Witness evidence, clinical notes, and ‘substantial quantities’ of dust – Mrs Rosemary Dean (Executrix of the Estate of Mr Philip Dean, deceased) v Armstrong Oiler Company Ltd [2023] EWHC 3445 (KB)

In this article, Jake Loomes examines the decision in Mrs Rosemary Dean (Executrix of the Estate of Mr Philip Dean, deceased) v Armstrong Oiler Company Ltd [2023] EWHC 3445 (KB) (‘Dean v Armstrong Oiler Company Ltd’).

The judgment from November 2023 (in which the Claimant was ultimately successful) provides a helpful insight into addressing conflicts between medical notes and witness evidence in industrial disease cases. As is sometimes the case, the clinical notes contained limited, conflicting accounts of exposure and a repeated positive assertion that the deceased “did not work with asbestos“. The judgment also touches upon a possible interpretation of ‘substantial quantities’ of dust for liability under the second limb of s.63(1) of the Factories Act 1961.

Background

Mr Dean worked for the Defendant from 1959 to 1972 as an apprentice loom turner, maintenance officer, and a foreman. Mr Dean was exposed to asbestos dust between 1964 and 1972 while inspecting and working on an air compressor near a boiler insulated with asbestos-containing lagging. Mr Dean passed away in 2020 due to mesothelioma. His widow, acting as executrix of his estate, filed a claim in 2021 alleging breach of common law negligence and breach of s.63(1) of the Factories Act 1961. Quantum was agreed at £200,000, subject to liability.

The evidence

Mr Dean’s witness statement was taken and finalised before his passing. There was no lay or documentary evidence from the Defendant. Mr Christopher Chambers, a health and safety expert, provided evidence for the Claimant. Mr Graham Glenn, an engineering expert, gave evidence for the Defendant.

The clinical notes and the reliability of Mr Dean’s recollection

The Defendant relied on various entries in the deceased’s clinical records to suggest that he had no reliable recollection of any asbestos exposure; these were:

• 2019 GP entry referring to “no asbestos exposure“, which was passed on in the lung cancer referral form as “Never knowingly been exposed to asbestos“. The chest physician responded, “Ex-engineering, no asbestos“. 
• 2019 entry, “He has no known exposure to asbestos“. 
• A CT scan report stating, “there is no evidence of previous asbestos exposure“.  
• August 2019 entry stating that he did not recollect any exposure but had worked as an engineer and had been in places where there could have been potentially asbestos.
• August 2019 note stating that he had worked in the Navy and had been referred for possibly making a compensation claim.
• August 2019 oncology note which read: “Boiler in the first role probably had asbestos“. The words “may have” had been crossed out. There was a further reference to Mr Dean having worked in various jobs “Through the 50s, 60s and 70s with potential exposure to asbestos, although nothing he can clearly identify“.

• Mr Dean stated, amongst other things, that he was responsible for the compressed air pipework and that the boiler was located next to where he would work. He described the height, its position, and that it was lagged in the same material throughout his employment. He described it “as dusty, plaster-like material that was off-white in colour” and that he “believe[d] that the lagging was asbestos“. He went into considerable detail describing the area and how he would come into contact with the boiler.

HHJ Coe KC, sitting as Deputy High Court Judge, held as follows:

1. The GP’s note of “no asbestos exposure” was the source of much repetition within the records [52].
2. Had he been asked if he “had ever worked with asbestos“, then he may very well have answered “no“. Questions asked at that stage would not have been particularly probing [52].
3. The deceased’s solicitor went through his work history in considerably greater detail than the clinicians would have. “[The clinical notes] do not constitute the sort of detailed exploration of work history that would be taken by a solicitor” [59].
4. The oncology notes in August stated that the boiler in his first role probably had asbestos and that this was the boiler with which the deceased stated as the source of his exposure [55].
5. Mr Dean’s diagnosis would “obviously have come as something of a shock and he may not therefore have been concentrating on his employment history” [57].
6. The reference to Mr Dean working in the Navy was an error. He never worked in the Navy [59].
7. Although referred to the case of Gestmin v Credit Suisse [2013] EWHC 3560, it was not helpful in terms of any general principle in the case; the present case was not a commercial case with a large volume of documents dealing with liability [61].

Conclusion as to the other issues

Addressing the other issues, the Court made the following findings:

• Boiler Protection and Asbestos Content: Based on Mr Dean’s account and expert evidence, the court concluded that the boiler insulation did contain asbestos, which was in line with the period’s practices [75-84].
• Exposure to Asbestos: The experts agreed on the nature of the friable asbestos-containing lagging, supporting Mr Dean’s described exposure and the lagging’s condition, further validating his evidence on the exposure’s frequency and nature [89-92].
• Nature of Asbestos Dust: It was more probable than not that the lagging contained amosite, with a 15% possibility of crocidolite [96].
• Foreseeability of Risk: The Court determined that given the knowledge at the time, the Defendant should have anticipated the risk of asbestos exposure and adopted necessary precautions, especially considering the potential presence of crocidolite [98-100, 133-139].
• Level of Exposure Assessment: The concentrations Mr Dean was likely exposed to were significantly above 2 fibres/mm when the dust was disturbed and probably in the region of 50 fibres/mm. The Court expressly rejected attempts by the Defendant to make a precise assessment of the level of exposure, which fell below the hygiene standard at the time. The Judge reiterated [59-60] of Bussey v Anglia Heating [2018] EWCA Civ 243 and the avoidance of following a “bright line” approach to asbestos limits from the time. A more nuanced approach is required. The Court concluded that a reasonable employer would have been aware of the significant risk posed by asbestos exposure from 1965 [140-144].
• Precautions Against Asbestos Exposure: The Court found that simple protective measures, such as covering the boiler with sheet metal or asbestos-containing cement, could have prevented Mr Dean’s asbestos exposure entirely [145-147].
• S.63(1) of The Factories Act 1961 – The Second Limb: While the Claimant argued for a breach based on the presence of substantial dust, the Court found the transient nature of the dust cloud did not constitute a “substantial quantity” of dust. However, it mattered not as the Defendant was liable under the first limb of s.63(1) of the Factories Act 1961 [148-151].

Comment – The reliability of the deceased’s recollection

In the circumstances, the clinical notes were deemed insufficient for a detailed work history exploration, which reinforced the reliability of Mr Dean’s later, more detailed account.

The reliability of witnesses’ recollections of events from a long time ago has been addressed in several decisions (Gestmin v Credit Suisse [2013] EWHC 3560; Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB)); Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB); Bannister (Estate of) v Freemans Public Ltd Co [2020] EWHC 1256 (QB). 

Whilst those judgments are helpful reminders of what factors may impact the reliably of memory, they are not statements of legal principle (CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [40] and Pinnegar v Kellogg International Corp [2020] EWHC 3431 (QB) at [5].

Clinical notes are, of course, generally useful contemporaneous written documents. They may assist in corroborating or challenging the reliability of lay witness evidence in many cases. However, their usefulness should be appropriately weighted and not overstated. It is often unclear what questions were asked of the witness, which can obviously alter the response.

Questions are often asked in circumstances of considerable shock or anxiety involving a diagnosis of a serious disease. Further, the sort of probative questions asked for the purposes of a 10-minute assessment in a clinical setting will not be the same as the rigorous fact-finding that a solicitor may do with their client.

Comment – “Substantial quantities” of dust and the second limb of s.63(1) of the Factories Act 1961 (‘the 1961 Act’)

s.63(1) of the Factories Act 1961 establishes that an employer may be liable under that section of the 1961 Act in two circumstances (set out in two limbs of s.63(1) of the 1961 Act). The first is where the dust given off was of such quantity and character that it was likely to be “injurious or offensive” to persons employed. This imports foreseeability of harm by reference to the knowledge at the time.

The second set of circumstances are where the dust was of a “substantial quantity”. The second limb of s.63(1) of the 1961 Act does not require any element of foreseeability. Both limbs require that employer must take all practicable measures to protect from both inhalation and accumulation.

s.63(1) of the 1961 Act, which repeats s.47 of the Factories Act 1937, was addressed in detail in the Supreme Court in McDonald v National Grid Electricity [2014] UKSC 53. The Supreme Court concluded that when assessing whether there has been a substantial quantity of dust, the relevant period is when the dust was produced, not when the dust was inhaled (McDonald at [76]). Further, the assessment as to the second limb is purely quantitative assessment (McDonald at [86]).

