September 2009 Introduction Welcome to the September edition of BLM’s Disease review e-bulletin. There have been several recent important decisions on asbestos-related injury including guidance on damages for minimally symptomatic asbestosis, the date of knowledge in mesothelioma cases where exposure to asbestos is low and in mesothelioma claims where asbestos exposure occurred in school buildings many years ago. The High Court has provided guidance on the type and frequency of conduct required for a claimant to recover under the Protection from Harassment Act and on appropriate damages for associated anxiety. The High Court and the Court of Appeal (CA) have considered date of knowledge and exercise of the discretion to disapply the limitation period. This issue also looks at the CA’s decision in a pesticides campaigner’s claim for judicial review of the UK’s regulatory regime’s compliance with European pesticides law. We hope you enjoy Disease review and welcome your feedback. For further information please contact one of the editors. Contents Asbestos Harassment Pesticides Limitation Featured article News and press Editors Nick Pargeter Boris Cetnik Partner, BLM London Partner, BLM London [email protected] [email protected] 1
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September 2009
Introduction
Welcome to the September edition of BLM’s Disease review e-bulletin.
There have been several recent important decisions on asbestos-related injury including guidance on damages for minimally symptomatic asbestosis, the date of knowledge in mesothelioma cases where exposure to asbestos is low and in mesothelioma claims where asbestos exposure occurred in school buildings many years ago.
The High Court has provided guidance on the type and frequency of conduct required for a claimant to recover under the Protection from Harassment Act and on appropriate damages for associated anxiety. The High Court and the Court of Appeal (CA) have considered date of knowledge and exercise of the discretion to disapply the limitation period. This issue also looks at the CA’s decision in a pesticides campaigner’s claim for judicial review of the UK’s regulatory regime’s compliance with European pesticides law.
We hope you enjoy Disease review and welcome your feedback. For further information please contact one of the editors.
Contents
AsbestosHarassmentPesticides LimitationFeatured article News and press
Editors
Nick Pargeter Boris CetnikPartner, BLM London Partner, BLM [email protected] [email protected] Brian GoodwinPartner, BLM [email protected]
Principal author
Malcolm KeenSolicitor and professional support lawyer, BLM London
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Asbestos
Watson v Cakebread Robey Ltd [2009] EWHC 1695 (QB)High Court, 10 July 2009
Summary
The High Court held that a claim for anticipated funeral expenses could not be made in a living mesothelioma case. A claim for funeral expenses under the Law Reform (Miscellaneous Provisions) Act 1934 could only be made for the benefit of the estate after the deceased’s death.
Introduction
In a mesothelioma case, judgment for the claimant was entered in July 2008. The issue at the hearing was the amount of damages. The claimant was born in October 1951 and was exposed to asbestos whilst employed by the defendant as a warehouseman and general labourer between 1967 and 1969. He was first admitted to hospital in respect of his condition in October 2007 and was told he had malignant peritoneal mesothelioma in December 2007. The claimant was alive (and present) for the hearing in June 2009. His life expectancy from the date of the hearing was nine months. It was stated in his medical report of February 2008 that, as a result of his condition, his life expectancy was reduced by about 23 years.
Damages
The court awarded total damages of £246,011.41. This included general damages of £75,000 and future loss of earnings of £102,571.36. The court also considered whether funeral expenses could be awarded.
Funeral expenses claimed by a living claimant
This was the most significant part of the decision. The claimant argued that he was entitled to an award of £3,000 for funeral expenses. Is a claimant who is still alive entitled to compensation for funeral expenses which have not yet been incurred? The High Court’s answer was no.
In a fatal case, the claim for funeral expenses may arise in one of two ways:
i) Dependants
If the deceased’s dependants have incurred funeral expenses, those expenses can be recovered under the Fatal Accidents Act 1976.
ii) The estate
Under the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A), the claim for funeral expenses can be made for the benefit of the deceased’s estate. The estate inherits the cause of action the deceased had at his death. As the judge put it in Watson, ‘the estate in effect steps into the shoes of the deceased.’
The claimant’s argument
Following Bateman v Hydro Agri (UK) Ltd [1995], the claimant sought to claim funeral expenses on the basis that they probably formed part of his future loss. In Bateman, the claimant was expected to die from mesothelioma within three months of the trial. The judge held that a claim for funeral expenses under the LR(MP)A was valid. The claimant in Watson argued that he could step into the shoes of his own estate.
Findings
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The judge rejected the claimant’s argument. A claim for funeral expenses for the benefit of the estate under the LR(MP)A can only arise on the deceased’s death.
If the claimant’s argument was correct, a living claimant with reduced expectation of life would be entitled to claim for funeral expenses irrespective of the extent of the reduction in life expectancy – even a slight reduction would give rise to a claim for funeral expenses. The judge considered that this underlined the fact that a living claimant could not properly make a claim for anticipated funeral expenses as a result of a reduction in his expectation of life.
CommentWatson establishes a useful principle. It indicates that claims for funeral expenses cannot properly be made by a living claimant. Watson may be cited in counter-schedules of loss to oppose such claims. It must be borne in mind, however, that it is a first instance judgment. Also, policy considerations peculiar to mesothelioma claims should also be considered in such cases.
Beddoes v Vintners Defence Systems, Unreported, Newcastle County Court, 14 July 2009
Summary
Newcastle County Court held that i) a claimant who had suffered actionable asbestosis as a result of the defendant’s breach of duty was entitled to damages for anxiety arising from the risk he might develop other conditions with fatal consequences such as mesothelioma; and ii) assessed the appropriate level of damages in two minimally symptomatic asbestosis claims.
Background
In four claims, the defendant admitted exposing the claimant to asbestos in breach of duty and that this exposure probably caused asbestosis. However, each claimant’s condition was either symptomless or minimally symptomatic. In the first judgment, on liability, HHJ Walton held that two of the claimants’ conditions amounted to actionable damage and two did not. This second judgment concerned the amount of damages.
Anxiety and future risk
The first issue was a question of principle: was a claimant who had suffered actionable asbestosis entitled to damages for anxiety arising from the risk that he might develop other conditions with fatal consequences (such as lung cancer or mesothelioma) which had not yet actually developed? The answer was yes.
All adverse consequences of the breach of duty should be included in one cause of action. Once a claimant has suffered actionable damage, he can recover for all other adverse consequences (subject to remoteness and policy limitations). Accordingly, a claimant may recover damages for the risk of future deterioration in his health as a result of the defendant’s breach. If this risk causes him to suffer anxiety, he can recover compensation for that too.
HHJ Walton summarised his conclusion:
… a claimant whose cause of action is complete can recover for anxiety about the possible onset of future conditions, even if they were not the condition which in fact constituted the material injury which completed that cause of action.
As Lord Scott said in Rothwell v Chemical & Insulating Co [2007] UKHL 39 in the House of Lords:
... if some physical injury has been caused … so that a tortious cause of action has accrued to the victim, the victim can recover damages not simply for his injury in its present state
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but also for the risk that the injury may worsen in the future and his present and ongoing anxiety that that may happen.
The CA in Rothwell also provided guidance on quantum. Lord Phillips said:
Had the claimants sustained actionable injury, we consider that an award of provisional damages could properly reflect anxiety at the risk of sustaining mesothelioma or other serious asbestos-related disease consequent upon the breach of duty that caused the physical injury.
Compensation in the two claims – Beddoes and Cooksey
Provisional award
The provisional award related to present disability plus anxiety in respect of future risks. The risks themselves would be ignored and left for future compensation if they eventuated. What was the appropriate award? In the symptomless pleural plaques claims in which the claimants suffered anxiety about future deterioration in Rothwell, Smith LJ considered £5,000 appropriate. In Owen v Esso Exploration and Production UK Ltd, unreported, 2006, a symptomless asbestosis case, the judge indicated he would have made a provisional award of (in today’s terms) £8,250. Both claimants had minor symptoms: each had an overall respiratory disability of 5% to which asbestosis contributed 1.6% in Mr Beddoes’ case and 1.25% in relation to Mr Cooksey. HHJ Walton considered the appropriate provisional award to be £9,000.
Full and final damages
a) General damages
Beddoes The claimant was aged 65. The appropriate general damages award was £62,500 – this was the midpoint between the brackets for mesothelioma and lung cancer. The accumulated risk of these conditions occurring was 4.75% (3% risk of mesothelioma occurring and a 1.75% risk of lung cancer). Applying 4.75% to £62,500 gave £2,968.75. This was discounted by 0.8 to reflect accelerated receipt of damages assuming notionally that the lung cancer or mesothelioma would occur halfway through the claimant’s remaining lifespan. This gave £2,375. Adding the provisional damages award of £9,000, the final figure for general damages was £11,375.
Cooksey
The claimant was aged 70. The appropriate general damages award was again £62,500. The accumulated risk figure was 9%. This gave £5,625. This was discounted by 0.82 giving £4,612.50. The final figure (after adding provisional damages) was £13,612.50.
b) Other damages
Nursing care and lost pension could either be agreed between the parties or dealt with at a later hearing – but similarly to be calculated applying a full valuation in the event of mesothelioma or lung cancer and discounted to reflect the chances of the conditions developing and the accelerated payment.
