Bereavement Damages for Cohabiting Partners

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


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

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

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

Rix v Paramount Shopfitting Company Limited [2020] EWHC 2398 (QB)

In this blog John-Paul Swoboda and his pupil Cressida Mawdesley-Thomas discuss the recent High Court decision of Mr Justice Cavanagh in Rix v Paramount Shopfitting Company Limited [2020] EWHC 2398 (QB).

Rix is the latest case to consider the width and breadth of section 3(1) of the Fatal Accidents Act 1976 (“FAA”), following in the judicial footsteps of Witham v Steve Hill Ltd [2020] P.I.Q.R. Q4 and AB v KL [2020] P.I.Q.R Q1. The issues determined in this judgment were twofold: did Mrs Rix have a valid claim for a financial dependency and if so, how should that dependency be valued. Mr Rix was a businessman with acumen, flair and drive but after his death, his son had stepped into his shoes and the business was even more profitable.

The judgment provides a useful reminder of important principles to be borne in mind when dealing with section 3 FAA claims: one looks at the practical reality when determining whether there is a dependency irrespective of tax arrangements which may be used in family businesses; income derived from capital is not a valid dependency as opposed to income derived from labour; the dependency is fixed at the moment of death which makes nearly all events after death irrelevant to the calculation of the dependency; the question of whether there is a financial dependency is a question of fact meaning there is no one single prescriptive rule to determine the amount of any dependency.

Background

The Claim was brought by the widow of Mr Rix who died of mesothelioma aged 60 having been exposed to asbestos whilst working for the Defendant as an apprentice carpenter / shopfitter in the 1970s. 

After his apprenticeship, the Deceased went on to establish what would become a highly successful limited company, combining a joinery, worktops, and kitchen and bathroom fitting business. The business was still expanding in 2015, shortly before Mr Rix fell ill.

The Deceased’s Business

At the time of his death, Mr Rix owned 40% of the shares in the company.  Mrs Rix owned 40%, and their sons owned 10% each. Mrs Rix’s shareholding produced dividends, and she drew a salary, although this was not to reflect her contribution to the business but was done on accountants’ advice as it was a tax-efficient way of taking money out of the business. After Mr Rix died, Mrs Rix inherited her husband’s shareholding, to own 80% of the shares. In addition to his income from the business, Mr Rix had two small pensions. 

The Judgment

Section 3 of the FAA reads:

Assessment of damages:

In the action such damages, other than damages for bereavement, may be awarded as are proportional to the injury resulting from the death to the dependants respectively.”

The well-established meaning of this arcane language is that a dependant can recover damages if s/he has suffered pecuniary loss resulting from the death, and the pecuniary loss arises from a relationship contemplated under the Act (e.g. husband and wife).

Mr Justice Cavanagh considered the Court of Appeal authorities of Wood v Bentall [1992] PIQR 332 (CA); Cape v O’Loughlin [2001] EWCA Civ 178; and Welsh Ambulance Services v Williams [2008] EWCA Civ 81 and distilled the following principles (emphasis added):

  • The question whether there has been a loss of financial dependency, and, if so, how much, is a question of fact;
  • The courts will take a realistic and common-sense approach to these questions;
  • There is no hard-and-fast or prescriptive approach to the determination, or quantification, of loss of financial dependency;
  • There is a difference between an income-producing asset, such as a rental property or an investment, on the one hand, and a business which was benefiting from the labour, work, and skill of the deceased, on the other.   Where the value of an income-producing asset is unaffected by the deceased’s death, there is no financial loss or injury as a result of the death, and so there is no claim for loss of financial dependency in relation to it under section 3.  Where, however, the deceased worked in a business that benefited from his or her hard work, the dependants will have lost the value of that hard work as a result of the deceased’s death and so will have a financial dependency claim;
  • The question whether a dependant has suffered a loss of financial dependency, for the purposes of the FAA, section 3, is fixed and determined at the date of death;
  • It follows from the fact that the loss of financial dependency is fixed at death that, in a “work/skill” case, the existence of the right to claim loss of dependency, and the value of the loss, is not assessed by reference to how well the business has been doing since the deceased’s death;
  • Moreover, a dependant cannot by his or her own conduct after the death affect the value of the dependency at the time of the death; and

