H’s condition would have been less severe if he had only sustained exposure to asbestos dust whilst working for B Ltd. Accordingly, he reduced the damages by 25% even though B Ltd. had not expressly pleaded that it was responsible for a portion of the disability. H appealed, contending that he was entitled to recover all his losses from B Ltd., notwithstanding that others might have contributed to his injury. Alternatively, he submitted that once a claimant had proved that the defendant’s conduct had made a material contribution to his disease, the onus was on the defendant to plead and prove that others were responsible for a specific part of the injury. Finally, H contended that there was no evidence to justify the deduction made by the Judge. The appeal was dismissed.
Stuart-Smith L.J. approved of the approach of Mustill J in the passage cited and said this in relation to Bonnington:
“14 What the Lords did not consider in that case was the extent of the defendants’ liability, because it was never argued that the defendants were only liable to the extent of the material contribution. But the case makes it quite clear that proof of causation is a matter for the claimant.
20….. as the passages cited from [Bonnington at page 620, McGhee v National Coal Board [1973] 1 WLR 1 at 11 – 12, Wilsher v Essex Area Health Authority [1988] AC 1074 at 1090] show the onus of proving causation is on the claimant; it does not shift to the defendant. He will entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability but strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full as in the Bonnington case and McGhee’s case…… Strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day and on consideration of all the evidence the claimant has proved that the defendants are responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the Court only has to do the best it can using its common sense….. cases of this sort, where the disease manifests itself many years after the exposure, present great problems because much of the detail is inevitably lost…. But in my view the Court must do the best it can to achieve justice, not only to the claimant but the defendant, and among defendants.
23. It is said by Mr. May that there is no evidence to … justify the deduction of 25%. I do not agree. Although it is only a question of nomenclature I think Mr. Goldstaub is right when he submits that it is not so much a question of apportionment between tortfeasors as one of proof of causation in respect of a quantifiable part of his disability by the claimant against the defendants; and further it was not so much a question of discounting the full liability figure, as counting the proportion attributable to the defendants.”
With that judgment Mummery L.J. agreed. Clarke L.J. did not entirely agree with parts of it. However he added by way of postscript in paragraph 37:
“….I entirely agree…. that in reality these cases should not be determined by the onus of proof. That seems to me to be so whatever the correct view of where the burden of proof lies. That is because, as Mustill J. put it in Thompson’s case, “The fact that the precise quantification is impossible should not alter the position. The whole exercise of assessing damages is shot through with imprecision”…. the assessments of questions of this kind are essentially jury questions which have to be determined on a broad basis…”
Conclusion on the issue of principle
In our judgment the case law as it now stands establishes five propositions of which the first is concerned with liability and the others with quantifying damages.
(i) The employee will establish liability if he can prove that the employer’s tortious conduct made a material contribution to the employee’s disability.
(ii) There can be cases where the state of the evidence is such that it is just to recognise each of two separate tortfeasors as having caused the whole of the damage of which the claimant complains; for instance where a passenger is killed as the result of a head on collision between two cars each of which was negligently driven and in one of which he was sitting.
(iii) However in principle the amount of the employer’s liability will be limited to the extent of the contribution which his tortious conduct made to the employee’s disability.
(iv) The court must do the best it can on the evidence to make the apportionment and should not be astute to deny the claimant relief on the basis that he cannot establish with demonstrable accuracy precisely what proportion of his injury is attributable to the defendant’s tortious conduct.
(v) The amount of evidence which should be called to enable a judge to make a just apportionment must be proportionate to the amount at stake and the uncertainties which are inherent in making any award of damages for personal injury.
The application of those propositions should lead to a just and principled result. We mention by way of coda that this approach seems to accord with the view of the authors of the American Law Institute’s Restatement of the Law (Second) Title “Torts” 2d. paragraph 433 [A]:
“Apportionment may also be made where a part of the harm caused would clearly have resulted from the innocent conduct of the defendant himself, and the extent of the harm has been aggravated by his tortious conduct.”.
The illustration given by the authors, number 7, reads:
“Smoke from A Railroad’s Roundhouse interferes with B’s use and enjoyment of his dwelling. There is evidence that a reasonable operation of the Roundhouse, for which A Company would not be liable, would have caused one-third of the smoke and interference, and that the remaining two-thirds results from A Company’s failure to take proper precautions. On the basis of this evidence, A Company may be held liable for two-thirds of the damages to B.”
Causation and apportionment : was the Judge entitled to conclude that 50% was an appropriate figure for Mr Allen?
A. Preliminary observations :-
(i) Although these cases were test cases, this particular issue is a pure question of fact dependant upon each individual claimant. This issue is therefore not one of principle and the amounts at stake are so relatively small that this point would never have reached this court had it not been regarded as wrapped up in the issues of principle.
(ii) The question of attribution of part of an injury to a particular defendant in a case such as the present is one on which a full and detailed inquiry would be expensive in time and money in a way totally out of proportion to the amount at stake. In those circumstances there is in principle much to be said for judges at first instance doing what Mrs Justice Smith did in the present case and adopting a broad brush approach.
B. The Judge’s findings:-
The Judge, as appears clearly from the judgment and from the extracts of the transcript which we have seen, understood the scientific and medical evidence. Her judgment is full and careful. Our citations inevitably are an incomplete summary.
The Judge found in paragraph 110 of her judgment that Mr Allen’s total exposure after 1987 was about 10% of the life time exposure. This is not challenged. She also said:
“… I also estimate in very round figures, which is all that I can attempt, that about 40% of the plaintiff’s exposure occurred before the onset of symptoms in 1968 and about 50% (that is a further 10%) occurred before the end of 1973. It follows that about 40% of his exposure occurred during the years of the first defendants’ negligence.”
Again this is not challenged.
……
………
115.… I conclude that Mr. Allen’s condition, which was caused by vibration exposure, deteriorated gradually between 1973 and 1987 as Professor Welsh described and that part of that deterioration was due to the first defendant’s breach of duty.”
The Judge accepted the evidence of Professor Welsh who was called for Mr Allen. We draw attention to the following passages from his evidence and give the page reference in the transcript. He said at page 93 that vibration was cumulative and leading to progressive damage to the tissues and that when that damage reaches a certain point the individual then notices the symptoms; at page 95 that before the symptoms there would be likely to be tissue changes but they could not be assessed; and at page 103 that apportioning current symptoms to periods of past vibration exposure was extremely difficult and that the whole of the vibration exposure was responsible for the current symptoms.
In the course of considering the limitation issue which is the subject of the cross-appeal and in particular when Mr Allen’sinjuries became ‘significant’ (that is serious enough to justify the making of a claim) she said in paragraphs 121:
“I think Mr. Allen’s symptoms were “significant” certainly by 1987 and probably for a few years before that.”
She found in paragraph 123 that Mr Allen was a stoical man who did not trouble his doctor. She concluded in paragraph 126:
“Mr Allen already had some symptoms in 1973 although they were not severe. I think they were probably at stage 1. By that time he had receive 50% of his total vibration dose. There would have been some inevitable increase in symptoms because, during the years 1973 to 1976, there would have been little or no abatement in exposure and even after 1976 the plaintiff would have been exposed to some vibration which would inevitably have increased his symptoms (although more gradually than in fact occurred). I have said that the 40% of his lifetime’s dose could have been reduced by up to about half had the first defendants complied with their duty. In my view the result would have been that the plaintiff would not have progressed to stage 3 as he did. He would probably have progressed to somewhere within stage 2, probably nearer to stage 3 than to stage 1. …. I do not apportion damages on a straight line basis because damages should reflect the onset and progress of disability as well as actual damage. I give greater weight to the exposure after the symptoms have begun than to the early exposure. Doing the best I can to take these factors into account, I conclude that the appropriate figure for general damages is £4,000.”
C. Conclusion
Mr Stembridge concentrated in his attack on the judgment on the question of principle which we have resolved against him. Part of that attack consisted in pointing out the difficulties inherent in doing the apportionment exercise which the Judge undertook. We accept that there are difficulties but it is important to recognise that the Judge was faced with a choice between awarding nothing to the claimant because he had not proved the precise amount of damage attributable to the negligence, doing her best to find out how much of the damage was attributable to the negligence while accepting that the exercise was not perfect and might err at the margins, or holding the defendant liable for the consequences of actions which were not negligent. The first and last of these courses certainly involved substantial injustice to one party or the other. The middle course which she took involved a risk to both parties of a minor injustice. We consider she was right to choose the middle course.
Mr Stembridge submitted that this was a case where it was implicit in the Judge’s findings that it was not until a few years before 1987 that the injury became sufficiently serious to warrant the institution of proceedings, that by 1980 Mr Allen was still at stage 1. He submitted that the employers at that stage could and should have offered him non-vibratory work and, had they done so, he would have taken it and would never have been exposed to the further vibration which led to changes to his body which in turn interfered with work and social activities. There was however no evidence that non-vibratory work was available for which Mr Allen was suitable. The judge found that there was vibratory work involving lower doses of vibration and that if this had been offered Mr Allen would have taken it; if it had not been offered he would have found such work elsewhere.
Mr Stembridge submitted that there was no material before the Judge from which she could conclude that Mr Allen, once the dangers of carrying on using vibrating tools had been pointed out to him, would nevertheless have continued using them albeit at a lesser intensity. We reject that submission. Mr Allen was a stoical man. He had a good job. The severity of the problems which might be posed by a further development of the disease, itself not thought to be inevitable, was not enormous – as is shown by the ultimate and undisputed total of damages. It was open to the Judge to find that he would have compromised by continuing to use the tools but in a way that would involve less vibration for less time. The fact is that the country is full of people carrying out jobs which they know entail a risk of damage to the body.
Mr Stembridge did not and could not submit that this was a case where, but for the negligence, there would have been no actionable damage. The point can best be understood by assuming that negligence on the part of the employers had been present throughout Mr Allen’s employment and he had sued in 1973. They could not have escaped liability for the totality of the damage, notwithstanding that the symptoms were at that stage fairly minor. Mr Allen could have claimed compensation not just for the tingling unpleasantness but for the additional vulnerability which he now had by reason of the damage to his tissues and the restriction on the level of choice on his employment and leisure activities that this imposed. Although the level of symptoms was low in 1973 much damage had already been done to the tissue.
Mr Stembridge finally submitted that the whole way the Judge had decided case, namely by carrying out an apportionment exercise was something that had not been canvassed in the evidence or speeches and therefore was not open to her. We accept that the issue of apportionment was not at the heart of the debate at trial. There the Plaintiff was arguing in principle he should be entitled to everything and the Defendants were saying he should be entitled to nothing. Neither chose to explore with the witnesses or in large parts of their submissions the issue of apportionment. However, we are not persuaded that the Judge acted in a manner which was procedurally improper or in a way which was in the event unfair to the plaintiff. We note that this point was not taken before the Judge herself in circumstances where she had sent the written judgment to the parties some days before she handed it down in their presence in court. We note that the point was not taken a month later when she heard submissions about costs; nor when, some months later, the parties applied to the Judge for leave to appeal. Nor is it taken expressly in the Notice of Appeal. All this argues against the claimant having any sense of unfairness at what had happened. So does the fact that the judge herself gives no sign that in her judgment that she thought she was going off in new directions which had never been considered. We have been taken through some of the transcripts and are satisfied that the point was ventilated and that there was material before the Judge upon which she was entitled to rely for the conclusions to which she came.
One must remember that she was considering whether to award the claimant £4000 more or less. She approached the question, as we have found, correctly. It would have been wholly disproportionate to reopen the trial for further evidence to be called and cross-examined on the point. It would be even more disproportionate were we to send the case back for a retrial even on this limited issue.
For all these reasons we dismiss this appeal.”
Pickford v. Imperial Chemical Industries Plc
[1998] UKHL 25; [1998] 3 All ER 462; [1998] 1 WLR 1189
LORD SLYNN OF HADLEY
“Taking the evidence as a whole, the judge was far better placed than the Court of Appeal was to assess to what extent, if at all, the respondent was exaggerating and which of the other witnesses who tended to contradict her were the more reliable. Here indeed were primary findings of fact on mundane matters, to adopt Lord Bridge’s description in Wilsher v. Essex Area Health Authority [1988] AC 1074, with which the Court of Appeal were not entitled to interfere. As for the comment that the organic nature of the respondent’s cramp cast a flood of light on her claim that she was typing for prolonged periods, this proposition may equally well be run round the other way. It may indeed be said that the judge’s conclusions about the amount and nature of the respondent’s typing work, based on his assessment of the reliability of the evidence given by the various witnesses, cast a great deal of light upon the question whether her condition had been proved to have been an organic one.
Foreseeability and Negligence
The judge held that it was not reasonably foreseeable, in the state of knowledge about the condition in 1988 and 1989, that the work which the respondent was required to do as a secretary would be likely to cause her to contract PDA4. As he put it, while it was technically foreseeable that a typist might suffer from this condition, it was not reasonably foreseeable that this would happen to a secretary who was typing to the extent which he found established by the evidence. He also held that the respondent had not established the grounds on which she had claimed that the appellants were negligent.
In her particulars of negligence the respondent had alleged that the appellants were negligent because they had failed to warn her of the risk of developing the condition from typing at a fast speed all day without respite apart from her lunch break. At the trial the allegation was that they had failed to take steps to ensure that she was given the same instruction, warnings and advice as were given to the typists in the accounts department. The judge did not think that the appellants were under a duty to prescribe for the respondent rest periods from her typing work, as she had ample non-typing secretarial work to intersperse with it. He said that her work lent itself naturally to rotation and interspersment. He pointed out that the respondent herself had rejected the notion that a regime might be imposed upon her which, as a secretary and not a typist, she would have regarded as unsuitable. This was, he said, a matter of common sense. He rejected the allegation that a warning should have been given to her, on the grounds that the condition was uncommon and, on the evidence, very rare in the case of typists, that it was not the practice in the industry to give such a warning and that to do this, in the case of such a vague condition which was not easily identifiable, might well be counterproductive.
The majority in the Court of Appeal held that it was plainly reasonably foreseeable that typists might suffer from the condition if they typed for long periods without break, and that the appellants should have given the same advice, instructions and warning as they gave to the typists in the accounts department. It is clear from their reasoning that they were proceeding on the basis that the amount and nature of the respondent’s typing work was not materially different from that done by the typists in that department. As in their case, as they understood it, she also was required to type for long periods without breaks or rest pauses. So she needed to be given the same advice and instructions as had been given to them so that she would take breaks and rest periods, and she should have been given a warning in order to ensure that she did what she was told. Without that warning she would not have had the requisite knowledge that it was necessary for her for her own health to take breaks from prolonged spells of typing work.
There are two flaws in this approach which in my opinion wholly undermine the conclusion by the majority that in this case the appellants were negligent. The first is their assumption that the respondent’s evidence that she was typing for prolonged periods with breaks and rest pauses was accurate and reliable. The second is their failure to appreciate, and to take into account, the fact that the nature and variety of her other work lent itself naturally to rotation and interspersment with her typing work. This was not something that had to be laid down in advance. The breaks and rest pauses from typing, on the judge’s findings, occurred naturally throughout her working day because of the variety of the duties which she had to perform as a secretary.
In effect, the majority rejected the judge’s assessment that the respondent’s evidence was affected from time to time by exaggeration and inconsistency and that it had to be tested carefully against the other evidence. They left out of account his detailed analysis of the evidence of the other witnesses whom he accepted as reliable. Had they accepted that analysis, they would have seen that her position was quite different from that of the typists in the accounts department. The typists who worked there had no other work to do other than typing. In their case steps had to be taken by way of forward planning to ensure that they took breaks and rest pauses. In her case this was not so. Even when she was spending up to 75 per cent. of her time on typing work she still had 25 per cent. of her time, in addition to her lunch break, to do her other work which was spread naturally over her working day. Unlike the typists, she had both the experience and responsibility to organise and plan her own work according to its requirements from day to day. She did not need to be told what to do.
There was also a good deal of evidence to show that the appellants had taken steps to enquire into, and to provide against, the possibility that the operators of word processors might suffer from fatigue–in itself not harmful to health–and possible injury due to poor posture and other undesirable working practices. At a meeting held in Runcorn in May 1987 five possible health concerns had been identified by them. These were back-ache, eyestrain/headache, effective lighting, radiation/pregnancy and repetitive strain injury. In the case of repetitive strain injury it was noted that this complaint was most often associated with a combination of poor hand position and typing too fast. It was not suggested that the respondent had been adopting a poor hand position, and her complaint of typing too fast was rejected by the judge on the evidence. It was noted that the results of repetitive strain injury were pain, swelling and discomfort in the fingers and wrist. The respondent’s complaint when she went to see the works doctor, Dr. Lamb, on 31 May 1989 was of pain in the back of her hands. He said that he was unable to find any physical sign of the pain, and that he had not seen or heard of similar symptoms.
As for the giving of warnings, the respondent said in her particulars of negligence that she should have been told of the risk of contracting PDA4. The giving of warnings of the risk of disease or injury is a precaution which is familiar in the field of litigation for personal injury. But in the case of conditions such as PDA4, which are not easily identifiable and not well understood, great caution must be exercised as to the content of any such warning and as to whether to give a warning at all is appropriate. To impose a duty which may cause more harm than good would be undesirable. The law does not compel employers to take steps which may bring about the condition which they wish to prevent. Conditions which are associated with functional or psychogenic disorders present particular difficulty. So the judge was right to pay careful attention to the advice of the experts, and to the practice in the industry, as to precise terms of any warning that the appellants might responsibly give to their employees about the risk of contracting PDA4.
Dr. Hay said that those who were prone to anxiety might perceive that they had the symptoms of the disease, so a balance had to be struck. On the other hand a balanced warning might simply do no more than accord with the common sense precautions which everyone would take. Mr. Stanley said that it would be disgraceful to give a warning which said that if you developed pain you may never work again. The warning which he would have regarded as acceptable was simply to go and see the works doctor if you develop unusual pain or discomfort. But that was not the kind of warning which the respondent was looking for–she went her GP two days after she had noted in her diary for the first time that she had pain in her hands, and a few days later she was seen by the works doctor. The judge accepted the evidence of Mr. Pearce, the appellant’s ergonomist, that it was not the practice in industry in 1988 and 1989 to give a warning of any kind about the risk of contracting PDA4, and that of Dr. Teasdale, the appellants’ chief medical officer, who said that no literature had ever come to his attention advocating such a warning. His evidence was that the appellants were well aware that poor siting of equipment could lead to eye strain and other disorders, and that steps had been taken to ensure suitable work station design and siting and that appropriate information was given to visual display operatives. But he would have regarded a warning that muscle fatigue might develop into PDA4, a rare disease, to be counterproductive and, in the absence of advice by a suitable expert body such as the Health and Safety Executive to the contrary, he did not consider it necessary or proper to give such warnings. The judge also accepted Dr. Lamb’s evidence that a formal system of instruction, warning and advice was adopted and implemented for typing staff in the accounts department as the working day was confined to accounts and difficulties in changing postures could arise in their case. But such a system was not considered necessary for secretaries as they carried out many non-typing duties in the course of their working day.
Stuart-Smith L.J. said that he was not moved by the suggestion that the giving of warnings might give rise to difficulty. In his opinion all employers had to do was to give the instructions, advice and warning which the appellants gave to those they considered to be at risk of doing excessive typing. It seems that the kind of warning which he had in mind was that described by Dr. Lamb, which is not what the respondent was asking for. But the judge had ample evidence before him to justify the decision which he took that in the respondent’s case this was unnecessary. I think that he was right to regard her case as entirely different from that of the typists in the accounts department. She was not required, as they were, to work continuously on a word processor, and the appellants had no reason to anticipate that she was exposed to the same risk of contracting PDA4 which, in any event, was minimal in their case.
The decisive point which emerges from this part of the case is that the respondent’s claim that her typing work was comparable with that done by the typists in the accounts department was shown, by a careful analysis of the evidence, to be exaggerated and unsupportable. The findings by the judge that the condition was not reasonably foreseeable in her case and that the appellants were not negligent in the respects alleged by her were, in my opinion, soundly based on the evidence. I do not think that the Court of Appeal should have interfered with his decision that the appellants were not liable to the respondent in damages. I would allow this appeal.”
Stokes V Guest Keen and Nettlefold (Nuts and Bolts) Limited
[1968] 1 WLR 1776
Swanwick J
‘the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.’
Wardlaw v Bonnington Castings Ltd
[1956] UKHL 1 [1956] AC 613] HL Lord Reidl
Throughout his eight years in the Appellants’ service the Respondent operated one of these pneumatic hammers and he admits that he cannot complain in so far as his disease was caused by the dust from his own or any of the other pneumatic hammers. As there was no known means of collecting or neutralizing this dust, and as it is not alleged that these machines ought not to have been used there was no breach of duty on the part of the Appellants in allowing this dust to escape into the air. The Respondent makes no complaint with regard to the floor grinders because the dust-extracting plant for them was apparently effective so far as that was possible, and it seems that any noxious dust which escaped from these grinders was of negligible amount. But the Respondent alleged, and it is admitted, that a considerable quantity of dust escaped into the air of the workshop from the swing grinders, because the dust-extraction plant for these grinders was not kept free from obstruction as it should have been. It frequently became choked and ineffective.
Regulation 1 of the Grinding of Metals (Miscellaneous Industries) Regulations, 1925, provides ” No racing dry grinding or glazing ordinarily causing ” the evolution of dust into the air of the room in such a manner as to be ” inhaled by any person employed shall be performed without the use of ” adequate appliances for the interception of the dust as near as possible to ” the point of origin thereof and for its removal and disposal so that it shall ” not enter any occupied room. . . .”
It is admitted for the Appellants that they were in breach of this Regulation in that for considerable periods dust from the swing grinders escaped into the shop where the Respondent was working owing to the appliances for its interception and removal being choked and therefore inadequate. The question is whether this breach of the Regulation caused the Respondent’s disease. If his disease resulted from his having inhaled part of the noxious dust from the swing grinders which should have been intercepted and removed then the Appellants are liable to him in damages: but if it did not result from that then they are not liable.
……
It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.
The only authority cited by the Court of Appeal in Vyner’s case for their statement of the law is a passage from the judgment of Lord Goddard in the Court of Appeal in Lee v. Nursery Furnishings, Ltd. [1945] 1 All E.R. 387. ” In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and where you find that the accident complained of is the very class of accident that the regulations ” are designed to prevent, a court should certainly not be astute to find that the breach of the regulation was not connected with the accident, was not ” the cause of the accident”.
I agree: a Court should not be astute to find against either party, but should apply the ordinary standards. I cannot see in what Lord Goddard said any suggestion that the ordinary onus of proof is to be shifted. I would only add that in at least two subsequent cases (Mist v. Toleman & Sons [1946] 1 All E.R. 139, and Watts v. Enfield Rolling Mills (Aluminium) Ltd. [1952] 1 All E.R. 1013) the Court of Appeal, being powerless to overrule a previous decision of that Court, were driven to find distinctions which do not appear to me to be satisfactory and which I doubt whether they would have adopted if they had been convinced of the validity of the general rule.
The medical evidence was that pneumoconiosis is caused by a gradual accumulation in the lungs of minute particles of silica inhaled over a period of years. That means, I think, that the disease is caused by the whole of the noxious material inhaled and, if that material comes from two sources, it cannot be wholly attributed to material from one source or the other. I am in agreement with much of the Lord President’s opinion in this case, but I cannot agree that the question is which was the most probable source of the Respondent’s disease, the dust from the pneumatic hammers or the dust from the swing grinders. It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.
As the Lord Ordinary did not deal with the case from this point of view, I must deal with the evidence afresh in light of such of his findings of fact as are relevant in this connection. He said: ” Prima facie it would appear ” that the main source of injurious silica dust which the pursuer inhaled came from the dressing processes in which he was engaged at the dressers’ bench over the years “. With that I agree. Then he said: ” but to succeed in this ” argument the defenders have to establish that on the balance of probabilities ” it was the only source.” I have already stated my reasons for not agreeing with that. Then he considered certain evidence and said: ” In the face of that ” evidence I cannot hold that the silica dust from the dressing process was ” the sole source of infection, having regard to the proximity of the pursuer’s ” place of work to the swing grinders, unless it is established that the system ” of ventilation in the shop was sufficient to carry away the noxious particles of silica dust and prevent them from being inhaled by the pursuer.” He held that the ventilation was defective and insufficient to do this. I do not think that the ventilation was insufficient to comply with the Regulations but I agree that it did not carry away dust so quickly as to prevent it from floating in the general atmosphere of the shop for some time; probably no system of ventilation would have prevented that.