Comment
Beddoes indicates that once a claimant has a complete cause of action for his injury, he can recover for the anxiety associated not only with his actual condition but also for anxiety associated with a future condition from which he does not suffer but which might arise as a result
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of the defendant’s breach. Beddoes also provides guidance on likely provisional and full and final damages awards in minimally symptomatic asbestosis claims.
Willmore v Knowsley Metropolitan Borough Council [2009] EWHC 1831, (QB), High Court, 24 July 2009
Summary
The defendant local authority was liable for the claimant’s mesothelioma. The High Court held that she had been exposed to more than a de minimis level of asbestos whilst a pupil at the defendant’s school in the 1970s, and accordingly the Fairchild exception applied.
Introduction
The claimant began to experience breathlessness in 2006 and was diagnosed with malignant mesothelioma in March 2007. In April 2009, her life expectancy was estimated as less than six months. The claimant alleged that her condition was caused by negligent exposure to asbestos whilst a pupil at the defendant’s secondary school between 1972 and 1979. There was no real dispute that it was more likely than not that the claimant’s mesothelioma was caused by asbestos. Damages were agreed at £240,000 but liability was disputed.
Proving causation
It was agreed that because of the House of Lords’ decision in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, it was not necessary for the claimant to show that asbestos from the school was responsible for her condition to the exclusion of other possible causes, and that it would be enough if the defendant’s exposure materially contributed to the risk of the claimant contracting mesothelioma. The claimant received significant PWCA benefits on the basis that she had been exposed to asbestos whilst working at a shop between 1978 and 1981, but the judge considered this was irrelevant as long as she was exposed to asbestos at the school in a way that materially increased the risk of her contracting the disease.
Other causation issues
As the defendant pointed out, this occupational exposure – or indeed asbestos in the general environment or from some other unknown source – could explain the claimant’s mesothelioma. In legal argument the defendant referred to the Peto research published in March 2009 (Occupational, Domestic and Environmental Mesothelioma risks in Britain. A Case Controlled Study) as showing that in a high proportion of cases – particularly those where the mesothelioma sufferers were women – it was impossible to identify a particular source of asbestos exposure. Therefore, even if the claimant’s mesothelioma was probably caused by asbestos, this could have been encountered in the general environment or from some other unknown source.
It was also agreed that, as Maurice Kay LJ noted in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189, for a claim to succeed, the extent and duration of exposure to asbestos had to materially increase the claimant’s risk of contracting mesothelioma, and exposure which was de minimis would not be sufficient.
The critical issues in this case were:
what asbestos exposure (if any) had the claimant suffered at her secondary school? whether any such exposure was de minimis.
The claimant accepted that her being near asbestos dust in the school on one occasion would not be enough. The defendant argued that some degree of regularity of exposure was necessary.
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Negligence
The claimant had to prove that the defendant was in breach of duty. As the occupier, the defendant clearly owed the claimant a duty of care whilst she was at the school. To decide whether it was in breach of that duty, Nicol J considered the state of knowledge of the dangers of asbestos in 1972-79.
The broader danger from asbestos, even for those not working with it, was not really highlighted until the Newhouse and Thompson study in 1965. The Annual Report of HM Chief Inspector of Factories in 1966 noted that: ‘While [epidemiological] studies are proceeding, the only safe course is to eliminate the escape of asbestos dust into the air.’ The claimant submitted that the defendant would be negligent if it had exposed her to asbestos when there were reasonably practicable alternatives which would not have involved exposure.
Asbestos at the school
A type 2 survey (not involving disturbance of the fabric of the building) was conducted in 2008. This found asbestos in a variety of places in the school including in insulating board panels and in debris, rope and gaskets in the boiler house. It was also reported in 2002 that amosite (brown asbestos) had been found in ceiling panels in various parts of the school. A memo between employees of the defendant in 1982 stated that many of the defendant’s schools had asbestolux ceiling tiles.
It was agreed that the mere presence of asbestos in the fabric of the school was not enough. The claimant argued that she was exposed to the dangers of asbestos dust in a variety of ways including work on the ceiling tiles whilst walking through a certain corridor, general construction work at the school, the installation of a suspended ceiling, the disturbance of ceiling tiles by pupils’ misbehaviour and ceiling tiles having been temporarily stacked in the girls’ toilets.
The judge’s findings on exposure
That the claimant had been exposed to asbestos fibres in three ways:
1 From work done to the ceiling of a certain corridor.
Nicol J concluded that it was more likely than not that all the ceiling tiles in the corridor contained amosite. In 2002, a ceiling panel from one part of the corridor was found to contain amosite. The judge inferred from this that it was more likely than not that this panel was representative of the other panels in the ceiling of the corridor. It was more likely than not that dust was released when these tiles were handled by workmen.
The claimant could recall, on one occasion only, walking along the corridor, and passing workmen working at ceiling height with the removed ceiling tiles having been stacked in the corridor. The judge inferred that the workmen must have been there for some days (for their presence to have been remembered). From this, Nicol J concluded that the claimant must have encountered the tiles on more than one occasion.
2 From pupils’ misbehaviour in lifting up ceiling tiles.
Nicol J found that this would be likely to have caused the tiles to be damaged. Since tiles in the corridor contained asbestos and since asbestolux tiles were widely used in the defendant’s schools, the judge inferred that it was more likely than not that these tiles contained asbestos. The judge considered this type of misbehaviour must have been frequent to be remembered by the claimant.
3 From the girls’ toilets.
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There was evidence (such as quotations from companies to remove them) that at least some of the girls’ toilets had asbestos products in the ceilings. The judge accepted that bullying and vandalism took place in the toilets. He considered that damage to the ceilings causing the release of asbestos fibres could easily have occurred. The judge accepted the claimant’s evidence that the tiles had been stacked in the toilets for a couple of weeks at one time and that some were broken, and that this gave rise to a risk that the claimant would have been exposed (when she visited the toilets).
But was all this exposure sufficient to prove causation? Was it de minimis or did it materially increase the risk of the claimant developing mesothelioma?
Conclusion on causation
The claimant’s exposure to asbestos materially contributed to the risk of her contracting mesothelioma. According to Nicol J, there were six reasons for this:
a The medical expert, Dr Rudd, indicated that mesothelioma can occur after low level exposure and that there is no threshold dose below which there is no risk.
b According to Dr Rudd, ‘a level above that commonly found in the air in buildings and the general outdoor environment’ is significant. Each such exposure materially increased the risk of the claimant developing mesothelioma.
c Given that each such exposure materially increased the risk, no degree of regularity of exposure was necessary for the risk to exceed a de minimis level.
d The exposure here was above the level commonly found in the air in buildings and the general outdoor environment. In three situations of exposure identified, the claimant was likely to have been close to asbestos materials which had been disturbed and so generated asbestos fibres.
e Each of three identified sources of exposure was more than de minimis. Even if this was wrong, when taken together, the risk was not minimal and these exposures materially increased the risk to the claimant of developing mesothelioma.
f No specific measurement of the duration of exposure is necessary to fix the defendant with liability. Exposure would be immaterial only if it was de minimis. The exposure here was not de minimis.
Conclusions on negligence
The defendant was in breach of duty. The exposure to asbestos dust was more than minimal and hence foreseeably hazardous.
In relation to the corridor ceiling, work could have been done outside school hours or the corridor could have been isolated. Nicol J found it hard to accept that news of damage to ceiling tiles from pupil misbehaviour would not have reached staff. Damage to the tiles would have been visible. Similarly, damage to the ceiling tiles in the girls’ toilets should have been detected and the tiles replaced with a non-asbestos product. If there was a reasonably practicable alternative that did not expose the pupils to such dust, it ought to have been used. The defendant was thus liable for the claimant’s mesothelioma.
Comment
i Willmore has potentially significant ramifications in relation to both EL and PL claims concerning low dose asbestos exposure.
ii Nicol J made a variety of inferences in relation to the claimant’s asbestos exposure and set the threshold for causation very low indeed.
iii What does Willmore tell us about de minimis? Following Cox, Willmore suggests that no specific measurement of the duration of exposure is necessary to fix the defendant with liability. Any exposure above a de minimis level is sufficient. Little guidance was
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given as to exactly where the line is drawn between de minimis and material. For example, if the claimant remembering walking along a corridor from which workmen had temporarily removed ceiling tiles (which the judge found to contain asbestos) on one occasion only is not de minimis, then what level of exposure could qualify as minimal or material? (The exposure in Cox which generated argument as to what constituted de minimis was very much greater than that alleged to have been suffered by Mrs Willmore in terms of both its duration and intensity).
Another issue to consider is how this decision can be reconciled with the decision in the employers’ liability case of Sienkiewicz v Greif (unreported Liverpool County Court 25 November 2008) which suggests that the Fairchild exception to proof of causation does not apply where there is only one occupational exposure; in such a case, the normal ‘but for’ test for causation applies. Which approach is correct? What is the test for causation in a mesothelioma case where there is only one negligent exposure to asbestos? Does the Fairchild exception apply in all cases of mesothelioma? Or is the ‘but for’ test appropriate when the condition could have been caused by either environmental exposure (or is idiopathic) or by a single tortious exposure? Sienkiewicz has been appealed and the CA’s decision is pending. Permission is also being sought to appeal Willmore. It is hoped that an answer will be provided when these appeals are resolved.