Applying the above principles, it was held that Mrs Rix suffered a loss of financial dependency, notwithstanding that the business is more profitable than it was at the time of her husband’s death.  As in Williams, her husband’s business produced an income for the family which was the result of her husband’s skill, energy, hard work, and business flair.   Although she was a director and shareholder, the reality was that it was her husband, not her, who was responsible for the success of the business. At the time of her husband’s death, she had a “reasonable expectation of pecuniary advantage from the continuance of the life of the deceased” (Pym), because if he had lived his management of the business would have continued to produce an income for her.  O’Loughlin and Williams make clear that, as the value of the dependency is fixed at death, the health of the business after the deceased’s death is irrelevant.  In particular, Williams demonstrated that the existence of, and value of, a dependant’s financial dependency is not affected by any increase in profitability in the business.  

The Defendant argued that Mrs Rix’s interest in the business is, and was at the time of her husband’s death, akin to an income-generating capital asset because it continued to thrive after Mr Rix’s death. This argument was rejected.

“It is clear that, until very shortly before his death, Mr Rix remained the prime mover in the business.  He was primarily responsible for its health and prosperity, as a result of his flair, energy and hard work.  The business was still expanding, having just moved into new premises.  He was the person with the contacts and the know-how.  Jonathan was being groomed to take over, but this plan was still at a very early stage.  As Mr Phillips put it in his submissions, MRER was not a “money-generating beast” that would generate money regardless of who was in charge of it.”

The Defendant also sought to distinguish Wood, O’Loughlin, and Williams on the grounds that Mrs Rix was both a director and shareholder in the business and therefore her dividends and salary should be treated as her own, not something she received as a result of their financial dependency on the deceased. This submission was also rejected.

“The authorities have made clear that courts should look at the practical reality in relation to financial dependence, not at the corporate, financial or tax structures that are used in family arrangements. If one looks at the practical realities, it is clear that the income that Mrs Rix received as director and shareholder was entirely the result of her husband’s work for the business.”

Mr Justice Cavanagh found that the role of the court is not to compare the income of the dependant from the family business before and then after the deceased’s death, and to award the shortfall, if any. That would be illegitimate because dependency is fixed at death, cf. Williams.

The Judge therefore went on to consider the two methods of calculating dependency advanced by the Claimant. As dependency is a question of fact which should not be determined prescriptively, the judge had to determine which methodology was most appropriate. The Claimant’s primary case was that the dependency should be calculated by reference to Mrs Rix’s share of the annual income that Mr and Mrs Rix would have received from the business if he had lived (“Basis 1”). The secondary case was that her financial dependency should be quantified by reference to the annual value of Mr Rix’s services to the business as managing director, calculated by reference to the cost of employing a replacement (“Basis 2”). 

In Wood, Williams and O’Loughlin the Court had adopted Basis 2 to calculate the dependant’s financial dependency. However, it was held that the present case could be contrasted to those cases as the financial dependency claim in this case was concerned “only with income produced by Mr Rix’s labour, skill, energy and flair, not with income produced by his capital assets, or with income produced by a mixture of capital assets and labour.” On that basis Mr Justice Cavanagh made findings as to the joint income, having had the benefit of forensic accountancy evidence, before deducting 1/3 from the joint income to determine the dependency.

