The court of appeal has allowed the appeal in Bussey.

A full blog post will follow in due course, click here for a link to the judgment.

This post is by Max Archer.

Common law duties in the 1940s  

C was the son and executor of Mr Hawkes’ estate. She died in October 2014 from mesothelioma. C alleged that she was exposed to asbestos between 1946 and 1952 while making electric blankets at W’s factory premises.

The electric blankets consisted of a lining with an electrical wire fed through it, which generated the heat. The lining was stuffed inside a canvas cover which was in turn covered with a softer material. There were switches on the outside of the blanket to control the heat. Mrs Hawkes used a needle to thread the wire through the lining.

C’s case was that the inner lining was made of asbestos and that, as she worked, bits of the lining asbestos fibre would come off and settle on her clothes. C contended that W was therefore negligent and in breach of various statutory duties.

The Judge held that C had failed to prove that the lining was made of asbestos. There was no oral factual evidence as Mrs Hawkes had died by the time of the trial.

The claim therefore failed on the facts. But the most interesting part of the case was how the Court dealt with D’s duties as a factory owner and employer in the 1940s and 1950s.

Asbestos Industry Regulations 1931

The preamble to the 1931 Regulations provide as follows:

“. . . they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on: …

(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;”

C’s case was that the stitching or threading of the inner lining and all the manipulation of the inner lining by hand came within paragraph (ii) of the preamble. D argued that it did not.

The Judge – notwithstanding the width given to the 1931 Regulations by McDonald v National Grid [2014] UKSC 53 – that they did not apply. He held that paragraph ii referred to the manufacture of yarn or cloth wholly or partly made from asbestos, not the manufacture of products made with asbestos textiles. ‘Finishing a textile’ did not include turning that asbestos textile into a product.

He went on to find that had the regulations applied they would have been breached.

The Factories Act 1937: ‘substantial quantities’ of dust

As to s.47 of the Factories Act 1937, the first question the judge asked was whether the process that D was carrying out involved ‘substantial’ quantities of dust. This is the so-called ‘second limb’ of s.47.

The Judge found that there were not substantial quantities of dust. He relied upon Harries’ paper, “Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards” published in 1971. He had heard the experts on this point, but found that the experts could only help by discussing the levels of asbestos dust, which in themselves are not sufficient to indicate whether the dust would be visible or considerable. He found that the most reliable evidence came from the Harries paper in respect of sewing. The peak concentration recorded for that activity was 10 fibres per ml, a level that the judge felt would have been unlikely to be visible.

The finding under the first-limb of s.47 was different. In order to satisfy the first limb, the court must be satisfied that the dust which is given off of ‘is of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed.’

The judge analysed this provision and the common law claim together.

Common Law (and the ‘first limb’ of s.47)

This is perhaps the most important part of the decision.

It was agreed between the parties that, at the relevant time between 1946 and 1952, it was not known that mesothelioma was a potential consequence of asbestos exposure and it was certainly not known that very low levels of asbestos fibre could cause the disease.

This said, C argued that W ought to have been aware of the annual reports of the Chief Inspector of Factories, by 1938 asbestos was referred to in these reports as ‘highly dangerous’ and reference was made in 1949 to preventing inhalation as far as possible.

The Judge engaged in a detailed discussion of the authorities including Jeromson v Shell Tankers [2001] EWCA Civ 101, Maguire v Harland & Wolff plc [2005] EWCA Civ 01 and Williams v The University of Birmingham [2011] EWCA Civ 1242.

Of particular note is the judge’s treatment of whether was any conflict as between Williams and Jeromson. He held that there was no conflict, the formulation to be applied to determine the breach of duty question is consistent with what was said in Jeromson, namely what needs to be reasonably foreseeable is asbestos related injury, not mesothelioma itself. He held that Williams was confined to the factual context of 1974, in which, on the basis of TDN 13, it was believed that there was a level at which the exposure to asbestos did not create a risk of asbestos related injury. Thus Williams was tightly confined to its context and the formula from Jeromson was accepted.

As to the application of this test, the Judge found that W should have known by 1946 to 1952 that asbestos was regarded as highly dangerous and that inhalation should be prevented as far as possible. Asbestos related injury of some sort was a reasonably foreseeable consequence of exposure to asbestos dust, even at low levels of exposure. W had no way of measuring the levels of asbestos dust in the air in its factory. Mrs Hawkes’ evidence was that bits of lining were coming off of the blankets and getting on her clothes. This was more than minimal and enough to require W to consider practical measures to protect employees against inhalation of fibres. Unless the employer could be confident that the dust was not coming from asbestos materials, in a factory known to be working with asbestos, it should not matter in terms of breach of duty whether the visible dust was or was not asbestos. Further, it could not have been established at the time what it was or in what amount. The presence of dust in the air triggered a duty to take precautions or to take advice.

W had not done so and – if the lining had contained asbestos – it would have been in breach of its common law duty of care and s.47 of the Factories Act 1937 to protect its workers from dust that was likely to cause harm.