Abraham v (1) G Ireson & son (Properties) Ltd & (2) Stanley Reynolds t/a Reynolds & Spademan [2009] EWHC 1958 (QB)High Court, 31 July 2009 Summary
Neither of the two defendant employers was liable for the claimant’s mesothelioma where his exposure to asbestos was light. Not until after publication of the Newhouse and Thompson papers in 1965, at the earliest, could employers have been aware that asbestos exposure at the levels to which the claimant was subjected gave rise to a risk of injury.
Introduction
The claimant, who was born in August 1940, was diagnosed with mesothelioma in July 2008. He alleged that both defendants negligently and in breach of statutory duty exposed him to asbestos in the course of his employment as a plumber between 1956 and 1965, resulting in his condition. Damages were agreed but liability was disputed. The issues for Swift J were:
i Was the claimant exposed to asbestos dust during the his employment with the defendants?
ii If he was, what was the extent of his exposure?iii Was that exposure negligent?iv Was that exposure in breach of (a) Regulation 82 of the Building (Health, Safety and
Welfare) Regulations 1948 (the Building Regulations) and (b) Regulation 20 of the Construction (General Provisions) Regulations 1961 (the Construction Regulations)?
Was the claimant exposed to asbestos? What was the extent of his exposure?
The claimant worked for the first defendant, a small general building firm, between August 1956 and late 1961 or early 1962.He worked for the second defendant, a small plumbing firm, between 1962 or 1963 and late 1965.The Building Regulations applied to the first defendant; the Construction Regulations applied to the second defendant. In both employments, the claimant carried out domestic plumbing work. He could not remember any other exposure to asbestos.
Swift J held that the claimant was exposed to asbestos in both employments in two ways:
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a) Whilst employed by the second defendant only, the claimant was intermittently exposed to low levels of asbestos dust whilst using asbestos scorch pads to protect surfaces such as skirting boards when soldering pipe joints with a blow lamp.
No research was available on the concentrations of dust generated by the use of asbestos scorch pads. The claimant’s engineering expert likened exposure to the use of asbestos cloth by welders; the defendants’ expert likened it to the use of asbestos mitts. Swift J considered exposure to asbestos from scorch pads was limited because: soldering did not last long and was not carried out every day; the claimant sometimes used another makeshift item to protect surfaces when soldering; and many of the pipes on which he worked were located in places where a scorch pad would not be needed. Therefore the claimant was exposed to low levels of asbestos – levels of a completely different order from the concentrations generated by asbestos cloth use in welding.
b) In about the last year of his employment with the first defendants, the claimant was exposed to a low level of asbestos dust when using asbestos string for sealing the joints of soil pipes. He did more of this work with the second defendant (still only a small proportion of his time and often carried out in the open air) but his exposure to asbestos was again low.
Swift J characterised the claimant’s exposure to asbestos with the first defendant as very light and intermittent and that with the second defendant as modest and infrequent. Nevertheless, Swift J held that this exposure caused the claimant’s mesothelioma.
Were the defendants negligent?
The issue was the one identified by Hale LJ in Shell Tankers UK v Jeromson [2001] EWCA Civ 100: ‘whether the risk of personal injury arising from the claimant’s exposure to asbestos ought reasonably have been foreseen by a careful employer to the extent that the employer should have taken precautions.’
In considering the foreseeability of risk, Swift J reviewed the literature on the harmful effects of asbestos including:
i Report on the effects of asbestos dust on the lungs and dust suppression in the asbestos industry by Merewether & Price in 1930 which established a link between heavy exposure to asbestos dust and the onset of asbestosis.
ii The Annual Report of the Chief Inspector of Factories for 1938 noted a suggested association between asbestos and lung cancer. The report also stated: There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought today to be harmless may, following research, be viewed in another light tomorrow.
iii The 1945 letter from the Chief Inspector of Factories to those involved in shipbuilding which emphasised the importance of taking all reasonably practicable steps to reduce the risk to a minimum.
iv The 1949 Annual Report of the Chief Inspector of Factories which noted the ‘necessity of preventing as far as possible the inhalation of asbestos fibre and dust’.
v The paper by Professor Doll in 1955 which confirmed the link between lung cancer and a lengthy period of heavy exposure.
vi In 1960, the Ministry of Labour booklet, Toxic Substances in Factory Atmospheres which indicated maximum permissible concentrations for asbestos and Wagner et al’s paper Diffuse pleural mesothelioma and asbestos exposure in North-Western Cape Province which identified a potential link between exposure to asbestos and mesothelioma
vii Papers by Newhouse and Thompson in 1965 which linked mesothelioma to asbestos exposure. These papers led to an article in a national newspaper in October 1965.
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The claimant argued that the association between asbestos dust and the risk of pulmonary injury was well known by the mid 1950s and employers should have been aware that there was no safe level of asbestos exposure. Given this, employers should have taken all possible steps to eliminate or reduce to a minimum employees’ exposure to asbestos dust. According to the claimant, the defendants could not safely have assumed that the levels of asbestos to which the claimant was exposed were safe and should have taken appropriate precautions.
The defendants submitted that any exposure the claimant might have had was well below the levels considered foreseeably hazardous before the Newhouse and Thompson papers in 1965; neither defendant (before the end of the claimant’s employment in 1965) could have been aware of the risk posed by asbestos exposure at the levels described. Before the risk of mesothelioma resulting from small doses of asbestos was generally recognised in 1965, no one would have considered that the claimant was at any risk from his low level of exposure.
Findings on negligence
The message to be drawn from the 1930, 1938 and 1949 Chief Inspector of Factories Reports was that asbestos dust was highly dangerous and its inhalation should be prevented as far as possible. This message was delivered in the context of the known risk of asbestosis and occupational exposure to significant quantities of asbestos dust. Should this message have alerted employers such as the defendants here (whose employees’ exposure was light and intermittent) to the risk of asbestos-related injury? Swift J thought not.
The degree of exposure was relevant to foreseeability of risk. Swift J made her view clear:
I consider it highly unlikely that an employer whose employee’s only exposure to asbestos dust arose as a result of the infrequent use of asbestos string and/or asbestos scorch pads … would have believed … that he was or might be exposing that employee to a risk of an asbestos-related injury.
Not until after publication of the Newhouse and Thompson papers in 1965, at the earliest, could employers have been aware that asbestos exposure at the levels to which the claimant was subjected gave rise to a risk of injury. Neither did the defendants possess any special knowledge which would have alerted them to the potential risk. Swift J did not accept that during the period of the claimant’s employment with them, the defendants should have appreciated that the claimant was at risk of asbestos-related injury. Neither defendant was negligent.
Breach of statutory duty
Both the Building Regulations and the Construction Regulations required employers to take all reasonably practicable measures to prevent inhalation of dust which was likely to be injurious.
The claimant argued that ‘injurious’ should be construed objectively – no element of foreseeability was required – the state of the defendants’ knowledge was irrelevant to the duty under the Regulations.
Swift J rejected this interpretation. ‘Likely to be injurious’ implied a degree of foreseeability. Liability was also limited by ‘reasonably practicable.’ Even if ‘likely to be injurious’ was objective, ‘reasonably practicable’ meant knowledge of the risk was relevant. Given her finding on the defendants’ knowledge in relation to negligence, they could not have been aware that the asbestos dust was likely to be injurious. Since they didn’t know of the risk of injury, it could not have been reasonably practicable for them to take steps to protect the claimant from it. Therefore the defendants were not in breach of statutory duty.
Comment
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Abraham indicates that there is no hard and fast rule as to foreseeability (and thus negligence) in mesothelioma cases. Where exposure to asbestos is low, particularly in industries not typically associated with heavy exposure, defendants can argue that the appropriate date of knowledge is 1965 at the earliest.
Harassment
S & D Property Investments Ltd v Nisbet & French [2009] EWHC 1726 (Ch)High Court, 13 July 2009
Summary
In relation to conduct concerning recovery of a debt, a Part 20 claimant was entitled to damages for harassment under the Protection from Harassment Act 1997.
Background
As a result of certain business ventures, Mr Nisbet owed Mr French more than £100,000. Mr. French issued proceedings to recover the debt. In the defence, Mr Nisbet admitted the debt but counterclaimed for damages under the Protection from Harassment Act 1997 (the Act), in relation to Mr French’s alleged conduct in seeking recovery of the debt.
Protection from Harassment Act 1997
The Act prohibits a person from pursuing a course of conduct which amounts to harassment of another. A course of conduct requires conduct on at least two occasions. A breach of the Act gives rise to both civil and criminal liability.