Analysis

Successive cases have now shown that the Courts will look at the practical reality of a family situation prior to a deceased’s death. What ‘the practical reality’ is in any given case is likely to be determined by evidence and, as a question of fact, by the judge’s disposition. This is most striking in one aspect of this judgment which, in the authors’ opinion, could easily be determined in a diametrically opposite manner and still conform with the principles to be applied to FAA claims. The finding in question is that the income of the deceased from the business was entirely based on his labour and not on the intangible asset of the business. Whilst this was consistent with the deceased’s own evidence it does not appear to be consistent with the fact that the business has been more profitable since being run by the son, who by all accounts was ill-prepared at the time of death. Whilst the deceased’s labour was no doubt needed to grow and maintain the business (to some extent) the fact that someone, not as experienced as the deceased, could step into his shoes suggests that the deceased had, at least to some extent, created a “money generating beast”, aka a capital asset. This is not to say that Mr Justice Cavanagh was wrong in his finding but simply to emphasis the point that finding in fatal accident claims are intensely fact specific.

Results such as this will cause disquiet among some as the Claimant has been left with more than she had lost and which runs contrary to the 100% principle which is so deeply ingrained in our (PI litigators) psyche. However, this is at least in part by design of section 4 the FAA (benefits following death are disregarded).

The most controversial, or perhaps unclear, aspect of this judgment is the actual calculation of the dependency. Firstly, the learned judge used 70% of the profit from the company as the joint income (relying on expert accounting evidence) in preference to the much more familiar cost of replacement services. This approach was justified by the finding of fact the business generated profits because of the deceased’s labour, not accumulated capital, and in this way Williams, Wood and O’Loughlin were distinguished. This might be said to add an inadmissible element of guesswork to the determination of loss (though without reference to the accounting evidence this is not easy to determine). Secondly there was no deduction from the joint income to reflect the amount paid to Mrs Rix from the company (save for rental income which was agreed to be income from a capital asset). This appears incongruous with the fact she was actually paid a salary and received dividends from the company, though does perhaps reflect the reality, as found, that she was no more than a straw partner in the business. Finally, a 1/3 deduction was made (by agreement), presumably to reflect living expenses (though this is not clear), even though the judge had found that a 17.5% deduction would be appropriate for living expenses if the alternative basis were used to calculate the dependency.

The Queen (on the application of the Asbestos Victims Support Groups’ Forum UK) -v- The Lord Chancellor [2020] EWHC 2108 (Admin)

This post was written by Spencer Turner

Introduction

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

The background to the JR

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

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

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

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

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

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

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

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

LASPO and the PIR

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

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

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

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

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

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

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

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

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

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

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

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

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

The Defendant’s response was threefold:

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

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

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

The court therefore dismissed the application for judicial review.

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

Exposure to asbestos in schools: a breach of strict liability statutory duty

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

The abstract to the article is as follows:

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

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

Dring v Cape Intermediate Holdings Ltd [2020] EWHC 1873 (QB)

This post was written by Christopher Fleming.

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

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

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

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

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

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

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

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

Read the decision in full here.

Smith v Secretary of State for Transport [2020] EWHC 1954 (QB)

This post was written by Megan Griffiths.

The High Court has recently found for a claimant who was exposed to asbestos at work in the late 1950’s and 1960’s in Smith v Secretary of State for Transport [2020] EWHC 1954. The key issue in dispute was whether his exposure met the requisite threshold for a diagnosis of asbestosis: the threshold being 25 fibres per millilitre per year (“fibre years”). The judge considered Mr Smith’s lay evidence on his daily duties, documentary evidence of his employer’s use of asbestos and expert evidence on the likely levels of exposure to find that it did.

Background to claim

Mr Smith was employed by British Rail from 1956 to 1963. His work involved repairing train carriages and he alleged that he was regularly exposed to asbestos dust in the course of this work. His case was that this exceeded 25 fibre years meaning he now suffered from asbestosis. He claimed that the Defendant had breached its statutory duties under the Factories Acts to take all practicable measures to protect its employees against inhalation of substantial quantities of asbestos: s.47 of the 1937 Act and s.63 of the 1961 Act [15-16]. His secondary claim in negligence did not add to the matters in issue [17].