I think that the position can be shortly stated in this way. It may be that, of the noxious dust in the general atmosphere of the shop, more came from the pneumatic hammers than from the swing grinders, but I think it is sufficiently proved that the dust from the grinders made a substantial contribution. The Respondent, however, did not only inhale the general atmosphere of the shop: when he was working his hammer his face was directly over it and it must often have happened that dust from his hammer substantially increased the concentration of noxious dust in the air which he inhaled. It is therefore probable that much the greater proportion of the noxious dust which he inhaled over the whole period came from the hammers But on the other hand some certainly came from the swing grinders, and I cannot avoid the conclusion that the proportion which came from the swing grinders was not negligible. He was inhaling the general atmosphere all the time, and there is no evidence to show that his hammer gave off noxious dust so frequently or that the concentration of noxious dust above it when it was producing dust was so much greater than the concentration in the general atmosphere, that that special concentration of dust could be said to be substantially the sole cause of his disease.
Holtby v Brigham & Cowan (Hull) Ltd [2000] EWCA Civ 111
LORD JUSTICE STUART-SMITH:
“The point of principle
11. Mr May submits that all the claimant has to prove is that if the defendant’s conduct made a material contribution to his disease he is entitled to recover all his loss from that defendant, notwithstanding that others may have contributed as well. The defendant is then left to his remedy against other tortfeasors. Alternatively, he submits that once the claimant has proved that the defendant’s conduct made a material contribution to his disease, the onus is upon the defendant to plead and prove that others were responsible for some and, if so, what part of the injury.
12. In support of his first proposition Mr May relies on the case of Bonnington Castings & Wardlow [1956] AC 613. In that case the pursuer, who was employed by the defendants, was exposed to two sources of silica dust which together caused him to contract pneumoconiosis. The first source was from the pneumatic hammer at which he worked. There was no known or practicable method of removing that dust. The other was from swing grinders in respect of which the defendants failed negligently and in breach of statutory duty to provide adequate protection. The Lord Ordinary and the majority of the First Division of the Court of Session held that the onus was on the defendants to show that the dust from the swing grinders did not cause the pursuer’s disease.
13. The House of Lords rejected this approach. They held that the onus of proving causation was on the pursuer, but it was sufficient for him to succeed, to show that the guilty dust, that is from the swing grinders, caused or materially contributed to the disease. Lord Reid at p620A said:
“It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions: he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.”
14. What the House of Lords did not consider in that case was the extent of the defendants’ liability, because it was never argued that the defendants were only liable to the extent of the material contribution. But the case makes it quite clear that proof of causation is a matter for the claimant.
15. Bonnington’s case was followed in McGhee v National Coal Board [1973] 1 WLR 1. The pursuer contracted dermatitis from contact with brick dust in the course of his employment. Proper provision of washing facilities would have ameliorated the position and the defendants were negligent in not providing them. But the pursuer would still have been exposed to some dust which could not be avoided. He could not prove however that provision of washing facilities would have prevented him contracting the disease. It was held that the absence of washing facilities materially increased the risk of injury and therefore the pursuer had proved that it made a material contribution to the disease.
At page 11G Lord Salmon said:
“I, of course, accept that the burden rests upon the pursuer to prove, on a balance of probabilities, a causal connection between his injury and the defenders’ negligence. It is not necessary however, to prove that the defenders’ negligence was the only cause of injury. A factor, by itself, may not be sufficient to cause injury but if, with other factors, it materially contributes to causing injury, it is clearly a cause of injury. Everything in the present case depends upon what constitutes a cause. I venture to repeat what I said in Alphacell Ltd vWoodward [1972] AC 824, 847:
“The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”
In the circumstances of the present case it seems to me unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury.”
Once again the question of the extent of the defendant’s liability was not considered, since like the defendants in Bonnington’s case their case was that they were not liable at all.
16. Of that case Lord Bridge of Harwich in Wilsher v Essex Health Authority [1988] AC 1074 at 1090C:
“The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff, Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact, that the defenders’ negligence had materially contributed the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”
17. In support of his alternative submission Mr May relied on two cases. The first is the case of Milner v Humphreys and Glasgow Ltd unreported transcript of 24.11.98, a decision of Longmore J. In that case the claimant had contracted asbestosis after an overall period of exposure of 4 years and 10 months with six different employers, only 7 months of which were with the defendants. Longmore J. said this:
“Many diseases depend on cumulative exposure: many disease may have more than one cause: some causes may be tortious in origin and some may be non-tortious. It may be difficult to separate the two. Where, as in Thompson v Smiths Shiprepairers [1984] QB 405, the operations of a single employer or the same operations of two consecutive employers may have been tortious only after a certain date justice may require and the facts may permit an apportionment to be made so that the tortious employer is not held liable for the consequences of non-tortious conduct of himself or [the conduct, tortious or otherwise of] another. Such cases do, however, present quite serious factual difficulties and the law has been concerned to ensure that a meritorious plaintiff does not fail for want of proof.
Mr May for the plaintiff submitted that where there are concurrent causes of industrial disease and a plaintiff can show that a defendant’s breach of duty has materially contributed to the disease, he can recover for the consequences of that disease, see Bonnington Castings v Wardlaw [1956] AC 613. He then submitted that the same principle should apply to sequential causes of industrial disease.
I do not think that this argument can be accepted in the broad form in which it was put. As Mustill J. pointed out in Thompson at p441, the Bonnington principle is but a variant of the principle that, where an injury is indivisible, any tortfeasor whose act has been a proximate cause must compensate for the whole injury, leaving the tortfeasor to sort out with other possible tortfeasors any other appropriate claim for contribution, see Dingle v Associated Newspapers [1961] 2 QB 188 per Devlin LJ. Where there are causes concurrent in time, the likelihood is that a resulting injury will be indivisible; but where causes are sequential in time, it is not likely that an injury will be truly indivisible especially if (as I do not think Dr Howard contested) the injury is a disease which can get worse with cumulative exposure. Bonnington v Wardlaw can, nevertheless, assist the plaintiff to this extent; the principle, as formulated by Mustill J., is that where it is proved that a wrongful act has made a material contribution to the plaintiff’s injury, the law regards this as sufficient discharge of the plaintiff’s burden of proof on causation to render the defendant liable for the injury in full. That does not mean that no question of apportionment can ever arise but it does, in my judgment, mean that, unless the defendant pleads and proves facts which justify apportionment, the plaintiff can recover in full.”
I have added the words in square brackets in the first paragraph to make the position complete.
18. The second case upon which Mr. May relies is Borel v. Fibreboard Paper Products Corp. and others 493F.2D (1973) a decision of the United States Court of Appeals Fifth Circuit. In the course of his working life the plaintiff’s husband had been exposed to asbestos dust. He sued eleven of the manufacturers. He settled against four of them and a verdict was directed in favour of a fifth. The action continued against the remainder. The husband died and the action was carried on by his widow. The defendants contended that since the onus of proving causation was on the plaintiff and she could not establish which of the defendants had caused which if any damage, she must fail against all. This submission had apparently been accepted in the case of Sun Oil v. Robicheaux Tex.Civ. App 1930.23SW.2d 713. But it had been overruled in Lander v. East Texas Salt Water Dispersal Co. 151 Tex.251, 248 SW.2d 731. In Borel Wisdom J., giving the judgment of the court, summarised the effect of Lander’s case in follows at p1095:
“Where several defendants are shown to have each caused some harm, the burden of proof (or burden of going forward) shifts to each defendant to show what portion of the harm he caused. If the defendants are unable to show any reasonable basis for division, they are jointly and severally liable for the total damages.”
19. It seems to me with all respect that in the wholly understandable desire to avoid the totally unjust result of Robicheaux’s case , in the last sentence of the passage cited the court has imposed very considerable injustice on the defendants amongst themselves, since ex hypothesi if they cannot prove anything against another, the defendant or defendants against whom the plaintiff chooses to execute, will be unable to recover any contribution from the others.
20. I do not accept Mr. May’s submissions. In my judgment as the passages cited from the three House of Lords’ decisions show, the onus of proving causation is on the claimant; it does not shift to the defendant. He will be entitled to succeed if he can prove that the defendants’ tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution. However if the point is never raised or argued by the defendant, the claimant will succeed in full as in Bonnington and McGhee. I agree with Judge Altman that strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day and on consideration of all the evidence, the claimant has proved that the defendant is responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense, as Lord Salmon said in the passage cited. Cases of this sort, where the disease manifests itself many years after the exposure, present great problems, because much of the detail is inevitably lost. I can see that in Borel’s case where the defendants were manufacturers as opposed to employers the position may be particularly difficult. But in my view the court must do the best it can to achieve justice, not only to the claimant but the defendant, and among defendants.
21. This was the approach adopted by Mustill J. in Thompson v Smiths Shiprepairers [1984] 1 QB 405. The plaintiffs in test actions had been engaged in the ship repair industry where they had been exposed to excessive noise over extended periods of their employment which had resulted in deafness. The problem arose because all excessive noise had contributed to their disability, but the defendant employers were not guilty of negligence until 1963, by which time considerable damage had been done, though it was not necessarily recognisable. There was also the problem of successive employers. Mustill J. dealt with the issue at p437 to 444. He rejected similar arguments to those raised by Mr. May on the basis of the Bonnington and McGhee cases. The passage is too long to cite in full though I respectfully agree with it. I refer only to two passages. At p443D Mustill J. said:
“The defendants as well as the plaintiffs are entitled to a just result. If we know – and we do know, for by the end of the case it was no longer seriously in dispute – that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is impossible should not alter the position.”
And at G:
“Thus, whatever the position might be if the court were to find itself unable to make any findings at all on the issue of causation and was accordingly being faced with a choice between awarding for the defendants in full, or for the plaintiffs in full, or on some wholly arbitrary basis such as an award of 50 per cent., I see no reason why the present impossibility of making a precise apportionment of impairment and disability in terms of time, should in justice lead to the result that the defendants are adjudged liable to pay in full, when it is known that only part of the damage was their fault. What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in any apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such.”
22. The particular difficulty in Thompson’s case was that, as the graph at Annex B to the judgment shows the progression of the disease is not constant, but is greater in the early years of exposure. On the other hand it is loss of the higher frequencies which tends to happen later that causes greater handicap and the noise induced deafness is additional to the deafness as a result of natural ageing, and has therefore greater impact on the disability in later years. There is no such problem here since the progression is linear depending on the amount of dust inhaled. All dust contributes to the final disability.
23. This was the approach that the judge adopted here. But it is said by Mr. May that there is no evidence to support his conclusion or justify the deduction of 25%. I do not agree. Although it is only a question of nomenclature I think Mr. Goldstaub is right when he submits that it is not so much a question of apportionment between tortfeasors as one of proof of causation in respect of a quantifiable part of his disability by the claimant against the defendant; and further it was not so much a question of discounting the full liability figure, as counting the proportion attributable to the defendant. But this is somewhat semantic and does not affect the judge’s approach and conclusion.
24. In my judgment there was ample evidence to support the judge’s conclusion. Not only was there the evidence of Dr. Page and Dr. Howard which I have already referred to in paragraphs 7, 8 and 9, but it was the case that Mr. May was himself putting in cross-examination to Dr. Page. At p16B Mr. May asked this:
” Q. So far as cause and material contribution are concerned, may I ask you this? It is right, is it not, that if there is substantial exposure with employer number 1 over, say, 5 years and substantial exposure with employer number 2 over 5 years, each in medical knowledge is taken to have materially contributed to the disease?
A. Yes.”
A little earlier Mr. May put to Dr. Page passages from an article by Dr. Mereweather, an acknowledged expert in the field in the Journal of Industrial Medicine. At p13E he said :
“It is helpful to visualise fibrosis of the lungs as it occurs among asbestos workers as the slow growth of fibrous tissue between the air cells of the lungs wherever the inhaled dust comes to rest. While new fibrous tissues is being laid down like a spiders web that deposited earlier gradually contracts. This fibrous tissue is not only useless as a substitute for the air cells, but with continued inhalation of the causative dust, by its invasion of new territory and consolidation of that already occupied it gradually, and literally strangles the essential tissues of the lungs. In common with other essential organs of the body the lungs have a large reserve of tissue for use in emergencies and to permit of a diminution in functional capacity due to advancing age or disease. For this reason, and because fibrosis of the lungs is essentially a local disease, it is only when the fibrosis progresses to the extent of obliterating this reserve, that undue shortness of breath on any extra effort draws the worker’s attention to the fact that his health is not what it should be. The other symptoms of the disease such as cough are equally unassuming, and are readily ascribed to some common and trivial cause. From this point the progress of the disease is more rapid, since it is now encroaching on the remaining sound tissue of the lungs, already only just sufficient to maintain him in his ordinary daily activities. Ultimately, if no acute respiratory infection has precipitated a fatal termination, a stage is reached when the lungs can do little more than maintain life, and the shortness of breath becomes extreme.”
Dr. Page agreed.
And at p14C there is further citation from Dr. Mereweather:
“Q……This disease, insidious in its onset, stealthily advances with but faint warnings of its progress; inexorably it cripples the essential tissues of the lungs, yet for a considerable period causes almost now inconvenience to the worker.
Pausing there, is that right?
A. Inexorably cripples the essential tissues of the lungs. Well, it gets worse progressively.”
25. It might be said that the judge should have made the defendants liable only to 50%. If the other employers had been before the court, then subject to exposure which ought to be considered de minimis, I think this is what he would have done. As it is he erred on the side of generosity to the claimant. No one criticises him for that. This method of dividing responsibility on a time exposure basis is, I understand, adopted among insurers in such cases as these. In the absence of some unusual feature, such as for example periods of exposure to a particularly dangerous blue asbestos during some periods, that seems to me to be not only the sensible, but correct approach in law. In practice, many years afterwards, such distinctions are likely to be impossible to prove.
26. For these reasons I would dismiss this appeal.”
LORD JUSTICE MUMMERY:
27. I agree with the judgment of Lord Justice Stuart-Smith.
LORD JUSTICE CLARKE:
28. I also agree that this appeal should be dismissed, but I add a few words of my own because I do not entirely agree with the approach to this class of case which is proposed by Stuart-Smith LJ.
29. I entirely agree that, for the reasons given by him, this court should not interfere with the judge’s decision on the procedural aspects of the case. Even though the defendants should in my view have pleaded their case that others had contributed to the claimant’s condition, by the end of the trial there was ample material to enable the judge to decide the matter justly. I also agree with Stuart-Smith LJ that in this class of case the defendant is liable in respect of the contribution that its negligence or breach of duty has made to the claimant’s condition and that in reducing the damages by 25 per cent, the judge erred on the side of generosity to the claimant. It was open to the judge to hold that the defendants had shown on the evidence that at least 25 per cent of the claimant’s disability was not their responsibility but that of others. On the facts found the judge’s conclusion was, in my opinion justified and, for that reason, I too would dismiss the appeal.
30. The point on which I regret that I am unable to agree with Stuart-Smith LJ relates to burden of proof. In short, I prefer the viewexpressed by Longmore J in the passage which has been quoted from his judgment in Milner v Humphreys and Glasgow Ltd. My reasons are shortly as follows.
31. The burden of proving that the defendants’ negligence or breach of duty caused the relevant injury or condition is on the claimant: Bonnington Castings Ltd v Wardlaw [1956] AC 613, Nicholas v Atlas Steel Foundry and Engineering Co Ltd [1957] 1 WLR 613, McGhee v National Coal Board [1973] 1 WLR 1 and Wilsher v Essex Area Health Authority [1988] AC 1074. The claimant discharges that burden by proving that the defendant’s negligence or breach of duty made a material contribution to his injury or condition. Thus, for example in Wilsher Lord Bridge described the decision in Bonnington Castings in this way (at page 1086B):
“Their Lordships concluded, however, from the evidence that the inhalation of dust to which the pursuer was exposed by the defendant’s breach of statutory duty had made a material contribution to his pneumoconiosis which was sufficient to discharge the onus on the pursuer of proving that his damage was caused by the defender’s tort.”
He added that the next year, in Nicholson, the House of Lords held, in another case of pneumoconiosis, that the employers were liable for the employee’s disease arising from the inhalation of dust from two sources, one `innocent’ and the other `guilty’ on facts virtuallyindistinguishable from those in Bonnington.
32. It is I think at least arguable on the basis of those decisions that in a case of this kind, where the claimant proves that two employers have made a material contribution to his condition, he is entitled to judgment in full against each, leaving them to contest issues of contribution between them. That would certainly be the case where the injury was truly indivisible, so that each made a material contribution to the same damage, as in a case of damage caused by, say, a collision. However, in this class of case, as Longmore J observed, the injury or disease is not truly indivisible, but is contributed to by sequential exposure to asbestos which aggravates the condition. In these circumstances, as Mustill J said in similar circumstances (albeit with regard to deafness) in Thompson v Smiths Shiprepairers (Norht Shields) Ltd [1984] QB 405 (at page 443D), in the first passage quoted by Stuart-Smith LJ:
“The defendants as well as the plaintiffs are entitled to a just result. If we know – and we do know, for by the end of the case it was no longer in seriously in dispute – that a substantial part of the impairment took place before the defendants were in breach, why in fairness should they be made to pay for it? The fact that precise quantification is not impossible should not alter the position.”
In my opinion that approach applies to this class of case.
33. Assuming that to be correct, the question is whether, once the claimant has proved that the defendants’ breach made a material contribution to his condition, he is entitled to judgment unless the defendant proves that a definable part of his condition was caused either by `innocent’ asbestos or by `guilty’ asbestos caused by others, as Longmore J thought, or whether, once the point has been raised by the defendant, the claimant is not entitled to anything unless he proves what part of his disease was caused by the defendants.
34. It seems to me that Longmore J’s view is the more consistent with the approach in the cases. If the position were that the claimant cannot, as a matter of law, recover anything more than the contribution which the defendant has tortiously made to his disease, it does seem to me to be surprising that none of their Lordships mentioned the point in either Bonningtons or Nicholson. That seems to me to be so even though (as appears to have been the case) the point was not raised by counsel. Moreover, Mustill J’s approach in Thompson also seems to me to be consistent with the conclusion that the burden of proof in this regard (whether classified as the legal burden or the evidential burden) is on the defendant. In the passage quoted above, he spoke in terms of what was known at the end of the trial and he said (at page 443H-444A), in the last part of the passage quoted by Stuart-Smith LJ:
“What justice does demand, to my mind, is that the court should make the best estimate which it can, in the light of the evidence, making the fullest allowances in favour of the plaintiffs for the uncertainties known to be involved in the apportionment. In the end, notwithstanding all the care lavished on it by the scientists and by counsel I believe that this has to be regarded as a jury question, and I propose to approach it as such.”
It seems to me that it would not be appropriate to make `the fullest allowances in favour of the plaintiffs’ if the burden of establishing the apportionment were on them and not on the defendants.
35. I do not share the view that justice demands that the burden on this question should be on the claimant. It seems to me that once the claimant has shown that the defendants’ breach of duty has made a material contribution to his disease, justice requires that he should be entitled to recover in full from those defendants unless they show the extent to which some other factor, whether it be `innocent’ dust or tortious dust caused by others, also contributed. It follows that I regard the part of the judgment of the Fifth Circuit of the United States Court of Appeals in Borel v Fibreboard Paper Products Corp (1973) 493 F2d 1076 at 1095 as expressing a just result and not an unjust result.
36. Just as the burden is on a negligent defendant to prove contributory negligence, so the burden should be on a negligent defendant who has contributed to the claimant’s disease to show that others have also contributed and to what extent. I do not think that it matters in this regard whether such a burden is classified as a legal burden of proof or an evidential burden, the result will be the same and, in either event, in my opinion defendants must plead the point if they wish to rely upon it.
37. I should add, by way of postscript, that, although I have expressed a different view from that expressed by Stuart-Smith LJ, I entirely agree with him that in reality these cases should not be determined by onus of proof. That seems to me to be so whatever the correct view of where the burden of proof lies. That is because, as Mustill J put it in Thompson at page 443E,
The fact that precise quantification is impossible should not alter the position. The whole exercise of assessing damages is shot through with imprecision.
The assessment of questions of this kind are essentially jury questions which have to be determined on a broad basis, so that it will only in the rarest of cases that recourse need to be had to the burden of proof. Moreover, this is not such a case on the facts. I agree that the appeal should be dismissed.”
BAI (Run Off) Limited (In Scheme of Arrangement) and others v Durham and others
[2012] UKSC 14 PRESS SUMMARY
JUSTICES: Lord Phillips (President); Lord Mance; Lord Kerr; Lord Clarke; Lord Dyson
BACKGROUND TO THE APPEALS
These appeals concern the obligations of insurance companies under various contracts of employers ’liability (“EL”) insurance. In particular, the appeals concern the scope of the insurers’ obligations to indemnify employers against their liabilities towards employees who have contracted mesothelioma following exposure to asbestos.
Mesothelioma has an unusually long gestation period, which can be in excess of 40 years between exposure to asbestos and manifestation of the disease. The insurers maintain that the EL policies only cover mesothelioma which manifested as a disease at some point during the relevant policy period. In contrast, the employers submit that the insurance policies respond to mesothelioma caused by exposure to asbestos during the relevant policy period but which develops and manifests itself sometime later.
The usual rule in negligence cases is that the claimant must establish on the balance of probabilities that the defendant’s negligence caused his injury or disease. In Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and Barker v Corus UK Ltd [2006] UKHL 20 the House of Lords developed an exception to this general principle in cases involving mesothelioma caused by exposure to asbestos. The effect of this special rule is that an employer is liable where exposure to asbestos contributed to the risk that the employee would
suffer mesothelioma and where the employee in fact develops the disease. The insurers submit that the special rule in Fairchild/Barker is not applicable when deciding, for the purposes of an EL insurance policy, whether an employee’s mesothelioma was caused by exposure to asbestos during a particular policy year.
At first instance Burton J held that the policies should all be interpreted as having a “causation wording”. He therefore held that the liability “trigger” under the EL policy was when the employee inhaled the asbestos and not the date when the malignant lesion developed.
A majority of the Court of Appeal (Rix and Stanley Burnton LJJ) upheld the judge in relation to some of the EL insurance policies (particularly those covering disease “contracted” during the relevant insurance period); however they concluded that other policies (particularly those covering disease “sustained” during the insurance period) responded only on an occurrence or manifestation basis.
These appeals to the Supreme Court raise two issues: (i) On the correct construction of the EL policies, is mesothelioma “sustained” or “contracted” at the moment when the employee is wrongfully exposed to asbestos or at the moment when the disease subsequently manifests in the employee’s body? (ii) Does the special rule in Fairchild/Barker apply when determining whether, for the purposes of the EL policies, an employee “sustained” or “contracted” mesothelioma during a particular policy period?
JUDGMENT
The Supreme Court dismisses the insurers’ appeal by a 4-1 majority; Lord Phillips dissenting on the second issue. Lord Mance gives the main judgment.
REASONS FOR THE JUDGMENT
To resolve the meaning of the EL policies it is necessary to avoid over-concentration on the meaning of single words or phrases viewed in isolation, and to look at the insurance contracts more generally [19].
Several features point the way to the correct construction. First, the wordings of the policies on their face require the course of employment to be contemporaneous with the sustaining of the injury [20]. Second, the wordings demonstrate a close link between the actual employment undertaken during each period and the premium agreed by the parties for the risks undertaken by the insurers in respect of that period. Third, on the insurers’ case there is a potential gap in cover as regards employers’ breaches of duty towards employees in one period which only lead to disease or injury in another later period [24]. Fourth, on the insurers’ case employers would be vulnerable to any decision by the insurers not to renew the policy. A decision not to renew might arise from the employers complying with their duty to disclose past negligence upon any renewal. Employers who discovered that they had been negligent in the course of past activities in respects that had not yet led to any manifest disease would have such a duty. The insurers could then simply refuse any renewal or further cover [25]. Fifth, the way most of the policies deal with extraterritorial issues throws doubt on any suggestion that the wordings are so carefully chosen that a court should stick literally to whatever might be perceived as their natural meaning [28].
Section 1 of the Employers Liability Compulsory Insurance Act 1969 also points the way to the correct interpretation. This states that every employer “shall insure, and maintain insurance…against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment”. In order to give proper effect to the protective purpose of that legislation, the Act requires insurance on a causation basis [47].
There is no difficulty in treating the word “contracted” as looking to the causation of a disease, rather than its development or manifestation. The word “contracted” used in conjunction with disease looks to the initiating or causative factor of the disease [49]. While the word “sustained” may initially appear to refer to the manifestation of an injury, the nature and underlying purpose of the EL insurances is one which looks to the initiation or causation of the accident or disease which injured the employee. Accordingly a disease may properly be said to have been “sustained” by an employee in the period when it was caused or initiated, even though it only developed or manifested itself later [50].
In relation to the second issue, the question is whether the EL policies cover employers’ liability for mesothelioma arising under the special rule in Fairchild/Barker [71]. Under that rule the law accepts a weak or broad causal link between the employer’s negligence and the employee’s mesothelioma. When construing the EL policies the concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the Fairchild/Barker rule [74].
The purpose of the EL policies was to insure the employers against liability to their employees. Once it is held that the employers are liable to the employees, it would be remarkable if the insurers were not liable under the policies [88]. Accordingly, for the purposes of the EL policies, the negligent exposure of an employee to asbestos during the policy period has a sufficient causal link with subsequently arising mesothelioma to trigger the insurer’s obligation to indemnify the employer [74].