The absence of any requirement for foreseeability elevates the importance of a definition of “substantial quantity”. In Prater v British Motor Holdings Ltd [2016] 6 WLUK 193, the judge concluded that, on the facts of that case, that the claimant had shown there to be a substantial quantity of dust where it included:

“[dust which] was in such quantities as to be visible in the air, including as a haze or smog, and to fall on the skin and down the neck and onto the clothing in such quantities as to require shaking to remove it, and for it to be necessary to be brushed off from the work benches and from the floor”.

This was a finding of fact and not a conclusive definition. What is sufficient to amount to a “substantial quantity” of dust has included:

• When there were “clouds of dust” or “lots of dust” (Bailey v Reed Corrugated Cases Ltd [1993] Lexis Citation 3976);
• When the dust was such that the “the atmosphere was cloudy” and “[…] was pretty thick” (Brooks v J&P Coates (UK) Ltd [1984] I.C.R. 158, 170);
• When there was a “considerable quantity of dust” (McDonald at [76]).

 In Dean v Armstrong Oiler Company Ltd, HHJ Coe KC held at [151] that:

“the cloud of dust described by the deceased does not equate to a “substantial quantity” of dust within the meaning of the statutory provision. I make that finding because this was a transient cloud of dust and not a quantity of dust, which hung in the air or which was such as to create a smog or haze of the kind described in the case of Prater or in other similar decisions.”

On the one hand, it may be suggested that this limits the scope of “substantial quantity”. However, it is merely a finding of fact. The reference to the “transient” cloud of dust not being substantial is also possibly misleading. One can envisage a situation where a substantial amount of dust (which creates a cloud) is produced in a very short (transient) time frame but would still be sufficient to engage the second limb of s.63(1) of the 1961 Act. Finally, narrower definitions are seemingly at odds with the approach of the Supreme Court in McDonald, which called for a broader, generous approach when interpreting health and safety legislation (McDonald at [66]).

Conclusion

The decision, whilst not setting a new precedent, is a helpful reminder to consider the circumstances which may prompt a conflicting medical note and not to elevate such inconsistency to too great a height. The decision is a further reminder of the difficulty of assessing the meaning of “substantial quantity” for the purposes of the 1937 and 1961 Factories Acts.

Cuthbert and White: When the dust settles … what does it mean?

In this blog post, John-Paul Swoboda considers the recent case of Cuthbert, in which Michael Rawlinson KC, Max Archer and Jessica Franklin acted for the Appellant, the widow of Mr Derek Barry Cuthbert and executrix of his estate.

As I settled down last Saturday evening to read the judgments in this case I did not think I’d be up until 1am. But I was. That is not only because of the length of the judgment but also because of its content. The Court of Appeal has re-cast/re-stated (depending on your point of view) the foreseeability requirements for pre 1965 exposure and may also have re-ignited a foreseeability debate for post 1965 exposure. If there is a silver lining for claimants perhaps it is this: the decision may make it harder for Defendants to successfully run the causation arguments which are a la mode. 

The context

The central issue in the case was whether the Judges in Cuthbert and White had applied the right test of foreseeability in deciding whether or not the employers owed a duty. Stuart-Smith LJ gave the lead judgment with whom Newey LJ and Underhill LJ agreed (with Underhill LJ giving a short concurring judgment).

To put the Court’s findings in context it is worth considering what the exposure (as found by the trial judges) was in White and Cuthbert. Mr White was exposed to asbestos in Sefton General Hospital in Liverpool. He was exposed from 1949 to 1960 and from 1973/74 to 1991/92 with the first period being said to be “intermittent and in very low quantities” and “de minimis”; as a junior lab technician he used asbestos millboard Bunsen burner mats which were soft and friable. The second period was found at trial (and not appealed) “to be insignificant in causal terms”. Mr Cuthbert’s exposure occurred between 1956 to 1959 and, as the trial judge found, arose from “irregular and intermittent contact” with carpenters on site sawing Asbestolux such that his exposure was “of a low order, light and intermittent.”

What risk could be foreseen from exposure to asbestos (1928 to 1985)?

Against this context Stuart-Smith LJ undertook a 77 paragraph review of the contemporaneous literature as to what was known about the risks of asbestos between 1928 and 1985, but with a focus on the pre-1965 period. He set out 8 propositions which he said could be drawn from the literature. He found, the known risks from the inhalation of asbestos until the 1960’s were asbestosis and (post 1955) lung cancer and that the risk “was thought to arise on what would now be regarded as substantial exposure to asbestos”. He found there was believed to be a level of exposure “below which there was no real risk of contracting disabling asbestosis” (the threshold or “dust datum”). There was a “sea-change” after 1960 and the perception of risk dramatically changed post 1965. The repeated reference to “MCPs, TLVs, and enforcement levels, while not providing a bright line, general yardstick or universal test for determining the issue of foreseeability, are evidence that there had been and continued to be an understanding that exposure to asbestos below certain levels was safe.” In other words, if the claimant cannot prove the exposure was greater than a subsequent enforcement level (think TDN 13) this would (or may) be evidence that the exposure level would not have been deemed unsafe which judged by the standards of the day. 

What level of exposure posed a foreseeable risk pre-1960’s?

Stuart-Smith’s found that “It is not, and never has been, the law that a person is obliged to take all possible steps to prevent the occurrence of a risk that is not reasonably foreseeable…”. In other words, context is everything and the pre1960/65 context is that the risk of mesothelioma arising from slight exposures was unknown.

On this basis, Buxton J’s dictum in Owen v ICI (High Court) that an employer in 1951 was “under a duty to reduce exposure to the greatest extent possible”  was “ill-founded” in so far as went beyond the risk which were reasonably foreseeable at the time (asbestosis). It should not, said Stuart-Smith LJ “be accepted as creating any form of precedent”. Further Hale LJ (as she then was) in Jeromson did not rely upon this finding to justify low or intermittent exposure as constituting a breach (as in both Owen and Jeromson the exposure was heavy or substantial exposure) and neither did Hale LJ unequivocally endorse Buxton’s J finding. Further Stuart-Smith LJ found that Jeromson was not a test case so as to bind the decision on this case. Finally if Jeromson was decided only on the basis of the literature cited it was not comprehensive (or not as comprehensive as Stuart-Smith’s consideration of the literature). 

However, as Stuart-Smith LJ noted, in Maguire Longmore LJ considered himself bound by Jeromson to proceed on the basis that as between employer and employee, the employer will be in breach of duty if he fails to reduce his employee’s exposure “to the greatest extent possible” (i.e. the finding in Owen which on one reading Hale LJ endorsed in Jermoson). On this basis Longmore’s judgment had treated the decision in Jermonson to accept Buxton’s dictum in Owen as binding. However, Stuart-Smith LJ noted Longmore LJ did not identify the date from which that conclusion must apply. In any event Stuart-Smith (and the other members of the Court) found Judge’s LJ findings (that there could be no foreseeability of overalls exposure pre 1965) was “inconsistent with any blanket acceptance of Buxton J’s dictum in Owen.”  Ergo Maguire could not confirm Buxton’s dictum as binding precent as the decision in Maguire was incompatible with it. This does not however resolve the apparent tension with Longmore’s position as stated above.

What this means, to use Underhill LJ’s language, pre-1965 low or occasional levels of exposure to asbestos will probably not have given rise to foreseeable injury. Of course, what amounts to low or occasional exposure remains up for debate but clearly the closer one can get to the exposure in Jermonson or Owenthe more likely it is to be viewed as exposure giving rise to foreseeable injury (as there was endorsement that Jermonson was correctly decided and no suggestion Owen was not correctly decided).

Analysis of the decision

The arguments which may be made against this decision are as follows.

