A busy few weeks in the Court of Appeal 

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

We will blog about each decision once handed down. 

Sivaji v Ministry of Defence

CA hearing date: 15 or 16 June 2021 

First instance judgment

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

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

Rix v Paramount Shopfitting Company Limited 

CA hearing date: 23 or 24 June 2021 

First instance judgment

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

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

Witham v Steve Hill Limited

CA hearing date: 6 or 7 July 2021 

First instance judgment

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

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

Sparkes v London Pension Funds Authority & Leigh Academies Trust [2021] EWHC 1265 (QB)

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

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

The claim

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

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

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

Disclosure requests

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

Application hearing

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

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

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

The appeal

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

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

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

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

[…]

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

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

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

Costs

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

Comment

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

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

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

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

Balls v Reeve & Thurlow [2021] EWHC 751 (QB)

This blog post was written by Megan Griffiths. It concerns the High Court’s judgment in the asbestosis case of Balls v Reeve & Thurlow [2021] EWHC 751 (QB). The successful Claimant was represented by Max Archer.

The Claimant alleged negligent exposure to asbestos whilst working as a carpenter for the Defendant between 1979-1984. He was set to work smashing and asbestos roofing and removing and cutting asbestos panels. This period represented 16% of his total employment period with the Defendant, there being no insurance in place for the remainder of his employment period. He was diagnosed with asbestosis in 2017, although there were references to asbestos related disease and fibrosis in earlier records and a history of chest issues stretching back to the 1990s. The claim was issued in October 2019. The Defendant contested breach, causation and limitation.

In particular, the Defendant argued that the Claimant’s date of knowledge was in the 1990s or alternatively 2013 when a note accompanied a scan made reference to ‘previous asbestos exposure’. The Defendant challenged the Claimant’s account of exposure to asbestos. It was conceded that if the Court accepted the Claimant’s account then breach of duty would follow. The Defendant challenged causation, arguing that causation in-fact could not be proven without the evidence of an occupational hygienist to confirm exposure to asbestos above the levels described in the Helsinki Criteria.

The Court found for the Claimant on every point.

Limitation

Primary limitation turned on date of knowledge, either actual or constructive. This was contested on the basis that the Claimant’s evidence was that he was aware of respiratory problems since the 1990’s; records in 2013 referred to fibrosis and bilateral pleural calcification “in keeping with previous asbestos exposure”; the Claimant’s expert opined that the Claimant had had respiratory disability since at least 2016; and the IIDB assessment recorded a date of onset of 2015.

The Defendant submitted that the Claimant’s actual knowledge was when he suffered symptoms, given that he knew that had respiratory problems dating back many years he must have known that they were both significant and attributable to his exposure whilst working for the Defendant. Alternatively, it was submitted that the Claimant had constructive knowledge when he first experienced symptoms, the Claimant should have asked if that might have caused his respiratory problems.

The Claimant submitted that time started to run with the diagnosis in 2017 and that it was relevant that asbestosis was “gradual and insidious” in its onset. There were no references to ‘asbestosis’ prior to 2017, the references to fibrosis before this point were a hypotheses and ought not to be treated as a diagnosis given the potential differential diagnosis of idiopathic pulmonary fibrosis. On constructive knowledge the Claimant submitted it was hard to see how he could have done more, having sought medical attention when he experienced symptoms, no treating doctors diagnosed their cause until 2017. Therefore the Claimant submitted that constructive knowledge began with diagnosis also.

On section 33, the Defendant submitted there was no contribution to the delay by the defendants, no adequate explanation for the delay and an evitable compromise of the cogency of the Claimant’s recollection. The Claimant submitted that failure to exercise section 33 discretion would deny him his meritorious claim, causing significant prejudice. There was no forensic prejudice to the Defendant as there was no documentary evidence before the Court, the position was unlikely to have been different if the claim had been intimated in 2013.