Lord Phillips dissents on the second issue. The special approach developed in Fairchild/Barker raises no implication or fictional assumption as to when mesothelioma is initiated. The consequence is that if claimants have to show that mesothelioma was initiated in a particular policy year in order to establish that insurers are liable they are unable to do so. This conclusion is not affected by section 3 of the Compensation Act 2009, which did not alter the jurisprudential basis of the Fairchild/Barker approach [132]-[133].”
Lord Mance
“The liability of employers for deaths caused by mesothelioma has pre-occupied courts and legislators over recent years. The present appeals concern claims to pass the burden of this liability on to insurers, made either by employers or in the case of insolvent employers by the personal representatives of former employees using the mechanism of the Third Party (Rights against Insurers) Act 1930.
The appeals concern employers’ liability insurance. This is in contrast with Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 where public liability insurance was in issue. Employers’ liability focuses necessarily upon the relevant employment relationships and activities. Public liability relates to any of the insured’s relationships and to activities affecting the world at large. Another feature of employers’ liability is that, under the Employers’ Liability (Compulsory Insurance) Act 1969 (the “ELCIA”), it has since 1 January 1972 been compulsory for every employer other than local authorities carrying on any business in Great Britain to
“insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain …”
The appeals arise because the relevant insurers maintain that the employers’ liability insurances which they issued respond (or, better, could only have responded) to mesothelioma which developed (or, possibly, manifested itself) as a disease during the relevant insurance periods – all long past. In contrast, the relevant employers and personal representatives maintain that the insurances respond to mesothelioma which develops and manifests itself later; all that is required, they say, is exposure of the victim during the insurance period to asbestos in circumstances where the law attributes responsibility for the mesothelioma to such exposure. These alternative bases of response (or “triggers” of liability) have been loosely described as an occurrence (or manifestation) basis and an exposure (or causation) basis. It is in issue whether the ELCIA, after it came into force, mandated any particular basis of response. A secondary issue, arising if the insurances only respond on an occurrence basis, is whether the aetiology of mesothelioma justifies a conclusion that there was during the relevant insurance period an occurrence sufficient to trigger liability under the insurances.
Burton J, [2008] EWHC 2692 (QB), concluded that the relevant insurances all responded on an exposure basis. The Court of Appeal, [2010] EWCA Civ 1096, by a majority (Rix and Stanley Burnton LJJ), upheld the judge in relation to some of the insurances (particularly those covering disease “contracted” during the relevant insurance period); but they concluded that others (particularly those covering disease “sustained” during the insurance period) responded only on an occurrence or manifestation basis. Smith LJ would have upheld the judge’s judgment in its entirety. The full judgments in both courts repay study. They have been of great assistance to this court and make it possible to go directly to the heart of the issues.
“Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres”: Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229, para 1, per Lord Phillips. It is a cancer of the pleura, which are thin linings around the lungs and on the inside of the rib cage. It is usually undetectable until shortly before death. Its “unusual features” include what Burton J in this case at para 30 described as “the unknowability and indescribability” of its precise pathogenesis. In particular, it is impossible to know whether any particular inhalation of asbestos (at least any occurring more than ten or so years prior to diagnosability) played any or no part in such development. Because of this unusual feature, the law has developed a special rule. The special rule was the product of judicial innovation in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22; [2003] 1 AC 32 and in Barker v Corus UK Ltd [2006] UKHL 20; [2006] 2 AC 572. It was modified by statutory intervention in the form of the Compensation Act 2006, section 3. Leaving aside exposures occurring within the ten or so years prior to diagnosability, the rule can now be stated as being that when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a “material increase in risk” of the victim contracting the disease will be held to be jointly and severally liable in respect of the disease.
Burton J’s findings in the present case justify certain further propositions, mostly also corresponding with the summary in Lord Phillips’ judgment in Sienkiewicz (para 19):
(i) A significant proportion of those who contract mesothelioma have no record of occupational exposure to asbestos. The likelihood is that in their case the disease results from inhalation of asbestos dust that is in the environment. There is, however, a possibility that some cases of mesothelioma are “idiopathic”, i.e. attributable to an unknown cause other than asbestos.
(ii) The more fibres that are inhaled, the greater the risk of contracting mesothelioma.
(iii) There is usually a very long period between the exposure to asbestos and the development of the first malignant cell. Typically this can be at least 30 years.
(iv) For a lengthy period (perhaps another five years) after the development of the first malignant cell, there remains a possibility of dormancy and reversal, but at a point (Burton J thought a further five years or so before the disease manifested itself, and was thus “diagnosable”) a process of angiogenesis will occur. This involves the development by malignant cells of their own independent blood supply, so assuring their continuing growth.
(v) The mechanism by which asbestos fibres cause mesothelioma is still not fully understood. It is believed that a cell has to go through 6 or 7 genetic mutations before it becomes malignant, and asbestos fibres may have causative effect on each of these.
(vi) It is also possible that asbestos fibres have a causative effect by inhibiting the activity of natural killer cells that would otherwise destroy a mutating cell before it reaches the stage of becoming malignant.
Mesothelioma currently claims about 3000 lives a year in the United Kingdom. This speaks to the common use of asbestos materials up to the 1960s and 1970s.
……
“The history and Workmen’s Compensation Acts
Much attention was, both below and before the Supreme Court, paid to the development of employees’ rights to compensation in respect of personal injury and disease, at common law and under the scheme of the Workmen’s Compensation Acts (“WCAs”). The WCAs were in force from 1897 until replaced in 1948 under the National Insurance (Industrial Injuries) Act 1946. The history and a number of the decisions under the WCAs were examined by Rix LJ in paras 126 to 165 of his judgment. He concluded that such an examination yields in the present context “not a lot”. To a considerable extent, I agree and I shall not repeat the whole exercise, but identify some potentially relevant aspects. Etymologically, some of the language presently in issue can be traced back to statutory language found in the Employers’ Liability Act 1880 and the WCA 1897. The 1880 Act modified the common law doctrine of common employment, by entitling employees to recover common law compensation for injury caused by specified matters for which employers were responsible, provided that they gave notice, within six weeks of sustaining the injury of its cause and the date at which it was sustained. The 1897 Act, applying to “personal injury by accident arising out of and in the course of employment”, also required notice to be given of the accident as soon as it occurred, stating “the cause of the injury and the date at which it was sustained”. These Acts therefore distinguished the causation and the sustaining of an injury, but not in any presently relevant context. Further, any reference to “sustaining” disappeared from the Workmen’s Compensation scheme in the 1906 Act, which amended the scheme to require a notice stating “the cause of the injury and the date at which the accident happened”.
The 1906 WCA also expressly extended the scheme to cover certain diseases specified in section 8. In that context, it provided that, where a workman was certified as disabled or suspended from employment or died due to a disease “and the disease is due to the nature of any employment in which the workman was employed at any time within the twelve months previous the date of the disablement or suspension, whether under one or more employers”, then “he or his dependants shall be entitled to compensation under this Act as if the disease or such suspension …. were a personal injury by accident arising out of and in the course of that employment …..”. Section 8(a) provided: “The disablement or suspension shall be treated as the happening of the accident”. Under section 8(c), the compensation was recoverable from the employer last employing the employee within the previous twelve months, providing the employee furnished that employer with particulars of all his other employers in the employment to the nature of which the disease was due.
It was not necessary to prove that the disease actually arose from the last employment, merely to prove that the relevant employment gave rise to a risk of such a disease: Blatchford v Staddon and Founds [1927] AC 461. The 1906 Act may be regarded in this respect as involving an early statutory instance of the kind of liability recognised in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32 and Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572. However, failing such particulars, the last employer could excuse himself “upon proving that the disease was not contracted whilst the workman was in his employment” (section 8(c)(i)). The last employer might also join any other employer (within the last twelve months) and it was provided that upon proof “that the disease was in fact contracted whilst the workman was in the employment” of that other employer, that other employer “shall be the employer from whom the compensation is to be recoverable” (section 8(c)(ii)). Finally, section 8(c)(iii) provided that: “if the disease is of such a nature as to be contracted by a gradual process”, any other employer within the last twelve months was liable to make such contributions as might be agreed or determined by arbitration under the Act.
Under this scheme, therefore, compensation for disease was initially based upon the nature of the employment and its potential for causing, rather than upon proof that it caused, such a disease. “The paternal benevolence of the Legislature” (as Visc Sumner put it in Blatchford: p 469) “is well-known, and if the price of that benevolence is paid by the last employer, who thus has to bear others’ burdens, that is nothing new in this kind of legislation”. However, the last relevant employer could seek, in specified circumstances, to avoid or to pass on to another employer responsibility by proof that the disease was not actually “contracted” in his employment. Alternatively, in the case of a disease of such a nature as to be contracted by a gradual process, all relevant employers within the last twelve months would be liable to contribute. The scheme was, as I see it, concerned with either the risk of or actual causation, and in its use of the word “contracted” it appears to me to have been directing attention to the causation, rather than the mere experiencing or manifestation, of disease.
The WCA scheme was the subject of further amendment by the 1925 Act. Section 43 superseded section 8 of the 1906 Act as regards scheduled diseases, while section 47 made specific provision for the introduction of a parallel scheme covering silicosis. Effect was given to this by inter alia the Metal Grinding Industries (Silicosis) Scheme which came into force in July 1927, making provision for obtaining compensation from the last employer within the previous three years, and giving such employer rights to look to other such employers within the last five years. An insurance covering employers’ liability in this connection was considered in Smith & Son v Eagle Star (1933) 47 Ll.L.R. 88, (1934) 48 Ll.L.R. 67. Mr Hill had been employed in processes giving rise to silicosis for some 20 years. For the last two of these years, from 31 March 1928 to 16 June 1930, he worked for Smith & Son. From 30 June 1927 to 17 June 1930, Smith & Son had an insurance against WCA liability “in respect of any personal injury or disease … which at any time during the continuance of this policy shall be sustained or contracted by any workmen ….”. The policy was expressly extended to cover any liability in connection with any claim made by employees in respect of silicosis, and the decision of the Court of Appeal rested on this ground. But Scrutton LJ also examined the main policy language, and in particular what was meant by “contracted”. He noted that “there has been a good deal of discussion in the Courts about a disease which is gradually contracted commencing at some stage and through the process going on increasing the disease until at last it results in total disablement” (p 70), and concluded that the word was not to be read as “first contracted”, but “in the sense of “‘influenced’ or ‘increased’ until it ultimately comes to total disablement”. This, although not directly focusing on the first development of a disease from some earlier cause, suggests a flexible view of the word “contracted”, directed once again to the employments responsible for causing the disease.
Confirmation that this was Scrutton LJ’s view can be found in the earlier case of Ellerbeck Collieries Ltd v Cornhill Insurance Co [1932] 1 KB 401. Two workmen who had been in the colliery company’s service for many years were on respectively 11 and 12 March 1929 (dates they were actually off-work) certified as suffering from miners’ nystagmus. The Cornhill had on 8 March 1929 issued the colliery company with a three month provisional cover note insuring in terms matching the wording of the insuring clause in the first Excess wording (i.e. against liability in respect of any employee who “shall sustain any personal injury by accident or disease … while engaged in the service of the employer”). Failing a satisfactory survey, the cover note actually expired on 18 March 1929. The first point decided was whether the employees had sustained personal injury by accident or disease during the period of validity of the cover note (8 to 18 March 1929). It was held that they did. The judgments in the Court of Appeal are of interest for a number of reasons. First, both Scrutton LJ (p 408) and Greer LJ (p 417) approached the question of construction on the basis that the policy was intended to protect the employers against their liability to their workmen under the WCAs. Scrutton LJ added that “it seems to me that the policy was intended to cover the liability of the employers for the results of industrial diseases caused by the employment” (p 409). His description of the policy, covering in terms any employee sustaining personal injury by accident or disease in service, as “intended to cover … liability …. for the results of diseases caused by the employment” fits precisely with the analysis which I consider correct (paragraphs 18-28 above).
Second, Scrutton LJ went on to refer to the difficulties in saying “when an industrial disease, such as miners’ nystagmus or lead poisoning, begins”, and in these circumstances the difficulty for an employee to pick the proper employer to sue. He described the way in which Parliament, by what became section 43 of the WCA 1925, had addressed such difficulties by providing “a conventional and artificial means for enabling the workman to get compensation, leaving the various employers to fight out their proportion of the liability between themselves” (p 409). He said that the last employer, liable under the WCA scheme, “then claims on the insurance company on the ground that he is liable to make compensation for an injury by disease, and the date of the injury or disablement is by statute and certificate fixed as happening between the dates for which he is provisionally covered” (p 411). On this basis, and in the light of the House of Lords decision in Blatchford, Scrutton LJ concluded that he was “bound … to hold that an accident has happened within the period of the provisional cover against the consequences of which the insurance company is bound to indemnify the employer” (p 413). In short, the “conventional and artificial” provisions of the WCA defined what constituted an accident and when personal injury by accident or disease was “sustained” for the purposes of the insurance. Greer LJ, more shortly, adopted the same approach (p 418). Only Slesser LJ (p 421) expressed a reservation about the possibility that the artificial deeming provisions of section 43(a) of the WCA 1925 might only apply as between employee and employer, and that it might have been necessary to consider separately the date of the sustaining of injury as between the employer and the insurer, had there been any admissible evidence that the two employees had actually contracted the scheduled disease before the granting of the statutory medical certificate.
Commercial purpose and practice
Much general evidence was directed or elicited before Burton J in relation to the commercial purpose of the present insurances, and to practice relating to their operation in the years before the present issue arose. It was argued that there was, prior to the decision in Bolton, “a universal usage of the insurance industry to pay out mesothelioma or similar claims under [employers’ liability] policies by reference to the date of inhalation/exposure whatever the wording”, or an estoppel by convention to like effect. Burton J rejected the argument (paras 180 to 201, esp. para 201), for the reasons that, first, there was no evidence relating to years earlier than the 1980s which could be “put down to any kind of arguable usage”, second, any usage was not certain, not least because of the multiplicity of approaches to or bases for it and, third, it was not binding. It was not incorporated into the insurance contracts. No issue of estoppel by convention was pursued to the Court of Appeal (Rix LJ, para 24, and Stanley Burnton LJ, paras 332 and 335) and the issue of a universal custom was only pursued by Zurich Insurance Company (Rix LJ, para 24).
By a “multiplicity of approaches to or bases for” insurers’ practice, Burton J was referring to evidence that insurers followed the practice they did in some cases because they believed that their contracts were to be interpreted on a causation/exposure basis, in others because they believed that the aetiology of diseases such as mesothelioma was such that injury was in fact sustained (in the sense of experienced) at the date of inhalation, while yet others may have failed to realise that their historically relevant wordings had been on a different basis to the causation wordings to which they had since switched or may have failed to address their minds to any relevant issue at all in relation to an insured who was usually a longstanding repeat client.
Rix LJ (para 228) contented himself with agreeing with Burton J’s reasoning on this aspect, while Stanley Burnton LJ noted and agreed in particular with Burton J’s second reason, relating to the believed aetiology of mesothelioma (para 335). Smith LJ, on the other hand, treated the “commonly held” understanding that diseases such as mesothelioma involved injury at the date of inhalation as part of the factual matrix of all the insurance contracts (paras 322-323), and considered against that background that no difference in meaning should be held to exist between policies using sustained and causation wording, until the time when “the two sides of the insurance industry should be considered to have appreciated that some diseases, including mesothelioma, do not occur until many years after exposure to the causative agent” (para 327). She put that as around the time of the decision in Bolton, after which parties using a sustained wording must be taken to have meant only to cover injuries actually occurring during the policy period (para 327).
The argument of a binding usage was not pursued before the Supreme Court, rightly so for the reasons given by the judge and the majority in the Court of Appeal. Equally, there has been no suggestion of estoppel by convention, along the lines recognised as possible in Chartbrook Ltd v Persimmon Homes Ltd [2009] UKHL 38, [2009] 1 AC 1101, para 47. However, on the issues of policy interpretation, Mr Stuart-Smith QC for Zurich Insurance, maintained before the Supreme Court an argument that there was a consensus based on market practice, whereby, for one reason or another, such policies would respond to long-tail diseases by reference to the date of exposure, and that this could constitute relevant background to their construction. Assuming that, short of a binding usage or estoppel by convention, a practice, if known to or shared by the relevant parties, could in some circumstances be relevant background (see e.g. Reardon Smith Line Ltd v Yngvar Hansen-Tangen [1976] 1 WLR 989), still, in my opinion the argument fails in the present case. It fails in particular in the light of the judge’s findings, even in relation to policies made in and after the 1980s. A practice based on a mistaken understanding, by only some insurers, that the policies operated on a causation basis cannot be relevant background to the interpretation of every policy; on the judge’s findings other insurers do not appear to have understood that the policies operated on that basis. A practice based on a mistaken understanding by others in the market as to when long-tail diseases could be said to have been experienced or to involve injury is likewise an unpromising start for construing all policies; if the understanding were good, it would mean that such diseases fell within the policies, even though the policy cover was restricted to injury or disease experienced during the policy period. The understanding would not therefore carry any imperative to read a “sustained” wording as meaning “caused”.
Before the Supreme Court, both employers and employees continued to rely upon the evidence given at trial regarding the general purpose of employers’ liability insurance as part of the background to the interpretation of the present insurances. Rix LJ (paras 223 to 235) gave it some weight as such, but Stanley Burnton LJ thought that there was “little if any assistance to be gained by reference to the commercial purpose of EL insurance”, as this was simply “to provide the cover defined in the policy” (para 333). The Supreme Court was provided with a useful summary of the considerable volume of evidence relied upon in this connection. It consisted in general of answers given by insurers, two at least of them with experience going back to the 1940s. They were asked (frequently in response to leading – though not inadmissible on that score – questions in cross-examination) about their or others’ views, understandings or perceptions as to the purpose of the policies, and the way in which these would or should respond, in relation to injuries arising from exposure in the course of activities during the policy period. In my judgment, Stanley Burnton LJ was right to reject such evidence as inadmissible. The parties cannot be asked what they meant by their contract, and, failing any binding usage, it is equally inadmissible to ask other persons operating in the market to give general evidence as to what they would have understood the parties to have meant by the words used in the context in which they were used. The evidence does not seem to have amounted to more than that.
However, I do not agree with Stanley Burnton LJ’s suggestion that no useful conclusions can be drawn about the commercial purpose of the policies, save that it was to provide the defined cover. In my opinion, relevant conclusions about the general nature and purpose of the individual policies can be drawn in this case, just as they could in the case of the different (and wordier) instrument in issue in In re Sigma Finance Corporation [2009] UKSC 2, [2012] 1 All ER 571 (see especially paras 10, 12 and 37). They can be drawn from an overall consideration of the individual insurance wordings, and particularly from the features which tie cover to the employees and activities during the relevant policy period and the five points considered in paragraphs 18 to 28 above. Further, if the policies are on any view apt to cover employers’ liability for long-tail diseases which initiate during, but only manifest themselves years after, the original policy period, one may look with scepticism at an interpretation which distinguishes this situation from other situations where a long-tail disease is caused but does not strictly begin during the policy period, and only manifests itself years later. This is particularly so if a conclusion that the latter diseases fell outside the policy cover meant that they would or might well not fall within any subsequent employers’ liability policy.
ELCIA 1969
Section 1 of the ELCIA provides:
“1.- (1) Except as otherwise provided by this Act, every employer carrying on any business in Great Britain shall insure, and maintain insurance, under one or more approved policies with an authorised insurer or insurers against liability for bodily injury or disease sustained by his employees, and arising out of and in the course of their employment in Great Britain in that business, but except in so far as regulations otherwise provide not including injury or disease suffered or contracted outside Great Britain…
(3) For the purposes of this Act –
(a) ‘approved policy’ means a policy of insurance not subject to any conditions or exceptions prohibited for those purposes by regulations….”
4.- (1) Provision may be made by regulations for securing that certificates of insurance in such form and containing such particulars as may be prescribed by the regulations, are issued by insurers to employers entering into contracts of insurance in accordance with the requirements of this Act ….
(2) ….. the employer … shall during the currency of the insurance and such further period (if any) as may be provided by regulations-
(a) comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees; ….”
The only conditions or exceptions ever prohibited were certain exemptions from liability. Under section 3, the ELCIA did not however apply to local authority employers, such as most of MMI’s insureds. Under section 4, provision might be made for certificates of insurance to be issued to employers, and in that event the employer was, obliged “during the currency of the insurance and such further period (if any) as may be provided by regulations” to “comply with any regulations requiring him to display copies of the certificate of insurance for the information of his employees”.
In reaching his conclusions on the ELCIA (para 16 above), Rix LJ engaged in an impressive analysis, to which I would refer (paras 166 to 186). The only doubt this leaves is how, if the ELCIA requires a causation wording, an employer could properly insure on a wording which only covered injury sustained in the sense of experienced (see para 186 and paragraph 16 above). The scope of the ELCIA is, as Rix LJ indicated, open to three alternative analyses: that it requires cover in respect of (i) all future liability incurred during the insurance period, whenever the negligence or injury, or (ii) liability for all future injury or disease sustained (in the sense of experienced) by employees during the insurance period, whenever the negligence, or (iii) liability for all negligence or breach of statutory duty during the insurance period giving rise to liability as in (ii). The retrospectivity of cover involved in (i) and (ii) is unlikely to have been intended. The only one of the three possibilities not involving a degree of retrospectivity is (iii).
A duty on every employer to “insure, and maintain, insurance” is consistent with a requirement to have the insurance in place during, though to maintain it after, the relevant insurance period. The provision, contemplated by section 4, for copies of insurance certificates to be issued by insurers and to be displayed by any employer for the information of his employees “during the currency of the insurance and such further period as may be provided by regulations” indicates, first, a desire to assure employees of their insurance protection during the relevant insurance period, and, secondly, an awareness that this assurance might need to remain in place after such insurance period; it is therefore suggestive of (iii), rather than (i) or (ii). As Rix LJ observed, it is only cover in accordance with (iii) that can give an employee the assurance that any injury or disease suffered as an employee and “arising out of and in the course of [his] employment” will be covered by insurance, the benefit of which would, if necessary, be available to him at the time under the Third Party (Rights against Insurers) Act 1930. An obligation to have a policy in force only at or by the time when injury is actually experienced would leave employees or ex-employees at the mercy of compliance with the statute by their employers or ex-employers at uncertain future dates.
It would also leave such employees or ex-employees at the mercy of employers who, for whatever reason, ceased to carry on business either in Great Britain or (for example due to insolvency) at all. Further, if “injury or disease suffered or contracted” bears the same meaning as insurers suggest that “injury or disease sustained or contracted” bears, then an employee, who had the misfortune to succumb to a disease abroad caused by his employment or previous employment in Great Britain, would not be covered (unless regulations intervened to ensure that he was).
Stanley Burnton LJ thought that any issue as to the nature of the insurance required under ELCIA was resolved by its use of the word “sustained”, rather than “caused”. He went on to conclude that the ELCIA covered any injury sustained (in the sense of experienced) during a period of insurance, by anyone who was then or had at any previous time been an employee. However, that latter conclusion introduces a retrospectivity into the scope of the ELCIA, which, as already indicated, I think unlikely to have been intended. The statute could have used the tariff wording of causation instead of “sustained”. But in the statutory language the word “sustained” is not coupled with a phrase such as “during the period of the insurance”. Even if “sustained” means “experienced” in the context of the statute, the statute may require insurance on what is effectively a causation basis; the words “sustained by his employees” may well mean “sustained at any future time by his current employees”. The key to the meaning of the statutory language seems to me the combination of the phrases “arising out of and in the course of their employment in Great Britain” and “not including injury or disease suffered or contracted outside Great Britain”. Together, and for reasons given in the last two paragraphs, they indicate a statutory requirement to insure in respect of activities during the course of employment in Great Britain which may in the future give rise in or out of Great Britain to liability to the employees involved in such activities.
In my judgment, therefore, the conclusion which gives proper effect to the protective purpose of the legislation is that the ELCIA requires insurance on a causation basis. The ELCIA extension provision to the Independent and second BAI wordings (see Annex A), as well as a similar extension provision to the MMI policy intended for insureds who were not local authorities, achieved this result expressly in relation to policies written subsequent to the coming into force of the ELCIA, at least for the purpose of ensuring that employees’ claims were covered by insurance. Any other subsequent insurances not containing that extension provision should, if possible, be read as providing the relevant employers’ cover required by statute. This is a powerful tool in the interpretation of such insurances.