The Defendant denied that Mr Smith’s exposure met the fibre years threshold for asbestosis. It did however accept that if the court found Mr Smith did meet the threshold, it was in breach of statutory duty [16]. Subject to liability, quantum was also agreed.

The liability only trial took place over Skype in June 2020. Live evidence was heard from the parties’ expert occupational hygienists, with Mr Smith’s oral evidence having been given on commission in October 2019.

There were three key issues that the court decided upon at trial, with the latter two pertaining to liability.

Issue one: how should the court approach Mr Smith’s evidence, given that he suffered an stroke in 2001 that had impacted his ability to communicate?

Mr Smith gave the only first-hand evidence of his daily working habits and exposure to asbestos, in two witness statements and the evidence on commission. However, he had communication difficulties as a result of a stroke in 2001 which were apparent from the video of his evidence on commission, at one point saying “I can’t talk properly” [38]. Thornton J was concerned as to how to properly approach his evidence and asked both counsel to agree a summary of the relevant principles from the case law which is set out at [40] of the judgment. The principles are applicable to all witness evidence and helpful reading for any litigator considering how their witness’ evidence of historic events will be interpreted at trial.

Thornton J bore Mr Smith’s particular difficulties and those principles in mind when assessing his evidence. She mentioned in her judgment that having access to the transcript as well as the video of the evidence on commission was “particularly useful” in his case [43].

Issue two: to what extent was Mr Smith exposed to asbestos in the course of his work?

It was agreed that Mr Smith was exposed to asbestos when his colleagues removed ceiling panels in the carriages which released asbestos dust [8]. Documentary evidence of British Rail’s use of asbestos at the time suggested that at least some of the carriages contained high concentration blue asbestos [9]. Mr Smith did not remove the ceiling panels himself and the extent to which he was actually exposed to the asbestos dust was disputed [10].

Thornton J carefully considered Mr Smith’s evidence on the nature and levels of his exposure. She took Mr Smith’s known communication difficulties into account when coming to a view on the credibility and persuasiveness of his evidence (for example, [50 and 73]).

Although the judge acknowledged that there were some inconsistencies following cross examination, they were by no means fatal to Mr Smith’s evidence which was ultimately “clear and consistent” on the issue of his exposure [73]. In particular, Mr Smith gave unchallenged evidence of chunks of blue dust falling onto him and the floor during his work and staying there until the end of the job which supported his case [45].

Mr Smith’s evidence alongside the documentary evidence of asbestos use at that time by British Rail and the expert evidence, led Thornton J to find that Mr Smith had been exposed to asbestos dust “on a regular basis” [76].

Issue three: did that exposure meet the 25 fibre years threshold required for a diagnosis of asbestosis such that his claim succeeded?

The experts agreed that if Mr Smith’s exposure met the threshold of 25 fibre years then the correct diagnosis was asbestosis in accordance with the 1997 Helsinki criteria [2 and 11]. Therefore, the issue for the court was whether this had been met on the facts, using the experts’ estimated calculations to inform that decision [31 to 34].

Having accepted Mr Smith’s evidence on the nature and extent of his exposure, Thornton J adopted Mr Smith’s expert’s mean concentration figure to find that he was exposed to 20 to 100 fibre/ml on a regular basis and that, on the balance of probabilities, his total exposure was over the diagnostic threshold [82].

Comment

Mr Smith’s success is encouraging for claimants in historic asbestos exposure cases. This was a case where the only evidence of his daily work was from the claimant himself, without statements from colleagues or other ex-employees. Additionally, Mr Smith had communication difficulties to overcome in giving a clear account of events over 60 years ago. Notwithstanding these challenges, the judge was able to form a clear view of Mr Smith’s evidence in his favour, no doubt thanks in part to the work of his legal team in preparing clear and convincing witness statements.