• The Court ran roughshod over binding authority from a Court of coordinate jurisdiction. To find that Jeromson proceeded only on the facts of that case ignores that Buxton J’s findings was endorsed by the trial judge and there was no criticism or reversal of that finding by Hale LJ. To find the reasoning in Maguire (no overalls claim pre 1965) is inconsistent with Buxton J’s finding is to ignore that Longmore LJ considered himself bound, viz-a-vie employer/employee and to say that the decision in Maguire was incompatible with Buxton’s dictum is to ignore that Maguire was concerned with an overalls exposure (i.e. not an employer/employee situation).
• The Court did not deal with the argument accepted by Hale LJ in Jeromson that an employer cannot assume future employers will not expose a claimant to asbestos so one period of exposure cannot be taken in isolation. This may be said to undermine the dust datum or threshold reasoning in the judgment. Taken further it may be said to undermine the very premise that there was a safe level of exposure; it might be safe in isolation but not cumulatively and no reasonable employer could assume the employee had not been or would not in the future be exposed to asbestos.
• The Court has assumed that there was with the passage of time an increasing level of awareness of the dangers of asbestos such that later threshold levels may inform whether there was an earlier breach. This fails to acknowledge the stochastic nature of the development of knowledge. Knowledge of risk was not a smooth gradient, arguably not even always in one direction (i.e. greater perception of risk), because of a) industry lobbying (think of the concerted campaigns by the asbestos industry) or b) scientific development (think of the differentiation between different fibre types and the ongoing debate).

Post-1965 exposure

In the context of pre-1965 exposure Stuart-Smith LJ found that what comes after the date of exposure “is relevant to any consideration of what … levels of exposure were or had been considered to be acceptable” and also that it was ok to draw some support between the disparity between subsequent enforcement levels and the actual levels of exposure found. That is exactly the argument which was regularly ran, pre Bussey, in respect of post 1965 exposure and the TDN13 enforcement levels. The decision in Bussey appeared to disapprove of this approach, but the practice was (and is) still commonly adopted by Defendants. In my view the decision in White and Cuthbert is likely to encourage further arguments about enforcement levels in the period post 1965. Whether such arguments have merit or not is likely to be a battleground.

Causation – the silver lining

It is clear from the Stuart-Smith’s judgment that to establish breach (whether in negligence or a statutory duty which incorporates foreseeability) once must prove the employer ought reasonably to have foreseen the risk of (in post 1960/5 exposures) mesothelioma. This highlights the link between the question of breach and causation. If one proves breach, it ought to be easier to prove causation: if the employer should have foreseen risk of mesothelioma (post 1960/5) it may be said to be implicit that the exposure must materially increase the risk of mesothelioma. The apogee of this reasoning was expressed by Stuart-Smith LJ who stated, “it is now generally recognised any exposure to asbestos carries with it a significant risk of personal injury.”  If Stuart-Smith’s comment is correct the increasingly prevalent argument that the exposure (in any given case) was so small as to constitute a de minimis risk is wrong: any exposure to asbestos carries with it a significant risk.  However, one can easily imagine contextual arguments against such a proposition (Stuart-Smith was not determining a case on causation; the proposition fails to take into account relative risk which is important as causation is proved by demonstrating an increase in risk; in White it was accepted that there was a non-causal period of exposure). In other words, the above comment by Stuart-Smith may be helpful but is unlikely to be a silver bullet in respect of the causation arguments which are a la mode.

The final word

For pre-1960/5 claimants to succeed in negligence or for a breach of statutory duty which does not incorporate foreseeability, it will be necessary to show the exposure was more than low or occasional. Those are terms of art and there is likely to be argument around those terms. However, on the basis of Stuart-Smith’s judgment later enforcement levels may be taken as evidence on the issue of whether the exposure was low of occasional.

It is worth noting, neither White nor Cuthbert concerned a statutory duty where foreseeability was not incorporated (such as the s47 of the FA 1947 – “substantial/ offensive quantity of dust”). The importance of such duties in a pre 1965 context is, in my view, heightened. 

Ness v Carillion Capital Projects Ltd & Ors [2023] EWHC 1219 (KB)

In this article Cressida Mawdesley-Thomas considers the judgment of HHJ Lickley KC in Ness v Carillion Capital Projects Ltd & Ors [2023] EWHC 1219 (KB). Ness was a successful fatal mesothelioma claim.

The Issues

The central issues were: (1) did the deceased work with asbestos millboard? (2) even if he did not work with asbestos millboard was his exposure from asbestos cement sufficient to establish breach of duty where the exposure was over 10 to 14 days between 1966 and 1968?

The defendant’s case was that Mr Harrison’s (‘the deceased’) exposure from asbestos cement was de minimis and the guidance at the time did not mandate precautions where exposure was limited and sporadic. However, the defendant accepted that they would have difficulty defending liability if the court found that the deceased also worked with asbestos-containing millboard for 10-14 days in 1966-1968.

Background

The deceased worked for Bovis on the construction of the Guardian Insurance building in Blackpool as a specialist joiner, installing insulation and panels beneath windows. He used a handsaw to cut the insulation and paneling to size and only worked inside. It was not disputed that he used asbestos cement for around 10-14 days to do this work between 1966 and 1968. However, it was disputed that he also used asbestos containing millboard. It was agreed that at the relevant time some millboard contained asbestos, and some did not.

Did the millboard contain asbestos? 

The court was not persuaded that the millboard contained asbestos. The Claimant faced a number of difficulties:

• The Claimant’s occupational hygienist, Laura Martin, based her view that the millboard contained asbestos on the fact that when she interviewed the deceased, she showed him photographs of products and he had identified to her asbestos containing millboard as that which he worked with. However, those photos were not indexed and exhibited to her report and there were no agreed photos before the court. 
• The second report of Laura Martin, wherein it was stated that the deceased was exposed when working for Bovis with asbestos millboard was produced when she only had the deceased’s first statement (which did not mention working with asbestos-containing millboard) and when she had not undertaken a further interview with the deceased.  
• Neither the first statement of the deceased (July 2017) nor the first report of Laura Marin (also July 2017) mentioned the deceased being exposed to asbestos during the course of his employment with Bovis. Nor was Bovis mentioned as an employer who exposed the deceased to asbestos in his applications to the DWP. Further, it was only in the deceased’s November 2018 statement that the millboard was prefixed with ‘asbestos’.
• The deceased described the millboard in contradictory terms which often better aligned with non-asbestos containing millboard (Martin Stear’s evidence was that brown millboard that could be broken very easily was likely to be non-asbestos containing). For example, in the July 2018 engineering report and his second statement dated August 2018 the deceased described the Millboard as being “brownie”. However, when he gave evidence by deposition in July 2019 he variously described the asbestos millboard as: “pretty hard stuff”; “quite hard but could be cut with a saw” and at other times as “very soft”. In April 2019, in response to the defendant’s part 18 questions he said that the asbestos millboard was light grey in colour, quite hard but could be cut with a saw.  

Conclusion – Not Asbestos Millboard

The judge concluded that he could not be satisfied on the balance of probabilities that the millboard contained asbestos for 10 reasons, in summary: initially there was no suggestion that Bovis exposed the deceased to asbestos; there is no explanation where the information came from to suggest exposure to asbestos millboard in the second engineering report; the deceased’s august 2018 witness statement describing the millboard was at odds with the description in Laura Martin’s report; the millboard was first described as browney which suggests it did not contain asbestos; the part 18 responses and evidence on commission gave confused descriptions about the millboard; there were no contemporary records; overall the evidence was contradictory and unpersuasive. 

The Legal issues

What Was Known

It was found as fact that the deceased would have to handle, then cut the asbestos cement panels to size with a saw and fit them to the building under construction. The dust and debris that his work produced was brushed to one side by him to be removed. He did that work for 10-14 days between 1966/67 and 1967/68.

To determine whether this work was in breach of duty the court examined the degree of knowledge and understanding of the risks in 1966/67.

It was noted that regulation 63 of the Factories Act 1961 required all practicable measures to be taken to protect employed persons against the inhalation of injurious dust, following the Chief Inspector of Factories’s Annual Reports of 1949 and 1956. The Judge also noted:

“It is clear that by the mid 1960s, there was an increased awareness of the risks to health posed by exposure to asbestos.”