Findings
Conduct
Conduct prior to mid-December 2007 (such as e-mails, texts and telephone messages) was held not to be harassment. Communications from Mr French were frequent but Nicol J did not consider them intimidating. As the judge put it, the conduct ‘did not cross the threshold of gravity necessary to amount to harassment’. But the position changed with a series of e-mails beginning on 15 December 2007. Conduct thenceforth was held to be a course of conduct amounting to harassment under the Act. This conduct crossed the boundary – it was no longer merely unattractive and unreasonable – it was oppressive and unacceptable.
In the e-mail with which the harassing conduct began, Mr French referred to rising above the temptation to beat Mr Nisbet within an inch of his life. The course of conduct lasted for about a month. It included a series of threatening e-mails and telephone messages and visits to Mr Nisbet’s home during which Mr French shouted abuse. In relation to one such visit, Mr. French was convicted of a public order offence.
Damages
Mr Nisbet was entitled to damages for anxiety as a result of the harassment. Nicol J observed that damages under the Act could be awarded without the need to prove psychiatric harm and without the need for medical evidence – evidence of anxiety could come from witnesses and the victim himself. The judge also noted that damages for anxiety as a result of harassment are ‘not likely to be particularly high.’ The appropriate sum here was £7,000.
Nicol J noted that damages under the Act could be awarded for financial loss. However, in the present case no such award was made because the claimant could not show that any financial
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loss resulted from the harassment. The loss of a chance doctrine could also apply to damages under the Act (but did not apply here).
Vicarious liability
Nicol J observed that since Majrowski v Guy’s and St Thomas’ NHS Trust, an employer could be vicariously liable for the harassment of its employee. Mr French was the agent of S & D Property Investments Ltd (of which he was a director) for the purpose of taking steps to recover the debt. The harassment was in the scope of his authority. S & D was vicariously liable for the harassment.
Set-off
The damages for harassment could be set-off against the debt. The subject matters of the claim (the debt) and the cross-claim (the harassment) were obviously and inseparably connected. It would be unfair to allow S & D to enforce the full amount of its judgment debt without giving allowance for the damages it must pay for Mr French’s harassment.
Comment
S & D confirms that in order to recover for harassment under the Act, there must be a course of conduct and that such conduct must be oppressive and unacceptable. Damages can be awarded for anxiety and financial loss caused by the harassment.
Pesticides
Downs v Secretary of State for Environment, Food and Rural Affairs [2009] EWCA Civ 664, Court of Appeal, 7 July 2009
Summary
In relation to the UK’s regulatory regime for the authorisation of pesticides, the CA has overturned the High Court’s declaration that the defendant was not acting in compliance with the relevant European Directive. The government is not required to amend its policy on crop spraying in relation to potential exposure to residents and bystanders.
Introduction
The claimant, who described herself as a ‘full-time pesticides campaigner’, suffered from ill health for many years. In 1991 her condition was so serious that she was hospitalised. Since 1984, fields adjoining the claimant’s house had been sprayed with pesticides (the tractor-drawn boom passing within less than a metre of her garden). She blamed her health problems on pesticide exposure. She issued judicial review proceedings alleging that the UK’s regulatory regime for pesticides was inadequate because it did not properly protect residents in rural areas (such as herself) who were exposed to the effects of spraying.
At first instance, the High Court granted the claimant a declaration that the defendant’s approach to the regulation of pesticide spraying did not comply with the relevant European Directive (91/414 EEC – the Directive). The High Court ordered the defendant to reconsider and amend its policy in light of the judgment. The defendant appealed. The issue for the CA was whether the defendant’s current regime for authorizing pesticide use was in breach of the obligations imposed by the Directive.
Background to government policy on pesticide regulation
In September 2005, the Royal Commission on Environmental Pollution (the RCEP) published its report Crop Spraying and the Health of Residents and Bystanders (the RCEP report). The RCEP
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report expressed serious concerns about the current method of assessing resident and bystander exposure to pesticides and recommended that the current approach for assessing bystander exposure should ‘be replaced by a computational model which is probabilistic, looks at a wider range of possible exposure routes and more robustly reflects worse case outcomes.’ The RCEP report also recommended the introduction of five metre no-spray buffer zones alongside residential property and certain other buildings where people might be adversely affected by crop spraying
In December 2005, the Advisory Committee on Pesticides (ACP – an independent committee of scientists advising the defendant) published a commentary on the RCEP report (the ACP commentary). The ACP commentary disagreed with the recommendation that a probabilistic model should be developed and favoured ‘a simpler approach of the type that is currently employed’. Whilst agreeing that further research was warranted, the ACP ‘was unconvinced by the scientific case for a precautionary five metre buffer zone’.
In July 2006, the RCEP responded to the ACP commentary, maintaining its position. Later that month, the defendant published its response to the RCEP report. The defendant considered that the current policy gave adequate protection to both spray operators and to members of the public. The defendant disagreed with the need for five metre buffer zones.
Findings
The CA considered that Article 4.1 of the Directive was of central importance. Pursuant to Article 4.1, a member state (such as the UK) must ensure a pesticide is not authorised unless a) the active substances of which it is composed are listed in Annex I to the Directive and b) (amongst other things) it has no harmful effect on human health. The issue for the CA was how ‘no harmful effect on human health’ was to be decided: did this requirement impose a free-standing obligation on member states to establish that a pesticide had no harmful effect on human health; or did it impose an obligation on member states to establish that a pesticide had no harmful effect on human health ‘pursuant to the uniform principles provided for in Annex VI’ to the Directive (a provision referred to in Article 4.1), as the defendant argued? The CA accepted the defendant’s view.
The uniform principles in Annex VI are detailed codes concerning evaluation and authorisation of pesticides. The CA considered that the objective of ensuring that a pesticide will not have a harmful effect on human health would be achieved by requiring member states to apply the uniform principles in Annex VI. For the claimant to succeed, she would have to show that the defendant’s current regime was not in accordance with the uniform principles. Did the current regime comply with the uniform principles? The CA considered that it did.
Contrary to the claimant’s submissions, the defendant’s current regime for assessing bystander exposure complied with the uniform principles:
i The current regime (or ‘bystander exposure model’) was a suitable calculation method. The fact that the model was criticised by the RCEP did not necessarily make it unsuitable. The ACP did not accept the RCEP’s criticisms. The ACP accepted the need for more empirical data to confirm the adequacy of the model but did not accept it was unsuitable. The ACP also favoured an improved version of the current model rather than a probabilistic exposure model. The introduction to Annex VI advised member states that decisions on evaluation should be based on scientific principles and with expert advice. The defendant was entitled to have regard to the ACP’s views when considering the government’s response to the RCEP’s views. Eminent scientists disagreed about whether the current model had significant shortcomings. There was no ‘manifest error’ in the defendant’s approach to bystander evaluation. The defendant’s current approval system was at the forefront of international standards, it was not submitted that any other member state used a more suitable model and there was no evidence that other member
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states declined to recognize UK pesticide authorisations on the ground that the defendant’s current bystander model did not comply with the uniform principles.
ii There was no obligation on the defendant to evaluate the local effects of pesticide exposure upon residents and in all cases to take them into account at the authorisation stage in Annex VI.
iii In respect of both chronic and local effects, the RCEP was not saying that they were caused by bystander exposure to pesticides, rather it was saying that the possibility could not be ruled out and that more research was required to ascertain whether pesticides were the cause of such effects. The RCEP report, the ACP commentary and the RCEP response made it clear that there was no consensus in the scientific community that there was ‘solid evidence’ that residents had suffered harm to their health (as the judge at first instance had found).
iv The question under Article 4.1 was whether a pesticide had no harmful effect on human health. In A Guide to Pesticide Regulation in the UK and the role of the Advisory Committee on Pesticides, published by the defendant and the Health and Safety Executive in 2005, it stated that the UK legislative framework had been designed to prevent people developing ‘serious illness’ through pesticide use. This did not mean the defendant was applying the wrong test. The word ‘serious’ merely meant harm to human health which was more than transient or trifling.
v It was not unreasonable for the defendant to decline to impose certain recommendations of the RCEP such as statutory obligations in place of the current Code of Practice (the Green Code), access by residents to farmers’ records of spraying and giving residents prior notification of spraying.
vi There was no interference with the claimant’s right to a private life leading to a breach of Article 8 of the European Convention on Human Rights.
Comment
Downs confirms that the government’s regulatory regime for pesticides complies with the relevant European Directive. Shortly after the judgment was handed down, the Secretary of State, Hilary Benn announced that Defra has commissioned research to test and, if possible, improve the scientific basis for assessing the possible exposure of residents and bystanders to pesticides. The final results will be available in 2010. He stated that this included work to develop a new bystander exposure assessment model.
The Secretary of State also stated that Defra has been working with farmers to encourage best practice to minimise exposure and to improve the availability of information for residents, bystanders and others. In light of Downs, he announced that the government would consult in autumn 2009 on:
How to give people access to farmers’ records of spraying activity near their properties. How to give prior notification of spraying activity to residents. Monitoring of how pesticides are being used. New training requirements for operators. What else should be included in a national action plan.
The Secretary of State added that once the government has agreed how to implement any changes, it would amend the Pesticides Code of Practice and update the UK pesticides strategy.