Whilst the circumstances giving rise to Mr Smith’s communication difficulties are somewhat unusual, many claimants in asbestos cases are elderly and may well have unrelated communication difficulties that need to be taken into account. The passing of long periods of time and/or individual communication challenges will not prevent the right claimant from establishing the exposure required to succeed in a claim against their ex-employer, like Mr Smith was able to in this case.

Recent guidance on Diffuse Mesothelioma Payment Scheme

In this post Cressida Mawdesley-Thomas and Megan Griffiths look at DP v Topmark Claims Management Ltd (CM) [2020] UKUT 0106 (AAC), a recent decision of the Upper Tribunal on the interpretation of the Diffuse Mesothelioma Payment Scheme (“the Scheme”) introduced by the Mesothelioma Act 2014 (“the Act”). A precondition of accessing the Scheme is that a claim cannot and has not been brought against the employer or insurer “because they cannot be found or no longer exist or for any other reason”, per ss. 2(1)(d) and 3(1)(c) of the Act.  This appeal analysed the meaning of the phrase “any other reason” and found that being statute-barred did not come within its ambit.  

The Scheme 

The Scheme was introduced following a consultation in 2010 which identified the difficulties that those with diffuse mesothelioma faced as a result of the disease’s long latency period. The consultation identified that many people would not know that their exposure to asbestos at work had resulted in diffuse mesothelioma until decades after their exposure occurred. That delay would mean that their employers (and their employers’ EL insurers) may be untraceable or no longer in existence, preventing them from making a civil claim for damages. The Scheme was therefore created to specifically remedy the injustices associated with diffuse mesothelioma being a “long-tail” disease.

The issues for the Upper Tribunal and its decision

An application was made by the Appellant under the Scheme on behalf of an individual who had died of diffuse mesothelioma aged 37. The Appellant had previously consulted solicitors  with the view to bringing a civil claim prior to the expiry of the primary limitation, those solicitors declined to act on the grounds of lack of prospects. The Application under the Scheme was refused and subsequently appealed to the First-Tier Tribunal, where the appeal was itself refused. The Appellant was then granted permission to appeal to the Upper Tribunal. A second set of solicitors issued proceedings: limitation was raised as a defence by the defendant. The matter then came before the Upper Tribunal.

The central issue was whether the Appellant was entitled to compensation under the Scheme and if so, on what basis. In answering this question Upper Tribunal Judge Kate Markus QC made findings on the following:

  1. The relevant date for determination of the review / appeal;
  2. What constitutes “any other reason”; and
  3. Whether a person whose claim is statute-barred is “able to bring an action” for the purposes of the Act.

Relevant date for determination of review / appeal

It was held that the First-tier Tribunal should approach the appeal in the same way that the administrator did on review: it should take into account all relevant evidence available to it and determine eligibility in the light of the circumstances as at the date of its own determination. The First-tier tribunal did not do this and had incorrectly considered matters as they were at 24 March 2017 which was before the expiry of primary limitation. This was important to the Appellant’s case as by the time of the tribunal’s decision, limitation had expired. However, the Upper Tribunal Judge found that this error would only be material if limitation qualified as “any other reason” for being unable to bring a civil claim. 

Scheme eligibility: meaning of “any other reason

In order to claim under the Scheme as a person with diffuse mesothelioma, or as their dependant, one must fulfil the criteria set out in ss.2(1) and 3(1) respectively. The criterion in issue in DP was section 3(1)(c) (as mirrored by section 2(1)(d)): 

That no-one is able to bring a claim for damages against the employer or their insurer, “because they cannot be found or no longer exist or for any other reason”.

By virtue of section 18(3), the scheme administrator can specify what circumstances qualify under section 2(1)(d). The circumstances themselves are listed in Regulation 7(2): “…(such as being insolvent, in winding up proceedings or in liquidation) and there is no other employer or insurer who could be pursued in a civil claim”. However, this regulation does not specifically address the scope of the “any other reason” provision. 