Analysis

While the claim failed on the facts, it is difficult to see this case as anything other than a significant blow to the insurance industry.

The Court held that the processes did not fall within the ambit of the Asbestos Industry Regulations 1931, but the other causes of action (more typically seen in modern litigation) would all have been made out. The most important ruling is that a notionally low level of exposure – which was expressly held to be below ‘substantial’ – would have been in breach of the common law duty of care and s.47 of the Factories Act in the 1940s.

This is the type of point that many claimants have been seeking to make since Williams. This case represents another significant departure from the rather mechanical application of artificial ‘safety standards’ taken in a wave of other post-Williams decisions. This seems to be the result of this Court carefully considering the available historical literature in full and in context.

Claimants will be hoping that the Court of Appeal in Bussey takes a similar approach.

This blog post is by James Beeton of 12 King’s Bench Walk.

In a decision delivered yesterday (5 December 2017), Master McCloud determined that all disclosure documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks earlier this year before Picken J) could be made publicly available. Permission to appeal was refused, although it remains to be seen whether a further application in this respect will follow.

The decision, involving an application described as ‘unprecedented in scope’, has very significant implications for asbestos-related claims involving Cape specifically, the provenance and impact of TDN13 in mesothelioma claims generally, and broader historical knowledge arguments in respect of the asbestos industry as a whole.

It also contains a fascinating analysis of the principles of open justice and the balancing of legitimate interests in the context of the court’s power to supply court documents to non-parties under CPR r.5.4C(2). The reliance on statements of principle in the recent Employment Tribunal fees decision of R (On the Application of UNISON) v Lord Chancellor [2017] UKSC 51 in particular retains that case’s approach of expressly grounding a judicial decision within its broader constitutional context.

Background

Concept 70 & Others v Cape International Holdings Ltd (considered in an earlier article on this blog here) involved subrogated claims brought on behalf of insurers that had settled employers’ liability claims arising out of workers’ exposure to asbestos between 1955 and 1980. The insurers sought contributions in respect of the settled claims from Cape, which was the manufacturer of asbestos products including Asbestolux and Marinite.

Unusually – and probably ‘uniquely in the history of asbestos litigation’ – the disclosure exercise involved putting to together extensive quantities of historical material and records relating to asbestos safety and regulation in a way which would have been disproportionate in a run-of-the-mill asbestos claim. This exercise had been justified by the high value of the claim.

At the conclusion of the trial, but before the judge was able to deliver a reserved judgment, a settlement was reached. According to the applicant (a non-party), it had been communicated to them that a term of the settlement was that many of Cape’s disclosure documents were to be imminently destroyed.

In Asbestos Victims Support Groups Forum UK v (1) Concept 70 Limited & Others, (2) Cape Intermediate Holdings Plc [2017] EWHC 811 Master McCloud granted a without notice application by the applicant to order that documents filed at court during the course of the compromised litigation concerned with asbestos exposure be preserved pending a further application for disclosure under CPR r.5.4C.

The parties in the compromised litigation were subsequently given permission to be heard at the substantive application hearing on condition that they might not seek any order for costs against the applicant (Dring v Cape Distribution Ltd and Others [2017] EWHC 2103 (QB)).

The instant application therefore concerned Mr Dring’s request for access to the trial bundles, statements of case, skeleton arguments, submissions and daily transcripts provided to the judge in the compromised litigation. The trial bundles included the totality of the parties’ disclosure documents whether or not deployed at trial – including, notably, a digital bundle of documents which had been made available but not referred to at trial.

Decision Part 1: Principle, Jurisdiction and Process

The first part of Master McCloud’s judgment dealt with the legal issues relating to matters of principle, jurisdiction and process.

She began by quoting Lord Diplock (who was himself quoting from Jeremy Bentham and Lord Shaw of Dunfermline) in Home Office v Harman [1983] AC 280 303C:

‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’

 When delivering her conclusions on Part 1, Master McCloud referred extensively to Lord Reed’s judgment in the recent decision of R (On the Application of UNISON) v Lord Chancellor [2017] UKSC 51, noting that the ability of the public to access records of court proceedings ‘engages constitutional notions of open access to the courts in ways which are relevantly similar to but not identical with the direct form of access to court considered in UNISON. In particular:

 

• The right of access to court considered in UNISON is inherent in the rule of law.
• It seems to me that openness of justice, of the sort considered here fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
• The courts do not merely provide a public service to the ‘users’ who appear before them. Rather, previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
• Although it is often desirable that claims arising out of alleged breaches of the law should be resolved by negotiation or mediation, those procedures can only work fairly and properly if they are back up by the knowledge on both sides that a fair and just system of adjudication will be available if they fail.’

 

The result was that ‘parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.’

The default position was the possibility that material deployed in court or filed upon the records of the court would form part of the corpus of material which may be deployed in other cases, used for legal advice, or be subject to discussion by academics, journalists or Parliament.

Master McCloud then considered the authorities on CPR r.5.4C(2) (on which the application was based) which provides that:

A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between a court and a party of another person.