Limitation
Whiston v London Strategic Health Authority [2009] EWHC 956 (QB)
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High Court, 7 May 2009
Summary
A medical negligence claim issued more than 30 years after the alleged injury occurred was not statute-barred under the Limitation Act 1980. The claimant did not attribute his condition to any act on the part of medical staff until the year before he issued proceedings. Had he not found in favour of the claimant in relation to his date of knowledge, the judge would not have exercised his section 33 discretion to disapply the limitation period.
Background
The claimant developed cerebral palsy as a result of hypoxia during his birth in September 1974. He did not issue proceedings until October 2006. The defendant argued that the claim was time-barred under the Limitation Act 1980 (the Act). The claimant submitted that he did not have relevant knowledge until November 2005 when his mother (herself a midwife) told him of her suspicion that his condition had been caused by medical negligence. Until that time, he argued, he had regarded his disability as ‘just one of those things.’ He said he knew the condition was linked to the circumstances of his birth, but did not infer that these circumstances might be attributable to any act or omission of the medical staff. He was also aware his injury was significant. The issue for the court was attributability: what was the date when the claimant first knew his condition might possibly be attributable to the actions of the medical staff during his birth?
Limitation
The claimant was required to bring his claim within three years of his 18th birthday. Given his date of birth, the three years (the primary limitation period) expired in September 1995. However, section 14 of the Act allows a claimant to issue proceedings within three years of his date of knowledge, if that date is later. The claimant’s date of knowledge is the date when he first became aware that his injury was both significant and attributable to the defendant’s act or omission. Knowledge includes both actual knowledge (that which the claimant possesses) and constructive knowledge (that which the claimant might reasonably have been expected to acquire from facts observable by him or from facts ascertainable by him with medical or other expert help which it was reasonable for him to seek). The test to determine the claimant’s date of knowledge is objective. Eady J summarised how he should apply it:
I must judge by reference to a reasonable person in the circumstances of this claimant, with a comparable level of disability, and consider when such a person would have had the curiosity to begin investigating (if necessary with expert help) whether his injury could be considered capable of being attributed to an act or omission of the hospital staff at the time of his birth.
As Eady J noted, it is irrelevant whether or not the claimant knows that any of the acts or omissions did or did not, as a matter of law, involve negligence or breach of duty; it would have been no answer for the claimant to say he was unaware of fault or negligence. Eady J also considered that the burden of proof in relation to knowledge (both actual and constructive) lay on the claimant. By virtue of section 33, if a claim is brought late, the court may disapply the limitation period and permit it to proceed, if to do so would be equitable.
Submissions
The defendant argued that the claimant possessed actual knowledge well before his 18th birthday. This knowledge, which the defendant argued was sufficient to constitute actual knowledge under section 14 (ie knowledge that his injury was capable of being attributed to an
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act or omission of the medical staff), was his awareness that his cerebral palsy had been caused by brain injury due to lack of oxygen at birth during a forceps delivery.
The claimant argued that this level of knowledge was not sufficient. To possess knowledge under section 14, he would also have to know that the injury was attributable to the acts or omissions of the medical staff alleged to constitute negligence.
Findings
Knowledge
Actual knowledge
The claimant did not possess actual knowledge until November 2005. Eady J considered that mere knowledge of hypoxia and the circumstances of his birth was not sufficient to establish knowledge that his condition was attributable to actions of medical staff.
Constructive knowledge
The claimant’s intellect could not be taken into account when applying the objective test (though it could be considered under section 33). The question to be determined was: when would a reasonable person, suffering from cerebral palsy and with the same level of disability as the claimant, have had the curiosity to begin investigating with expert help whether his injury was capable of being attributed to the actions of the hospital staff at the time of his birth? Eady J held that the claimant could not be fixed with constructive knowledge before 2005.
The claim was thus issued within the limitation period and could proceed.
Section 33 discretion
Given Eady J’s finding on date of knowledge, his consideration of section 33 was hypothetical. He noted that:
One of the most important questions … is likely to be whether, after such a prolonged period of delay, a fair trial is still possible … sometimes it transpires that witnesses have become untraceable and/or documents destroyed, so that even in the context of a strong prima facie case against a defendant … the court will feel bound to refuse its discretion to allow the case to proceed.
However, the fact that a fair trial was still possible did not mean that disapplying the limitation period would be automatic. As Eady J put it:
It is not to be assumed that the court will exercise discretion in favour of a claimant even in circumstances where most relevant records are still available.
In the present case, whilst some evidence was missing, this did not render a fair trial impossible. The fading of the memories of witnesses was not a major factor either. Would it have been equitable to disapply the limitation period? Looking at all the circumstances of the case (and the factors under section 33(3) to which the court should have regard), had the claimant possessed relevant knowledge in 1992 (when he was aged 18), he could not have been said to have acted promptly and reasonably. The delay was very significant. The claimant did not take steps to obtain medical, legal or other expert advice until many years later. Evidence was likely to be less cogent. Whilst missing evidence did not render a fair trial impossible, it did present some difficulties. It would be unfair to require the defendant ‘to face this claim arising out of events which took place so long ago.’
Conclusion
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The claim was allowed to proceed. The claimant did not acquire relevant knowledge until 2005 – less than three years before he issued proceedings. Eady J considered that, were he wrong about this and the claimant’s date of knowledge was more than three years before he issued proceedings, he would not have exercised his section 33 discretion to disapply the limitation period.
Comment
Whiston suggests a number of points relevant to occupational disease litigation:
i The claimant will be fixed with knowledge of attributability at the point when he first knew his condition might possibly be attributable to the acts or omissions alleged to be negligent. He need not be sure.
ii The burden of proof in relation to both actual and constructive knowledge is on the claimant.
iii The test to determine a claimant’s date of knowledge is objective. The claimant is judged against a reasonable person in the circumstances of the claimant with a comparable level of disability – when would such a person first have had the curiosity to begin investigating (with expert help if necessary) whether his illness could be considered capable of being attributed to the defendant’s act (or omission)? The answer to this question will be the date at which the claimant is fixed with knowledge.
iv When applying the objective test for date of knowledge at iii) above, the claimant’s intellect cannot be taken into account.
v One of the most important questions in relation to whether a judge should exercise his section 33 discretion to disapply the limitation period is whether, after prolonged delay, a fair trial is still possible. However, the answer to this question is not absolutely determinative. Even where a fair trial remains possible, it may nonetheless not be equitable to allow the claim to proceed. As Eady J said:
It is not to be assumed that the court will exercise discretion in favour of a claimant even in circumstances where most relevant records are still available.
The length, reasons for and effect of the delay on the cogency of the evidence are important considerations.
AB & Others v Nugent Care Society [2009] EWCA Civ 827Court of Appeal, 29 July 2009
Summary
In relation to four claims arising from allegations of historic childhood abuse at the defendants’ care homes, the CA gave guidance on the correct approach to the Limitation Act 1980, in particular to the exercise of the section 33 discretion.
Background
The appeals here arose form allegations of historic abuse in care homes. In relation to occupational disease litigation, the Court of Appeal gave guidance on the correct approach to the Limitation Act 1980, in particular to exercise of the section 33 discretion.
The Limitation Act 1980
Pursuant to section 11, a claimant must bring an action for personal injuries founded on negligence, nuisance or breach of duty within three years from the date the cause of action accrued or from the date of knowledge, if later. Where a claimant is under the age of 18 when the cause of action first accrued, the limitation period begins to run upon reaching 18. Lord Clarke
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MR noted that the critical provisions were sections 14 and 33. Section 14 provides that the date of knowledge is the date the claimant first knew that the injury was significant, that it was attributable to the defendant’s act or omission and the identity of the defendant. An injury is significant if the claimant would reasonably have considered it serious enough to justify instituting proceedings. A claimant’s knowledge includes both actual knowledge and constructive knowledge (that which he might reasonably have been expected to possess).
Where a claim is late (and so statute-barred), the court may nevertheless disapply the limitation period and allow the claim to proceed if to do so would be equitable. In deciding whether it would be equitable, the court has regard to the degree to which the claimant would be prejudiced if the limitation period is not disapplied and the degree to which the defendant would be prejudiced if the limitation period is disapplied. In acting under section 33, the court should have regard to the circumstances of the case and, in particular, to six specific factors including the length of, and reasons for, the delay on the part of the claimant and the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought in time.
Guidance
The Master of the Rolls considered the effects of the House of Lords’ decision in A v Hoare [2008] UKHL 6:
1 Their Lordships departed from Stubbings v Webb [1993] AC 851. A claim for damages for trespass to the person (ie an intentional personal injury – such as abuse) was a claim for damages for breach of duty and as such it came within section 11. The limitation period was three years and the court possessed the discretion under section 33 to disapply the limitation period. (Following Lister v Helsey Hall Ltd [2001] UKHL 22, vicarious liability can apply in relation to employees in abuse cases).
2 Section 14 is to be construed more narrowly than it had been before. In applying the test to determine the claimant’s date of knowledge, you ask what the claimant knew about the injury, you add any knowledge about the injury which may be imputed to him under section 14(3) (constructive knowledge) and you then ask whether a reasonable person with that knowledge would have considered the injury sufficiently serious to justify bringing proceedings. The test is an entirely impersonal standard.