It was also noted that in 1965 Newhouse and Thompson published their findings that established that mesothelioma could be caused by low level exposure and that might affect the families of workers and that this information was widely disseminated in the Sunday Times in the same year. 

The judge was also referred to ‘The Asbestos Research Council Recommended Code of Practice’ (‘the code’) which was issued in April 1965. The code made specific reference to the handling, working and fixing of asbestos and asbestos cement products in the building and construction industries. The preamble stated (emphasis added):

“The use and manipulation of asbestos and asbestos cement products is very diverse […] special precautions are only necessary when there is a possibility that operatives may inhale asbestos dust as result of proximity to cutting grinding or similar operations.”

The code of practice also provided:

“3.2.1 where hand cutting and working has to take place regularly a dust exhaust system will often not be possible. Where any risk of inhaling asbestos dust is present operatives should wear approved type respirators.”

Other precautions are then set out in the code, including damping down etc. It was noted that there were steps Bovis could have taken, such as damping down, but that they did not take these steps.

The Legal Test

The Judge reminded himself of the test as formulated by Underhill LJ in Bussey v 0065401 Ltd (formerly Anglia Heating Ltd) [2018] EWCA Civ 243 and reformulated it for the present case as follows:

“…should Bovis at the time they employed Mr Harrison have been aware that the exposure to asbestos which his work involved gave rise to a significant risk of asbestos-related injury? I note significant means any real risk, albeit statistically small, rather than a fanciful risk.”

The judge also considered what was said by Lord Phillips at 108 of Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10 (emphasis added):

“…the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victim’s risk of contracting the disease will be where that exposure was insignificant compared to the exposure from other sources.”

Findings on the Law

At the time Bovis, a large national building company engaged in large projects, ought to have been aware of the risk of exposure to asbestos that the deceased’s work with asbestos cement entailed even at low levels. In addition, given the size and nature of Bovis’s business they should, at the time they employed the deceased, have been aware that the exposure to asbestos which his work involved gave rise to a significant risk of asbestos-related injury being more than a fanciful risk. In particular, the ARC guidance did warn of the risks associated specifically with asbestos cement and recommended some precautions. Given the state of knowledge at the time, a reasonable and prudent employer in those circumstances should have taken steps to address the issue. There was no evidence Bovis did anything to assess and reduce the risks when simple measures such as a face mask could have been provided and/or the cutting of panels outdoors mandated. Such measures would have reduced the risk of inhalation of asbestos. Accordingly, Bovis ought to have reasonably foreseen that the deceased would be exposed to a risk of asbestos related injury and as such Bovis were negligent. He also answered, as part of the question on breach the question of whether the work undertaken by the deceased materially increased the risk of developing mesothelioma? In other words, was it reasonable for Bovis at the material time to believe that there was a level of exposure below which there was no significant risk, and that the deceased’s exposure was below that level? It was held that it was not reasonable for Bovis to believe that there was a level of exposure below which there was no significant risk. This was because the deceased was exposed to a measurable level of asbetsos (on Martin Stear’s calculations between 0.021 to 0.29 f/ml years; assuming 10-14 days of cutting and handling asbestos cement around 50% of the time). Further, as there is no known lower threshold of exposure that is capable of causing mesothelioma the deceased’s exposure could not reasonably be disregarded as de minimis. 

Concluding comments

1. This case is a good reminder that if your expert evidence changes – the factual basis for that change must be clearly set out in the report. 
2. If photographs are going to be shown by an occupational hygienist (which will often be very helpful), they should be indexed and exhibited to the report.
3. Interestingly, it was found that the exposure was not de minimis even though there was no direct comparison with exposure from other sources.
4. Causation was not formally in issue, however, the case makes clear that breach and causation will be in lockstep when only de minimis exposure can safely be ignored.
5. The judgement seems to suggest (although there is a lack of reasoning on the point) that any small but measurable exposure will be sufficient to materially increase the risk such that a claim should succeed. In Ness, 10-14 days of exposure in the mid 1960s for what was assumed to be around 50% of the day was sufficient to establish breach.

Jennison v Jennison & Anor [2022] EWCA Civ 1682

This blog post was written by Rebecca Henshaw.

Just before Christmas, the Court of Appeal handed down useful guidance on two issues which will be of interest to practitioners who regularly deal with grants of probate and letters of administration, in both industrial disease settings and elsewhere.

The Court was asked to determine both 1) the standing of foreign executors and 2) the role of CPR 3.10 in correcting claims which have been issued by representatives with no standing. 

The background to this case was that the Deceased was domiciled in South Wales, Australia. His widow was appointed his executrix under his will in New South Wales. She sought relief in respect of breaches of trust, claimed to be committed by her brother and sister in law, in connection with land the Deceased owned in England.

In February 2019, the Claimant issued proceedings. The Defence denied that the Probate conferred any jurisdiction to the Claimant regarding the Deceased’s estate. On 25 November 2019, the Grant was resealed by the High Court under the Colonial Probates Act 1892. The Defendants appealed to strike out the proceedings before the claim came on for trial at the County Court, which was dismissed. They appealed this both before the High Court and at the Court of Appeal.

Foreign executors

In the first half of the judgment, Lord Justice Newey gives a helpful summary of the standing of foreign personal representatives.

As readers will know, as a matter of domestic law, an executor is considered to gain title as soon as the testator dies, but an administrator acquires title only when letters of administration are granted. An executrix of a will of a person domiciled here, having title from death, need not wait for probate before issuing a claim, albeit that she will have to obtain probate by the time the case comes on for trial in order to prove her title.

However, a grant of representation under the law of a foreign country has no operation of itself in England. A person appointed as an administrator elsewhere than in the United Kingdom is not entitled to bring proceedings in that capacity in England and Wales until the letters of administration have been resealed under the Colonial Probates Act 1892.

The Defendants in this case had appealed this point in the High Court, asking His Honour Judge Pearce  to decide whether resealing had a retrospective affect, or whether it must be done before issuing a claim. If it was not retrospective, then the Claimant had no capacity and/or legal standing at the date of issue of the Claim Form and the Claim stood to be struck out as void and a nullity.

The Court of Appeal found that the Colonial Probates Act 1892 did not operate retrospectively.

On appeal, the Claimant argued that the Claim should continue notwithstanding this. The claimant derived her title to the claim against the defendants from the deceased’s will, not from the resealing of the Grant. The claimant needed either to have the Grant resealed or to obtain a grant of probate in this jurisdiction in advance of trial only so that she could prove her title. The Claimant relied on the 1916 case of Chetty v Chetty, in which the Privy Council appears to have found that the executor in that case, who had been domiciled in a territory different from that of the pending proceedings, derived his title and authority from the will. The Court of Appeal agreed.

Before doing so, they paused to consider whether Chetty applied to all foreign executors or only those in jurisdictions which followed the rule that executors acquire their title from the date of the testator’s death. The Court noted that the Privy Council may have assumed that the law of “British India” was the same as that of England and Wales. Back to New South Wales in this case, however, where the law, does not consider an executor who has not obtained probate to have legal title to the testator’s estate. In short, the executor does not gain title on death.

Here the Court looked to Dicey, Morris & Collins on the Conflict of Laws where they state at Rule 156, “any property of the deceased which at the time of his or her death is locally situate in England” “vests automatically in his or her personal representative by virtue of an English grant”. The law of England and Wales is applied to the issue of whether the Claimant acquired title to the deceased’s estate on his death and New South Wales law on the point was immaterial.

The Claimant thus had standing when the claim was issued.

CPR 3.10

The Court helpfully reviewed CPR 3.10 and asked, had the Claimant no standing to issue the claim when she did, could the Court nevertheless allow the proceedings to continue?

As a reminder, CPR 3.10 is the general power of the court to rectify matters where there has been an error of procedure, as follows:

3.10 Where there has been an error of procedure such as a failure to comply with a rule or practice direction:

(a) the error does not invalidate any step taken in the proceedings unless the court so orders; and

(b) the court may make an order to remedy the error.