Her conclusions were as follow:

• CPR 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules.
• Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2). (If documents are removed from court, Blue and Ashley v Times Newspapers Ltd [2017] EWHC 1553 (Comm.) may provide a basis for saying that the court can require them to be returned but in this instance the documents had not in fact been removed from court).
• Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
• Where the applicant has a legitimate interest then the court must still consider the balance exercise in relation to any harm to other parties’ legitimate interests when deciding whether to allow access.
• Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
• Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law powers. Gio and Nestec support a narrow approach to exercising that jurisdiction where documents are sought which fall outside rule 5.4C. Blue and Ashley draws the scope of the power widely but also approaches their exercise cautiously.

 Master McCloud rejected Cape’s argument that the open justice principle was not engaged where a case had settled before judgment. She considered that the point had already been determined by Bean J in NAB v Serco [2014] EWHC 1255 when he commented that ‘[t]he public interest is not confined to cases where the court has given judgment and it is sought to see whether the underlying documents provide further illumination of the judgment. It may be just as significant to discover why a case settled.’

 Cape argued that, since the CPR at r. 39.5 referred to ‘bundles’ being filed, this did not imply that the documents within them were filed. But that point was given short shrift by Master McCloud: ‘[t]hat seems to me an unrealistic approach: bundles are simply collections of documents and when a bundle is filed necessarily so are the documents within it.’

However, a bundle made available only as a digital resource in court had not been filed since ‘the basic position as to filing at court is, absent a Practice Direction in accordance with rule 5.5, a paper exercise.’

 Master McCloud considered that the written submissions and skeleton arguments, which had been retained in court at the end of the trial and held together with the court files rather than being handed back to the advocates, had in the circumstances become documents filed on the records of the court for at least so long as they remained at court.

Once a document had been sufficiently deployed in court to give rise to the starting point of openness, the applicant still had to show a legitimate interest and thereafter to consider the balancing exercise in relation to the possible harmful effects to others’ legitimate interests. The scope of the legitimacy test was a broad one and encompassed –

• The promotion of academic consideration as to the science and history of asbestos and asbestolux exposure and production.
• Improving the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
• Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
• Understanding the industrial history of Cape and its development of knowledge of asbestos safety.
• Clarifying the extent to which Cape was or was not responsible for product safety issues arising from the handling of asbestolux boards.
• Assisting court claims and the provision of advice to asbestos disease suffers.

 

Decision Part 2: Standing, Specificity and Balancing

The second part of Master McCloud’s judgment considered the standing of the applicant, the specificity of the application and the balancing exercise between the competing interests involved.

She began by rejecting Cape’s argument that the initial application had been a nullity since the original applicant (the Asbestos Victims Support Groups Forum UK) had no legal personality: Mr Dring had since been substituted and the defect cured.

She also rejected Cape’s argument that the application was too vague. The broad classes of documents sought had been sufficiently identified and comprised, if more specificity were needed, ‘the ones presently occupying several metres of shelf space and a hard disk in my courtroom.’ A complex or detail-heavy approach to the request for documents would risk requiring an excessive use of precious court resources.

Master McCloud then moved on to the more difficult issue of the balancing exercise. By contrast to broad tone of her earlier quote from Lord Diplock, she began this section of the judgment by commenting that ‘[t]he constitutional right of access to a court would be unacceptably impaired if the act of going to court, perhaps having no choice other than to do so in some instances, necessarily entailed that every detail of every case was available to the public.’

 In cases involving trade secrets, intimate personal details, libels and falsehoods, for example, it could be seen how the court’s prime duty under the overriding objective to do justice would sometimes override the constitutional right to openness of court process.

However, Master McCloud noted the ‘valid concern’ of the applicant that directing the material in the compromised case not to be accessible by the public would risk the courts proceeding in future cases without the parties being in a position to draw that material to the judge’s attention when appropriate. This related closely back to the point that the courts were ‘not a private dispute resolution forum but rather they play a public role in informing other cases both as to law and procedure and… as to facts and knowledge in specialist areas.’

Cape’s argument that there was a public benefit in ensuring that settlements reached by the parties were upheld was met by the fact that means already existed to ensure that sensitive material could be ventilated in private rather than in public – it was telling that the whole trial took place without such orders being sought. The fact that the terms of the eventual settlement provided for confidentiality was not relevant since it was not for the parties to dictate to the court which documents could and could not be publicised following the conclusion of the case.

Cape’s offer to undertake to retain the documents so that they remained available as a target for disclosure applications in future cases did not go to the issue: open justice was aimed at scrutiny and understanding of court proceedings, decisions, process and settlement and the holding of judges to account; by contrast, disclosure did not by itself imply any degree of later public access and so could not satisfy this aim.

Finally, it was noted that Cape had not taken the opportunity to direct Master McCloud to any examples of specific harm to their interests which would be caused by the publication of specific documents or classes of documents sought.