3 The effect of the injury on the claimant’s psychological state and whether he could reasonably have been expected to have brought proceedings as a consequence had no relevance to date of knowledge under section 14. Instead, consideration of the question came within section 33.
4 Before Hoare, the leading case on both knowledge under section 14 and exercise of the section 33 discretion was KR v Bryn Alyn Community (Holdings) Ltd [2003] EWCA Civ 85. The approach to knowledge in Hoare (at 2 above) has replaced the approach to knowledge in Bryn Alyn. However, the approach to exercise of the section 33 discretion in Bryn Alyn remained valid, subject to amendment in light of Hoare.
The Master of the Rolls noted the starting points in Bryn Alyn in the exercise of the section 33 discretion. The starting points included:
i The burden of showing that it would be equitable to disapply the limitation period lies on the claimant and is heavy – it is an exceptional indulgence to a claimant, to be granted only where equity between the parties demands it.
ii The longer the delay the more likely, and the greater, the prejudice to the defendant.iii Wherever the judge considers it feasible to do so, he should decide the limitation
point by a preliminary hearing.iv Where a judge determines the section 33 issue along with the substantive issues, he
should take care not to determine the substantive issues, including liability, causation and quantum, before determining the issue of limitation.
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Lord Clarke MR considered the Bryn Alyn starting points in light of Hoare. There were two main distinctions between the questions under consideration in the two cases: Prior to Lister, the court had to consider the question of breach of duty in relation to the system in operation at the care home itself in order to show systemic negligence. The question is now narrower. Secondly, the effect of the injury on the claimant’s psychological state in relation to the reasonableness of bringing proceedings now falls within section 33 – evidence of the inhibiting effect of the abuse is relevant to exercise of the discretion.
Subject to these considerations, the Bryn Alyn starting points remained valid. The Master of the Rolls noted that it was correct to describe the exercise of the discretion as an exceptional indulgence to the claimant, though he observed that the discretion is wide and unfettered. In relation to limitation being tried as a preliminary issue, Lord Clarke MR considered that it may well be desirable that oral evidence be heard at such a hearing because the strength of the claimant’s evidence was relevant to exercise of the discretion.
The prejudice to the defendant to be addressed was prejudice to its ability to defend. If liability has been admitted, the claim is a day late and the defendant is not prejudiced in defending the claim, the limitation defence would be a windfall and the section 33 discretion will be exercised in the claimant’s favour.
The judge must consider all the circumstances of the case. This involves considering what evidence might have been available to the defendant had a trial taken place earlier or it had learned of the claim earlier. In one of the claims in the present case, Lord Clarke MR noted that proportionality was relevant to exercise of the discretion – the size of the claim was a factor to be taken into consideration.
Featured article
Date of knowledge in low dose mesothelioma claims
What is the date of knowledge in mesothelioma claims where the claimant has been exposed to low levels of asbestos?
Introduction
Liability for an asbestos-related illness can be founded upon i) common law negligence and ii) breach of statutory duty. Claimants often plead breach of duty in relation to both causes of action.
Common law
As with other personal injury claims founded in negligence, to recover the claimant must show i) that the defendant owed him a duty of care, ii) that it breached this duty and iii) that this breach caused the claimant’s injury (bearing in mind the unique approach to the definition of ‘caused’ in mesothelioma claims). However, in mesothelioma (and other asbestos-related illness) cases, foreseeability of the risk of injury has a more conspicuous role.
Duty of care
The employer’s duty is to take reasonable care to protect its employees from a foreseeable risk of injury. But, as knowledge of a particular condition develops over time, knowledge of the risk of injury associated with particular work also develops. It is no defence for an employer to say it chose to remain ignorant of such developments in knowledge and the concomitant developments in what risks of injury became foreseeable. What then is an employer’s duty in relation to developing knowledge?
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Guidance is found in Stokes v Guest Keen and Nettlefold [1968] 1 WLR 1776 as modified in Thompson v Smiths Shiprepairers [1984] QB 405. The test is the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in light of what he knows or ought to know. The employer must keep up to date but the standard of what is or is not negligent will be influenced by practice in the industry as a whole.
For liability to attach, the risk of injury must have been reasonably foreseeable. As shown by Page v Smith [1996] 1 AC 155, the defendant need not have foreseen the risk of the specific disease which the claimant contracted – it need only have foreseen the risk of personal injury. It is no defence to a mesothelioma claim arising from employment in the 1950s that the link between the condition and exposure to asbestos was not made until 1960. Following Margereson and Hancock v JW Roberts Ltd [1996] PIQR P358, it is clear that a defendant will be liable in a mesothelioma claim where the exposure to asbestos was sufficient to give rise to a foreseeable risk of respiratory illness (referred to in Margereson as ‘pulmonary injury’). Therefore, when exposure to asbestos occurred before 1960, for the claimant to succeed, there must have been a foreseeable risk of a respiratory illness (other than mesothelioma) caused by exposure to asbestos. As Hale LJ said in Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 101:
It matters not that at the relevant time the diseases understood to be caused by exposure to asbestos did not include mesothelioma.
In relation to whether the risk of illness was foreseeable at the time of the claimant’s employment, the crucial factor is what was known of the risks of illness in that industry at that time. The next step is to establish the date of knowledge – the date when the reasonable and prudent employer (whose knowledge the defendant will be held to) would have known (or ought to have known) of the risks of respiratory illness caused by asbestos dust and would have taken steps to protect its employees. The date of knowledge can be different for different types of employer.
Date of knowledge
Knowledge of the risks associated with exposure to asbestos has developed over time:
1930 – Report on the effects of Asbestos Dust on Lungs and Dust Suppression in the Asbestos Industry by Merewether & Price established a link between chronic exposure to asbestos dust and the onset of asbestosis. The report’s conclusions included that: ‘[…] fibrosis of the lungs is a definite occupational risk amongst asbestos workers as a class. Furthermore, it appears that the risk falls most heavily on those longest employed and on those engaged in the more dusty processes.’ The conclusions were summarised in the Annual Report of the Chief Inspector of Factories for 1929 (published in 1930, Cmd. 3633). The 1930 Merewether & Price report led to the passing of the Asbestos Industry Regulations 1931 (concerned primarily with the asbestos industry).
1933 – A Memorandum on Asbestosis by Merewether stated that, amongst other things ‘[…] there is evidence that an appreciable amount of dust must be incarcerated in the lungs to produce a serious degree of fibrosis.’ This was followed by the Factories Act 1937, section 47 of which prohibited exposure to a substantial quantity of dust of any kind. Whilst the Act applied to a wide range of premises, many occupations did not come within its ambit.
1939 – The Annual Report of the Chief Inspector of Factories for 1938 (1939, Cmd. 6081) noted a suggestion in medical publications of some relationship between asbestosis and lung cancer. The report also stated: ‘There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought today to be harmless may, following research, be viewed in another light tomorrow.’
1944 – The Annual Report of the Chief Inspector of Factories for 1943 (1944, Cmd. 6563) included a table showing that 118 deaths from asbestosis had been brought to the attention of the Chief Inspector since 1929.
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1945 – The Chief Inspector of Factories sent a letter to various shipbuilding trade associations highlighting the dangers of asbestos. The letter emphasised the importance of taking all reasonably practicable steps to reduce the risk to a minimum, even where the relevant work was temporary.
1951 – The Annual Report of the Chief Inspector of Factories for 1949 (1951, Cmd. 8155) reviewed the Asbestos Industry Regulations 1931 and reminded manufacturers and users of: ‘[…] the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.’ The report noted the importance of adequate ventilation and that firms which have had long experience of asbestos were now aware of the problems associated with it.
1955 – Mortality from Lung Cancer in Asbestos Workers (R Doll, BMJ, 1955) concluded that lung cancer was a specific industrial hazard of asbestos workers.
1958 – The Annual Report of the Chief Inspector of Factories for 1956 (1958, Cmd. 329) noted that the removal of old heat-insulation lagging was ‘very hazardous’ and that those regularly doing this work were ‘constantly exposed to risk.’
1960 – The Ministry of Labour issued the booklet Toxic Substances in Factory Atmospheres which described practical measures to protect against inhalation of toxic dust or fumes. Diffuse pleural mesothelioma and asbestos exposure in North-Western Cape Province (Wagner, Sleggs & Marchand, BJIM, 1960) reported the link between exposure to asbestos and mesothelioma.
1965 – Papers by Newhouse and Thompson linked mesothelioma to asbestos exposure. These papers led to an article in the Sunday Times: Scientists track down killer dust disease.
Application of the material on date of knowledge to the cases
The material above shows the historic development of knowledge of the harmful effects of asbestos. It has assisted the courts in establishing the date when a particular employer ought to have been aware of a foreseeable risk of injury in a particular case. Applying the material to a case requires the court to perform something of a comparison – the knowledge (and therefore the dangers) described in the material above must be weighed against the claimant’s exposure. In mesothelioma claims relating to employment prior to 1965, the crucial date is that when exposure to asbestos was high enough to make the risk of a respiratory illness reasonably foreseeable.