The learned Judge addressed the meaning of “any other reason” at paragraphs 38 to 43 of her decision. Counsel for both parties agreed that the explanatory notes to the Bill were of assistance in determining Parliament’s drafting intention. Particular focus was placed on paragraph 26 which said: 

those conditions [in section 2(1)(d)] are set out in general terms because there are a number of different reasons why a person may be unable to bring proceedings … but it is very difficult to predict in advance what all those reasons may be and it would be very complex to try to do so.”

The learned Judge found that “the general words were inserted in order to guard against an unforeseen omission or to enable clarification, but not to extend the application of section 3(1)(c) to circumstances of a wholly different kind to the two specified reasons [‘cannot be found or no longer exist’]” [43]. Therefore, whilst the words were intentionally general to cover unforeseeable circumstances, these did not extend to any or all circumstances. They were intended to be limited to those relating to a tortfeasor and insurer’s inability to provide compensation and to be “coloured” by the two specified reasons (of being unable to be found or no longer existing) [43].

Whether being statute-barred rendered the applicant unable to bring a civil claim 

The learned Judge rejected the Appellant’s submission that expiry of primary limitation came within the meaning of “any other reason”. This was based in part on the fact that expiry of limitation is no bar to litigation if it is not pleaded by the defendant, and that even if it is, the claimant can raise section 33 of the Limitation Act 1980 in reply. These realities had also been recognised by the Court of Appeal in Richards v McKeown [2017] EWCA Civ 2374.  

Kate Markus QC also accepted the Respondent’s submissions that the opening words of section 3(1)(c) of the 2014 Act were concerned with the ability to bring a claim in the first place, not the merits or prospects of a claim: since limitation related to the latter not the former, issues associated with it were not intended to fall within the ambit of the provision. 

Comment

The decision highlights that the Act is aimed at remedying the ‘mischief’ caused by difficulties relating to the Defendant (such as being insolvent with no traceable insurance) as opposed to difficulties which relate to the Claimant (such as bringing a claim out of time). 

The Upper Tribunal’s interpretation of the scope of “any other reason” highlights that, whilst it is a general provision, it is not boundless. Any such reason must bear resemblance to those specified in the Act. However, the scope of the provision is still not certain: for example, the decision in DP does not address a situation where a potential defendant is solvent but in fact does not have sufficient funds to pay out a civil judgment and its insurer is untraceable. It is likely that difficult cases like this will be determined on a fact-specific basis, not least because of the complexity of predicting them in advance as recognised in the 2013 Explanatory Notes.

For legal practitioners this case also underlines the importance of bringing a civil action within the limitation period if there is a Defendant against whom a claim can be brought. It also serves as a reminder that the Scheme is not an alternative to a civil remedy where one is available: it was intended to be, and is, a scheme of last resort.

Harlow & Another v Aspect Contracts Ltd [2020] 5 WLUK 320

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


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

Bannister v Freemans Plc [2020] EWHC 1256 (QB) (Part 3 of 3)

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

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


The test promulgated by the medic

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

(a) As a proposition of law;

(b) As a matter of practicality;

(c) The use of epidemiology.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Epidemiology:

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

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

First Scenario:

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

Second Scenario:

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

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

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

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

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

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

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

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

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

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

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

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

Bannister v Freemans Plc [2020] EWHC 1256 (QB) (Part 2 of 3)

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

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

Part 3 on epidemiology will follow tomorrow.


The Iron Triangle as a thing and as an analytical tool

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

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

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

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

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

Now consider Side B:

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

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

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

Side C:

(a) This deals with individual causation in fact.

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

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

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

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

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

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

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

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

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

De minimis in high authority

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

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

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

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

De minimis by reference to some objective bright shining line

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

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

(b) We should draw several conclusions from this:

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

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

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

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

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

De minimis via the internal logic of the iron triangle:

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

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

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

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

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