The Court restated the following principles:

• The “wide discretion” conferred by CPR 3.10 cannot be used to validate a nullity;
• CPR 3.10 applies in relation to “an error of procedure such as a failure to comply with a rule or practice direction”;
• CPR 3.10 allows existing proceedings to be regularised, not the creation of valid proceedings;
• It is not, following Stewart J in Kimathi v Foreign and Commonwealth Office (No 2) [2016] EWHC 3005 (QB), “a cure-all for every defect however fundamental, whether or not it is one of law, and whether or not the authorities have previously determined that there is a nullity”

The same conclusion was reached in August by the Privy Council in Jogie v Sealy [2022] UKPC 32. The line of cases culminating in Meerza v Al Baho [2015] EWHC 3154 (Ch), in which Part 3 was used to deal with errors regarding letters of administration “justly” was rejected.

In the case of a claim on behalf of an estate which, at the time of issuing, lacks standing, the claim is “born dead and incapable of being revived.”

Cuthbert v Taylor Woodrow Construction Holdings [2022] EWHC 3036 (KB) (“Cuthbert”)

In this article, pupil Jake Loomes looks at the recent case of Cuthbert in which Max Archer acted for the Claimant, Jennifer Cuthbert, the widow of Mr Derek Barry Cuthbert and executrix of his estate.

Background

Mr Cuthbert was employed by the defendant between 1956 and 1959 over which period he was engaged in the construction of the Queenswood School in Hertfordshire. Through this work he was exposed to asbestos dust from the cutting of asbestos insulation boards in his vicinity and from his sweeping up of the said dust. Sadly, on the 5 April 2022, Mr Cuthbert died as a result of his mesothelioma.

The claim against the defendant was brought by Mrs Cuthbert as the executrix of Mr Cuthbert’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 and also as his dependent under the Fatal Accidents Act 1976. The claim was brought both in common law negligence and under the Building (Safety, Health and Welfare) Regulations 1948.

The Issues

The court was required to determine the following issues. Firstly, the extent, the degree, and frequency of Mr Cuthbert’s exposure to asbestos dust. Secondly, whether that exposure amounted to a breach of duty by reference to what the defendant knew, or ought to have known as to the risk of injury from exposure to asbestos dust. The judge did not deal with quantum.

The Facts

Mr Cuthbert provided two witness statements prior to his death. The defendant did not put any Part 18 questions to him, nor was there a deposition of him prior to his death. Accordingly, the only evidence of fact was his. Against that backdrop, the court made the following findings of fact:

• The type of material being cut was Asbestolux (asbestos insulation boards), which generates concentrations between 5-10 fibres/ml [14, 21].
• Mr Cuthbert would have struggled to remember events from some 60 years ago, and was trying to remember them while ‘acutely unwell’ and in a ‘state of shock’ [31].
• It was highly debatable that Mr Cuthbert was a ‘trainee supervisor’ and far more likely that he was in fact a ‘general labourer’ [32].
• Mr Cuthbert had “no more than sporadic contact with the carpenters – perhaps, he did see them every day or most days”.
• The carpenters which Mr Cuthbert was working around were not engaged every day with cutting up asbestos materials [36].
• Mr Cuthbert had irregular and intermittent contact with the carpenters [36].
• Subject to weather, the cutting of asbestos boards took place outside [36].
• Mr Cuthbert did sweep up, however he was not always the person to sweep up after the carpenters once they had cut up their asbestos materials. “Experience would suggest that they probably did some of their own sweeping” [37]. In the court’s view, “perhaps, he spent in the order of ten minutes per day sweeping up [38].
• There were clouds of dust when the Abestolux was cut up [39].
• If there were clouds of asbestos dust, he would have expected Mr Cuthbert to keep his distance. There was no good reason for him to be standing so close to the carpenters so that he became covered in dust [39].
• Mr Cuthbert’s exposure was “of a low order, light and intermittent, and in the main, as a bystander” [40]

Expert evidence

In addition to written reports, the court heard oral evidence from the two occupational hygienists, Ms Conroy for the Claimant and Dr Phillips for the Defendant. The court held that:

“Assuming that the deceased was indirectly exposed to asbestos dust for one and a half hours per day as a result of the carpenters cutting up AIBs (and I have already found this to be inherently improbable) and, assuming that he spent approximately ten minutes per day sweeping up asbestos dust, Ms Conroy agreed with Dr Philips that his average daily exposure was in the order of two fibres/ml” [43]

The judgment went on to state that:

“It needs to be seen in the context that, whilst, at the time of his employment, there were no threshold limits in place, as at 1960, the threshold limit equated to 30 fibres/ml (see “Toxic Substances in Factory Atmospheres” published by HMSO in March 1960). It can be seen, therefore, on any view of the evidence, that the deceased’s exposure was very substantially below the limits set by the 1960 publication, both in the short term and over the daily average levels which have to be calculated to make meaningful comparison with the 1960 limits” [44]

Knowledge of risk and breach of duty

Having heard submissions from both counsel, the court made the following findings:

• At the heart of the case was the issue of knowledge of risk. The test set out in Swanwick J’s judgment in Stokes v Guest[1] remains helpful [74].
• The “recognised and general practice at the material time is of relevance and importance, although it may not be the sole test.”. Further, foreseeability should not be referenced by hindsight and should be by reference to standards at the time[75].
• The judge rejected the Claimant’s reliance on the higher authorities Maguire v Harland and Wolff Plc [2005] EWCA Civ 1 (“Maguire”) and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101 (“Jeromson”). It is not clear why he felt Maguire was of no application, Jeromson was distinguished on the basis that he felt that its dicta should be confined to cases where exposure was very heavy. In so doing the judge placed reliance on Abraham v G Ireson & Sons (Properties) Limited [2009] EWHC 1958 (QB) (“Abraham”)[2], the message taken from the literature from the mid to late 1950’s was that asbestos dust was highly dangerous and that its inhalation was highly dangerous. However, that was only delivered in the “context of the known risk of asbestosis and of occupational exposure to significant quantities of asbestos dust” The question that should be asked is “whether the information then available should have alerted an employer to the possibility that an employee whose exposure to asbestos was light and intermittent might have been at risk of contracting an asbestos related injury” [76, 77].
• The judge rejected the suggestion that when viewed in the context of the higher authorities Bussey, Jeromson and Maguire. It was suggested at trial that Maguire, in which the dicta of Hale LJ in Jeromson was approved and said to be binding in relation to lower exposure cases, was not cited in Abraham. The judge held that it was inconceivable that Swift J in Abraham would not have been familiar with Maguire even though it is not cited in the judgment.
• Accordingly, the court concluded that a “reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e more than fanciful) risk of injury as a result of the exposure to asbestos at the [levels Mr Cuthbert was exposed to]”. The court went on to state that whilst there was no safe level of exposure in 1956-1959, the fact that the levels Mr Cuthbert were exposed to fell below those levels set in 1970 was highly relevant (but not conclusive). They pointed strongly to the defendant not having the requisite knowledge of a foreseeable risk of injury.
• Accordingly, the court concluded that there was no breach of duty in the circumstances where the exposure was light and intermittent.

Comment

This case provides an insight into the possible judicial approach to uncontested factual evidence in asbestos cases and pre-1965 exposure. Claimant practitioners will need to be alive to the risk that although Abraham may seem an outlier, it has not been examined by the higher courts in detail and may continue to inform the approach to some cases pre-1965. Further, simply because the defendant has not adduced their own evidence of fact, it does not follow that the court will adopt the claimant’s evidence without scrutiny.

That notwithstanding, some of the findings of fact are difficult to square away with one another. The view that the reliability of Mr Cuthberts evidence was in question, partially because he was ‘acutely unwell’ and in a ‘state of shock’ seems odd [31] in light of the absence of any evidence to that effect. The conclusion that Mr Cuthbert was in all likelihood a ‘labourer’ rather than a ‘trainee supervisor’ is perhaps understandable [32] and open to the judge. However, the judgment went on to reject the evidence that Mr Cuthbert spent 1-2 hours a day assisting carpenters [34] and that he helped them with sweeping on more than an intermittent basis [37]. Such seems strange given that these might be jobs that a labourer would be doing on a regular basis- further there was no evidence to base these conclusions on, the factual findings arose out of skepticism alone. Finally, it is worth noting that it was accepted by the court that there were clouds of dust when the Asbestolux was cut up and that the claimant might have been sweeping up for 10 minutes a day.