What do the cases tell us about exposure before 1965?
In Gunn v Wallsend Slipway & Engineering Co Ltd, unreported, 7 November 1988, Waterhouse J held that it would be a breach of duty by an employer before 1960 to subject his employees to ‘heavy and prolonged’ exposure to asbestos. Heavy and prolonged exposure gave rise to a known risk of contracting asbestosis. He dismissed the claim because (amongst other things) the exposure had not been heavy and prolonged.
Buxton J had a different view in Owen v IMI Yorkshire Copper Tube, unreported 15 June 1995. He reviewed the material on date of knowledge and found that:
‘[…] a reasonably informed employer would have been aware fromat least 1949 that care should be taken with asbestos; that he wouldhave known from the middle 1950s that exposure to asbestos should be kept to the lowest possible level […].’
In addition, Buxton J considered that from 1951:
‘[…] the threats posed by asbestos were sufficiently well-known andsufficiently uncertain in their extent and effect for employers to be
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under a duty to reduce exposure to the greatest extent possible.’
In Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101, the deceased’s exposures occurred between 1951-1957 and 1957-1961. The CA in Jeromson preferred the approach of Buxton J in Owen to that of Waterhouse J in Gunn. The question was whether the actual exposure was such that the reasonable and careful employer taking positive thought for the safety of its workers would have identified enough of a risk for it to take precautions or take advice. Hale LJ considered that where an employer cannot know the extent of the employee’s exposure, the employer has to consider the potential maximum exposure. However, in Jeromson the deceased were exposed to significant levels of asbestos. Hale LJ considered the material on date of knowledge beginning with Merewether and Price and found the defendant in breach.
In Maguire v Harland & Wolff Plc [2005] EWCA Civ 01, the CA again preferred Owen to Gunn and considered that an employer will be in breach if it fails to reduce the employee’s exposure to the greatest extent possible.
In Harrington v Department for Business, Enterprise and Regulatory Reform [2008] EWHC 2658, HHJ Seymour dismissed a claim for mesothelioma in relation to the deceased’s employment in 1956-58. It was common ground between the parties that for the claimant to succeed, she must: ‘[…] establish exposure to significant levels of asbestos dust.’ HHJ Seymour held that the defendant was not in breach because the deceased was not exposed to significant quantities of asbestos and the defendant had no reason to suppose that he would have been.
On the face of it, it would appear difficult to reconcile Harrington with Owen, Jeromson and Maguire. Harrington clearly suggests that where exposure occurs in the 1950s, it will have to be significant for the risk of injury to be reasonably foreseeable. The earlier (post-Gunn) cases suggest a stricter duty – to reduce exposure to the greatest extent possible. However, HHJ Seymour suggested that the Owen approach does not apply where exposure was not significant. If the Harrington approach is correct, it is arguable that a defendant which exposed an employee to a low level of asbestos before 1960 will not be liable. It must also be borne in mind that Harrington is a first instance decision. In addition, it might be possible that the exposure in Harrington was actually de minimis but that the judge failed to characterise it as such.
A recent case provides assistance. In Abraham v G Ireson & Son (Properties) Ltd [2009] EWHC 1958, Swift J held that two employers were not liable for the claimant’s mesothelioma where his exposure as a plumber between 1956 and 1965 was light. Not until after publication of the Newhouse and Thompson papers in 1965, at the earliest, could employers have been aware that exposure to low levels of asbestos gave rise to a risk of injury. Abraham suggests there is no hard and fast rule to foreseeability (and therefore negligence) in mesothelioma cases. Where exposure is low, particularly in industries not typically associated with heavy exposure, defendants can argue that the appropriate date of knowledge is 1965 at the earliest.
Statutory duty
As well as at common law, liability can also be founded upon breach of statutory duty.
The Asbestos Industry Regulations 1931
The Asbestos Industry Regulations 1931 applied to factories engaged in asbestos manufacture. However, this definition was fairly broad and in Dawson v Cherry Tree Machine Co Ltd [2001] EWCA Civ 101, the Regulations were held to apply to a defendant which manufactured dry cleaning presses where the deceased mixed asbestos fibre with water to form a sealing paste.
The duties under the Regulations applied to the occupier of a relevant factory and imposed certain duties relating to the provision of ventilation and the composition of sacks in which asbestos was transported.
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Factories Act 1937
The Factories Act 1937 was concerned with dust in general. It applied to a wide variety of premises and imposed duties which included the provision of ventilation and the protection of employees from exposure to harmful dust. Section 4 provided that: ‘Effective and suitable provision shall be made for securing and maintaining by the circulation of fresh air in each workroom the adequate ventilation of the room, and for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health.’ Section 47 prohibited exposure to: ‘any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or of any substantial quantity of dust of any kind […].’ Section 151 sets out the premises to which the Act applied. In practice, there is substantial overlap between the duties under the Act and those at common law. As with the 1937 Act, the Factories Act 1961 also concerns harmful dust.
Building (Safety, Health & Welfare) Regulations 1948
The Building (Safety, Health & Welfare) Regulations 1948 applied to the building industry and included duties relating to dust and fumes. The Regulations were applicable to the construction or alteration of a building. The duties in the Regulations applied to employers and contractors of workers engaged in construction. Regulation 82 provided that: ‘Where in connection with any grinding, cleaning, spraying or manipulation of any material, there is given off any dust or fume of such character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall be taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.’ Regulation 20 of the Construction (General Provisions) Regulations 1961 also required employers to take all reasonably practicable measures to prevent inhalation of dust which was likely to be injurious.
In Abraham, the claimant argued that ‘injurious’ in Regulation 82 of the Building (Safety, Health & Welfare) Regulations 1948 and in Regulation 20 of the Construction (General Provisions) Regulations 1961 should be construed objectively. This construction would mean that no element of foreseeability was required. The state of the defendant’s knowledge of the harmful effects of asbestos would be irrelevant to the duty under the Regulations.
The court in Abraham rejected the claimant’s argument. Swift J analysed the wording of the Regulations. ‘Likely to be injurious’ implied a degree of foreseeability. Liability was also limited by ‘reasonably practicable.’ Even if ‘likely to be injurious’ did create an objective standard, ‘reasonably practicable’ meant knowledge of the risk was relevant. Because Swift had found, in relation to common law negligence, that the defendants did not possess relevant knowledge until 1965, they could not have been aware that the asbestos dust was likely to be injurious. Since they did not know of the risk of injury, it could not have been reasonably practicable for them to take steps to protect the claimant from the risk. The defendants were therefore not in breach of statutory duty.
Conclusion
As Swift J noted in Abraham, the degree of exposure is relevant to the question of foreeseability. It has been argued since Owen that in the 1950s a claimant is not required to prove that his exposure was prolonged and substantial in order to recover. It has been contended that where exposure was more than de minimis, the employer’s duty was to reduce exposure to the greatest practicable extent. However, given the decisions in Harrington and Abraham, where asbestos exposure is low (and especially if it is low and intermittent), defendants can argue that the appropriate date of knowledge is 1965. Before 1965, particularly in industries not typically associated with heavy exposure, it is arguable that a claimant will have to show exposure to significant levels of asbestos dust in order to succeed.
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News and press
Damages
The Law on Damages – Ministry of Justice Consultation
The Ministry of Justice published its response to the consultation paper ‘The Law of Damages’ on 1 July 2009.
The responses included:
Claims for wrongful death
Most respondents supported adding a residuary category to the statutory list of those entitled to claim for financial loss under the Fatal Accidents Act 1976 (FAA). Most agreed that this category should be limited to persons who had been wholly or partly maintained by the deceased immediately before the death. Most respondents also agreed that the fact of a person’s re-marriage or entry into a civil partnership should be taken into account when assessing a claim for damages under the FAA.
Bereavement damages
The majority of respondents agreed that the statutory list of those eligible to claim bereavement damages should be extended to include unmarried fathers with parental responsibility and people who have lived with the deceased as husband and wife (or if of the same-sex in an equivalent relationship) for not less than two years prior to the fatal accident. The majority agreed that eligibility should not be extended to brothers and sisters of the deceased or to engaged couples.
Cost of private care
Most respondents (particularly on the claimant side) agreed with the proposal that where a public body has a statutory obligation to provide care and accommodation, the tortfeasor should pay for the cost of care. Arguments against the proposal included that a claimant should only be compensated for his net loss and that claimants should take advantage of services provided by the state where available.
Conclusions
The government’s conclusions included:
i It remained the government’s view that a residual category should be added to the statutory list of those entitled to claim for financial loss, but that this should be limited to any person who was being wholly or partly maintained by the deceased immediately before the death.
ii The consultation paper proposed that the fact, but not the prospects, of a person’s remarriage or entry into a civil partnership should be taken into account when assessing a claim for damages under the FAA. The government considered that taking the fact of remarriage or entry into a new civil partnership into account would be fair. In relation to financially supportive cohabitation, the government considered it reasonable that the fact, but not the prospects of any such new arrangement should be taken into account when the cohabitation has been for at least two years.
iii In relation to bereavement awards, the government considered that a parent should only be able to claim for the loss of a child where the child is under 18 and unmarried. The government considered that unmarried fathers with parental responsibility should be able
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to claim bereavement damages. The government also maintained its proposal that children of the deceased who are under 18 should be added to the statutory list. The government continued to take that view that brothers and sisters should not be eligible. The government considered that a cohabitant who has lived with the deceased as husband or wife (or an equivalent same-sex relationship) for at least two years prior to the accident should be eligible for bereavement damages.
iv In relation to private care, the government intended to give further consideration to determine whether any further action was needed.