Bolton M.B.C. v Municipal Mutual Insurance Ltd
The Court of Appeal in the present case was bound by its previous decision in Bolton MBC v Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 on public liability policies. The majority regarded that case as, in effect, determining the meaning which must be put on the word “sustained” in the present employers’ liability policies: see paras 284, per Rix LJ, and 339, per Stanley Burnton LJ, who however also found the logic of Longmore LJ’s judgment convincing in relation to the latter type of policies. Smith LJ on the other hand considered that public liability and employers’ liability insurances gave rise to different considerations (para 328). In my opinion, that is right. Employers’ liability policies are subject to particular terms and considerations, analysed above (particularly in paragraphs 18-28 and, in the case of policies effected after the coming into effect of the ELCIA, paragraphs 41-46). These considerations are not or certainly not necessarily applicable to public liability insurances. The present case was concerned with employers’ liability not public liability insurances, and it may well be that not all the relevant facts relating to the latter are before us. We certainly have not heard full argument on the proper conclusions which may be drawn regarding the basis of liability or trigger generally applicable under the latter. In these circumstances, I would proceed on the basis that we are not bound by Bolton, that this does not involve any view about the correctness or otherwise of Bolton, but only that it is unnecessary to consider what the position generally may be under public liability policies. Assuming that, in relation to public liability insurance, the position generally is as stated in Bolton, that does not alter the conclusions which I reach. It merely means, in their light, that public liability insurance generally and the present employers’ liability policies operate on different bases, because of their different backgrounds, terms and purposes.
Contracted
There is no difficulty about treating the word “contracted” as looking to the causation or initiation of a disease, rather than to its development or manifestation. In relation to the two BAI wordings and the third MMI wording, this interpretation obtains strong support from the general nature and purpose of the relevant policies, derived from their immediate context and terms and analysed in paragraphs 18 to 28 and 41 above. To the limited extent that the WCA background may assist to inform the meaning of later policies, it can be seen overall as a legislative scheme which was concerned with either the risk of or actual causation (para 32 above). Even if, in the phrase “sustained or contracted” or “injury sustained or disease contracted”, the word “sustained” is to be understood as meaning “experienced”, that would reflect no more than the fact that the cause and effect of an injury commonly coincide; I would still unhesitatingly conclude, as did the Court of Appeal, that the word “contracted” used in conjunction with disease looks to the initiating or causative factor of the disease.
Sustained
The majority of the Court of Appeal considered that it was impossible to view policies with pure “sustained” wordings as operating by reference to the initiating or causative factor of a disease. They did so primarily by reference to the wording of the insuring clauses. In my view, as indicated in paragraphs 18-19 above, a broader approach is necessary. The general nature and purpose of these policies can be derived from their immediate context and terms, analysed in paragraphs 18 to 28 and 41 above. It is true, as Rix LJ said, that phrases such as “injury sustained” by an employee or an employee who “shall sustain injury”, in either case by accident or disease, appear to address the impact of the accident or disease on the employee. But the underlying focus of the insurance cover is on the employees and activities current during the insurance period. The cover would be potentially incomplete, and employers would be potentially exposed to uninsured risks, were “sustained” to be understood as meaning “developed” or “manifested”. This is so, even before the ELCIA came into force. Any policies written subsequent to the coming into force of the ELCIA either afford cover consistent with the Act’s requirements by virtue of an ELCIA extension provision, or, to the extent that this is not the case, should be construed, if at all possible, as meeting employers’ obligations under that Act. In my view, such obligations included taking out insurance in respect of negligence during the insurance period affecting an employee in a manner giving rise to bodily injury or disease then or at any subsequent time. On this basis, I consider that, although the word “sustained” may initially appear to refer to the development or manifestation of such an injury or disease as it impacts employees, the only approach, consistent with the nature and underlying purpose of these insurances both before and after the ELCIA, is one which looks to the initiation or causation of the accident or disease which injured the employee. The disease may properly be said to have been “sustained” by an employee in the period when it was caused or initiated, even though it only developed or manifested itself subsequently.
Disease sustained, read as meaning experienced or incurred
Rix LJ was attracted by the submission that, even if sustaining disease meant experiencing or incurring it during the period of the insurance, long-tail diseases could be said to have been sustained during the period of insurance in this sense. He asked rhetorically whether an employee who had inhaled asbestos had not “sustained an injury in the form of an assault of the fibres”, as a result of which he was worse off through having dangerous fibres in his lungs (para 280). He noted that, although there was at most trivial injury or damage, and nothing that could create actionable damage, nevertheless, when mesothelioma develops, “it is the risk of mesothelioma created by the exposure which is the damage (see …. Barker …)” and “it is the exposure, and the risk of mesothelioma, that is the damage” (para 281). He only felt bound to reject this analysis (para 284) because of the Court of Appeal’s previous decision in Bolton.
It may be that in the case of some long-tail diseases, the victim can be said to have incurred or caught them at the same time as the initial ingestion or scratch giving rise to them. But it is clear that this is not the position with inhalation of asbestos in relation to either asbestosis or mesothelioma. No cause of action arises from exposure or inhalation alone: Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281. Further, for reasons which I develop in paragraphs 64-65 below, the exposure and risk are not by themselves damage in any sense known to the law. Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant, and even then this is not because any physical link necessarily exists or can be proved between the mesothelioma and the original exposure. The rule in Fairchild and Barker imposes liability for the mesothelioma upon persons who have exposed the victim to asbestos, and so created a risk of mesothelioma. But it is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure. And, even if it were viewed simply as a rule imposing retrospective liability on employers for exposing their employees to the risk of mesothelioma, the insurance policies do not insure risks of physical injury or disease, but only actual injury or disease.
The application of the insurances in respect of mesothelioma
At the outset of these appeals, the application of the insurances in respect of mesothelioma suffered by employees exposed to asbestos during their employment by an insured employer did not appear controversial. This changed after a question from Lord Phillips on day 4 of the hearing, followed by a later written note. All the same, the transcript pages containing any argument on the point numbered only 40 out of a total of some 1140. So far as Mr Edelman made any submissions on this point, in his written case or orally, they were to this effect: if the correct analysis of the House’s decision in Fairchild be that an employer who exposes an employee to asbestos is deemed to have caused that employee’s mesothelioma, then employers’ liability insurances held by the employer on a “causation” basis should respond; but, if the policies do not respond on a causation basis, there is no justification for treating the employee as having suffered injury or a disease during their currency, because employers cannot prove that any particular inhalation caused any injury. This led to some discussion, particularly with counsel for employers and employees, of the points which I have already addressed in paragraphs 50-52 above.
The point now expressed forcefully by Lord Phillips in his judgment is that exposure to the risk of mesothelioma is the correct analysis of the Fairchild principle, at least as subsequently interpreted, and that such exposure can satisfy neither the concept of injury nor the concept of causation for the purposes of the policies. If that is right, then the present insurance claims must all fail. Indeed, the great bulk of insurance claims settled by other insurers (e.g. former tariff insurers) or by the present insurers under the causation policies they have issued in more recent years (paragraph 10 above) should presumably also have failed. The only exception may be the case of an employee exposed to asbestos in only one employment by an employer holding insurance throughout with only one insurer. In such a case it might (perhaps) be said that, whichever particular inhalation(s) may have been responsible for the employee’s mesothelioma, it (or they) must have been insured. Even then, the logic of the Supreme Court’s reasoning in Fairchild and Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10, [2011] 2 AC 229 might lead to the conclusion that causation was still unprovable in the light of the possibilities of environmental or idiopathic causation of mesothelioma.
Rules regarding causation are created by the courts for the purpose of determining when liability arises in particular contexts. Normally, they reflect a common sense understanding of what is ordinarily understood when we speak of a cause in a particular context. In their leading work on Causation in the law (Clarendon Press, 2nd ed 1985) Professor H. L. A. Hart and Tony Honoré examined both this understanding and its relationship to legal decision-making. Generally, but not always, a cause must involve an act or omission that was at least a sine qua non of the injury in respect of which responsibility attaches (the “but for” test). But sometimes two separate acts or omissions may each independently have been sufficient to give rise to that injury (as when A and B simultaneously, but independently shoot C dead), and then we may as “a matter of legal policy” accept “a weaker causal relationship” for the imposition of responsibility: see p lxv in the preface to and p 123 of the 2nd edition.
Other cases where causal requirements have been relaxed include Bonnington Castings Ltd v Wardlaw [1956] AC 613; there, materially contributing to part of an accumulation of dust which cumulatively led to pneumoconiosis gave rise to liability for the whole disease (although it has been suggested that some apportionment might now be possible in fact and law). Another relevant authority is McGhee v National Coal Board [1973] 1 WLR 1; there, liability for dermatitis was held to exist because the defendant had materially contributed to part of the claimant’s exposure to dirt, any part of which might, independently of any other, have given rise to the abrasion leading to the claimant’s dermatitis. It was recognised that this involved liability based on materially contributing to the risk of the injury. Lord Reid at p.4G-H described the result as reached “taking a broader view of causation”, and Lord Wilberforce at p 5G viewed it as involving a conclusion as to the “causal connection” that had to exist “between the default and the disease complained of”. The contrary view (viz, that proof of risk was insufficient without proof that the risk caused or materially contributed to the disease) had a “logic” which Lord Wilberforce acknowledged, but rejected for policy and evidential reasons set out at p.6C-F. In Fairchild, McGhee was seen as a precursor of the decision there reached. Putting aside the possibility of an idiopathic or environmental cause, a Fairchild type situation exists when (a) there are two separate potential causes exposing the claimant to the same risk, one involving an act or omission by the defendant, (b) either one of which causes would have been sufficient to give rise to the injury, and (c) one of which did so, but (d) neither of which can as a matter of probability be shown to have done so.
Taking into account the later decisions in Barker v Corus and Sienkiewicz, the Fairchild principle extends to any case where there has been an act or omission exposing a person to asbestos, which exposure may have caused the mesothelioma, but which cannot be shown as a matter of probability to have done so. On that basis, the House held in Barker v Corus that each or any person’s liability should only be proportionate to the extent that he had exposed another to the risk of mesothelioma. Parliament by the Compensation Act 2006 reversed that conclusion and made each such person liable in respect of the whole of the damage caused by the mesothelioma.
Lord Phillips in his judgment addresses the basis of Fairchild in the light of Barker v Corus, the 2006 Act and Sienkiewicz. He accepts that, if Fairchild is now correctly to be understood as a special rule deeming employers who have exposed an employee to asbestos to have caused any subsequently suffered mesothelioma, then the insurance policies should apply (para 109). But he concludes that Fairchild must be understood as creating liability not for the disease, but “for the creation of the risk of causing the disease”. It follows in his view that employers and employees gain no assistance from the special rule in asserting that mesothelioma suffered by any person was caused or initiated in any particular policy period. On this basis, even though the insurances respond to injuries caused or initiated during their periods, the employers and employees fail for want of proof.
It is not fruitful to repeat the exercise undertaken in Barker v Corus of examining in detail the significance of the speeches in Fairchild. The House was not agreed about this in Barker, but the majority speeches of Lords Hoffmann, Scott and Walker were at pains to reject any analysis of Fairchild as proceeding upon a fiction that each exposure had caused or materially contributed to the disease: see paras 31, 61 and 104; they each also referred to the liability created by Fairchild as being not for causing the disease, but for materially increasing the risk of the mesothelioma which was in fact suffered: paras 31, 36 and 40, 53, 61 and 113. Lord Rodger (dissenting) perceived the majority to be misinterpreting Fairchild by failing to acknowledge that it was based on an equation of materially increasing risk with materially contributing to causation, an equation which he thought had been accepted as sufficient causation in Bonnington Castings Ltd v Wardlaw [1956] AC 613 and McGhee v National Coal Board [1973] 1 WLR 1. It is on the apparently bright-line distinction said to have been drawn by the majority in Barker between materially contributing to increasing the risk of, and causing, a disease that Lord Phillips now founds his judgment in these appeals.
The Compensation Act 2006 applies where a person who has exposed someone to asbestos is liable in tort in connection with damage caused to the latter by mesothelioma “whether by reason of having materially increased a risk or for any other reason” (section 3(1)(d)). It makes the former person “liable in respect of the whole of the damage” (section 3(2)(a)). On its face, the Act assumes rather than creates the liability, and only alters the measure of recovery. That was the view expressed in Sienkiewicz by Lords Phillips, Rodger and Brown (paras 70, 131 and 183).
However, on further analysis, the distinction identified in paragraphs 58-59 above proves more elusive. Even in Barker itself, Lord Walker described exposing the employee to the risk of mesothelioma as being “equated with causing his injury” and the result as “an explicit variation of the ordinary requirement as to causation” (para 104), and spoke of the rule as one “by which exposure to the risk of injury is equated with legal responsibility for that injury” (para 109). However, it is conceivable that he meant that the ordinary requirement of causation of the disease was entirely replaced by another liability-creating rule. It is in the later authority of Sienkiewicz that the difficulty of drawing any clear-cut distinction between creating a risk and causation of the disease becomes most apparent. Lord Phillips there stated that “the rule in its current form” was that the person responsible for the exposure “and thus creating a ‘material increase in risk’ of the victim contracting the disease will be held to be jointly and severally liable for causing the disease” (para 1). Later, he said that the law was presently contained in Fairchild and Barker which had “developed the common law by equating ‘materially increasing the risk’ with ‘contributing to the cause’ in specified and limited circumstances” (para 70). That was the analysis of Fairchild advanced by Lord Rodger in Barker v Corus (paras 73 and 83) but rejected there by the majority. Lord Brown in Sienkiewicz spoke of a “more relaxed approach to causation” (para 178) and flexibility in the approach to causation (para 187). I referred to Fairchild and Barker as involving a “special rule of causation” (para 188), and Lord Kerr referred to them as involving a “modification of the previously applicable legal rules in relation to the causation element in employers’ liability claims” (para 196) and to adjustments in the burden of proof (paras 198 and 200). Lord Rodger was, on the other hand, loyal to the majority view in Barker by referring to liability as based on “materially increas[ing] the risk” (para 113), and Lord Dyson was cautious in speaking of materially increasing the risk of contracting the disease as “sufficient to satisfy the causal requirements for liability” (para 207).
Lord Phillips has in para 123 set out a passage from an extra-judicial commentary written by Lord Hoffmann in Perspectives on Causation (2011), p 8. In it, Lord Hoffmann describes the two ways in which the changes introduced by Fairchild and Barker could be characterised, one as changing “the causal requirements for an action for damages for mesothelioma …; all that is necessary is to prove that the risk has been increased and that the specific exposure may have provided the actual agent”; the other as “creat[ing], exceptionally, a cause of action for the increased risk of mesothelioma, rather than for the disease itself”. Lord Hoffmann notes that the House in Barker (Lord Rodger dissenting) adopted the second explanation of what had happened in Fairchild. But in the next sentence, not quoted by Lord Phillips, Lord Hoffmann went on:
“Parliament almost immediately reversed this decision by a statute giving effect to the first explanation, which had been advocated by Lord Rodger in his dissenting speech”.
Lord Hoffmann’s extra-judicial (or judicial) words cannot by themselves alter the true effect of a statute, but his comments do again show that the suggested distinction is more fluid than might at first appear.
It is relevant to look more closely at what Barker decides. In Barker, Lord Hoffmann spoke of Fairchild as applying “an exceptional and less demanding test for the necessary causal link between the defendant’s conduct and the damage” (para 1) and of “the requirement of a sufficient causal link between the defendant’s conduct and the claimant’s injury” (para 17). In his note in Perspectives on Causation, he picked up this language with references to the “causal requirements” of the relevant rule and to the issues in cases of mesothelioma and analogous situations as involving the “causal requirements for an action for damages for mesothelioma”. Lady Hale in Barker also viewed the common law rules governing the measure of recovery as “closely linked to the common law’s approach to causation”, and said that there was “no reason in principle why the former rules should not be modified as the latter approach is courageously developed to meet new situations” (para 122). In paras 123 and 124, she made clear that in her view the issue in Barker could be seen as arising from the expanded perceptions or developed concept of causation which the law had accepted.
These citations all suggest that it is both possible and appropriate to characterise the position achieved by the common law after Barker v Corus as one concerned with the issue of the “causal requirements” or “causal link”, as between the defendant’s conduct and the disease, which the common law requires in order for there to be an action “for mesothelioma”. But analysis of the rule arrived at after Fairchild and Barker justifies further propositions. Despite the apparent clarity of the suggested distinction between liability for a risk and for a disease, no cause of action at all exists unless and until mesothelioma actually develops. Neither the exposure to asbestos nor the risk that this may one day lead to mesothelioma or some other disease is by itself an injury giving rise to any cause of action: see Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39, [2008] 1 AC 281; the House there decided that not even the emergence of pleural plaques “marking” the past exposure to asbestos constituted injury for the purpose of giving a cause of action. In order to fall within the principle in Fairchild and Barker, the development of mesothelioma is a pre-condition: see Barker, per Lord Hoffmann (para 48) and Lord Scott (para 53). Lady Hale went further, stressing that she in fact agreed with Lord Rodger’s view that “the damage which is the ‘gist’ of these actions is the mesothelioma and its physical and financial consequences. It is not the risk of contracting mesothelioma” (para 120).
In reality, it is impossible, or at least inaccurate, to speak of the cause of action recognised in Fairchild and Barker as being simply “for the risk created by exposing” someone to asbestos. If it were simply for that risk, then the risk would be the injury; damages would be recoverable for every exposure, without proof by the claimant of any (other) injury at all. That is emphatically not the law: see Rothwell and the statements in Barker itself, cited above. The cause of action exists because the defendant has previously exposed the victim to asbestos, because that exposure may have led to the mesothelioma, not because it did, and because mesothelioma has been suffered by the victim. As to the exposure, all that can be said (leaving aside the remote possibility that mesothelioma may develop idiopathically) is that some exposure to asbestos by someone, something or some event led to the mesothelioma. In the present state of scientific knowledge and understanding, there is nothing that enables one to know or suggest that the risk to which the defendant exposed the victim actually materialised. What materialised was at most a risk of the same kind to which someone, who may or may not have been the defendant, or something or some event had exposed the victim. The actual development of mesothelioma is an essential element of the cause of action. In ordinary language, the cause of action is “for” or “in respect of” the mesothelioma, and in ordinary language a defendant who exposes a victim of mesothelioma to asbestos is, under the rule in Fairchild and Barker, held responsible “for” and “in respect of” both that exposure and the mesothelioma.
This legal responsibility may be described in various ways. For reasons already indicated, it is over-simple to describe it as being for the risk. Another way is to view a defendant responsible under the rule as an “insurer”, but that too is hardly a natural description of a liability which is firmly based on traditional conceptions of tort liability as rooted in fault. A third way is to view it as responsibility for the mesothelioma, based on a “weak” or “broad” view of the “causal requirements” or “causal link” appropriate in the particular context to ground liability for the mesothelioma. This third way is entirely natural. It was adopted by Lords Reid and Wilberforce in McGhee, by Lord Hoffmann, Lady Hale and (possibly) Lord Walker in Barker and by Lord Hoffmann in his extra-judicial commentary. It seems to have received the perhaps instinctive endorsement of a number of members of this Court, including myself, in Sienkiewicz. Ultimately, there is no magic about concepts such as causation or causal requirements, wherever they appear. They have the meanings assigned to them and understood in ordinary usage in their context. A logician might disagree with a reference to causation or a causal link in a particular context, but that is not the test of meaning: see Lord Wilberforce’s words in McGhee, p 6C-F (cited in para 56 above). The present appeals concern the meanings we assign to the concept of causation, first in the context of considering employers’ liability to their employees and then in considering the scope of employers’ insurance cover with respect to such liability.
It is instructive in this connection to look more closely at the Compensation Act 2006. Section 3(3) states that section 3(2) “does not prevent (a) one responsible person from claiming a contribution from another, or (b) a finding of contributory negligence”. Section 3(4) goes on to provide that “[I]n determining the extent of contributions of different responsible persons in accordance with subsection (3)(a), a court shall have regard to the relative lengths of the periods of exposure for which each was responsible …”. Section 3(3) necessarily relates to the legal bases for claiming contribution or asserting contributory negligence, which are to be found in, respectively, the Civil Liability (Contribution) Act 1978 and the Law Reform (Contributory Negligence) Act 1945. The 1978 Act addresses the situation where two or more persons are “liable in respect of the same damage” (section 1(1)), while section 2(1) provides for contribution in such situations to be “such as may be found by the court to be just and equitable having regard to the extent of that person’s responsibility for the damage in question”. Although under section 3(4) of the 2006 Act, the court must have regard to the relative lengths of the exposure for which each was responsible, the “same damage” which is a pre-condition to the application of the 1978 Act must be the mesothelioma. It cannot be the risk created by the person by or from whom contribution is sought, because each person and exposure creates a separate risk, and no one person or exposure creates the total risk resulting from all exposures. The 2006 Act, by its reference to the 1978 Act, thus assumes that every person, who has exposed to asbestos a victim who later experiences mesothelioma, incurs “responsibility for” the mesothelioma. That language again fits an analysis whereby the rule in Fairchild and Barker identifies the appropriate “weak” or “broad” causal link between the exposure and the mesothelioma.
A similar position applies under the 1945 Act. Under section 1(1), that Act applies “[w]here any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons”. In that event, the damages recoverable are to be reduced “to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage”. The application of this section, as contemplated by the 2006 Act, is only possible on the basis that a mesothelioma sufferer may be said to have suffered the mesothelioma partly “as the result …. of the fault” of anyone who has exposed him to asbestos. In other words, the rule in Fairchild and Barker must have been viewed by the drafters – in my opinion entirely understandably – as establishing a causal link, between the exposure and the mesothelioma, sufficient for it to be said that the mesothelioma was “the result” of each (and every) exposure. A similar view is also implicit in the provisions of the Act drafted on the basis that insurers – who would commonly of course be employers’ liability insurers – would be among the persons by or for whose benefit or against whom contribution would be sought in cases of multiple responsible persons: see section 3(7)(b) and (10)(a) of the 2006 Act. Those provisions necessarily assume that employers’ liability insurances, written generally on a causation basis, would respond to Fairchild/Barker type liability incurred by employers.
Ultimately, the present appeals raise the questions how the present employers’ liability insurance policies respond as a matter of construction in circumstances within the rule in Fairchild and Barker. Where two contracts are linked, the law will try to read them consistently with each other. This is so with language in a bill of lading, incorporated from a charterparty: The Njegos [1936] P 90. A similar approach applies to language in a reinsurance incorporated from the insurance: Forsikringsaktieselskapet Vesta v Butcher [1989] AC 852 and Groupama Navigation et Transports v Catatumbo CA Seguros [2000] 2 Lloyd’s Reports 350, even though there is no guarantee that a reinsurance will in every possible circumstance that may develop pick up every liability that may be held to exist under an insurance: see Wasa International Insurance Co Ltd v Lexington Insurance Co [2009] UKHC 40, [2010] 1 AC 180. The intention under the present insurances must be taken to have been that they would respond to whatever liability the insured employers might be held to incur within the scope of the risks insured and within the period in respect of which they were insured. Thus, as Scrutton and Greer LJJ accepted in the Ellerbeck Collieries case (paragraph 34 above), an employers’ liability insurance could have been expected to respond to the “conventional and artificial” definition in the WCAs as to what constituted an “accident” and when personal injury by accident or disease was “sustained” for the purposes of employers’ liability to employees.
Furthermore, if the common law during or even after the currency of an insurance develops in a manner which increases employers’ liability, compared with previous perceptions as to what the common law was, that is a risk which the insurers must accept, within the limits of the relevant insurance and insurance period. Eady J correctly identified this in Phillips v Syndicate 992 Gunner [2003] EWHC 1084 (QB), [2004] Lloyd’s Insurance and Reinsurance Reports 426, 429 (left). The declaratory theory “does not presume the existence of an ideal system of the common law, which the judges from time to time reveal in their decisions. … But it does mean that, when judges state what the law is, their decisions do …. have a retrospective effect” – in the sense that the law as stated “will, generally speaking, be applicable not only to the case coming before [them] but, as part of the common law, to other comparable cases which come before the courts, whenever the events which are the subject of those cases”: Kleinwort Benson Ltd v Lincoln CC [1999] 2 AC 349, 378G-H, per Lord Goff. The declaratory theory is a pragmatic tool, essential when cases can only come before the court “some time, perhaps some years” after the relevant events occurred, and when “the law [must] be applied equally to all, and yet be capable of organic change” (p 379A). A similar principle must, generally speaking, apply in relation to a statute such as the Compensation Act 2006, which changes or corrects the common law to what Parliament perceives to be a more appropriate result for the purposes of all future cases coming before the courts, whenever the events giving rise to them. In the case of that Act, the result was one which the courts might as a matter of common law well have themselves accepted (and which indeed Lord Rodger in his powerful dissent in Barker v Corus believed that the common law had accepted) in Fairchild.