Perhaps more problematic though is the analysis of knowledge of risk. The judgment places significant reliance on the case of Abraham. This is problematic for two reasons. Firstly, the case of Maguire was not cited in Abraham. In Maguire, a case also concerning mid-1950’s exposure, the court held that exposure should have been kept to the lowest possible level. Secondly, the judgment in Abraham is at odds with the dicta of Jeromson and Maguire. Neither, in this author’s view, explicitly restrict the duty to instances where there is substantial or prolonged exposure or where there is ‘frequent, heavy and regular exposure’.

Finally, the judgment seems to drift into the ‘bright-line’ approach that was seen to TDN13 in Williams v University of Birmingham [2011] EWCA Civ 1242. That ‘bright-line’ approach in this case relates to the 1960 publication ‘Toxic Fumes in Factory Atmospheres’ which set out a 30 fibres/ml limit and to which the court made several comparisons against [44, 55, 56]. This is tempered slightly by comments that it was ‘not conclusive’ of the issue [83]. However, it does suggest a steer towards the kind of approach that the Court of Appeal explicitly rejected in Bussey v Anglia Heating Limited [2018] EWCA Civ 243.

Permission to appeal is outstanding so watch this space!

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[1] Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776

[2]. HHJ Freedman further placed reliance on Owen v IMI Yorkshire Copper Tube, 15 June 1995; and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101

Moore v Harland and Wolff plc and ors [2022] NIKB 36

This blog post was written by Dr David Sharpe KC and Corinne Novell.

Introduction

The decision concerns an unsuccessful claim for secondary exposure to asbestos, which the plaintiff alleges occurred in his family home for the period of 1951 to 1974, during which the plaintiff’s father worked as a pipe lagger for the defendants on a Belfast shipyard. The plaintiff alleges that this exposure caused him to develop bilateral pleural plaques, a dose related condition dependent on cumulative exposure. By the time of trial, the claim was only being pursued against the first and third defendants.

In essence, the claim failed because the plaintiff had not adduced sufficiently cogent evidence as to the duration, intensity and timing of the alleged exposure. Specifically, he had failed to establish that the level of exposure post-1965, following whichsecondary exposure was reasonably foreseeable and thus could accrue liability (as per Maguire v Harland and Wolff plc and another [2005] EWCA Civ 1), was high enough to have materially contributed to development of the plaintiff’s condition. This failure to establish ‘culpable’ exposure led to dismissal of the case.  

The Evidence

The plaintiff alleged that exposure came from two key sources. Firstly, the plaintiff’s father’s ‘great coat’ which he wore over his overalls on his way to and from work. Once the father came home, this was always placed over the bannister at the bottom of the stairs, which the plaintiff would frequently pass by. Both the plaintiff and his brother adduced evidence to the effect that they would play and hide under this coat and that this coat was sometimes placed over their bed for extra warmth.

The second source of exposure was alleged to have come from the father’s work overalls, which he would wear whilst having dinner with the family. These would be washed in the kitchen sink and which the plaintiff’s mother would beat dust off of and dry indoors hanging from the kitchen ceiling when the weather was poor.

The problems with the evidence establishing that these sources amounted to sufficiently intense culpable exposure such as to have materially contributed to the plaintiff’s condition were as follows:

• The plaintiff admitted in evidence that in his teenage years following 1965, it was possible that his risk of exposure was lower than in his childhood years during which he would have been playing under the coat and would have been in the house more often [26, 22].
• The plaintiff had given an account to his respiratory expert, Professor McGarvey, that exposure continued ‘until he was 12 or 13 years of age’, which entailed exposure ending in early 1965 [23]. If this account was correct, all exposure would have been non-culpable exposure.
• In cross-examination, the plaintiff accepted that he was unclear on the dates of exposure but stated of the period following 1965: “I was still in the same house where the same things were still happening, so you have to assume that I was still exposed” [26].
• The plaintiff and his brother gave different accounts of when the coat was placed over their bed, with the plaintiff stating that this occurred only on particularly ‘cold nights’ whilst his brother said this was done every evening during winter [79].

Further, the Judge was unimpressed with the difference in the two reports provided by Professor McGarvey. The first of these, written following a meeting with the plaintiff, set out that the plaintiff had said that exposure had occurred “for most of his childhood through the mid-1950s and early 1960s” [82]. The second report, apparently prepared without a second consultation with the plaintiff and without any justification or source being accredited for the change, said that the plaintiff was “likely to have been exposed [to asbestos dust] at home up until his father stopped working or Mr Moore left the family home” [83].

Mr Justice McAlinden determined that this shift from exposure prior to 1965 to exposure through to 1975 was due either to Professor McGarvey having read the pleadings or an attendance note from June 2016 which set out the chance of exposure following 1965. The Judge stated that he could not ignore the materially different histories and opinions on exposure between the report, particularly since the second report (in the Judge’s view, erroneously) set out that “the sources of all information” used had been indicated [90] and the plaintiff’s solicitors were adamant that they had not given the expert a history.

Commentary

This is an interesting judgment from the Northern Ireland High Court and it is noted that historically the Harland & Wolff Shipyard in Belfast was the largest in the world and that the Titanic was built there. The law in Northern Ireland relating to personal injury arising from asbestos exposure is essentially identical to that of England & Wales except to note that the devolved Assembly passed legislation to permit proceedings for asymptomatic pleural plaques ((the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011)) following the House of Lords judgment in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39.

This case focusses upon the ruling in Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 in which the deceased contracted mesothelioma from washing the overalls of her husband which were contaminated by asbestos dust as a result of his work in the defendant’s shipyard. The exposure occurred between 1961 and 1965, but, significantly, it ceased prior to the publication of Newhouse and Thompson’s article on the links between domestic exposure to asbestos and mesothelioma. The Court of Appeal determined that liability in such secondary-exposure cases could be established only for post-1965 exposure.

In Moore the case did not succeed due to the factual matrix relating to asbestos exposure becoming mired in confusion and the plaintiff having failed to satisfy the standard of proof in establishing a material contribution from the secondary exposure to the development of the pleural plaques. The plaintiff appears to have established a prima facie case of secondary exposure from his father’s overalls and great coat but failed in respect of the requirement that such exposure was post-1965. The genesis of the confusion and ultimate failure of the case was the medical reports – there were two reports containing a record of the plaintiff’s observations on exposure and the first suggested that exposure had effectively ended in 1965 whereas the second report concluded there had been post-1965 exposure without any explanation or justification. There were also differences between witness and concessions by the plaintiff and his brother.

This case failed on the basic premise that a Claimant must prove their case and serves as a reminder that evidence must always be directed to proving the core issues and satisfying the necessary legal requirements. In this instance that amounted to convincing the court that there was sufficient secondary exposure to asbestos post-1965 to materially contribute to the development of pleural plaques.

McAlinden J set out this conclusion fully at [96]:

“In relation to the issue at the heart of this case which is an issue of fact I find that the plaintiff has failed to satisfy me on the balance of probabilities that the exposure to asbestos dust and fibres in the domestic environment in the period subsequent to the end of 1965 made a material contribution to the risk of the plaintiff developing pleural plaques. There are just too many short-comings, deficits and contradictions in the plaintiff’s case for me to be able to simply sweep them all aside and conclude that because there was a period between 1965 and 1974 when the plaintiff probably experienced some exposure to asbestos dust and fibres then that exposure must have materially contributed to the risk of him developing pleural plaques, particularly when that period followed on from a 14 year period of what was in all likelihood a longer period of more intensive exposure.”

WHITE V SECRETARY OF STATE FOR HEALTH AND SOCIAL CARE [2022] EWHC 3082

This post was written by Mike Brace.

A recent decision which demonstrates the dangers inherent in attempting to undermine an opponent’s expert evidence without serving your own or even requiring that the opposing expert attend  for cross examination.

The Case.