The Order

Master McCloud therefore ordered disclosure of:

• The witness statements including exhibits
• Expert reports
• Transcripts
• Disclosed documents relied on by the parties at trial
• Written submissions and skeletons
• Statements of case to include requests for further information and answers if contained in the bundles relied on at trial

However, in relation to documents which are unfiled and undeployed in court – such as those on a digital bundle of documents made available but not referred to at trial – while the court had a common law power to direct disclosure, it was necessary to adopt a cautious approach: special circumstances were required before disclosure would be ordered.

In this case, there were no such special circumstances for ordering disclosure of the digital bundle and it would therefore be excluded from the disclosure order. The openness principle would only apply to documents which had played a role in the proceedings. The disclosure statements in the compromised proceedings were therefore also excluded on the basis that their disclosure would undermine the decision not to order disclosure of the contents of the digital bundle.

Permission to Appeal

Master McCloud addressed this of her own motion, holding that there was no real prospect of a successful appeal and no other good reason for an appeal. Permission was therefore denied. Master McCloud indicated that if an appeal were to be heard then it ought to be before the Court of Appeal due to the need for expedition in mesothelioma claims and the importance of the documents forming the basis of the judgment.

This post was written by Michael Rawlinson QC.

Given the number of different diseases with which it is associated, asbestos might reasonably be thought to be as versatile at killing the humans who inhaled it, as it was in meeting the perceived needs of British industry throughout the 20^th Century. Perhaps the most frightening of asbestos’ manifestations is mesothelioma: the cancer of the linings of the chest and peritoneum. Until recently swift death following diagnosis was almost inevitable. However, consultant chest physicians have begun to express excitement regarding new therapies called immunotherapy/biological therapies (referred to collectively here as “immunotherapy”) when they have been applied to mesothelioma victims.

Mesothelioma victims referred to the correct Oncologist will be told that whilst immunotherapy is not right for everyone, it could be that their Mesothelioma may be stabilised by immunotherapy. Usually such therapy will only be applied once first line chemotherapy has been undertaken; but only if at that stage the victim’s health status is still otherwise good and only if they can afford it, because such therapy is not available on the NHS.

If you talk to an oncologist about the likely immunotherapy treatments to be given to a mesothelioma victim, you will be told about a large number of potential drugs. So far the most expensive of these is pembrolizumab (Keytruda) at around £120,000 per annum. Results from trials are emerging all the time and one cannot know what the landscape will be in even 2 years time. So a person who is given Keytruda today and who, as a result, is alive in  2 years time, may be well enough to transfer onto another therapy which is unproven  today but which may by then be realised to yield great benefit.

There is a dilemma created for those advising both victims and insurers as a result of this medicine. Suppose you are acting for a victim who has just received a diagnosis and is very early in their treatment. Let us say that exposure and breach of duty are easily provable and all looks set fair for an early settlement. But what are you to do about immunotherapy? You cannot yet know whether the victim is suitable for such treatment and, even if they are, which drug(s) will be prescribed or at what cost or for how long?

Prima facie you have only two options: first to wait to see what is prescribed and then claim an interim payment for that amount or, second to guess. Neither is a very attractive option for either the victim or the lawyer. Equally unattractive to the insurer is an unfocussed claim for some estimated amount of damages (added without evidence) to every schedule of loss.

In recent months insurers have approached the problem by offering to make direct payments to the immunotherapy provider, on condition that the insurer’s own medico-legal expert has the right to say that the provision is not in the victim’s interest (and thereafter the insurer can seek a determination from the court that it may withdraw funding). There can be a place for such agreements but anyone who does so will need to satisfy themselves that two potential issues are being considered. First, that there are safeguards to prevent either the payer making deals with the provider over the head of the victim such that only a cheaper option is being paid for as opposed to a more expensive and experimental one which would otherwise be sanctioned by the treating oncologist if ‘money was no object’. Further, that there should be arrangements whereby the victim is informed when each payment is made so as to avoid any dispute arising between the insurer and the provider leading to the funds not being provided.

I was asked by Irwin Mitchell to look at this problem and it seemed to me that the best option was to seek to persuade insurers to enter into a Periodical Payment Order (“PPO”). Since a PPO is an open-ended commitment to make payments for as long as is needed and since an insurer could credibly argue that in its detail the situation we face neatly fits neither a stepped nor a variable PPO, why should any insurer enter into such an agreement voluntarily? The answer is that because such an agreement is, in the long run, a highly efficient method of dealing with the dilemma for insurers as well. If, upon proof by a Claimant that at the moment of settlement, there exists now a realistic chance that at some point in the future immunotherapy will be recommended, then an insurer who enters into a PPO agreement as part of an overall settlement acquires two very significant benefits:

• First, no case is ever delayed by waiting to see whether immunotherapy is provided and with what effect etc.
• Second, no payment is ever made by the insurer against the future risk that immunotherapy is to be provided if in fact no such immunotherapy is in fact never provided ie they will not have to add £50,000 to each claim to ‘buy off’ the risk of immunotherapy being provided at some nebulous point in the future.