Concluding, as I have done, that the present insurances covered employers’ liability for injuries or diseases “caused” during the relevant insurance periods, the question is whether they cover employers’ liability for mesothelioma arising under the rule in Fairchild and Barker from having exposed employees to asbestos during such periods. It is not in dispute that, if the rule is characterised as a rule of “deemed” causation, then the policies must respond. A parallel example, so familiar that it is easy to overlook, is the vicarious liability to an employee, A, which rests on any employer, B, who has not himself been negligent but must answer vicariously for the negligence of another employee, C. We have no hesitation in saying that the employer B has in such a case “caused” the injury or disease suffered by A. But this is so in reality only because a rule of law requires us to equate the acts or omissions of C with those of B.
The argument, accepted by Lord Phillips, is that the rule in Fairchild and Barker is not one of deemed causation of or, therefore, liability for the disease, but one of liability for the risk created by the exposure. For reasons which I have set out, I regard this distinction as too simple. The liability arises only because of the incurring of the disease and is for the disease. A condition of such liability is that the employer (negligently) exposed the victim to asbestos. The insurance policies, read as operating on a causation basis, are aimed at covering liability generated by employers’ activities during their insurance periods: see paragraphs 18-28 and 41 above; unless liability for mesothelioma flowing from negligent exposure during an insurance period is covered by the policies, this aspect of employers’ activities will not in practice be covered at all.
In my view, these considerations justify a conclusion that, for the purposes of the insurances, liability for mesothelioma following upon exposure to asbestos created during an insurance period involves a sufficient “weak” or “broad” causal link for the disease to be regarded as “caused” within the insurance period. It would, I think, have been anomalous and unjust if the law by “deeming” there to have been causation of the disease could have created policy liability (which is common ground), but the law by insisting that the liability in respect of mesothelioma was for the risk of causation achieved a quite different result. As I have sought to show, it is not in any event accurate to treat the liability as being either solely or strictly for the risk. The risk is no more than an element or condition necessary to establish liability for the mesothelioma. The reality, reinforced by provisions in the 2006 Act, is that the employer is being held responsible for the mesothelioma.
For this purpose, the law accepts a weak or broad causal link. The link is to exposure which may but cannot be shown on the ordinary balance of probabilities to have played a role in the actual occurrence of the disease. But for the purposes of the policies the negligent exposure of an employee to asbestos can properly be described as having a sufficient causal link or being sufficiently causally connected with subsequently arising mesothelioma for the policies to respond. The concept of a disease being “caused” during the policy period must be interpreted sufficiently flexibly to embrace the role assigned to exposure by the rule in Fairchild and Barker. Viewing the point slightly more broadly, if (as I have concluded) the fundamental focus of the policies is on the employment relationship and activities during the insurance period and on liability arising out of and in course of them, then the liability for mesothelioma imposed by the rule in my opinion fulfils precisely the conditions under which these policies should and do respond.
Conclusion
I would therefore dismiss the appeals by insurers so far as they concern the policies with “contracted” wordings. I would allow the appeals against insurers, and dismiss the appeal by the Independent, so far as they concern policies with “sustained” wordings.”
Gardiner v Mortherwell Machinery and Scrap Co Limited
[1961] 3 All ER 831
HL Lord Reid
“In my opinion, when a man who has not previously suffered from a disease contracts that disease after being subjected to conditions likely to cause it, and when he shows that it starts in a way typical of disease caused by such conditions, he establishes a prima facie presumption that his disease was caused by those conditions. I think that the facts proved in this case do establish such a presumption. That presumption could be displaced in many ways. The respondents sought to show, first, that it is negatived by the subsequent course of the disease and, secondly, by suggesting tinea pedis as an equally probable cause of its origin. I have found the case difficult, but on the evidence as it stands I have come to the opinion that they have failed on both points. If the appellant’s disease and consequent loss should be attributed to the work which he was doing in the respondents’ service, it was not argued that they are not liable.’
Wilsher v Essex Area Health Authority
[1987] UKHL 11 [1988] AC 1074
LORD BRIDGE OF HARWICH
“Mustill L.J. subjected the speeches in McGhee v. National Coal Board [1973] 1 WLR 1 to a careful scrutiny and analysis and concluded that they established a principle of law which he expressed in the following terms at pp. 771-772: “If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the irst party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be scertained.”
Applying this principle to the finding that the authority’s negligence was one of the possible causes of Martin’s RLF, he held that this was sufficient to enable the court to conclude that the negligence was “taken to have caused the injury.” Glidewell L.J. reached the same conclusion by substantially the same process of reasoning. The Vice-Chancellor took the opposite view.
The starting point for any consideration of the relevant law of causation is the decision of this House in Bonnington Castings Ltd, v. Wardlaw [1956] AC 613. This was the case of a pursuer who, in the course of his employment by the defenders, contracted pneumoconiosis over a period of years by the inhalation of invisible particles of silica dust from two sources. One of these (pneumatic hammers) was an “innocent” source, in the sense that the pursuer could not complain that his exposure to it involved any breach of duty on the part of his employers. The other source, however, (swing grinders) arose from a breach of statutory duty by the employer. Delivering the leading speech in the House Lord Reid said at pp. 619-620:
“The Lord Ordinary and the majority of the First Division have dealt with this case on the footing that there was an onus on the defenders, the appellants, to prove that the dust from the swing grinders did not cause the pursuer’s disease. This view was based on a passage in the judgment of the Court of Appeal in Vyner v. Waldenberg Brothers Ltd. [1946] K.B. 50: ‘If there is a definite breach of a safety provision imposed on the occupier of a factory, and a workman is injured in a way which could result from the breach, the onus of proof shifts on to the employer to show that the breach was not the cause. We think that that principle lies at the very basis of statutory rules of absolute duty’ (per cott L.J. at p. 55). … Of course, the onus was on the defendants to prove delegation (if that was an answer) and to prove contributory negligence, and it may be that that is what the Court of Appeal had in mind. But the passage which I have cited appears to go beyond that, and, in so far as it does so, I am of opinion that it is erroneous.
It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove his case by the ordinary standard of proof in civil actions; he must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.”
Lord Tucker said of Scott L.J.’s dictum in Vyner v. Waldenberg Brothers Ltd., at pp. 624-625: ‘I think it is desirable that your Lordships should take this opportunity to state in plain terms that no such onus exists unless the statute or statutory regulation expressly or impliedly so provides, as in several instances it does. No distinction can be drawn between actions for common law negligence and actions for breach of statutory duty in this respect. In both the plaintiff or pursuer must prove (a) breach of duty and (b) that such breach caused the injury complained of – (See Wakelin v. London and South Western Railway Co. (1886) 12 App. Cas. 41 and Caswell v. Powell Duffryn Associated Collieries [1940] A.C. 152). In each case it will depend upon the particular facts proved and the proper inferences to be drawn therefrom whether the pursuer has sufficiently discharged the onus that lies upon him.”
Lord Keith of Avonholm said at p. 625:
“The onus is on the pursuer to prove his case, and I see no reason to depart from this elementary principle by invoking certain rules of onus said to be based on a correspondence between the injury suffered and the evil guarded against by some statutory regulation. I think most, if not all, of the cases which professed to lay down or to recognise some such rule could have been decided as they were on simple rules of evidence, and I agree that the case of Vyner [1946] K.B. 50, in so far as it professed to enunciate a principle of law inverting the onus of proof cannot be supported.”
Viscount Simonds and Lord Somervell of Harrow agreed.
Their Lordships concluded, however, from the evidence that the inhalation of dust to which the pursuer was exposed by the defenders’ breach of statutory duty had made a material contribution to his pneumoconiosis which was sufficient to discharge the onus on the pursuer of proving that his damage was caused by the defenders’ tort.
A year later the decision in Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613 followed the decision in Bonnington Castings Ltd, v. Wardlaw and held, in another case of pneumoconiosis, that the employers were liable for t he employee’s disease arising from the inhalation of dust from two sources, one “innocent” the other “guilty,” on facts virtually indistinguishable from those in the case of Bonnington Castings Ltd. v. Wardlaw.
In McGhee v. National Coal Board [1973] 1 WLR 1 the pursuer worked in a brick kiln in hot and dusty conditions in which brick dust adhered to his sweaty skin. No breach of duty by hisemployers, the defenders, was established in respect of his working conditions. However, the employers were held to be at fault in failing to provide adequate washing facilities which resulted in the pursuer having to bicycle home after work with his body still caked in brick dust. The pursuer contracted dermatitis and the evidence that this was caused by the brick dust was accepted. Brick dust adhering to the skin was a recognised cause of industrial dermatitis and the provision of showers to remove it after work was a usual precaution to minimise the risk of the disease. The precise mechanism of causation of the disease, however, was not known and the furthest the doctors called for the pursuer were able to go was to say that the provision of showers would have materially reduced the risk of dermatitis. They were unable to say that it would probably have prevented the disease.
The pursuer failed before the Lord Ordinary and the First Division of the Court of Session on the ground that he had not discharged the burden of proof of causation. He succeeded on appeal to the House of Lords. Much of the academic discussion to which this decision has given rise has focussed on the speech of Lord Wilberforce, particularly on two paragraphs. He said at p. 6: “But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail – a logic which dictated the judgments below. The question is whether we should be satisfied in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more; namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers should suffer from this inherent evidential difficulty, the answer as a matter in policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences.”
He then referred to the cases of Bonnington Castings Ltd, v. Wardlaw [1956] AC 613 and Nicholson v. Atlas Steel Foundry and Engineering Co. Ltd. [1957] 1 W.L.R. 613 and added at p. 7: “The present factual situation has its differences: the default here consisted not in adding a material quantity to the accumulation of injurious particles but by failure to take a step which materially increased the risk that the dust already present would cause injury. And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer,should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.” (I have added the emphasis in both these two passages.)
My Lords, it seems to me that both these paragraphs, particularly in the words I have emphasised, amount to saying that, in the circumstances, the burden of proof of causation is reversed and thereby to run counter to the unanimous and emphatic opinions expressed in Bonnington Castings Ltd, v. Wardlaw [1956] AC 613 to the contrary effect. I find no support in any of the other speeches for the view that the burden of proof is reversed and, in this respect, I think Lord Wilberforce’s reasoning must be regarded as expressing a minority opinion.
A distinction is, of course, apparent between the facts of Bonnington Castings Ltd, v. Wardlaw, where the “innocent” and “guilty” silica dust particles which together caused the pursuer’s lung disease were inhaled concurrently and the facts of McGhee v. National Coal Board [1973] 1 WLR 1 where the “innocent” and “guilty” brick dust was present on the pursuer’s body for consecutive periods. In the one case the concurrent inhalation of “innocent” and “guilty” dust must both have contributed to the cause of the disease. In the other case the consecutive periods when “innocent” and “guilty” brick dust was present on the pursuer’s body may both have contributed to the cause of the disease or, theoretically at least, one or other may have been the sole cause. But where the layman is told by the doctors that the longer the brick dust remains on the body, the greater the risk of dermatitis, although the doctors cannot identify the process of causation scientifically, there seems to be nothing irrational in drawing the inference, as a matter of common sense, that the consecutive periods when brick dust remained on the body probably contributed cumulatively to the causation of the dermatitis. I believe that a process of inferential reasoning on these general lines underlies the decision of the majority in McGhee’s case.
In support of this view, I refer to the following passages.
Lord Reid said at pp. 3-4:
“The medical witnesses are in substantial agreement. Dermatitis can be caused, and this dermatitis was caused, by repeated minute abrasion of the outer horny layer of the skin followed by some injury to or change in the underlying cells, the precise nature of which has not yet been discovered by medical science. If a man sweats profusely for a considerable time the outer layer of his skin is softened and easily injured. If he is then working in a cloud of abrasive brick dust, as this man was, the particles of dust will adhere to his skin in considerable quantity and exertion will cause them to injure the horny layer and expose to injury or infection the tender cells below. Then in some way not yet understood dermatitis may result.
If the skin is not thoroughly washed as soon as the man ceases work that process can continue at least for some considerable time. This man had to continue exerting himself after work by bicycling home while still caked with sweat and grime, so he would be liable to further injury until he could wash himself thoroughly. Washing is the only practicable method of removing the danger of further injury.
The effect of such abrasion of the skin is cumulative in the sense that the longer a subject is exposed to injury the greater the chance of his developing dermatitis: it is for that reason that immediate washing is well recognised as a proper precaution.”
He concluded at pp. 4-5:
“The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.
There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender didmade a material contribution to his injury.”
Lord Simon of Glaisdale said at p. 8:
“But Bonnington Castings Ltd, v. Wardlaw [1956] AC 613 and Nicholson v. Atlas Steel Foundry Engineering Co. Ltd. [1957] 1 W.L.R. 613 establish, in my view, that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.”
Lord Kilbrandon said at p. 10:
“In the present case, the pursuer’s body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do.”
Lord Salmon said at pp. 11-12:
“I, of course, accept that the burden rests upon the pursuer to prove, on a balance of probabilities, a causal connection between his injury and the defenders’ negligence. It is not necessary, however, to prove that the defenders’ negligence was the only cause of injury. A factor, by itself, may not be sufficient to cause injury but if, with other factors, it materially contributes to causing injury, it is clearly a cause of injury. Everything in the present case depends upon what constitutes a cause. I venture to repeat what I said in Alphacell Ltd, v. Woodward [1972] AC 824, 847: ‘The nature of causation has been discussed by many eminent philosophers and also by a number of learned judges in the past. I consider, however, that what or who has caused a certain event to occur is essentially a practical question of fact which can best be answered by ordinary commonsense rather than abstract metaphysical theory.’ In the circumstances of the present case it seems to me unrealistic and contrary to ordinary commonsense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing the injury.”
Then after referring to the cases of Bonnington Castings Ltd, v. Wardlaw and Nicholson he added at pp. 12-13: “I do not find the attempts to distinguish those authorities from the present case at all convincing. In the circumstances of the present case, the possibility of a disinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.”
The conclusion I draw from these passages is that McGhee v. National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and the attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.
In the Court of Appeal in the instant case Sir Nicolas Browne-Wilkinson V.-C., being in a minority, expressed his view on causation with understandable caution. But I am quite unable to find any fault with the following passage in his dissenting judgment
[1987] Q.B. 730, 779:
“To apply the principle in McGhee v. National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz., brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.
The position, to my mind, is wholly different from that in the McGhee case where there was only one candidate (brick dust) which could have caused the dermatitis and failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inference from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of six possible causesis no evidence as to which of those six caused the injury.”
Bannister (Estate of) v Freemans Public Ltd Company
(Rev 1)
[2020] EWHC 1256 (QB) (19 May 2020)
GEOFFREY TATTERSALL QC:
Introduction
Valerie Ann Bannister [‘the Claimant’] is the widow and executrix of the estate of Dennis Charles Bannister [‘the Deceased’] who contracted malignant mesothelioma and, after a prolonged illness, died on 12 March 2019, aged 73 years. It is alleged that the Deceased was exposed to asbestos, negligently and/or in breach of statutory duty, probably more than 35 years ago in the course of his employment by Freemans plc [‘the Defendant’] at its premises on Clapham Road London.
Two matters should be noted at the outset of this judgment.
Firstly, such exposure did not involve the Deceased working with asbestos or being regularly exposed to the clothes of a person who had worked with asbestos. He had been employed by the Defendant as a Manager in its Accounts Department. He alleged that, following the removal of a partition wall containing asbestos in his office at the weekend, on the following Monday he was exposed to a residue of asbestos dust on his desk and on the floor which was gradually removed over the course of the following days by the Defendant`s cleaners who came into the office every evening.
Secondly, the Defendant contends that asbestos fibres are found in the lungs of every adult, largely as a consequence of the past presence of asbestos in buildings, vehicles and in commerce, particularly in an urban environment and that a significant percentage of both male, and particularly female, mesothelioma cases cannot positively be attributed to occupational or domestic asbestos exposure.
The quantum of recoverable damages has been agreed at £ 320,000 subject to breach of duty and causation. Accordingly, it was unnecessary to consider the witness statement of the Claimant dealing with expenses during the Deceased`s illness and the levels of care provided for him; the witness statement of Mr Mike Horne, the Deceased`s accountant, as to the Deceased`s current and future remuneration as a self-employed recovery auditor; or the parties` respective Schedule and Counter-Schedule of Loss.
However, liability is very much in dispute and in order to be able to establish liability against the Defendant I have to resolve a number of issues which may be summarised as follows:
Firstly, to what degree, if at all, was the Deceased exposed to asbestos dust during the course of his employment by the Defendant? There is a dispute as to whether or not the Deceased was exposed to any asbestos dust.
Secondly, whether such exposure was caused by the Defendant`s negligence and/or breach of statutory duty? On this issue the Defendant concedes that it owed a duty to reduce the Deceased`s exposure to asbestos to the lowest level reasonably practicable and that it would have been in breach of such duty if there was, as the Deceased contends, visible residues of asbestos dust in his office after works in relation to the partitions of the Deceased`s office.
Thirdly, what was the extent of that exposure to asbestos dust?
Fourthly, whether any such exposure constituted a `material increase in risk` of the Deceased developing mesothelioma which is the modified test of causation in mesothelioma cases following the judgments of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32 and of the Supreme Court in Sienkiewicz v Grief (UK) Ltd [2011] 2 AC 229.
After addressing some preliminary matters, I will address each of the first, third and fourth issues in turn below.
Proceedings were issued on 11 December 2018 and the Particulars of Claim and Defence were filed on 13 December 2018 and 11 January 2019 respectively. After the Deceased`s death, the pleadings were amended so that the Claimant brought the proceedings as Widow and Executrix of the Deceased. The Deceased`s evidence was taken on commission on 19 February 2019, some three weeks before he died. Witness statements were exchanged by mid February 2019. There was provision for evidence from medical and engineering evidence experts and for Joint Statements by such experts.
At the hearing I read the witness statements of the Deceased who had died almost exactly a year before the hearing. His evidence on commission was recorded on video and was played in court during the hearing. I also heard oral evidence from Mr Graham Ford, a fellow employee of the Defendant at the material time. The Defendant did not adduce any factual evidence.
As to expert evidence the following experts gave oral evidence before me and were cross-examined, namely:
i) Mr John Raper, a consultant forensic scientist, instructed by the Claimant;
ii) Mr Martin Stear, a chartered occupational hygienist, instructed by the Defendant;
iii) Dr Robin Rudd, the respiratory physician instructed by the Claimant; and
iv) Dr John Moore-Gillon, the respiratory physician instructed by the Defendant.
In addition, I was invited to have regard to the reports of Professor Charles Twort who had addressed issues relating to the Deceased`s diagnosis and life expectancy in his reports dated 26 September 2018 and 16 August 2019. Neither of such reports was in dispute. I have read such reports but they add little, if anything, of relevance to the issues which I have to address.
At the hearing before me the Claimant was represented by Mr Harry Steinberg QC and Ms Gemma Scott and the Defendant was represented by Mr David Platt QC.
At the conclusion of the oral evidence on 18 March 2020, at the request of the parties I adjourned to enable the parties to obtain a transcript of the evidence given before me and to file and thereafter to serve closing written submissions. Although the parties were content to rely solely on such written closing submissions and any brief responses thereto without the necessity for an oral hearing, I kept open the possibility of an oral hearing, which in the light of current circumstances would have to be conducted by telephone or video-conferencing. I received all these closing written submissions and responses thereto on 7 April 2020. Such submissions were comprehensive and lengthy and ran to about 150 pages with very extensive citations of authority and other literature. Having considered them, in my judgment it is not necessary that there should be a further oral hearing.
I express my profound gratitude to all counsel for dealing with this difficult case expeditiously and efficiently in what were rapidly becoming difficult circumstances and particularly for their immensely helpful detailed closing written submissions.
At the outset of this judgment it is helpful to give an overview of mesothelioma and the current state of the law in relation thereto.
An overview of mesothelioma
In Fairchild Lord Bingham, at 43, stated:
“From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. … It is a condition which may be latent for many years, usually for 30-40 years or more; development of the condition may take as short a period as ten years, but it is thought that this is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within one to two years of the condition being diagnosed. … It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probably than any other, and the condition once caused is not aggravated by further exposure. … There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.”
Since that judgment the references to a 10 year “latency period” and to single fibre causation have been qualified by the judgments in the Employers` Liability Policy Trigger Litigation [2009] Lloyd`s Law Reports 295 and Sienkiewicz. However, the core observations still apply.
In such circumstances it was probably inevitable that where a claim was brought by or on behalf of a person who had contracted mesothelioma and it was alleged that such was caused by exposure to asbestos in breach of a duty of care owed to such person, different principles as to causation would apply.
The current state of the law
The first problem to be addressed derived from what Burton J had described in Durham v BAI (Run Off) Ltd [2009] Lloyd`s Law Reports 295 as the ‘unknowability and indescribability of the precise pathogenesis of mesothelioma and the impossibility of knowing whether any particular exposure to asbestos had caused the mesothelioma’.
So it was that in Fairchild the House of Lords had to consider the problem of causation where, although the claimants had been employed in a number of employments where they had been exposed to asbestos dust and could prove a negligent breach of duty by their employers, they could not establish, even on a balance of probabilities, which employer`s negligence and/or breach of duty had caused the mesothelioma. As Lord Bingham succinctly put it in Fairchild the issue raised in that appeal was:
“whether, in the special circumstances of such a case, principle, authority or policy requires or justifies a modified approach to proof of causation.”
Fairchild gave rise to a special rule governing the attribution of causation in cases where a claimant had contracted mesothelioma. This was developed further in Barker v Corus UK Ltd [2006] 2 AC 572 and further varied by Parliament in section 3 of the Compensation Act 2006. Thus [per Lord Phillips in Sienkiewicz, at 239] the rule in its current form can be stated as follows:
“when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a `material increase in risk` of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.”
Thus, Fairchild resolved the issue about proof of causation in cases where there was more than one defendant who was alleged to have been in breach of duty by exposing the claimant to asbestos.
Sienkiewicz stated two further important propositions, both of which relate particularly to causation in mesothelioma cases.
Firstly, the court addressed the question of what constituted a `material increase in risk`. On this issue, at 269, Lord Phillips, with whom the other members of the court agreed, stated, albeit obiter:
“107. Liability for mesothelioma falls on anyone who has materially increased the risk of the victim contracting the disease. What constitutes a material increase of risk? The parties were, I think, agreed that the insertion of the word “material” is intended to exclude an increase of risk that is so insignificant that the court will properly disregard it on the de minimis principle. Mr Stuart-Smith submitted that there should be a test of what is de minimis, or immaterial, which can be applied in all cases. Exposure should be held immaterial if it did not at least double the environmental exposure to which the victim was subject. It does not seem to me that there is any justification for adopting the “doubles the risk” test as the bench mark of what constitutes a material increase in risk. Indeed, if one were to accept Mr Stuart-Smith`s argument that the “doubles the risk” test establishes causation, his de minimis argument would amount to saying that no exposure is material for the purpose of the Fairchild/Barker test unless on balance of probability it was causative of the mesothelioma. That cannot be right.
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.”
Having considered the findings of the trial Judge, at 270, Lord Phillips concluded thus:
“111. The reality is that in the current state of knowledge about the disease, the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victim`s risk of contracting the disease will be where the exposure was insignificant compared to the exposure from other sources.”
This clarification of what constitutes a `material increase` in risk` applies both to cases where multiple defendants were alleged to have exposed a claimant to asbestos fibres and also to where only one defendant was adjudged to have negligently exposed the claimant to asbestos fibres.
Secondly, the court clarified the effect of section 3(2) of the Compensation Act 2006 which provides that:
“The responsible person [defined in section 3(1) as a person who has negligently or in breach of statutory duty caused or permitted another person (“the victim”) to be exposed to asbestos] shall be liable-“
(a) in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos)-
(i) other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or
(ii) by the responsible person in circumstances in which he has no liability in tort, and
(b) jointly and severally with any other responsible person.”
The court stated that this did not provide that, in cases of mesothelioma, the “responsible person”, as defined in the Act, would be liable in tort if he had materially increased the risk of a victim contracting mesothelioma, as the Court of Appeal had found. Instead it provided that whether and in what circumstances such a person who had materially increased the risk of a victim contracting mesothelioma was to be decided according to the Common Law, but that once such a person is found liable at Common Law, section 3 provides that he is liable for the whole of the damage so caused and is adjudged jointly and severally liable with any others also adjudged liable to the same victim, subject to issues of contributory negligence or contribution from other tortfeasors : see paras 70-71 of Lord Phillips’ judgment.
Hence in a mesothelioma case, a Claimant has to prove, on the balance of probabilities, the following four things, namely that:
i) the defendant owed the claimant a duty of care not to expose him to asbestos dust and the consequent risk of asbestos-related injury.
ii) the defendant was in breach of that duty.
iii) the defendant`s negligent breach of that duty caused a material increase in the risk that the claimant would develop mesothelioma. And
iv) the claimant suffered loss and damage in consequence of developing mesothelioma subject to the usual `remoteness` rules.
The issues to be determined in this case
I have already noted that in this case the Defendant concedes that, in the event that I were to find that the Deceased was exposed to asbestos dust in the course of his employment, it was in breach of the duty of care owed by the Defendant to the Deceased not to expose him to asbestos dust and the consequent risk of asbestos-related injury.