Pleural plaques
The Medical Aspects of Pleural Plaques: a review for the Chief Medical Officer, Sir Liam Donaldson
Professor R Maynard’s report for the Chief Medical Officer (CMO) on medical aspects of pleural plaques has been published. He advised against a change in the law to allow pleural plaques to be considered grounds for compensation.
Professor Maynard noted that ‘there is no evidence to show that the presence of pleural plaques is a reliable predictor of the risk of mesothelioma.’ He stated that ‘the generally accepted position seems to be that plaques, per se, do not produce significant changes in lung function.’ His view was that, ‘… amongst those exposed to asbestos the presence of plaques does not seem to be a reliable predictor of serious lung disease.’ He considered that, ‘plaques do not, however, seem to represent damage in a physiological sense.’
Professor Maynard’s view was that it was, ‘not acceptable to provide compensation for all those exposed to asbestos on the basis that they may develop serious disease.’ He considered that, ‘Providing compensation to those who develop plaques cannot be sustained on the basis that they have sustained an injury which leads to physical disability.’ He concluded that ‘the occurrence of pleural plaques does not provide a satisfactory basis for providing compensation to some of those exposed to asbestos.’ Professor Maynard advised against a change in the law to allow pleural plaques to be considered grounds for compensation.
Environmental noise
The Health Protection Agency has published a report, Environmental Noise and Health in the UK – draft for comment, in response to increasing public concern about possible effects of noise on health. The report was prepared by an ad hoc group of experts at the request of the Department of Health and funded by the Department of Health and Department of Environment, Food and Rural Affairs. The report noted, amongst other things, that a significant number of people live in areas where the noise levels exceed World Health Organisation guidelines. The report also noted that attitudes to environmental noise in the UK are changing suggesting that people are increasingly dissatisfied with the level of noise in their environment, notwithstanding the fact that over recent years some of the important indicators actually show a reduction in sound levels and in the number of people exposed to high levels of environmental noise.
In the UK, about 30% of the population express dissatisfaction with their noise environment. It appears that complaints about noise are increasing in the UK. Levels of environmental sound do not reach the intensities needed for damage to hearing. Annoyance is probably the most widespread adverse effect of noise. In general terms the likelihood of, and strength of, annoyance can be related to indicators of sound exposure. This observation has led to the development of dose-response curves that express the relationship graphically: mathematical descriptions of the relationships are also available. It is important to note that regarding the average response of a group of people there is a wide scatter of responses due to variations in individual sensitivity to noise and/or susceptibility to annoyance. These variations are not well understood in physiological or psychological terms.
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Exposure to noise has also been shown to be associated with increased levels of stresshormones in the blood. These include the adrenal cortico-steroids and also adrenalineand noradrenaline which reflect activity of the sympathetic system. Whether suchincreases in concentrations are harmful is uncertain but some authors have linked suchchanges with the possibility of long-term effects on blood pressure and on cardiovascular disease. The report stated that long-term exposure to high levels of noise in the occupational setting has been shown to be related to the likelihood of individuals developing cardiovascular disease. Recent research in community settings shows a similar relationship between transport noise and elevated blood pressure and medication for hypertension and a small increased risk of cardiovascular disease. The report urged that a programme of research into the effects of environmental noise on health in the UK be established.
Report available at: www.hpa.org.uk
Defra has also commissioned research, estimating dose on behalf of the Interdepartmental Group on Costs and Benefits (IGCB), to quantify human health impacts of environmental noise. The report is available at www.defra.gov.uk
In August 2008 Defra, on behalf of the IGCB(N), commissioned Dr Bernard Berry and Dr Ian Flindell to undertake a review of research into the links between noise and health. The four key aims of this research were to:
Identify a comprehensive list of potential adverse health impacts from noise and review the current state of evidence for each of the impacts.
Where a robust evidence base exists, to recommend quantitative links (dose-response functions) for the impacts of noise on health which could be applied in the UK.
Identify any emerging adverse health impacts that should be kept under review for future consideration in evaluation.
Identify any structural challenges to developing and maintaining strong quantitative links between noise and health outcomes.
The research undertook a two stage literature review of the existing evidence on the links between noise and health.
Phase one was a review of the links between exposure to noise and a comprehensive list of health outcomes. The results of this review were then used to focus a more detailed review of specific links to key health outcomes.
Phase two was a detailed analysis of the key health outcomes identified for further research, namely cardiovascular effects, hypertension and sleep disturbance. For each of these areas a comprehensive review of the existing literature was undertaken to identify if and which existing links between noise and health might be used to inform policy decisions.
Results
Phase 1 found that statistical associations had been observed between noise and several health effects. Six key health effects were considered namely: annoyance; mental health; cardiovascular effects; sleep disturbances; cognitive development; and hearing impairment.
For each of these effects, excluding mental health, sufficient evidence was identified to suggest a link between noise and the adverse health effect and provided some evidence on which a dose-response relationship might be estimated.
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The results of Phase 2 included:
The links between noise and transient sleep disturbance was seen to be a well developed area with statistically robust data and dose-response relationships. However, and possibly because a wide range of different input and outcome variables and different research methods have been deployed in previous research, there is no consensus on any single dose-response relationship which could be used to inform cost benefit analysis. In addition, no quantitative link has yet been established between acute or transient sleep disturbance caused by noise and any long term adverse health effects. Strong evidence was found to link noise and hypertension.
Solar energy
The HSE has issued a report on the health and safety implications of the growing use of solar energy in the UK. The report is available at www.hse.gov.uk
Two types of technology are in common use for the exploitation of solar energy:
Solar photovoltaic (PV): uses the sun’s energy to generate electricity. A solar cell consists of one or two layers of semi-conducting material, often silicon. Light hitting the cells causes an electric field across the layers, with more light giving a stronger electric field.
Solar thermal power (STP): uses the sun’s energy to heat air or water.
There have been recent rises in the installation of solar PV systems on new and existing domestic and commercial buildings in the UK. Over 100,000 solar thermal systems are installed in the UK, with about 10,000 more being installed each year. The UK has the largest building integrated PV line in Europe.
Health and safety implications
The report noted that the heath and safety risks associated with solar energy will be from the manufacture, installation and maintenance of solar devices. The next generation of highly efficient solar PV is being developed in the UK, and uses chemicals such as cadmium telluride, copper indium diselenide and copper indium gallium selenide in their manufacture, which are known to be highly toxic. There is a potential health risk from exposure to these chemicals during the manufacture of solar panels and also from their disposal and recycling. The report recommended that the HSE needs to consider the resource implications and skills requirement of an expansion in solar energy over the next 10 years.
Nanotechnology
Lord Drayson, Science and Innovation Minister and chair of the Ministerial Group on Nanotechnologies, has called on industry and interested groups to get involved in shaping a UK strategy for nanotechnologies. Industry, academia and consumer groups were invited to use a new website to help develop the strategy, building on and consolidating the existing research and consultations that have already taken place. The website will gather views on core issues including research, regulation, innovation and commercialisation, measurement and standards and information as well as on the anticipated impact of nanotechnologies on a wide range of sectors.
The aim of the strategy is to describe the actions necessary to ensure that the UK obtains maximum economic, environmental and societal benefit from nanotechnologies while keeping the risks properly managed. The website is available at:www.interactive.bis.gov.uk/nano
Biocides
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Views are being sought on European proposals for a revised regime for regulating the placing on the market and use of biocides. Biocides include disinfectants, preservatives and pest control agents used to control harmful organisations such as bacteria, fungi and rodents. The Health and Safety Executive (HSE) has launched a 10-week consultation on the European Commission proposal, which will apply directly in the UK and will eventually revise and replace the current Biocidal Products Directive (BPD) 98/8/EC.
The regulation will also result in the repeal of the Biocidal Products Regulations 2001 and the Biocidal Products Regulations (Northern Ireland) 2001, which transpose the current BPD into UK law. The consultation will close on Monday 5 October 2009.
The new draft regulation proposes several important changes to the current approach to dealing with biocides, including:
Extending the scope of the regime to cover treated articles and materials containing biocides.
Adopting a community authorisation scheme for certain types of products. Requiring mandatory data-sharing of some animal testing data. Reducing the burden of data collection requirements. Harmonising fee structures across member states.
A workshop exploring the issues raised by the proposed regulation will be hosted by the HSE in September 2009. The HSE is seeking views to inform the UK’s negotiating position on the proposed regulation, which is scheduled to come into effect on 1 January 2013.
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© Berrymans Lace Mawer LLP 2009.
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