The claim was brought under the Law Reform (Miscellaneous Provisions) Act 1934 in respect of the death of  Mr White from mesothelioma.  The Claimants, Mr White’s executors, alleged that he was exposed to asbestos whilst working at Sefton General Hospital Liverpool during 2 discrete periods:

• 1949 – 1960 (as a junior lab technician); and
• 1973/74 – 1991/92 (as a senior biochemist)

The Defendant was the successor body upon which any liability of the Hospital had devolved.

The Lay Evidence and the Medical Evidence.

The Claimants served 2 statements: one by Mr White a few weeks before his death and one from his daughter (one of the Claimants).  The Defendant served no witness evidence and did not require Mr White’s daughter to give evidence.

The medical experts were not required to give evidence. A joint statement had been provided in which there were no areas of disagreement.   The medical experts agreed that:

“if the information available to us is found by the Court to be broadly correct, then there was probably a medically significant increase in risk of mesothelioma attributable to his work with the Defendant”

The potential sources of asbestos exposure in both the discrete periods were protective asbestos mats placed under “Bunsen” burners in the laboratories.

The Defendant’s position was:

“..the Claimant’s evidence establishes low level exposure during the course of his employment during the first period of his employment, up to 1960, and not the second from 1973, at a time when the risk of injury in the form of mesothelioma from low levels of exposure was not generally known”

Central issues in the claim were thus the amount of asbestos dust which Mr White was exposed to in each period and whether that level of exposure posed a foreseeable risk of injury when judged against the “standards of the day”

Occupational Hygiene Evidence

The parties had each been given permission to obtain and rely upon expert evidence from an engineer/occupational hygienist.

However, at trial the only expert occupational hygienist evidence before the court  consisted of the written report of the Defendant’s expert Mr Graeme Hughson which was “accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time”

The Claimants having:

• not served any expert occupational hygiene evidence of their own;
• not put Part 35 questions to the Defendant’s expert; and
• not sought an order permitting the Defendant’s expert to be cross-examined

nonetheless sought to “impugn the evidence or expertise of the Defendant’s expert on the matters in his report” and in particular argued that:

(a)        where Mr Hughson’s evidence of fact was in conflict with that of Mr White the latter should be preferred; and

(b)        insofar as Mr Hughson’s evidence of opinion was no more than an unreasoned assertion, or based on assumptions other than those accepted by the Court, it should be rejected and

(c)        where Mr Hughson gave a reasoned opinion on a matter within his expertise the Court could accept it but was under no obligation to do so.

The Judge noted that in Griffiths v TUI [2022] 1 WLR 973 the majority of the Court of Appeal  held “that there was no strict rule that the court was bound in all circumstances to accept the uncontroverted evidence of an expert witness which complied with the formal requirements of CPR Pt 35; that, rather, such evidence fell to be evaluated and assessed by the court in the usual way, and the approach to be taken, and weight to be given, to such evidence would depend on the circumstances of the individual case, the nature of the report itself and the purposes for which it was being used in the claim.”

The Judge stated that he intended to take the approach indicated in Griffiths.  He observed that whilst he was “not bound to reach conclusions which accord with the views of Mr Hughson, any departure from a properly reasoned opinion of his on matters of expert assessment which are within his expertise would require cogent explanation”.  Further, in his view the decision of the Claimants not to serve evidence of their own, not to pose Part 35 questions, and not to seek to cross examine Mr Hughson were relevant to a proper evaluation of Mr Hughson’s evidence and weight that may be given to it as part of all the circumstances.

The Result

Unfortunately, the Claimants tactical approach failed and Mr Hughson’s evidence proved decisive.

In approaching his factual findings, the Judge observed:

“Mr Hughson is not a witness of fact, but does have very considerable expertise in assessing likely exposure to asbestos dust in claims of this type. He has previously been employed as a scientific technician and a senior scientist by the Institute of Occupational Medicine advising clients on management of asbestos in buildings routine air monitoring for verification of asbestos containment, and assessment of operator exposures.”

The Judge expressed himself  “greatly assisted by  Mr Hughson’s report” when reaching conclusions as to the likely level of exposure in the first period of employment.  The Judge observed that  “although use of the mats, abrasion of their surfaces by moving them, or dropping such mats is likely to have caused asbestos dust to be emitted into the air in the locality where the deceased was working such emissions were not constant but intermittent, and probably at very low levels. In terms of actual periods of emission Mr Hughson who himself has worked in scientific labs, estimated a period as probably for no more than for 12 minutes in an 8-hour working day.  Although not a witness of fact, this estimate seemed a reasonable estimate from a highly experienced expert who had relevant experience of working in and advising on, similar environments. There was no expert evidence from the Claimants to suggest to the contrary.”

 In relation to the second period of employment the Judge agreed with Mr Hughson that friable forms of “Bunsen” burner  mats would not have been used but rather  harder, less dusty ones and also agreed that any exposure of Mr White to asbestos from the harder mats in the second period would have been insignificant/de minimis and not sufficient to give rise to a material increase in the risk of development of asbestos related injury.

In relation to the issue of breach of duty and applicable “standards of the day” the Judge also found  Mr Hughson’s evidence compelling.  He contrasted this with  the position of the Claimants:

“In the absence of any expert evidence to support their case, ….driven to rely in submissions on propositions of general applicability as to the state of knowledge in respect of asbestos which it was argued could be taken from the relevant case-law and read directly across to the present situation”

The Judge concluded “….having regard to the evidence of Mr Hughson, and in the absence of any expert evidence from the Claimants to the contrary, my answers to the questions derived from Jeromson and Bussey are as follows:

(i)         Should Sefton Hospital in either the first period of employment (1949-1960) or the second period of employment (1973 to 1990) have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? No: in respect of both the first and second period. I have found that the exposure to dust was not more than minimal and certainly not at a level which would have triggered a duty on the Defendant to take precautions or seek advice on what precautions to take.

(ii)        If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take. Not applicable.  There was insufficient exposure to trigger the duty to take precautions or seek advice.”

The claim was dismissed.

Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB)

In this blog Cressida Mawdesley-Thomas considers the decision of HHJ Lickley KC in Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB).

Introduction

The decision concerns an unsuccessful claim for contribution under s. 1(1) of The Civil Liability Act 1978, following the settlement of a claim for mesothelioma (‘the substantive action’), by the owners and operators of a dockyard. It is a salutary reminder of what any claimant in asbestos litigation must prove to succeed in a claim, particularly in the context of naval dockyard exposure.

Summary

The contribution claim was for £190,696.12, being the costs and damages incurred in settling the substantive claim for mesothelioma that was brought against Bae Systems as the owners and operators of the Barrow-in-Furness Dockyard between 1970-1975. To be successful in the claim for contribution, Bae Systems (‘the Cliamant’) needed to prove, on the balance of probabilities, that when the deceased was employed by the Defendant, Alfa Laval Ltd, which was between 1974 and 1975, he was exposed to asbestos. However, the claimant failed to prove their case.

The Judge was unimpressed by the lack of evidence and the fact that the claimant’s case in the contribution claim was directly contrary to their Defence in the substantive action (they never admitted liability and the settlement was recorded in a Tomlin order). The claimant in the contribution claim adopted the allegations made by the Claimant in the substantive action: that the Deceased was exposed to asbestos at the Barrow-in-Furness Dockyard when working on the design and installation of filtration systems, which included the application of asbestos lagging, on HMS Sheffield (a type 42 Destroyer) and a nuclear submarine.

Substantive Action

In the substantive claim the Defence made the following points:

(i) Denied that the deceased was exposed to such levels of asbestos dust that there was a foreseeable risk of injury at that time [5].

(ii) Averred that ‘it is highly unlikely that the filtration system which the deceased was charged with designing and overseeing would have been assembled inside the hull as late as 1974’ [6.5(a)].

(iii) Averred, in any event, that any filtration system and/or pipework servicing such a system would not require insulation [6.5(b)].

(iv) Relied upon the survey of HMS Cardiff of 14th January 2008 to show the lack of asbestos used in lagging [6.6].

(v) Relied upon the research by Geoffrey Slee of 28th February 2005 who reported that the only asbestos used at the Dockyard in the 1970s was compressed asbestos fibre used in gaskets between sections of pipe [6.9].