Such concession was properly made, given that Mr Raper and Mr Stear agree that at the time of the Deceased`s employment by the Defendant:
i) The hazards to health associated with exposure to asbestos, particularly mesothelioma but also other asbestos-related diseases, were well known because any such exposure post-dated the publication of Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area by Newhouse and Thompson in 1965 and subsequent press reports thereof and, in particular, the publication of the HSE Guidance Note EH10 in December 1976 and its update in April 1973; and
ii) A number of documents provided advice as to necessary measures for the removal of asbestos containing materials [`ACMs`], the subsequent cleaning of waste created by such work and the guidance specified the application of dust-free techniques for clearing away dust and debris generated during work with ACMs.
Moreover, although it is further agreed that, applying Sienkiewicz, in a mesothelioma case in which it is alleged that there was a material increase in the victim`s risk of contracting the disease, it is appropriate to estimate the extent of that exposure to asbestos dust, which the experts have described as the cumulative dose.
I now address the three issues which I have to determine, namely:
i) To what degree, if at all, was the Deceased exposed to asbestos dust during the course of his employment by the Defendant;
ii) What was the extent of that exposure to asbestos dust; and
iii) Whether any such exposure constituted a `material increase in risk` of the Deceased developing mesothelioma.
The Deceased`s exposure to asbestos dust in the course of his employment by the Defendant
There is some common ground between the parties in that the following matters are agreed.
Firstly, at all material times the Defendant was a well-known mail order company which traditionally produced catalogues which set out their range of products which were for sale but has since moved to sell goods online.
Secondly, between 1977/78, when the Deceased would have been aged about 31 years, and 1988/89 he was employed as a Manager in its Accounts Department at the Defendant`s premises on Clapham Road, London. This was a large old four storey building, probably Victorian, which had previously been a printing works.
Thirdly, the Deceased had his own office on the first floor. It appears to have been one of six offices separations by partitions. There were gaps between the edges of such partitions and the walls and ceiling which were filled with an infill material/board. Outside such offices was a common area in which others worked, including Mr Graham Ford who was then employed by the Defendant as a financial planning assistant reporting to the Deceased.
I turn to consider the evidence of the Deceased and Mr Ford.
The evidence of the Deceased and Mr Ford
The Deceased made two witness statements.
In his first witness statement made on 2 August 2018 the Deceased stated that after leaving school he had worked for a bank in various positions and in his mid-20s began to work as an internal auditor/accountant, initially at Abbey Life, then at Green Shield Trading Stamp Co Ltd [`Green Shield`] and then at the Defendant`s Clapham Road premises which he believed had been built in the 1900s and was formerly a warehouse or an old print works. He was employed as an accounts manager and he had one of 6 offices on the first floor separated by partitions between each office which were about an inch thick. It seems common ground that such partitions contained panels constituting the substance of the partition [‘the central panels’] and panels which joined the partition to the walls and ceilings [‘the infill panels’].
He continued thus:
“10. … I recall being told that workmen were going to come into the offices to remove the old partitions and replace them over the course of the weekend. I recall coming back to work on the Monday after the work had been completed and there were no partitions between the offices. This is because it took a week for the new partitions to be put in. I believe that the partitions and area around them contained asbestos. I remember being notified of the asbestos removal within the offices when I was working at Freemans. At the time I took no notice of it as I did not know that asbestos was dangerous.
11. I do recall coming into the office on the Monday after the work had been completed and there being quite a lot of dust on the desks and around the floor. Again, I thought nothing of it at the time. During the course of that week cleaners would have come in to clean the offices as they did every week.”
It may be noted that the Deceased:
i) did not refer to any memo;
ii) gave no reason for his belief that the partitions and the area around them contained asbestos save being notified of the asbestos removal;
iii) expressly stated that on the Monday morning there was no partition between the offices: it thus follows that both the central panels and the infill panels had been removed; and
iv) stated that it took about a week for the new partition to be installed.
In his second witness statement made on 12 February 2019 the Deceased stated that:
i) On his return to work on the Monday, the steel frames of the partitions remained with some of the central pieces and seemingly all of the infill panels of the partitions which were beige in colour had been removed. When he had said in his first statement that on the Monday there were no partitions, he had meant that the material around the partitions had been removed but the steel frame remained. He remembered being able to see his colleagues who were in the offices on either side of his office and recalled that he could see Keith Ellison, his line manager, who was able to ask him what he was doing which he remembers being distracting;
ii) The partitions were `refilled` at most over the next week or two;
iii) He had received a memorandum [`memo`] about the works to be done which specifically highlighted the fact that the infill panels contained asbestos and that it was this material that was being removed. Mr Ford, who was his financial planning assistant, got to know about the memo because the Deceased worked very closely with him and it would have come up in conversation;
iv) Although the Deceased had become aware that Mr Ford recalled him telling Mr Ford that he could taste the dust in his mouth, he did not expressly say that he remembered this but did recall commenting on the dust in his office and telling Mr Ford about it. He repeated that `there was visible dust on my desk and on the floor, that it looked `as though the work had overrun and the builders had not had time to clean it up` and that `the visible dust was cleaned up by the cleaners who came in every evening` and `after a few days they were back to being relatively `clean` again`; and
v) When asked by doctors about whether he had been exposed to asbestos, he had thought that they were only interested in recent exposure and did not then appreciate that exposure over 40 years ago could have caused his mesothelioma.
In his cross-examination when he gave evidence on commission the Deceased stated as follows.
He agreed that after his initial diagnosis he had told various persons, when asked specifically about any possible exposure to asbestos, that he was unaware of any such exposure: see the letter from Dr Sathyamoorthy dated 23 January 2018, the file note of Ms Forrest, a senior physiotherapist on 21 February 2018 and the letter from Dr Datta dated 5 March 2018 respectively after each had seen the Deceased in clinic. However, in cross-examination Dr Moore-Gillon accepted that it was very common for those diagnosed with mesothelioma to deny any exposure to asbestos.
In an application for Industrial Injuries Disablement Benefit [`IIDB`] made on 10 April 2018 after he had become ill [which resulted in a lump sum payment of £ 16,404] he had told the person completing such claim on his behalf that:
“I was exposed to asbestos when working in various locations including warehouses. The warehouses may have contained asbestos and were dusty.
In one of the offices I worked there was refurbishment work going on where partitions were put up and old partitions were removed. This was dusty work.”
Later in the same application form the Deceased listed his employers and said that in respect of both Green Shield and the Defendant he had been exposed to asbestos and in respect of the Defendant referred to a ‘warehouse’.
Although he had identified his employers at the time of his exposure to asbestos as the Defendant and Green Shield, he subsequently contended that none of his exposure to asbestos had occurred at Green Shield where the building was at most 10 years old and contained no asbestos. When asked why he had identified Green Shield and no other employers other than the Defendant, he could only say that this was a `misunderstanding. He repeated this explanation and said that he had been filling in a form ‘to give as many inferences as to where I could have been exposed to asbestos’ in his working career. When pressed further on this, he said that at the time of completing the application form he had thought that he could have believed that he could have been exposed to asbestos at Green Shield but had concluded ‘on reflection that’s not the case’.
He could not specifically remember the contents of the memo, but it referred to the removal of asbestos board but at the time he had no awareness that asbestos was dangerous. He remembered the memo because, as a manager, it was his responsibility to remember a disruption which he had to organise around.
On the Monday morning after the partitions had been removed ‘there was dust everywhere’ and, when it was suggested to him that there could not have been that much dust on the desk if he was able to get on with his work, stated ‘you work around anything in a busy accounting office. You don’t stop work because there`s a bit of dust’.
When he became ill, he was unaware of any exposure to asbestos in the past but at that time he did not appreciate that any exposure very many years ago would be relevant.
In his witness statement made on 17 July 2018, Mr Ford stated that he was employed by the Defendant as a financial planning assistant in the Accounts Department between 1979 and 1985, with the Deceased as his Manager. The Defendant`s premises were an old print works, probably built in the early 1900`s. There were a number of offices for the management team on the first floor, of which the Deceased had one, and a general office outside such offices. The offices were separated by partitions but there were gaps between such partitions and the walls and ceiling which was infilled with asbestos. Although he does not expressly say how he knew that the infill panels contained asbestos, he ‘distinctly’ recalled one instance when asbestos was identified on that floor of the building and removed over a weekend because he had seen a memo regarding the removal of the partitions and the asbestos. He thought that this occurred around 1983/84. He had returned to work on the Monday to find the work completed but there were ‘residues of dust left in the offices after the work had been done’ and the Deceased told him that he could taste the dust in his mouth. He could remember these events ‘like it was yesterday’. Finally, he said that later asbestos was also identified in other parts of the building and those areas were sealed off.
In his further witness statement made on 11 February 2019, Mr Ford stated that the partitions were metal partitions with infill panels from the edges of the partition to the walls and ceiling. He had a clear recollection of the memo which referred to the removal of the infill panels which were `quite as few centimetres in width` because such contained asbestos although he did not believe that the partitions themselves [by which I understood him to be referring to the central panels], contained asbestos. On the Monday he had been to see the Deceased and there was ‘visible dust in [the Deceased’s] office … on his desk and on the floor’. He corrected his earlier statement in that the partitions themselves were not removed, and were only removed years later when the office became open plan: it was just the infill material around the partitions which was removed.
In cross-examination Mr Ford stated the following.
Although he had worked for the Defendant between 1979 and 1985 with the Deceased as his Manager from about 1980, he had returned to the employment of the Defendant in a different capacity and not in the accounts department in 1986. However, he and the Deceased had kept in touch as friends and until recently he had seen him about once every four months or so.
At a recent meeting with the Deceased after he had become ill and about the time when he was being asked to make a witness statement on the Deceased`s behalf [his first witness statement is dated 17 July 2018 and preceded the first witness statement of the Deceased which was dated 2 August 2018], the Deceased had told him that he did not know from where he had contracted mesothelioma and Mr Ford had said to him ‘don’t you remember, they removed asbestos from our offices in the early 80’s’ whereupon the Deceased ‘remembered’ this.
He could remember nothing about the memo other than that it referred to asbestos. He thought such memo might have come from the Defendant`s Chairman because it was coloured pink and all memos sent by directors were coloured pink. He believed it was in 1983/1984 because he had ceased to work for the Defendant in 1985. Asked about other memos he had seen, he said that towards the end of his employment by the Defendant in that building in 2008 ‘they were sealing off large chunks of the building because it did contain asbestos’. Although he did not receive memos at that time, he remembered seeing signs saying: `Keep out: asbestos`.
He reaffirmed that he did remember the Deceased saying ‘I can taste the dust in my mouth’.
Mr Ford was also asked about the subsequent replacement of the partition which he agreed took place `a few weeks later` and the following exchange took place between Mr Platt and Mr Ford:
“Q. Do you remember there being any dust when the other panels were put back in again and fixed to …?
A. No, not particularly, I can`t remember.
Q. Because is it not possible that what you are recalling in terms of Dennis`s reaction was when the panels were put back in again?
A. It could be. I could not honestly say. I do remember him saying ‘I can taste the dust in my mouth.’
Q. Similarly, I will suggest to you that it is possible, given the passage of time, that the memo you are referring to either referred to other works or the dust that you saw at the time may have been either it being put back in again or non-asbestos dust such as taking out the partitions in the middle which you do not remember but Dennis does?
A. The memo definitely related to the removal of the asbestos and I do remember Dennis saying, ‘I can taste dust in my mouth’.
Q. What I am suggesting is that you may be right that there was a memo about asbestos, it may have been on a different occasion and it may be that any dust that was left was actually other dust that was not asbestos dust because you would not be able to tell the difference?
A. I wouldn’t tell the difference, no. I mean, I wasn’t in his office. The memo definitely related to the removal of the panels with the asbestos. They wouldn’t tell us that they were going to remove them and then tell us that they were going to replace them with something else after the event. …”
Mr Platt relies on this passage as a concession by Mr Ford that any dust was produced on an occasion subsequent to the removal of the panels and would not have contained asbestos.
By contrast, Mr Steinberg submitted that a reasonable man would say that anything was possible and that the point was clarified in re-examination by the following exchange between Mr Steinberg and Mr Ford:
“Q. … You were asked a lot of questions about the sequencing when you saw this dust and when the memo was delivered. What is your best recollection about seeing the dust?”
A. The only recollection I have is sitting in his office after the partitions … well, the board partitions had been removed and I do remember him saying, ‘I can taste dust in my mouth’. That was the recollection I have.
Q. Where was he at that time. Can you picture the scene?
A. He was literally standing in front of me actually he was moving his magazines about and that’s when he said he’d got a sticky taste … he could taste dust in his mouth.
Q. It was suggested … well, you remember the layout of the office on that day?
A. Yes
Q. What was around him, how did it look?
A. It would be the normal office with partitions on both sides, the back wall. His desk was in the middle of the office. He would be sat with his back to the window and the shelf and the front facing the door to enter his office.
Q. Mr Platt suggested to you that maybe you were confused, maybe it was after the partitions had been removed?
A. I don`t remember it that way. I do remember it … that it was shortly after we had them removed, as I say, because I went into his office on the day, on the Monday.”
The Deceased`s daily routine involved him going to meetings outside his office and spending time in the IT department so that he spent about 60% of his time in the office. Although he worked a 7½-8 hour day, the Deceased worked longer hours than he did.
The evidence from Mr Ford came as a surprise to the non-medical experts who had each assumed that the Deceased spent all his 8-hour working day in his office. As appears below, this led to revised estimates of the Deceased`s cumulative dose to reflect an assumption that the Deceased usually worked a 9-hour day and spent about 60% of his time in his office.
The evidence of the engineering experts
None of the experts can assist as to whether or not the materials, partition, central and/or infill panels, which were removed contained asbestos but both Mr Raper and Mr Stear agree that if I were to accept the Deceased`s evidence, it necessarily follows that an asbestos containing material [‘ACM’] was removed and that it is more likely than not to have been asbestos insulation board [‘AIB’] rather than other asbestos materials.
There was further agreement between Mr Raper and Mr Stear as follows.
Firstly, that it is a matter for the court to determine how the infill panels were removed and whether or not appropriate precautions were taken.
Secondly, the presence of dust in the Deceased`s office on the Monday following works to the partition does not necessarily mean that that appropriate precautions were not taken as it is possible that such dust could relate to other works, albeit that:
i) Mr Raper says that it would be most unusual during asbestos removal work for only the asbestos-containing component of debris to have been removed and, given the absence of any evidence as to programming of such work, how such work was carried out or the competence of the contractors, the dust was likely to have been generated during the removal of asbestos containing infill materials.
ii) Mr Stear says that, given that the Defendant had identified the asbestos infill panels, had decided to remove them and notified employees to that effect, it is unlikely that they would not have appreciated the need to engage a specialist contractor and/or take adequate precautions and it is more likely that asbestos precautions were taken and that the dust seen by the Deceased and Mr Ford was non-asbestos dust from other works, rather than that no precautions were taken.
Thirdly, if the court finds that the asbestos infill panels were removed without precautions being taken, the dust seen by the Deceased and Mr Ford is likely to have contained asbestos.
Mr Raper and Mr Stear both agreed that if the court found that a memo was sent to the Deceased, as alleged by him, on the balance of probabilities such would suggest a degree of asbestos awareness on the part of the Defendant and that precautions should have been taken to remove any asbestos-containing dust. However, they disagreed as to the extent of such awareness and its consequences in that Mr Raper notes the failure to refer to the need for precautions during the removal of the partition whereas Mr Stear sees no reason why the memorandum should have detailed the precautions for which to be carried out in the planned absence of the Defendant`s employees.
However, I am satisfied that the inferences which can and should be drawn from the facts which I find must ultimately be a matter for me and not these, or any, experts.
The reliability of historical lay evidence
Before I set out the parties` closing submissions on the facts and my findings of fact in relation to the evidence given before me, it is appropriate that I should note that in Sienkiewicz Lord Rodger stated:
“166. It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases. Especially, having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant`s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted.”
In Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB), where Stewart J had to evaluate evidence given in relation to events at the time of the State of Emergency in Kenya in the early 1950s, he cautioned against the overuse of historical lay evidence which is otherwise unsupported by documentary evidence and cited from various authorities. From the analysis of decided cases, which appear at para 95 of his judgment onwards, he observed that memories are believed to be more faithful than they in fact are, that it is erroneous to believe a recollection is more likely to be accurate the stronger and more vivid the recollection is or the more confident way in which it is expressed, that even memories of particularly shocking or traumatic events are fluid and malleable, and that events can come to be recalled which did not happen at all and the process of civil litigation subjects the memories of witnesses to powerful biases.
For present purposes I believe it is sufficient to cite dicta from Leggatt J, as he then was, in Gestmin SPGS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) when he stated:
“15. An obvious difficulty which affects allegations and oral evidence based on recollection of events which occurred several years ago is the unreliability of human memory.
16. While everyone knows that memory is fallible, I do not believe that the legal system has sufficiently absorbed the lessons of a century of psychological research into the nature of memory and the unreliability of eyewitness testimony. One of the most important lessons of such research is that in everyday life we are not aware of the extent to which our own and other people`s memories are unreliable and believe our memories to be more faithful than they are. Two common (and related) errors are to suppose: (1) that the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate; and (2) that the more confident another person is in their recollection, the more likely their recollection is to be accurate.
…
19. The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or least not to prejudice, the party who has called the witness or that party`s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.
20. Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in the present case) when a long time has already elapsed since the relevant events. The statement is usually drafted for the witness by a lawyer who is inevitably conscious of the significance for the issues in the case of what the witness does nor does not say. …The statement may go through several iterations before it is finalized. Then, usually months later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court. The effect of this process is to establish in the mind of the witness the matters recorded in his or her statement and the other written material, whether they be true or false, and to cause the witness`s memory of events to be based increasingly on this material and later interpretations of it rather than on the original experience of the events.
…
22. … This does not mean that oral testimony serves no useful purpose … But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”
Such cautionary words were echoed by Lord Pentland in Prescott v The University of St Andrews [2016] SCOH 3, where the learned judge, having referred to the above observations of Leggatt J in Gestmin, stated:
“42. The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence. All remembering of events many years ago involves processes of a reconstructive nature; these processes are largely unconscious with a result, as Leggatt J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth. Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution. I have, wherever possible, tested his evidence against other evidence in the case and I have considered objectively where the probabilities lie.”
So it was that in Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB), where Spencer J had to determine whether a claimant`s mesothelioma was caused by, inter alia, either her exposure to asbestos in premises where a suspended ceiling made of asbestos tiles disturbed in the course of maintenance shedding asbestos dust and/or or over several weekends when she was present while substantial building works, including the removal of an asbestos tiled ceiling were undertaken, having cited the above authorities, he stated:
“64. These latter observations [referring to para 19 in Gestmin] are, in my view, particularly apposite in the present case in relation to the evidence of the witnesses called by the claimant. The tragic nature of the case and the natural desire to assist in any proper way, are inevitable human reactions. These, and the other factors referred to in the passages quoted above, make it all the more important to test the recollection of the witnesses against contemporaneous documentation.”
I bear in mind that in this case no documentary evidence has been produced by either party to support or call into question the oral evidence which was given by the Deceased and Mr Ford.
Mr Steinberg sought to diminish the effect of such dicta in this case in that Kimathi was a case in which Stewart J was referred to `an abundance of documents` which did not support the evidence given by the test claimant and there was witness to corroborate his evidence; Sloper was another case where the claimant`s evidence was contradicted by contemporaneous documentation and evidence; and Gestmin was simply an eloquent reminder of the fallibility of human memory, which must apply in every case. He submitted that on the particular facts of this case the position was very different because two witnesses had given clear and corroborative evidence which, although challenged, was never undermined and there was no evidence adduced to the contrary.
There is some merit in this submission, subject to the qualifications referred to below.
In so far as it relies on the Defendant`s failure to keep or maintain records, it is unrealistic and I reject it because in my judgment it is not reasonable to have expected the Defendant to have kept records from such a long time ago. I do not find the decision or reasoning of the Court of Appeal in Keefe v Isle of Man Steam Packet [2010] EWCA Civ 683 to be of assistance.
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.’
In making my findings of fact I have had regard to the detailed submissions of both Mr Steinberg and Mr Platt, although to set them out in detail would inevitably unnecessarily lengthen this judgment.
Having regard to all that is set out above, I set out my findings of fact.
My findings of fact
Before considering the detailed facts it is important that I make two preliminary observations.
Firstly, although I accept, as did Mr Platt, that both the Deceased and Mr Ford did not give their evidence with any intention to deceive, there were a number of matters which made me have substantial doubt as whether the Deceased`s recollection of events could be relied upon. My reasons for so concluding may be summarised as follows.
Firstly, although I note what the Deceased said in cross examination, as set out above, namely that when asked about any exposure to asbestos he believed that the doctors were only interested in recent exposure and I accept Dr Moore-Gillon`s evidence that such denials of exposure to asbestos are not uncommon, such matters notwithstanding, it is in my judgment at the very least surprising that the Deceased denied being exposed to asbestos on three separate occasions during which time he would have had time to reflect on the accuracy of such denials.
Secondly, even after making substantial allowances for the fact that his cross-examination took place only 3 weeks before the Deceased died and that in my non-medical view he looked, and must have been, unwell when giving evidence on commission, I did not find what the Deceased said in his IIDB application form as to his alleged exposure to asbestos at all satisfactory for the following reasons:
i) I do not know why he referred to Green Shield at all as a potential source of his exposure to asbestos because, as he says, he worked for that organization in a modern building which was highly unlikely to have contained asbestos. Moreover, I frankly cannot understand why the Deceased referred to working in warehouses which ‘may have contained asbestos and were dusty’. In those circumstances, I do not accept that the Deceased, who was obviously an intelligent man and as an accountant well used to the need for accuracy, could ever legitimately have believed that he had been exposed to asbestos at Green Shield.
ii) The Deceased no longer contends that he was exposed to asbestos at Green Shield. Although he still stated that this resulted from a `misunderstanding` and that in completing the application form he saw his role as giving inferences as to where he had been exposed to asbestos, I cannot accept that this was the case. I do not think that what was said by the Deceased in such application form was capable of being a product of `misunderstanding`. I am satisfied that such was said by the Deceased so as to secure IIDB, which it did.
iii) I note that the Deceased said in cross-examination that his initial reliance on an alleged exposure to asbestos at Green Shield was not his `current recollection of what the true facts are` which suggests to me that his recollection of material events has markedly changed, particularly during the course of these proceedings.
iv) I do not understand why there is a reference to a `warehouse` whilst employed by the Defendant, given that it has never been suggested by the Deceased that he was exposed to asbestos in any warehouse.
v) The reference in the IIDB application form, completed less than 4 months before the making of his first witness statement, to refurbishment work involving partitions being put up and removed, which I am satisfied was a reference to his employment by the Defendant, is remarkable for what it does not say. I note that there is no reference to:
a) any memo circulated by the Defendant or that any such memo said or gave the Deceased cause to believe that those parts of the partitions which were to be removed contained asbestos.
b) the work being carried out was carried out on the grounds of safety: the use of the word `refurbishment` does not in my judgment connote that such works were being carried out on the grounds of safety, although I am bound to say that this is a relatively minor matter.
c) although the removal of the partitions was said to be `dusty work` there is no indication of the amount of dust found by the Deceased after the refurbishment work
Thirdly, even in his first witness statement the Deceased did not refer to the existence of the memo although he does refer to being told, in unspecified manner, that the following weekend workmen were to remove all partitions and of his belief that the partitions contained asbestos. Although the Deceased refers to the memo in his second witness statement and that the memo had highlighted the fact that the infill material around the partitions contained asbestos which was to be removed, I am satisfied that the Deceased had forgotten the existence of any memo until he was reminded thereof by Mr Ford.
Fourthly, there is a significant difference between the evidence of the Deceased and Mr Ford as to what parts of the partition were removed. The Deceased`s first witness statement said that on his return to work on the Monday morning there were no partitions between the offices whereas in his second witness statement he stated that on the Monday, the steel frames of the partitions remained with some of the central pieces of the partitions removed but that there were gaps above and the sides of such partitions where the material used to fill such gaps. By contrast, Mr Ford`s evidence, which was relied upon by the Claimant and which I accept, was that only the infill material at the edges of the partition were removed. So it is that the Claimant`s case does not rely on that part of the Deceased`s evidence which referred to the removal of the central pieces of the partition.
I am satisfied that, but for Mr Ford ‘reminding’ the Deceased at their meeting in early 2018 of the existence of the memo or the removal of the partition which contained asbestos, the Deceased would have been unable say all that he did in his witness statements. I note that his first witness was made after the first witness statement of Mr Ford.
Although I note that the Deceased and Mr Ford had different descriptions of the colour of the partitions [‘indiscriminate grey’ [Deceased] and ‘magnolia’ [Mr Ford] this difference is in my judgment immaterial and can be safely ignored.