Finally it might be recognised by insurers that there are two very powerful legal weapons lying in the hands of Claimants’ lawyers when one considers their ability to enforce payment from the tortfeasor for medical costs: The law is that, provided such treatment is recommended by a reputable relevant expert, then the cost of that treatment is recoverable even if it is unsuccessful. In reality, where the prize at stake is longer life or longer healthy life, then there will be very little short of the positively harmful which the Court will consider not have been reasonable to attempt. If a proposed treatment is reasonable then it is no defence for an insurer to say that it could either be obtained more cheaply in another way (Rialis) or that it is available on the NHS (s2(4) Law Reform (Personal Injury) Act 1948).

In a case in which I was instructed recently I was able to put the proposal of a PPO to an insurer. Last week the proposal was accepted. Our client in that case was Mr Scott. He wanted to keep the terms of his order which are not relevant to the PPO confidential and the Court has so ordered, but he did want his name attached to the draft model agreement and this was permitted by the Court: and so what follows is both a description of and the terms of a draft Scott agreement.

The essence of the agreement was as follows:

A Tomlin form of order was used. As usual, the interesting terms lay in the Schedule to the order.

• It was recited in the Schedule that there was accepted to exist now a realistic chance that at some stage in the future Mr Scott would require immunotherapy albeit no one could say when that time would be; which treatment would be given; for how long and at what cost.
• Irwin Mitchell would set up and administer a trust whose sole purpose is to receive and then pay to the provider the costs of immunotherapy provision (with associated expenses such as blood tests and scanning) as and when such payments were demanded by the provider and received from the insurer. In addition such travelling expenses as Mr Scott would incur would also be paid. This trust is to be administered at the insurer’s reasonable expense.
• The trigger for payments is the victim’s treating oncologist recommending immunotherapy. Once the insurers were made aware of that the trigger had occurred they will then pay £130,000 in quarterly instalments for as long as required. The figure alighted on was the figure for the provision of Keytruda. However a quid pro quo was agreed in that should the actual figure be less than that, a reverse indemnity would be provided (ie the IM Trust would repay to the insurer the money) and conversely should the treatment cost be higher then an additional ‘top up’ would be made by the insurer to the IM Trust. This would continue for as long as necessary but if the treatment stopped temporarily or otherwise changed the insurer would be informed and payments adjusted
• There was no future role within the agreement for any expert employed by the insurer. Thus there was no provision for second guessing or countermanding the treating oncologist’s recommendations. This was made clear by the following clause within the agreement: “For the avoidance of doubt the only ground upon which such objection can be taken by the Insurer is that the new sum does not actually represent the cost to be levied by the health provider to the Claimant. The Insurer shall not seek to argue that the continued provision of immunotherapy is rendered irrecoverable or unreasonable by reason of the fact or amount of the new sum”

Payments would cease at such time as either the treating Oncologist considered that immunotherapy should be stopped permanently or the patient sadly died. Any excess remaining in the Trust would be repaid to the insurers.

Any insurer who seeks to object that this agreement could not be ordered by the Court can be answered in one of three ways:

• The agreement does not in fact offend either the Damages Act 1996 nor CPR Part 41 nor yet the Damages (Variation of Periodical Payments) Order 2005/841;
• Alternatively, the Court could without fear of reasoned contradiction impose upon a defendant a variable PPO which was triggered by the worsening of the condition represented by the advance of the cancer after front line chemotherapy had been administered and at a fixed figure equivalent to the most expensive treatment envisaged: the model agreement we entered into is a far more benevolent regime to the insurer than such an approach.
• Finally, if the insurers really wish, victims can simply settle all parts of the claim except that for immunotherapy, adjourn and then make multiple applications for interim payments as and when for as long as they live; and that would not be a happy solution for anyone. Our agreement with the insurers in his case has provided peace of mind to the victim that any immunotherapy treatment will always be paid for as and when he needs it.

There is one final issue to consider. If the present agreement becomes widely adopted then there will grow a divide between those victims who possess good claims for compensation (and hence who can obtain immunotherapy via the Scott model agreement such as has been entered into in this case) and those victims who do not have such claims and are limited to making applications under the Diffuse Mesothelioma scheme (who cannot). Thus we quickly reach the highly uncomfortable position that whether a victim lives 12 months or 5 years may depend on the whether or not an insurer can be traced for his employment: a happenstance which is wholly out of the victim’s control and which essentially amounts to a lottery on life. Since the intention of the scheme was to award average damages to its applicants, the time has come to consider whether the scheme should also be expanded to include the facility to enter into such agreements as were entered into in this case. This will require additional capital of course.

This post was written by David Green.

HHJ Platts, sitting as a judge of the High Court, dismissed a claim for a contribution from the Part 20 Claimant (X) against a Part 20 Defendant (Y), on the grounds that X could not establish that the deceased had been exposed to asbestos while employed by Y.

Clifford Ingleton died of mesothelioma on 16 April 2014. His widow, Eileen, succeeded in obtaining an order for £180,000 in damages and costs against X, one of Mr Ingleton’s former employers. X sought a contribution from Y, for whom Mr Ingleton had worked for a period in the 1970s.