The Court found that there was no actual knowledge until the date of diagnosis in 2017 and that the earlier references to respiratory difficulties did not preclude this as he “clearly considered they were not sufficiently serious to bring them to the attention [of] his GP” [43]. The Court also accepted the Claimant’s submission of the “insidiously progressive” nature of the illness which the Court found was promptly diagnosed once manifested. Without a diagnosis he could not be said to have actual knowledge.  The Court also found that constructive knowledge did not arise until the date of diagnosis [44], it was noteworthy that in spite of ongoing investigations into his chest issues no treating doctor made a diagnosis until 2017. Therefore, the claim was issued in time.

But for the findings on primary limitation the Court made clear that it would have exercised its section 33 discretion in the Claimant’s favour on the basis that it would be “unjust” to deprive the Claimant of a remedy and there was no serious prejudice to the Defendant caused by the delay [45].

Causation and the Helsinki Criteria

The Defendant conceded that if the Court found for the Claimant on limitation then breach of duty would follow. It disputed causation however, on the basis that there was no expert evidence from an occupational hygienist and so it would be “unsafe” for the Court to presume that the Helsinki Criteria were met to prove that the exposure caused the asbestosis [47]. The Defendant highlighted that Professor Maskell, consultant chest physician, said that whilst his view was that the Claimant’s exposure was likely to meet the criteria, it “obviously would be for an occupational hygienist to confirm” [49].

The Claimant submitted that the nature of the Claimant’s asbestos exposure was moderate to heavy, evidenced by the Claimant’s evidence of fact and Professor Maskell’s expert opinion. He submitted that the Helsinki Criteria required 25 f/ml years of asbestos or “one year of heavy exposure or five to ten years of moderate exposure” [50]. The evidence in this case amply satisfied the second alternative even without occupational hygienist evidence on f/ml years. It was submitted that there was no attempt to go behind the diagnosis, this was medical question and an alternate diagnosis (namely IPF) had never been suggested by the Defendant.

The Court found that the combined evidence of the Claimant and Professor Maskell was “sufficient to prove, on the balance of probabilities, that he had moderate to severe exposure to asbestos … consistent with the Helsinki Criteria” [53]. The Court was particularly persuaded by the Claimant’s evidence that he used to blow asbestos dust away after cutting into asbestos materials with a handsaw so that he could make the next cut [52]. Other relevant factors were that the Claimant had not been exposed to asbestos in any other employment and that the diagnosis of asbestosis was not disputed.  

Comment

This judgment is likely to be seen by claimant asbestos litigators as an extremely promising one on limitation. The meaning of date of knowledge in asbestosis cases, where the onset is so gradual, has not always been clear. It was a curious feature of this case that the Defendant sought to challenge causation in fact (therefore challenging the diagnosis of asbestosis) whilst simultaneously arguing that the Claimant ought to have brought his action earlier on the basis that he knew that he had asbestosis. The Court’s finding that time does not run until the date of diagnosis on these facts is a welcome one. The decision on section 33 is similarly reassuring.

The findings on causation without occupational hygiene evidence are also extremely valuable. In many asbestos exposure claims occupational hygiene evidence is obtained as a matter of course which, provided it shows the Helsinki Criteria are met, strengthens a claimant’s case on causation. However, this judgment shows that such evidence is not always necessary where (i) the claimant’s factual account and medical evidence supports one year of continuous exposure or five to ten years of moderate exposure and (ii) that where the diagnosis of asbestosis is not challenged.

A copy of the judgment can be found here

Pinnegar (Skeen Deceased) v Kellogg International Corp & ICI Chemicals & Polymers [2020] EWHC 3431 (QB)

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


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

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

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

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

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

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

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

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

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

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

Weyer v Prescot

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


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

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

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

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

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

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

The case will be on Lawtel shortly.

Gendered experience of mesothelioma study

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


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

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

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

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

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

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

  • It is important to take an occupational history which assesses the working environment as well as the work which was carried out. 
  • Further steps need to be taken to raise awareness of compensation routes for those who have not worked with asbestos directly.

Hamilton v N G Bailey [2020] EWHC 2910 (QB)

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


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

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

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

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

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

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

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

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

Comment

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

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

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

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

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

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

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

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

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

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

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.

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.