In conclusion, I am satisfied that firstly, much, if not all, of the Deceased`s evidence was prompted by Mr Ford’s recollection of the memo and its reference to the partitions containing asbestos and that secondly, but for Mr Ford’s evidence, the Deceased had no significant independent recollection of being exposed to asbestos. It should be noted that the alleged exposure to asbestos in the IIDB application form was expressed in the most general of terms and that, although the Deceased’s first witness statement referred to a belief that the partitions contained asbestos, it expressed no basis for such belief and significantly did not rely on the existence of a memo for such belief.
Although I note that although it is almost 30 years since they had worked together in the employment of the Defendant, the Deceased and Mr Ford had remained in fairly regular contact and that I have no doubt that it was the Deceased who suggested that Mr Ford might be a witness on his behalf. I thus have asked myself whether, in the light of such regular contact between the Deceased and Mr Ford, I should accept the Deceased`s evidence about the memo, the removal of the partition and the consequential dust, which is in part supported by Mr Ford`s evidence, in particular that he could taste the dust. However, in so far as it might be suggested that there was any degree of collusion between the Deceased and Mr Ford, whether innocent or deliberate, I unhesitatingly reject any such suggestion, given that I am satisfied that each gave their evidence in an honest and straightforward way without any obvious exaggeration.
It seems to me that in determining the factual issues here, it is helpful to address such issues under various headings, namely:
i) Was there a memo sent to the Deceased as alleged?
ii) What works involving the partitions were undertaken?
iii) Was the Deceased exposed to asbestos dust by reason of such works?
Was there a memo sent to the Deceased as alleged?
Although not mentioned by the Deceased in his first witness statement, I am satisfied that the Deceased was given prior warning that the partition would be removed and that such warning was contained in a memo sent to the Deceased. In reaching this conclusion I am not relying on the Deceased`s evidence but on that of Mr Ford whose evidence on this issue I found convincing, particularly his reference to the fact that this must have come from a director, probably the Chairman, because all the directors’ memos were coloured pink and that as a junior employee he rarely saw memos from directors. This is unnecessary detail which I am satisfied was not made up by him. For me to find that, contrary to the evidence of the Deceased and Mr Ford, there was no such memo in the absence of any evidence to the contrary adduced by the Defendant, would in my judgment be wholly unjustified on the facts of this case.
Although neither the Deceased nor Mr Ford can now set out the precise terms of such memo, which I am satisfied is inevitably due to the lapse of time, I am satisfied that the memo did refer to the infill panels in the partition containing asbestos as was suggested by Mr Ford. I conclude that it is inconceivable that such memo would have so stated unless such was accurate. Whilst I recognise the force of Mr Platt`s submission that for the infill boards to have contained asbestos was `atypical` because such use would have served no obvious purpose, I am not willing to draw an inference that the infill boards did not contain asbestos and prefer the direct evidence of Mr Ford on this issue which I accept. Although at that time asbestos might not have been perceived by laymen to have been as dangerous as it currently is, albeit that I think that employers and building contractors would have been aware of the dangers of asbestos, I can see no reason why either the Deceased or Mr Ford should invent this account.
However, I agree with Mr Stear that in circumstances where the Defendant had identified the presence of asbestos containing infill panels which required to be removed, it is very likely on the balance of probabilities that it would have appreciated the need to engage a specialist contractor to undertake the removal of the asbestos and undertake all appropriate and necessary precautions and I draw such inference from the facts here. Of course, that does not necessarily mean that such a specialist contractor would have undertaken the work competently and/or properly, having taken such appropriate and necessary precautions.
What works involving the partitions were undertaken?
I am satisfied that the partition works were probably carried out in 1983 or 1984 because I accept Mr Ford`s evidence that it was at least a year before he first left the employment of the Defendant in 1985. At the time the Deceased was aged 37-38 years. These works involved the removal of some/all of the partition and its subsequent replacement.
Given my findings that there was a memo sent to, inter alia, the Deceased before any works took place [almost certainly from a director because it was coloured pink although Mr Ford recollects that it may have been from Mr Tony Renton, the Defendant`s Chairman] and that such memo referred to the infill panels as containing asbestos, it is self-evident to me, and I draw an inference that, although a specialist contractor would have been likely to have been instructed in relation to the removal works as such involved the removal of asbestos, the subsequent replacement of those infill panels which had been removed would not have required any such specialist contractor as the works did not involve asbestos.
As to what works were undertaken, there is some dispute between the Deceased and Mr Ford as to what panels were removed: the central panels, the infill panels or both.
Having seen Mr Ford give evidence and, having concluded that he was an honest, reliable and accurate witness, I am satisfied that he is probably correct in that it was only the infill panels which had been removed and not the central panels which again casts some doubt on the Deceased`s assertion that he could see his line manager in the adjacent office or that the latter was able to ask him what he was doing.
I thus accept that the weekend immediately after the memo was circulated to the Deceased, the infill panels of the partition were removed. In this context I note that it is contended by Mr Steinberg that the weight of the evidence is that only the infill material of the partitions contained asbestos. He submitted that the only dust-producing material removed at the weekend was such infill material. I accept this.
Such works would inevitably have produced asbestos dust and if, as I accept, the Deceased returned to work on the Monday I agree that it is possible that he could have been confronted with asbestos dust which had not been removed by the contractors who had undertaken the work.
However, it is agreed by both the Deceased and Mr Ford and is probably common ground between the parties that what had been removed that weekend was some short time later replaced, no doubt with non-asbestos containing material. That work too would inevitably have produced dust, although it would not have been asbestos dust because it is not suggested that any replacement materials contained asbestos.
Was the Deceased exposed to asbestos dust by reason of such works?
In their Joint Statement Mr Raper and Mr Stear agreed that if I were to accept the Deceased`s evidence as to the presence of dust on his desk and on the floor of his office on the Monday following the removal of the partition, it necessarily followed that ACM was removed and that it is more likely than not to have been AIB rather than other asbestos materials. Moreover, in his Opening Submissions Mr Steinberg told me that it was now agreed that any such AIB was likely to have contained amosite [brown] asbestos which it is agreed is a type of amphibole asbestos with high potency to cause mesothelioma. Mr Platt did not dispute this was the case and I thus accept that such matters were agreed. It thus follows that the partition was probably AIB and contained amosite asbestos.
The question arises whether the Deceased was exposed to asbestos dust or non-asbestos dust which leads on to a consideration of whether any dust to which the Deceased was exposed was on the Monday after the weekend when the partitions had been partly removed or whether it was on the later occasion when the partition was reinstated.
The Deceased was not cross-examined about the time when further works were carried out to reinstate the partition. Given my findings as to the overall reliability of his evidence, I am satisfied that I could not have safely relied on any answers which he had given about this unless they were corroborated by Mr Ford.
By contrast, Mr Ford was cross-examined about this and I have set out above what Mr Ford said both in cross-examination and re-examination.
What Mr Platt was suggesting to Mr Ford was the possibility that the dust to which the Deceased had been exposed was not asbestos dust but ordinary dust which had resulted from the replacement of those parts of the partition which had been removed and I have no doubt that Mr Ford appreciated the significance of the question.
Although Mr Ford remembered that the Deceased had at some stage said he could taste dust in his mouth, something which I am satisfied from such evidence that the Deceased did say at some time, I understood Mr Ford`s answers to confirm that it `could be` that the dust to which he had been exposed resulted from the time when any parts of the partition were replaced, as opposed to when dust might well have resulted from the removal of the parts of the partition. He did not deny that dust may have been caused on both the removal of parts of the partition and their replacement and he agreed that he could not distinguish between asbestos dust and non-asbestos dust.
I accept that in re-examination by Mr Steinberg Mr Ford sought to diminish the significance of the answers he had given to Mr Platt. Although Mr Ford gave a graphic description of the Deceased standing in front of his desk, moving magazines about and said he could taste dust in his mouth, I am satisfied that, notwithstanding that Mr Ford said that this occurred on the Monday after the removal of the partition, he does not really know on which occasion of the two occasions the Deceased was exposed to dust.
Although Mr Stear attempted to justify the presence of dust after the removal of part of the partition in various other ways, for example by `moving desks to facilitate their work` or by the temporary removal of furniture, I reject this evidence because I regard it as implausible.
In those circumstances I have to decide whether on a balance of probabilities the Deceased was exposed to asbestos dust as a result the removal of part of the partition because that is the only time when he could have been so exposed to asbestos dust because any dust resulting from the replacement of the missing parts of the partition would not have been asbestos dust. It is for the Claimant to establish on a balance of probabilities that the Deceased was exposed to asbestos dust.
I am not satisfied that I can accept on the balance of probabilities Mr Ford`s evidence that the dust to which the Deceased was exposed occurred on the Monday after part of the partition was removed. I reach this finding even though Mr Ford gave evidence that he remembers the Deceased saying that he could taste the dust on the Monday following the initial works very many years ago. On this issue, I unhesitatingly do not accept his evidence that such conversation took place on the Monday although I accept that such conversation probably occurred after the subsequent replacement of the missing parts of the partition.
I have carefully considered this part of Mr Ford’s evidence, as I did at the time when he gave it. I was, and remain, unconvinced by his answers in re-examination. I suspect that he, like Mr Steinberg, realised that, in cross-examination, he had given answers which were unhelpful to the Claimant`s case and that he was glad of the opportunity which re-examination gave him of retreating from such evidence.
I have borne in mind that the Deceased did not give any evidence as to dust when the partition was replaced and that the `possibility` which Mr Platt put to Mr Ford was not put to the Deceased by different counsel then representing the Defendant. However, in any event for the reasons I have already given, I do not think that I could have relied on any such evidence, had it been given.
On the facts of this case I am satisfied on the balance of probabilities that the Defendant probably used reputable and specialist contractors to undertake the works because there would have been little point in it advising employees such as the Deceased of the presence of asbestos in the partitions for it to then ignore the risks associated by asbestos and to engage non-reputable contractors who might not have understood such risks. In such circumstances I have concluded that is probable that firstly, the Defendant engaged such contractors to undertake the works, and secondly, that such contractors would have known that employees such as the Deceased would be exposed to any asbestos dust which was left on his desk and office floor and would not have allowed this to happen. By contrast, it is very likely that non specialist contractors replacing the infill panels in such partition would have been unconcerned about the presence of non asbestos dust.
It thus follows that I am not satisfied on the balance of probabilities that the Deceased was exposed to asbestos dust when he returned to work on the Monday morning. However, on any view of the evidence the Deceased was exposed to such other dust for a very short time.
That finding is sufficient to dispose of the Claimant`s claim, but out of an abundance of caution I will address the others matters raised in this case, albeit somewhat more briefly than might otherwise have been the case.
What was the extent of the Deceased`s exposure to asbestos dust?
I turn to consider the extent of the Deceased`s exposure to asbestos dust and for this part of my judgment I will assume, contrary to the findings of fact which I have made, that the Deceased was exposed to asbestos dust on the Monday after part of the partition was removed and to a lesser degree on each of the following days of that week.
The determination of this issue involves consideration of two distinct issues, namely firstly, how should a court assess the Deceased’s exposure to asbestos and secondly what in law constitutes a material increase of the risk of the Deceased developing mesothelioma?
The assessment of the Deceased’s exposure to asbestos
The evidence of the engineering experts and the cumulative dose
After the Deceased had died, both Mr Raper and Mr Stear were instructed to address the issue of the Deceased`s exposure to asbestos as was alleged by the Deceased and each in their different ways sought to estimate the level to which the Deceased was exposed to asbestos on the Monday when he returned to work and on subsequent days of that week.
At this stage I believe that it is helpful to an understanding of the concept of a cumulative dose to refer to para 1-013 of Asbestos: Law and Litigation, one of whose General Editors was Mr Steinberg, notwithstanding Mr Platt`s concerns about an advocate citing from their own work. In a chapter dealing with medical aspects of asbestos related conditions entitled `The Epidemiology of Asbestos Related Disease` jointly written by both Dr Moore-Gillon and Dr Rudd, they stated:
” The risk of asbestos associated disease is related to cumulative exposure – often referred to as the dose received. This is the product of the average airborne fibre count (measured in fibres/ml of air breathed) encountered at work, and the duration of exposure. Duration is expressed in years (a working year usually being taken as 1920 hours) and the resulting unit of cumulative exposure is the fibre/ml year. Thus, a cumulative exposure of 10 fibre/ml years would result from ten years working in an average concentration of 1 fibre/ml, or 2 years in 5 fibres/ml … and so on.”
Mr Raper was a consultant forensic scientist specialising in the management of occupational health hazards and had extensive experience of advising as to the control of occupational health hazards including asbestos. By contrast, Mr Stear is a chartered occupational hygienist providing consultancy services in relation to occupational hygiene who had over 30 years` experience in dealing with the management and control of risks relating to asbestos.
Although I have read and considered each of the very lengthy initial reports from Mr Raper and Mr Stear, it is convenient to set out their views as contained in their Joint Statement dated 14 October 2019 in which they stated thus:
“15. For the illustrative purpose of providing an estimate of exposure we have each, based on [our] own training and experience, referred to published examples of measured asbestos fibre concentrations, should the Court find that asbestos infill panels were removed without precautions with, as a result, asbestos-containing dust present to surfaces on the Monday. We agree that the extent to which asbestos was present in the dust, if at all, would have depended upon the extent of the asbestos infill panels, how they were removed, the extent of any non-asbestos materials removed/disturbed, and the extent to which any cleaning/removal of waste took place. Nevertheless, we agree that whilst such matters are not known and that we have cited different studies, the levels of exposure referred to by each of us are not too dissimilar, as follows:
Mr Raper exposure ranging from around 0.04 fibres/ml or 0.05 fibres/ml to 0.29 fibres/ml during the initial disturbance of deposited material (source: IOM, 2009)
Mr Stear exposure ranging from around 0.01 fibres/ml to 0.1 fibres/ml during the initial disturbance of deposited materials (source: Cherrie & Cowie, 2004 and Bailey et al, 1988)
We have each adopted a convention that exposure for the remainder of the week would have occurred at 10% of exposure experienced during the disturbance of deposited materials; we agree that the actual decay in airborne asbestos fibre concentrations may not be a linear relationship and the approach we have applied has been taken to provide an illustration of decay in asbestos fibre concentrations.”
I add that it may be the case that these calculations are based on the assumption that there was little, if any, cleaning or removal of asbestos dust generated by such works undertaken by the contractors at the time. Given that I infer from the contents of the memo received by the Deceased that the partition works are likely to have been undertaken by a specialist contractor who understood the dangers posed by asbestos dust and the need to remove such dust, albeit that such contractors may have failed fully to recognise such dangers or need, it may be that the calculation of the magnitude of the Deceased`s exposure to asbestos dust may be at the very upper end of that which is justified.
The Joint Statement continued:
“16. We also agree that the magnitude of the Deceased`s asbestos dose will depend on findings of the Court with regard to whether [exposure] occurred and, if it did, the frequency, duration and extent to which the Deceased was exposed. Nevertheless, we have provided different estimates of the Deceased’s cumulative asbestos dose as follows:
Mr Raper approximately 0.0010 fibre/ml years
Mr Stear 0.00021 to 0.00058 fibre/ml years (midpoint of about 0.0004 fibre/ml years).”
The estimates of the Deceased’s levels of exposure to asbestos and his cumulative asbestos dose as set out in paras 15 and 16 respectively of such Joint Statement above had assumed that the Deceased spent all his 8-hour working day in his office.
However, having heard Mr Ford`s evidence, namely that the Deceased usually worked a 9 hour day and spent about 60% of his time in his office, it was necessary that such estimates be revised and Mr Raper and Mr Stear agreed that they were lower than that set out in para 16 of the Joint Statement and that the revised estimates of the Deceased`s cumulative dose, reflecting Mr Ford`s evidence, were:
i) Mr Raper 0.00068 fibre/ml years and
ii) Mr Stear between 0.00014 to 0.00039 fibre/ml years so that Mr Stear`s estimate was less than half of Mr Raper’s estimate
The Joint Statement concluded:
“17. We agree that neither of these dose estimates should be taken as definitive and should only be considered illustrative of the likely magnitude of dose should the Court find that exposure occurred. We agree that whether such low dose was materially causative is a matter for medical comment and ultimately for the Court. Whilst we both agree that the Deceased`s exposure to asbestos would have been very low, we agree that such exposure would have been to a level in excess of published background levels; Mr Raper further considers instantaneous exposure such as that presented in his report and at 15(a) above would have been at some 80 to 290,000 times above such published background concentrations.”
It is important to note that both experts expressly recognised that, because their calculations of the dose estimates involved assumptions as to the actual decay in airborne asbestos fibre concentrations which might not be a linear relationship, such calculations should not be regarded as definitive and could only be illustrative of the magnitude of the Deceased`s possible exposure to asbestos dust. That said, they both agreed that the Deceased`s exposure to asbestos would have been very low but further agreed that it was ultimately a matter for the court to determine whether such a low dose was materially causative of the Deceased`s mesothelioma.
In this context two cautionary caveats needs to be expressed and recorded.
Firstly, these assessments of the Deceased`s cumulative dose are particularly dependent on the frequency, duration and extent of the Deceased`s exposure to any asbestos dust and the fact that the experts` assessments of such cumulative dose had to be amended, by a reduction of about one third, to reflect the evidence of Mr Ford as to the average hours which the Deceased worked and the proportion of his day which was spent in his office, illustrates that in practice it is not possible for either expert to offer a definitive quantified estimate of the Deceased`s cumulative dose, a fact which each expert recognised.
Moreover, Mr Ford`s evidence on this point might not be entirely reliable, particularly bearing in mind that he was remembering back probably at least 35 years and what he said was probably something which he had probably not given much prior thought to and was likely to be a gut-feeling as to these matters rather than any precise recollection of these matters. Although I am reminded by Mr Steinberg that the easiest way of ascertain the average number of hours which the Deceased worked would have been to ask the Deceased about this in cross-examination and that without such evidence any estimates of cumulative dose are inherently unreliable, I note that both Mr Raper and Mr Stear each reported and estimated the Deceased`s cumulative dose some months after his death [the Deceased was cross-examined just over two months after the commencement of proceedings] so that in my judgment no valid criticism can be made of such omission. That said, I have no doubt that I am entitled to have regard to any such estimates as rough and ready indications of the amount of the cumulative dose rather than definitive quantified estimates.
Secondly, both experts attempted to contrast the risk which the Deceased`s exposure to asbestos might have created [which Mr Raper estimated at 0.00068 fibre/ml years and Mr Stear at about 0.00027 fibre/ml years [the midpoint of his range]] with other risks for various activities and circumstances [see, for example Table 7.1 of An assessment of the past exposure and estimation of consequent risks to health of staff that may have arisen from asbestos-containing material in cupboards at Lees Brook Community Sports College, Derby [Jones et al April 2009, IOM]] which showed that risks of being struck by lightning [at 0.002] and of exposure to outdoor rural airborne asbestos concentration from birth [at 0.004] were much higher.
Apart from demonstrating that the risk which the Deceased`s exposure to asbestos might have created was very small, I did not find these comparisons helpful because they were contrasting situations which occurred without any negligence/breach of statutory duty and where there was no liability to compensate with a situation where a claimant`s exposure to asbestos was negligent or breach of statutory duty and where there was a liability to compensate if the Claimant could establish that such constituted a material increase in the risk of him contracting mesothelioma.
Of the two experts, Mr Stear reported first on 17 June 2019.
After referring to the evidence of the Deceased and Mr Ford, the likely asbestos content of any dust to which the Deceased was exposed and various papers, namely A dust survey carried out in buildings incorporating asbestos-based materials in their construction [1969] by Byrom, A report on the Likely Risks from Asbestos Exposure at Silverhill School, Derby [2004] by Cherrie & Cowie and Personal exposure to asbestos during clearance certification [1998] by Bailey et al, Mr Stear attempted to calculate the Deceased`s cumulative dose of asbestos.
I had understood Mr Stear`s conclusions as to the Deceased`s cumulative dose to be based on the papers to which he had referred and indeed that is what para 15 of the Joint Statement expressly recorded. However, in cross-examination he conceded that the range of estimates in his report was not based on any of the papers referred to, that such estimates were not derived from any of such papers but were used to give an indication of likely estimates, that in any event such papers did not directly represent the situation faced by the Deceased, and were not based on the fact that AIB typically contained 15-25% of amosite. His range of estimates were based on years of experience of measuring exposure `backed up` by such papers. After one particularly long answer in cross-examination, I summarised his explanation in my notebook as `it is not a calculation as such: it is my assessment based on experience` and Mr Stear accepted that was a fair summary of his approach.
I note that in cross-examination Mr Stear was referred to comments made about him by Swift J in the Phurnacite Workers Group Litigation: Jeffrey Jones & Others v Secretary of State for Energy and Climate Change and Coal Products Limited [2012] EWHC 2936 (QB) in which Swift J adjudged that Mr Stear was highly partisan and not an impressive witness because he appeared to be fulfilling the role of an advocate than that of an expert witness.
Although I have regard to such observations and agree that at times during his evidence before me he appeared to be adopting the role of an advocate, it seemed to me almost inevitable that, in undertaking what is a highly speculative calculation, he would do so. I thus do not myself criticise Mr Stear for sometimes straying beyond the legitimate role of an expert witness or to assess his evidence on the basis that he was an unimpressive, partisan witness.
In his report dated 28 August 2019 Mr Raper, after reviewing the evidence, Mr Stear`s report and relevant legislation and guidance, attempted to undertake a similar calculation, albeit with different results.
As regards his original estimate range of the cumulative dose of 0.04/0.05 fibres/ml to 0.29 fibres/ml, in using the upper figure of 0.29 fibres/ml Mr Raper had relied on the findings of the IOM Lees Brook Community Sports College Derby study by Jones et al. In cross-examination he conceded that this represented cleaning asbestos dust with a brush which would have actively generated asbestos into the air which he agreed that the Deceased had not done. He stated that he had referred to the above paper for illustrative purposes and his calculations were not intended to be a definitive calculation of the Deceased`s exposure to asbestos.
However, Mr Raper`s estimates gave rise to two concerns.
Firstly, as to the lower end of the range, although at paragraph 5.41 of his report he had referred to a Table set out within such para which suggested an estimated concentration of asbestos dust of between 0.017 – 0.05 fibres/ml where some disturbance of deposited material occurred, he had at para 5.56 of such report adopted a lower end of 0.04-0.05 fibres/ml. In my judgment he offered no satisfactory explanation for this when asked about this in cross-examination.
Secondly, as to the upper end of the range, he agreed, in answer to me because I wanted to be sure that I did not misunderstand his evidence, that the range he had given was unrealistic because the upper figure of 0.29 fibres/ml represented a person undertaking activities which it was not suggested that the Deceased had undertaken. He subsequently agreed that if the upper figure of 0.29 fibres/ml was removed, his estimated range of the cumulative dose was slightly less than that of Mr Stear. If the upper figure of 0.29 fibres/ml is to be ignored, Mr Raper`s calculation of the Deceased`s exposure becomes about 0.04-0.05 fibres/ml which is marginally less than 0.055 fibres/ml which is the midpoint of Mr Stear`s range of exposure from around 0.01-0.1 fibres/ml.
I believe that it is relevant to note that the Deceased was not present when the dust was generated during the works to the partition at the weekend and that it must have left undisturbed to settle before he arrived back at work on the Monday. Mr Raper agreed that in such circumstances the Deceased`s interaction with such dust was `pretty limited`.
During cross-examination I asked Mr Stear about what significance I should attach to Mr Ford`s evidence that the Deceased had told him on the Monday that he could taste dust in his mouth and, given his response that the taste of dust was likely to derive from the larger particles found in the cement fillers in the AIB, I doubt that such evidence takes the matter much further.
So it was that neither expert emerged from cross-examination unscathed. However, what was surprising was that, even bearing in mind the cautionary caveats set out above, Mr Raper and Mr Stear were effectively in agreement as to their individual assessments of the Deceased`s cumulative exposure to asbestos. Indeed, I accept Mr Platt`s submission that, so corrected to remove Mr Raper`s upper figure of 0.29 fibres/ml, Mr Raper`s estimated cumulative dose would be even less than that estimated by Mr Stear and that in very general terms the midpoint of the experts` estimates of cumulative dose was in the region of 0.0004 fibre/ml years.
I have thus concluded, irrespective of the detailed submissions made by both counsel on this issue, that the experts` calculation of the cumulative dose has a limited value but I am sure that it does have some value.
The parties adopt different positions as to the utility and/or reliability of such calculations of the Deceased`s cumulative dose of asbestos.
Mr Steinberg submitted that it was neither necessary nor desirable that the court should attempt to calculate a precise cumulative dose of the Deceased`s exposure to asbestos dust in the course of his employment by the Defendant because such was inevitably no more than an indicative assessment, as opposed to a meaningful calculation of the Defendant`s exposure to asbestos dust. He relied on dicta of Maurice Kay LJ in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189 when he stated:
” 21. … For the claim to succeed, the judge needed to be satisfied that the extent and duration of the exposure had constituted a material increase in the risk to the Deceased of contracting mesothelioma. No specific measurement of the duration is necessary and the Recorder was right to resist the invitation to fix one.”