No witnesses were called in proceedings: Mr Ingleton made a witness statement on 1 July 2013, approximately nine months before his death, where he gave his employment history and some details of his occupational exposure to asbestos. There was also expert medical evidence on both sides of the Part 20 claim, and expert evidence from occupational hygienists who examined Y’s premises and were in substantial agreement about the likely level of occupational exposure there.

In his witness statement, Mr Ingleton had said that Y’s premises consisted of vaults whose walls and ceilings were lined with worn asbestos sheeting: as he collected items using a sack barrow, he was unable to keep from knocking into walls and causing the asbestos lining to crack and break up, releasing asbestos dust into the confined vault atmosphere.

This was, however, contradicted by the expert occupational hygienists: they found asbestos ceiling tiles (which included, in various places, tiles consisting of both chrysotile and crocidolite) in place in the vaults in 2006 and 2007, but no evidence of asbestos surfacing on the vaults’ walls, which were of a brick or block construction and thus largely fireproof without asbestos cladding. They agreed that, if asbestos wall coverings had been removed at some point between Mr Ingleton’s employment and 2006, it was most likely that the ceiling asbestos would have been removed at the same time.

On balance of probabilities, the experts’ agreed conclusion was that the walls of the vaults had never been covered with asbestos, and HHJ Platts found this as a fact.

This provided a difficulty for X, who nevertheless sought to establish that Mr Ingleton had been exposed to asbestos during his employment with Y as a result of making contact with ceiling tiles. X relied on photographs in the vault surveys showing that goods stored in the vaults were often stacked close to the ceiling, and that it was likely that Mr Ingleton would have disturbed ceiling tiles as well as the walls (despite the fact that he had only mentioned the walls, and not the ceilings, in his witness statement).

The experts agreed that, if Mr Ingleton had indeed disturbed the ceiling tiles, his exposure was “probably relatively low”. the ceiling tiles were described in the initial surveys as being almost exclusively of low or very low risk.

Given the evidence, the judge considered that there was no evidence that Mr Ingleton had disturbed the ceiling tiles: although there was some evidence that items were sometimes stacked near to the ceiling, this was not enough to draw an inference that the ceiling was disturbed. There was consequently not enough evidence that Mr Ingleton had been exposed to asbestos during his time with Y: a mere potential or possibility was not enough. X thus failed to establish that Y was a “responsible person” within the meaning of Section 3 of the Compensation Act 2006.

The judge added obiter that, if he had found exposure, he would not have accepted Y’s submission that there was insufficient evidence for an apportionment to be made: he considered this a jury question (quoting Holtby v Brigham & Cowan (Hull) Ltd [2000] 3 All ER 421). Doing the best he could, the appropriate apportionment would have been 20% to Y.

This case is a salutary reminder to mesothelioma defendants considering the possibility of seeking contributions from other employers: although the mesothelioma victim’s evidence may well point to the possibility of exposure from other employers, this evidence must be treated with caution. Particularly when the victim is deceased and their evidence is not available to be tested in cross-examination (as in this case), but also for living mesothelioma cases, it is very likely that any expert or survey evidence available to the court will be preferred where it contradicts the victim’s recollections, which are inevitably made many decades after exposure took place.

 

The post below is by Aliyah Akram. It is about the case of David Myall v (1) Ministry of Defence (2) Serco Ltd [2017] EWHC 1752 (QB), in which the claimant’s request for a split trial to allow for the possibility of his being assessed for immunotherapy treatment was refused by Master Giddens in the absence of any medical evidence in support of such treatment. Mrs Justice May upheld the Master’s decision on appeal.

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The recent case of Myall is a reminder to practitioners that although there is a sound legal basis for the recovery of the costs of immunotherapy treatment, care must be taken to ensure a sound evidential basis behind any such claim.

The claimant applied for a split trial to allow for the possibility of his being assessed for immunotherapy treatment.  The application appears to have been unsupported by any medical evidence and was made solely “on the strength of an unsupported assertion by the Claimant’s solicitor”.  It is not clear from the judgment how much time remained before the original trial, but it appears that there was insufficient time for the claimant to have undergone an assessment as to his suitability for immunotherapy treatment before trial.

The basic principle of restitutio in integrum or full compensation encompasses recovery of damages for expenses incurred, or to be incurred, by the victim as consequence of injury. In Jones v Royal Devon NHS Trust [2008] EWHC 2706 (QB) it was held that in relation to medical expenses the Court must “apply the touchstone of reasonableness and principles of remoteness and proportionality”.

Najib v John Laing [2011] EWHC 1016 (QB) shows just how far this may be stretched in practice. The court allowed a mesothelioma sufferer to recover the cost of “photodynamic therapy”.  There was no objective medical justification for this so-called treatment and counsel for the claimant, Harry Steinberg QC, had not contended otherwise. But there was some evidence from the treating clinician that it had been reasonable for the claimant (who was frightened of the side-effects of chemotherapy) to try it as a last resort. Accordingly, even though (a) the claimant did not contend that the treatment had any clinical value and (b) it had been wholly unsuccessful, it had not been unreasonable for this claimant to undertake this therapy, and so Nicola Davies J held the costs were recoverable in full.