By contrast, Mr Platt relied upon dicta of Aikens LJ in the later decision of the Court of Appeal in Williams v University of Birmingham & Anr [2011] EWCA Civ 1242 where Aikens LJ had stated:
” 44. …a judge must determine the degree of exposure to asbestos fibres to which Mr Williams was actually subjected and whether that was a de minimis or a material exposure. If it was a de minimis exposure then there could be no question of a breach of duty, as the judge recognised. But assuming that the exposure was more than de minimis, it was, in my view, necessary to ask a further question. That is whether, given the degree of actual exposure, it ought to have been reasonably foreseeable to the University (with the knowledge a reasonable University should have had in 1974) that, as a result, Mr Williams would have been likely to be exposed to the risk of personal injury in the form of contracting mesothelioma. To determine that question, it seems to me the judge had to make findings about (1) the actual level of exposure to asbestos fibre that Mr Williams was exposed …”
Mr Steinberg submitted that, applying the dicta of Maurice Kay LJ in Rolls Royce. it was appropriate for a court to reach a more general conclusion as to the nature and extent of the asbestos exposure and unnecessary to produce a very precise estimate of the Deceased`s cumulative dose.
Mr Platt submitted that the proper approach to estimates of the cumulative dose was that it was necessary for the court to make some assessment, however rounded, of the Deceased`s cumulative exposure to asbestos and that it was noteworthy that the estimates by both Mr Raper and Mr Stear were remarkably similar.
In respect of these submissions, I prefer to rely on and adopt the dicta of Aikens LJ in Williams and have concluded that I should make findings as to the Deceased`s actual level of exposure to asbestos, albeit that this might be imprecise.
Given that the estimates given by both experts were similar, when amendments are made to the conceded error made by Mr Raper, it may be unnecessary to choose which evidence I prefer. However, if it necessary to indicate which expert`s evidence I prefer to the other, I would prefer that of Mr Stear. My reasons may be summarised thus.
Although both experts were cross-examined vigorously and considerable length, I found Mr Stear`s estimates persuasive and accepted that at all times he was relying on his own experience and judgment and referring to the papers only as an indication of the likely accuracy of such estimates. He did not make this crystal clear in his report and he was in error in failing to do so.
By contrast, in his report Mr Raper gave estimates for both the lower and upper ends of his range of estimate in relation to the Deceased`s exposure to asbestos when neither could sensibly be justified. At the lower end he could not satisfactorily explain why he had taken the lower figure of 0.017 fibres/ml which was in the Table to para 5.41 of his report and had instead used 0.04 fibres/ml. At the upper end he had used a figure of 0.29 fibres/ml which he had accepted was unrealistic. I am satisfied that Mr Raper well understood that the effect of producing such a range would serve to potentially increase any assessment of the Deceased`s exposure to asbestos. Although I do not go so far as to say that Mr Raper set out to mislead the court because I recognise that this was a difficult case for all experts, it is a fact that had these quite fundamental errors not been elicited in cross-examination by Mr Platt, I would have been misled into believing that there was a greater degree of divergence in views between the experts than in fact there is.
I am thus satisfied that Mr Stear`s estimate as to the Deceased`s cumulative dose as to the magnitude of his exposure to asbestos is to be preferred to that expressed by Mr Raper. I thus find as a fact that, in round terms, the Deceased`s exposure to asbestos whilst in the employment of the Defendant gave rise to a cumulative dose in the region of no more than 0.0004 fibre/ml years.
It should be noted that Dr Moore-Gillon`s views were based on the upper end of the range of estimates of experts` assessments of the Deceased`s cumulative dose, at originally 0.0005 fibre/ml years and amended during the trial to 0.0004 fibre/ml years. To that limited extent the cumulative dose diminished slightly during the trial.
Did the Deceased`s exposure to asbestos whilst in the Defendant`s employment constitute a material increase of him developing mesothelioma?
Mr Steinberg submitted that causation was an issue of fact and relied on dicta of Lord Salmon in Alphacell Ltd v Woodward [1972] AC 824, at 847, that is `best answered by ordinary common sense rather than abstract metaphysical theory`. He noted that in Fairchild, in which the House of Lords recognised the difficulty that claimants had in proving their exposure to asbestos and that the problem was exacerbated where there was more than one significant exposure to asbestos, Lord Nicholls, at 70, had stated:
“So long as it was not insignificant, each employer`s wrongful exposure of its employee to asbestos dust, and, hence, to the risk of contracting mesothelioma, should be regarded by the law as a sufficient degree of causal connection.”
Mr Steinberg relied upon the dicta of Lord Phillips in Sienkiewicz which I have already cited above in describing the current state of the law.
By contrast, Mr Platt submitted that the test of causation was not one of purely of fact but 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.
I am satisfied that causation cannot just be an issue of fact but must, as Mr Platt submitted, be one of mixed fact and law for the reasons he gave.
Mr Platt further submitted that the test was that which had been agreed by both Dr Rudd and Dr Moore-Gillon in Sloper. In his report in that case Dr Rudd had expressed the test thus:
“I suggest that a reasonable approach to determining whether a risk from an identified exposure was more than de minimis would be to consider whether the exposure was negligible, ie something so small that it is properly capable of being neglected. I suggest that a dose of asbestos which is properly capable of being neglected could be defined as a dose which a reasonable person who is well informed about the relation between asbestos and mesothelioma would not be worried to discover he had inhaled.”
However, in cross-examination by Mr Platt in Sloper, Dr Rudd agreed that another reasonable formulation of such test would be that:
” 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.”
In Sloper Spencer J did not have to consider the validity of such test because he found on the facts that the Claimant was not exposed to asbestos dust.
In cross-examination by Mr Platt in this case, Dr Rudd did not resile from such a formulation.
I am satisfied that the test which I have to apply in this case is whether the exposure [for this purpose, assumed] of the Deceased to asbestos whilst in the employment of the Defendant constituted a material increase in risk, ie whether such increase in risk is so insignificant that the court can properly disregard it on the de minimis principle. Although in Sienkiewicz the Supreme Court rejected the argument that exposure should be adjudged to be immaterial if it did not at least double the victim`s existing environmental exposure, that decision established that what constitutes a material risk must be for a judge on the facts of the particular case.
The fact that there is a requirement that an exposure to asbestos has to constitute a material increase in risk must inevitably mean that any exposure does not automatically satisfy the requirement of causation. In such circumstances the real question is whether, using Lord Phillips` words, a stage is reached where `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` [para 108] or `where the exposure was insignificant compared to exposure from other sources` [para 111].
In so far as the Defendant attempted to rely on the epidemiological evidence from The Quantitative Risks of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure [2000] by Hodgson and Darnton [`H&D`] I note that Mr Steinberg submitted that:
i) such an approach confuses risk with causation: see Lady Hale in Sienkiewicz, at para 170. Moreover, at para 103 of Sienkiewicz, Lord Phillips noted that in neither Fairchild nor Barker was the House of Lords invited to consider epidemiological evidence that, on a balance of probabilities, mesothelioma had been caused by exposure that was not wrongful or might demonstrate that one particular employer was responsible, but stated that had it been, he did not believe that the House would have been persuaded that the epidemiological evidence was `sufficiently reliable to base findings of causation upon it`. However, as Mr Platt observes, all such dicta were obiter and some members of the House, for example Lord Rodger and Lord Dyson were less sceptical about the use of epidemiology.
ii) H&D was designed to compare the relative potency of three main asbestos types and not to assess the lifetime risk of developing mesothelioma. Dr Moore-Gillon accepted that he had failed to mention in his own report his acceptance of reservations expressed in a report by the Working Group on Action to Control Chemicals [`WATCH`], a government scientific body, as to the reliability of risk estimates in the H&D paper.
iii) The risk calculations in H&D were based on relatively small data samples involving very high levels of exposure which made then an inappropriate starting point for the calculation of risks for low levels of exposure, which the authors of H&D and both Dr Rudd and Dr Moore-Gillon recognised.
I heed the caution expressed obiter by the majority in Sienkiewicz and I recognise that there is a danger that epidemiological evidence may consist simply of a series of assumptions and speculations which will carry a false air of authority: see Lord Kerr in Sienkiewicz at paras 205-206. However, such caution notwithstanding, it seems to me that epidemiology has a limited part to play in a judge`s determination as to whether a defendant is liable to compensate a claimant for an exposure to asbestos dust.
I have decided that the test propounded by Dr Rudd in Sloper and not resiled from in this case, which is agreed by Dr Moore-Gillon, is a helpful and appropriate means of determining whether there is a material increase in risk. Although ultimately it is a matter for me to determine, notwithstanding the reservations expressed above about reliance on epidemiology, I am satisfied that in making such determination, it is appropriate to have a very limited engagement with statistical risks provided by epidemiology and with the views of medical experts.
I now consider the expert evidence of two very experienced respiratory physicians.
The respiratory physicians
The contested medical evidence came from two experienced respiratory physicians who are well-known in asbestos litigation.
I think it is common ground that the fact that the Deceased developed mesothelioma does not necessarily mean that he was exposed to asbestos whilst he was employed by the Defendant. In his evidence Dr Moore-Gillon referred to Occupational, domestic and environmental risks in the British population: a case-control study [British Journal of Cancer (2009) 100, 1175] by, inter alia Rake, Gilham and Peto as to the incidence of a person developing mesothelioma with non-occupational exposure to asbestos. The study indicated, at 1181, that in respect of non-industrial and low-risk industrial work, which would seem appropriate to the Deceased`s occupation as an Accounts Manager, there was a lifetime risk of developing mesothelioma of 0.08%. So it was that, if one assumed, as Dr Moore-Gillon was prepared to do, that half of that number sustained some exposure to asbestos of which they were unaware, the resulting figure of 0.04%, would result in some 200 men per annum developing mesothelioma without any exposure to asbestos. Dr Rudd agreed that 0.08% represented the lifetime risk for men from this particular generation born in the 1940s developing mesothelioma who had not been exposed to asbestos but did not agree a rate of 0.04% as representing men developing mesothelioma without any exposure to asbestos.
In his report dated 9 September 2019 Dr Rudd expressed his conclusions thus:
“If the court were to accept the [Deceased’s] evidence, on the basis of either Mr Raper’s opinion or Mr Stear`s opinion he sustained more than usual background exposure to amosite asbestos over a period of at least several days. Amosite is a type of amphibole with high potency to cause mesothelioma. Asbestos exposure increases the risk of mesothelioma with no evidence for a threshold dose below which there is no risk.
The combination of uncertainties inherent in the scientific model used to establish risks at low levels of exposure, inability to account for individual susceptibility, and uncertainties inherent in estimating the dose which [the Deceased] received means the calculation of the resultant risk in numerical terms using the Hodgson and Darnton tables confers spurious precision on what is at best an exercise in approximation with very wide confidence levels. For example, if the upper end of the range quoted by Hodgson and Darnton were correct ie 15 rather than the 2 per 100,000 quoted by Dr Moore-Gillon, and Mr Raper’s estimate of 1.7 times the upper end of Mr Stear’s estimated range were to be preferred, the estimated risk would have been 7.5 x 1.7, ie 12.75 times higher than that quoted by Dr Moore-Gillon ie 1.275 per 100,000 which is more than the upper boundary of Hodgson and Darnton’s ‘insignificant’ or ‘broadly acceptable’ range of up to 1 in 100,000.
In my opinion it is safe to conclude that the exposure alleged will have given rise to a very small but more than negligible, ie properly capable of being neglected, risk of mesothelioma, but the evidence is inadequate to justify precise conclusions regarding the size of the risk.”
In his report dated 25 June 2019 Dr Moore-Gillon:
i) referred to Mr Stear`s estimated range of the Deceased`s asbestos dose as between 0.00021 – 0.00058 fibre/ml years and for the purpose of calculating the medical risk used a figure of 0.0005 fibre/ml years
ii) relying on H&D, and applying Mr Stear`s assumed asbestos dose as 0.0005 fibre/ml years stated that such would produce a risk of 0.2 deaths per 100,000 exposed which would be regarded by H&D and the Health and Safety Executive [`HSE`] guidance as insignificant.
iii) estimated the annual risk of mesothelioma from this exposure as about 1 in 50 million which was about 3,000 times lower than the annual risk of being killed in a road traffic accident.
iv) opined that there was no significant medical risk associated with this exposure.
In their Joint Statement dated 2 December 2019 Dr Rudd and Dr Moore-Gillon essentially repeated their previously expressed views and stated that they each approached the matter a little differently so that:
i) Dr Rudd stated that if the Court were to accept that the Deceased sustained above background asbestos exposure in the course of his employment with the Defendant it would be a matter for the Court to determine whether the consequent risk of mesothelioma should be regarded as material, which he points out is a legal rather than a medical term.
ii) Dr Moore-Gillon agreed that `material` is a legal rather than a medical term and broadly agreed with the observations made by Dr Rudd in his report about the caution with which estimates of risk must be treated. Nevertheless, when charged with advising the Court on such matters, medical experts had to work with the resources available to them, both in terms of dosage estimates and of the literature available upon the consequences of such dosages. Referring to the context of what constitutes a ‘material risk of harm’, ‘material’ was defined as one which ‘a reasonable person in the patient’s position would be likely to attach significance to the risk or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it’ and, acknowledging that this is a matter for the Court to determine, applying that test concluded that ‘the risks of the scale discussed in this present case would not fall within that definition’.
It should be noted that although Dr Moore-Gillon had based his original report and the Joint Statement on a cumulative dose of 0.0005 fibres ml/years, in the light of the revised evidence of Mr Raper and Mr Stear at the trial he had assumed a cumulative dose of 0.0004 fibres ml/years. Accordingly, his original report and his contribution to the Joint Statement were slightly more advantageous to the Claimant`s case than was his evidence at trial.
When cross-examined Dr Rudd:
i) stated that the Deceased`s exposure to asbestos gave rise to a `small but more than negligible risk` and when asked how that would be expressed in statistical terms to a patient he said that it constituted ‘a very small chance’ of you having mesothelioma and, if probed further by the patient, it was ‘about ten times as big as you winning the jackpot on the lottery’. After I had intervened to observe that how a risk might be evaluated was probably a matter for me to decide, Dr Rudd agreed with Mr Platt that he, like Dr Moore -Gillon, would tell a patient not to worry about such a risk although, however such was expressed, people did worry about risks.
ii) accepted that there were certain levels of exposure which were so trivial that he would dismiss them, such as walking through a garage for 5 minutes once a week for a year: ‘one has to look at all the facts of the case and try and come to a sense of whether this is a significant exposure or not.’ He further agreed that in past cases he had not supported any suggestion that there was a material increased in risk
iii) accepted that the exercise undertaken in H&D was useful as `a rough indicator of the magnitude of risk.` Although he himself had undertaken H&D calculations in this case and accepted that H&D had validity, he observed:
“it is all we have but we should use it appropriately. It was designed for regulatory purposes and it gives us an approximation of the risk. But, in my view, it should not be used to calculate an exact figure for the risk for an individual from an identified exposure with all the caveats about the degree of uncertainly in this calculation.”
iv) agreed arithmetically with Dr Moore-Gillon`s calculation of the risk but was unable to offer any competing figure.
v) conceded that he was unable to say at what risk level he would conclude that the risk in this case was not material. This was very much like his approach in the Phurnacite litigation in relation to asbestos-induced lung cancer that any material exposure should be viewed as being contributory towards disease, which approach was rejected by Swift J when she said:
“8.22. Dr Rudd said that, in order to assess of the contribution made by a carcinogen, it is necessary to refer to the epidemiological evidence and to look at risk factors. He made clear that the issue of the magnitude of the increase in risk that should be considered sufficient to establish whether the contribution made by the carcinogen had been `material` was a matter for the court. From the medical point of view, even very light exposure might contribute to the carcinogenic process. However, a court might consider that the exposure had been so light that it should not attract an award of damages. He did not offer an opinion as to the size of risk that should be accepted by the court as constituting a `material` contribution for the purposes of establishing legal causation …
8.60. Dr Rudd suggested that it would be necessary for the court to examine the risk factors and to make a judgment as to where the line of materiality should be drawn, according to the court`s view as to whether it would be reasonable to compensate an individual for a specific level of increased risk. … Such an exercise would involve an arbitrary decision on my part as to where to draw the line. … It does not seem to me that it would be permissible for me to carry out such an exercise.”
When cross-examined Dr Moore-Gillon stated:
i) the non medical experts had come up with answers which were `vanishingly low` in terms of risk. The exposure to which the Deceased had been subjected to in the course of his employment by the Defendant was not a risk he would ever advise a patient was anything to worry about.
ii) when it was put to him by Mr Steinberg that H&D gave ‘a broad ballpark estimate of risk’, he answered that H&D could ‘give you the best answer they can derive from the materials they have to work with’.
As to whether it is appropriate that I should rely on H&D, I am satisfied that it is the best and most appropriate paper available and although any conclusions drawn from such paper cannot be definitive, it can offer a reliable but rough and ready indication of the degree of risk to which the Deceased was exposed. I note that when Dr Rudd was asked whether he could demonstrate the quantum of such risk he agreed that he could not do so in numerical terms and was unable to give any precise definition of what constituted a significant exposure.
In short, Dr Moore-Gillon has attempted to evaluate the significance of the cumulative dose which both Mr Raper and Mr Stear had independently calculated, had used H&D to have regard to the statistical risks provided by epidemiology and had endeavoured to weigh the risk which he personally did not believe was significant and was vanishingly low. Although recognising that it was for me to determine whether there was a significant increase in risk, I have no doubt that he believed that it was not. At least he had endeavoured to weigh the risk in a meaningful, if rough and ready way. I found such evidence straightforward and persuasive.
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.
Although I appreciate that Dr Rudd has an outstanding track-record of research into asbestos-related diseases, including mesothelioma, I regret to say that I did not feel that his approach was helpful, very much for the reasons articulated by Swift J in the Phurnacite litigation, namely because such approach would establish an arbitrary distinction between different kinds of exposure without any justifiable rationale for such distinction. I recognise that his evidence was at all times measured and thoughtful and his evidence was unchanged, namely that there was a small risk [in his report a `very small` risk] which was more than negligible. Moreover, in-cross-examination when asked by Mr Platt whether Dr Moore-Gillon`s evidence that the level of risk was 1 in 50 million represented a responsible view, he said this:
” I am not sure that I would even say that it is not one I share. I would not want to give the wrong impression. That is a very small risk. I would agree with him entirely that it is a very small risk and I would reassure a patient that it was a very small risk, but whether that equates to a decision of the court as to whether it is a risk which should be regarded as culpable is a different question.”
In so far as, as I suspect that the reference to ‘culpable’ was intended to be a reference to a material increase in risk, I 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 a 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.
Mr Steinberg submitted that the most which the court could safely conclude was that the Deceased was exposed to `a substantial amount of asbestos dust many times above background levels for, at least, a week`. By contrast, Mr Platt submitted that this was `a tiny dose of asbestos … believed to be the lowest dose ever before an English Court where it is argued to be causative of mesothelioma … and some 32.5 times smaller than the diminutive dose in Sienkiewicz.` I am satisfied that any exposure by the Deceased to asbestos dust whilst in the employment of the Deceased was incredibly small and the annual risk of such causing mesothelioma was about 1 in 50 million. I note that in Reducing Risk, Protecting People [2001] produced by the HSE a risk which is broadly acceptable is defined as 1 in 1 million.
Mr Platt seeks to distinguish Sienkiewicz on the basis that the Supreme Court did not undertake a ‘comparative risk assessment’ because the judge at first instance had not considered the ‘absolute risk’. But Mr Steinberg observes, and I accept, that this approach was expressly rejected by the Court of Appeal in Williams where Aikens LJ stated in relation to the issue of causation stated:
“65. … Mr Feeny`s argument is that the proportion of exposure to asbestos fibres that Mr Williams suffered when working [in the Defendant`s employment] was, by comparison with the exposure that he must have suffered elsewhere, a de minimis proportion, which meant that it would be possible to find that [such] exposure … had caused a material increase in the risk of Mr Williams contracting mesothelioma.
…
72. However, as Lord Phillips also stated, the question of whether the tortious exposure to asbestos fibres was material is a question of fact for the judge in each case. The judge might or might not be assisted by mathematical comparisons with other real or hypothetical exposure situations as was attempted at the trial in this case. The judge might be assisted by epidemiological evidence. But, as I read the judgments in [Sienkiewicz v Greif], all the judge has to do, ultimately, is to make a finding of fact that the tortious exposure of the victim to asbestos at the hands of the defendant materially increased the risk that the victim would contract mesothelioma. He does not have to do a comparative exercise. So I would reject Mr Feeny`s primary submission on the causation issue.”
Mr Steinberg submitted that the fact that the non-tortious exposure suffered by a claimant with mesothelioma did not change the situation in that the court still has to consider whether the tortious exposure had materially increased the risk of him suffering mesothelioma. I agree.
Mr Steinberg submitted on the basis of Dr Rudd`s evidence, the requirement for causation was `unambiguously established` but that such requirement would also be met even on Dr Moore-Gillon`s evidence given that in cross-examination he conceded that there was no lower dose threshold, that there was an increase in risk and that the tortious exposure and cumulative dose would `push [the Deceased] further along the risk spectrum`. However, in so far as Mr Steinberg submitted firstly, that to establish a breach of duty at Common Law it is necessary for a Claimant to establish a foreseeable risk of harm and that there is only a breach of duty where an act or omission gives rise to such risk, and secondly, that it might be reasonable to assume in most cases that any exposure amounting to a breach of duty would probably amount to a material increase in the risk. I reject this submission because although I accept the first proposition, I am not satisfied that the second necessarily follows from the first.
Whilst conceding that breach of duty and causation are distinct, Mr Steinberg submitted 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. It seems to me that this submission erroneously conflates both breach of duty and causation and I reject it. Had this argument been raised in Sienkiewicz, I am sure that it would have been roundly rejected and there would have been no reason why the Supreme Court would have set out the requirement for a material increase in risk or emphasised that what constitutes a material risk must be for a judge on the facts of the particular case to decide.
I am satisfied that the burden is 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 suffering from mesothelioma: see dicta of Lord Pentland in Prescott to that effect when he stated:
“64. … In order for the pursuer to succeed in establishing negligence against the defenders he must establish, on the balance of probabilities, the actual level of asbestos dust to which he was exposed. It is essential for the actual level of exposure to be proved because otherwise the court cannot decide whether the exposure was more than de minimis, in which case liability could not arise. In Sienkiewicz … the Supreme Court held that the claimant must prove that the acts or omissions of a particular defendant had materially increased the risk of contracting mesothelioma. The Supreme Court went on to explain that a material increase means a degree of risk that is more than minimal; it is for the trial judge to determine, on the facts of each case, whether the increase in risk was minimal in this sense.”
In my judgment for the reasons set out above the Claimant has not established to my satisfaction on a balance of probabilities that any exposure which the Deceased suffered in the employment of the Deceased caused a material increase in the risk of him developing mesothelioma.
Mr Platt’s final submission was that the principles established in Fairchild only imposed a liability on a tortfeasor where a claimant’s mesothelioma is caused by asbestos and not on the balance of probabilities by natural causes. Mr Steinberg complains that this is a new argument which does not appear in the Defence, nor in the Defendant`s Opening Submissions and submitted that the Defendant should not be permitted to raise this argument at this stage following a trial where these issues could have been dealt with in detail had the point been raised earlier. I agree with Mr Platt that arguments of law do not require to be pleaded, they can be and that although para 9 of the Amended Defence might be argued to raise this issue, albeit somewhat obliquely, I think it would have been far preferable to expressly plead this, particularly since I am being asked to depart from a decision of the House of Lords rather than to simply distinguish it. In such circumstances I have decided that since, it is strictly speaking unnecessary for me to determine this issue between the parties, it is inappropriate that I should do so.
Conclusions
Notwithstanding my sympathy for the Deceased and the Claimant, I am thus not persuaded on the balance of probabilities that the Deceased was exposed to asbestos dust during the course of his employment by the Defendant.
I am also not persuaded on the balance of probabilities that even if the Deceased had been exposed to asbestos dust in the course of his employment that such exposure resulted in a material increase in the risk of the Deceased developing mesothelioma. In my judgment any such exposure was de minimis.
Disposal
It necessarily follows that there will be judgment for the Defendant.
In the current circumstances I will deal with any ancillary matters by way of written representations and thus make the following Order:
i) Any party who wishes to seek any further order shall file and serve on the other party within 14 days from the date of the handing down of this judgment written submissions in support of such application;
ii) The other party shall file and serve on the party seeking a further Order within 28 days from the date of the handing down of this judgment any written submission in response thereto; and
iii) The court will then determine any such applications on the basis of such written submissions and without any further hearing.