In Myall, Mrs Justice May refused even to consider the application for a split trial because the claimant had failed to provide any medical evidence at all in support of such treatment. It remains to be seen whether the trial judge will be more sympathetic in allowing the claimant to bring his full claim.

Practitioners in mesothelioma cases need to give thought to gathering evidence in support of a potential immunotherapy claim as soon as they receive instructions. Such evidence, particularly at a case management level, need not be extensive but should highlight the potential suitability of a claimant for immunotherapy treatment and the possibility that it might prolong a claimant’s life expectancy.

The new wave of immunotherapy appears to be one of the most exciting developments in oncology in a generation. While it is easy to be swept up in this excitement surrounding immunotherapy – and to assume that the court will share this enthusiasm – the need for such treatment is not self-proving. The courts are highly likely to be sympathetic, but they need something to work with.

On 27 July 2017, the Court of Appeal gave judgment in The Department for Communities and Local Government v Blackmore [2017] EWCA Civ 1136.

The facts of the case were that Mr Blackmore sustained heavy occupational asbestos exposure between 1966 and 1986. He had smoked cigarettes since he was 14 years old. In 2005 he cut down from smoking around 20 a day to around 12 per day, but he never gave up completely.

He died of lung cancer on 28 October 2010 at the age of 74. The post-mortem indicated a quantity of total retained asbestos fibre count above the level at which the risk of contracting lung cancer doubles.

Causation and primary liability were conceded. The case came before HHJ Cotter QC on the issue of contributory negligence, which was assessed at 30%. This apportionment was upheld by the Court of Appeal.

Michael Rawlinson QC has written a paper analysing this case in the context of asbestos lung cancer litigation generally, and giving practical advice to practitioners in this area. You can read it by clicking here.

This post was written by Max Archer. This case is not to be confused with the earlier decision in The English Electric Company Limited v Alstom UK [2016] EWCA Civ 1314, featured on the blog earlier in the year (accessible here).

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The Background

Mr Edmund Critchley was diagnosed with malignant mesothelioma in early 2013. He brought proceedings against his employer, Associated Electrical Industries Ltd (“AEI”) that had exposed him to asbestos whilst he worked in the turbine industry between 1965 and 1967.

AEI subsequently admitted that it was his employer and effectively admitted liability by failing to show cause as to why judgment in default should not be entered against it. AEI paid compensation to Mr Critchley, the total amount expended including costs was £850,672.45.

The dispute before the court arose out of the corporate histories of the English Electric Company (“EE”) and Alstom:

• EE and AEI had been members of the same corporate group.
• Pursuant to an agreement of sale of AEI’s turbine business to EE in 1970, EE agreed to indemnify AEI against any claims arising on completed and uncompleted contracts as at 1st April 1970.
• EE then sold the business on to Alstom UK Limited in 1989.
• The 1989 sale also contained an indemnity clause to the effect that Alstom were liable to indemnify EE under the agreement.

The basis of EE’s claim against Alstom was as follows:

• AEI was liable to Mr Critchley as alleged
• EE and that it was bound to indemnity AEI pursuant to the 1970 agreement.
• Pursuant to the 1989 agreement Alstom was now liable to indemnify EE.

The Parties’ Arguments

Alstom argued that in spite of AEI’s admission of liability and pay-out to Mr Critchley, AEI was not liable to Mr Critchley as it was not his employer. It was argued that Mr Critchley was instead employed by AEIM, a subsidiary.

Against this, EE argued that AEI was Mr Critchley’s employer and that even if he had been employed to some extent by AEIM, the latter had been acting at all times as an agent for AEI which was the party ultimately liable anyway.

It was agreed that if EE was liable to indemnify AEI under the 1970 agreement then it must be liable to indemnify it on the 1989 agreement.

The Decision

HHJ Waksman QC gave judgment for EE.

It was held that AEI was Mr Critchley’s employer. There was no contract of employment before the court, further, there were many documents that were inconsistent, some pointing to AEI as the employer, some pointing to AEIM. However, the fact that Mr Critchley considered himself to be employed by AEI was of considerable importance in coming to the conclusion that it was the employer. Further, AEI’s admission that it was the employer was a further matter of importance, this was a decision that would not have been made lightly. The judge considered that on the balance of probabilities EE had established that the employer was AEI. The various uncertainties in the documents were not enough to displace this finding.

He went on to find that AEIM might have held itself out (to HMRC for example) as the employer and be acting for AEI as an agent in that regard. That being the case, AEI would be the principal, there could therefore be no reason why AEI could not be liable to Mr Critchley as had been admitted in the previous proceedings. If there was any extent to which AEIM could have been his employer it could only have been as an agent for AEI.

EE was therefore successful in its claim.

You may recall that we recently blogged about Bussey v Anglia Heating. This was a case in which HHJ Yelton (sitting as a High Court Judge) found that between 1965 and 1968 the Claimant’s husband had been exposed to asbestos, at levels which fell below the TDN13 threshold. The Judge held that he was bound by Williams v Birmingham and that accordingly the claim could not succeed.

The Claimant applied for permission to appeal on the facts (the level of exposure) and the law (the legal arguments about the status of Williams and its relevance to her case).

Permission to appeal has been granted on the law only and an expedited hearing has been ordered. The appeal will be listed before October 2018.

You can read our full post on Bussey here, in which a detailed summary of the legal arguments advanced at first instance are set out.

In this post, Harry Steinberg QC examines the case of Oldman v DEFRA, another instalment in the line of first instance decisions in which Williams v Birmingham is considered.

A copy of the unreported judgment can be found here.

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The common law has a momentum of its own. It can be immensely difficult to stop when it takes a wrong turn. The law governing asbestos liabilities took such a turning in October 2011 in Williams v University of Birmingham [2011] EWCA Civ 1242. Since then, successive Courts have been convinced by the specious precision of TDN13 and lured into using it as a proxy for what was considered a safe level of exposure at the time. In doing so, they have placed reliance on the assumed results of hypothetical fibre counts that hardly anyone carried out, including, of course, the defendants who have repeatedly benefited from this fashion for reconstructive dust-counting

The inherent flaws of Williams – and its use of TDN13 as a safety standard – are manifold and well known. First, the TDN13 guidance was based on a British Occupational Hygiene Society paper about the comparatively high levels of exposure necessary to give rise to a risk of asbestosis. But it had nothing to say about mesothelioma, which, as had been known since Newhouse & Thompson in 1965, could be caused by tiny quantities of asbestos. Second, TDN13 was produced in collaboration with the asbestos industry. The HMFI was in close contact with the official-sounding Asbestosis Research Council, which was set up, funded and run by the three largest UK asbestos manufacturers. It remains a disturbing example of the dangers of allowing an industry to regulate itself. Finally, TDN13 was never intended to be a safety standard. It was a threshold for prosecution and enforcement (not that the HMFI did much prosecuting or enforcing in this area) not an expression of what was generally deemed safe.

Instead, the mechanistic application of TDN13 has produced decisions that defy logic, language and, on occasions, legal principle. In Williams itself, for example, the Court of Appeal made a finding – untenable in the light of the available literature – that exposure below the TDN13 threshold could not give rise to a foreseeable risk of injury. This approach led to the conclusion, in McCarthy v Marks & Spencer [2014] EWHC 3183, that the obligation to reduce asbestos exposure was so qualified by these control limits that the ‘lowest level reasonably practicable’ actually meant something else. This thinking has become so ossified that the Court refused, in Bussey v Anglia Heating (unreported, 12 May 2017), to apply well-established principle as to the extent of the employer’s duty.

This approach also subverts good health and safety practice, which gives priority to risk prevention. A responsible employer or other ‘duty-holder’ will first try to eliminate risks before falling back on after-the-fact fibre-counting or other sampling methods.

The decision of HHJ Moloney QC in Oldman v DEFRA sees a welcome return of the pre-eminence of the employers’ old-fashioned duty to take proper steps to protect employees from harm. Mr Oldman worked as a marine engineer from 1954 until 1980. Until the early 1960s, he was exposed to asbestos as a result of working on lagged pipes on an elderly steam vessel, the Sir Lancelot. It was possible that he had been exposed afterwards, but to a lesser extent. He contracted pleural thickening and sued for damages. The Court held that the pleaded statutory regulations did not apply to his work at sea. Accordingly, the claimant needed to make out the common-law claim. The defendant, predictably enough, relied on Williams and its progeny. The Judge held that those cases applied only to the duty in respect of a “very low level of exposure”. The Court looked, instead, to the earlier decision of the Court of Appeal in Jeromson v Shell Tankers [2001] EWCA Civ 101.

In Jeromson, the Court of Appeal had reviewed the literature, including the famous letter from the Chief Inspector of Factories to the shipbuilding industry in 1945. The Court concluded that the threats posed by asbestos were sufficiently well understood by 1951 for employers to be under a duty to reduce their employees’ exposure to asbestos to the greatest possible extent. This would have included the use of respirators. It was necessary only to show that there was a risk of some form of pulmonary disease, it was not necessary to foresee or understand the precise nature of the injury. In later years, as knowledge of the risks developed, the duty can only have become stronger.

Accordingly, in Oldman, the Court held that the defendant owed its engineers, ‘a duty to reduce their risk of exposure to asbestos to the greatest extent possible.’ The defendant had failed to take appropriate precautions and was so held liable.

This was a revival of one of the basic principles of employers’ liability and echoes the classic statement of principle of Swanwick J in Stokes v Guest Keen & Nettlefold [1968] 1 WLR 1776. On the other hand, and almost inexplicably, the Court of Appeal in Williams was not shown its earlier decision in Jeromson. If it had been, one suspects that the result might have been different. The reasoning in Oldman is robust, orthodox and unimpeachable. And, after the wrong turning in 2011, it offers a clear way out of this legal blind alley.

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Thank you to Abigail Holt of Cobden House Chambers for supplying the transcript of the judgment in Oldman.