(vi) Averred the deceased would not have been employed to design the filtration system at the Dockyard at the time alleged [7.1].

(vii) If the deceased was at the Dockyard at the date alleged, he would not have been present when the filtration system was designed [7.2].

The above summarised position was adopted by the Defendant to the contribution claim.

The Evidence

This was a case where there was very little evidence. There was a witness statement from the Deceased and from two others who were not called to give live evidence. The Judge found that the Deceased’s evidence was of limited value, noting that there were factual errors relating to his “age, date of birth and daily commuting.” The statement was also made shortly before the Deceased’s death when he was very unwell and was trying to describe events that occurred more than 40 years before.

It was also noted that the other evidence from Mr Armstrong and Mr Carruthers did not support the claimant’s case on the time of the Deceased’s exposure, i.e., that it was from 1974 during the installation of a filtration system on HMS Sheffield and/or a submarine.  It was also noted that their evidence did not detail asbestos being used on a filtration system.

The Judge noted that the following, which would have been of assistance, was not before the Court:

• Evidence from a naval architect commenting on ‘when during construction a filtration system was or would be installed’.
• Diagrams, plans, or build specifications for a Type 42 Destroyer / submarines demonstrating where the filtration system was and how it was lagged.
• Asbestos surveys of HMS Sheffield or any submarine under construction at the time.
• Evidence that HMS Sheffield was fitted with a filtration system and that such a system involved a ‘hot’ component that required insulation which included asbestos.
• Evidence as to when during the process of the building of a ship or submarine, any filtration system is installed and operational: The same points apply to any nuclear submarine under construction at the relevant time.
• Build specifications, design or drawing for a Type 42 Destroyer or submarines built at the relevant time.

Occupational Hygiene Evidence

The court had the benefit of written occupational hygiene evidence (the experts were not called to give live evidence), however, the evidence of Martin Steer for the Defendant was preferred to that of Mr Glendenning for the Claimant.

It was noted that Mr. Steer’s conclusion [which assumed the filtration system was installed before the ship’s launch in 1971]; the deceased was employed by the Defendant in the tax year 1974-1975) whereas “Mr Glendenning has no knowledge of when such a system would be installed and, despite that, says that installation and further work ‘is likely to have occurred during the commissioning period which extended to 1975′.”

Takeaway Points

Whilst this was a claim for contribution made by the Defendant in the substantive mesothelioma action against one of the Deceased’s former employers there are a number of useful practice points for Claimant practitioners in asbetos disease litigation.

It should always be remembered what must be proved. In this case it needed to be proved that there was (i) a filtration system on the relevant ships (ii) that required insulation, i.e. because it contained a hot component (iii) that insulation contained asbestos (iv) that the claimant was exposed to it, i.e. when was the insultation installed. Evidence was needed on all of these issues but was distinctly lacking: the deceased’s evidence contained limited detail and contained a number of errors and other ‘supporting’ statements did not provide evidence of (i-iv) above. Taking care to avoid simple factual errors in witness statements will help prevent a Defendant taking easy points on credibility.

Dockyard / Naval Construction

There are a number of points particularly pertinent to dockyard / naval construction claims:

• Gather as much publicly available information on the ship(s) as possible (or the same class of ship built in the same year). The type of evidence that will be helpful includes: build-specifications, diagrams and asbestos surveys. Consider instructing an expert naval architect and rely on this case in support of any application.
• Test the evidence of your occupational hygienist / experts against the known facts of when the ship was launched and commissioned.
• Try and obtain details regarding the colour of the asbestos used. In this case the deceased’s statement contained no such details and Mr. Stear noted: “The Royal Navy instruction issued in 1969 referred to the discontinued use of crocidolite (blue) and amosite asbestos at that time and trials were then in hand to reduce the use of chrysotile (white) asbestos.”
• The Slee report on ‘The Study of the Historical Use of Insulation Materials’ dated 28th February 2005 may be helpful in cases concerning naval vessels which were built between 1943 and 1970: ‘the vulnerable period’.

Finally, it must be acknowledged that Defendants such as Bae Systems Marine Ltd, the owners and operators of the dockyard, are likely to be more reluctant to settle claims following this decision. It is therefore more important than ever to build a strong case and success will require the best evidence possible. As asbestos practitioners will be acutely aware, the days of heroic findings of fact are long since over. However, this case will be of assistance if seeking to rely on expert evidence from say, a naval architect and a different outcome may have been secured had evidence been placed before the court regarding filtration systems lagged with asbestos on other similar vessels.

POWER V BERNARD HASTIE & COMPANY LIMITED & ORS [2022] EWHC 1927

This blog was written by Ivan Bowley who appeared for the successful Claimant. He is instructed by Tom Bradley of Simpsons Solicitors.

A recent decision of the High Court considers whether the right to seek further damages under a provisional damages order passes to the injured victim’s estate on his death.

Mr Hammacott developed asbestos related pleural plaques and minor asbestosis as a result of asbestos exposure sustained during various periods of employment with the defendants. In 1991 he issued a claim for provisional damages pursuant to section 32A of the Senior Courts Act 1981. The immediate award was determined at trial in 1993 and the parties subsequently agreed a consent order (PDO) which gave Mr Hammacott the right to seek further damages if he developed any of a number of risk conditions, including deterioration of his asbestosis or pleural thickening.

The PDO provided that: “The Plaintiff do have leave to apply (without time limit) for further damages pursuant to Order 37 Rule 10 if he does develop the aforesaid conditions or any of them.” Attached to the order was an agreed statement of facts which recorded that: “It is agreed between the parties that the Plaintiff can apply for further damages at any time during his life”. Many years later Mr Hammacott developed more serious asbestos disease but died in 2017 without having issued an application for further damages. It was alleged that his asbestos disease caused his death.

The executor of Mr Hammacott’s estate issued an application under CPR 19.2 to be substituted as Claimant in Mr Hammacott’s claim so that he could then pursue an application for further damages on behalf of the estate pursuant to section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934, and a claim on behalf of Mr Hammacott’s widow pursuant to section 1 of the Fatal Accidents Act 1976. The question for the court was whether the benefit of the PDO survived and passed to Mr Hammacott’s estate pursuant to section 1(1) of the 1934 Act or, as the Defendants contended, it died with him.

The Defendants opposed the application on a number of grounds. Mr Hammacott’s original cause of action had “merged” with the judgment and so no longer existed. The right to seek further damages was therefore to be determined in accordance with the PDO together with the agreed statement of facts which limited the right to seek further damages only to Mr Hammacott and only during his lifetime. The statutory scheme did not envisage anyone other than the injured victim having the right to seek further damages.

The Claimant argued that the PDO comprised part of Mr Hammacott’s original cause of action, relying on the decision of HHJ Roberts in the County Court case of Guilfoyle v North Middlesex University Hospitals NHS Trust (2018). That cause of action therefore survived for the benefit of Mr Hammacott’s estate. The Judge agreed and considered that Guilfoyle had been correctly decided.

The Judge found that the term “without time limit” in the PDO did not restrict the right to apply for further damages only to Mr Hammacott. The reference in the agreed statement of facts to the application being made in the deceased’s lifetime did not appear in the PDO itself, and, even if it had, it was only a stipulation as to time and did not prescribe who was permitted to make the application. The Judge also rejected the argument that the right to claim further damages ended with Mr Hammacott’s death. The term “without time limit” meant exactly what it said and was not restricted to Mr Hammacott’s lifespan.

It was not in dispute that the relevant procedure was contained in CPR 41 which had replaced RSC Order 37 under which the original consent order had been made. The Judge found that the statutory scheme under section 32A of the Senior Courts Act 1981 and the procedural rules for provisional damages in CPR 41 did not limit the award of further damages only to the injured victim. Nothing in the legislation and the rules prevented the injured victim’s rights passing to a third party, including the victim’s estate.

Because of the Judge’s findings on the effect of the statutory scheme, CPR 41 and the language of the PDO, it was not necessary for the Judge to go on to consider whether an application to extend time to apply for further damages was necessary. Under Order 37 Rule 8(3) any application to extend the time within which a party could seek further damages had to be made before the expiry of the existing period. However, CPR 41 contained no similar stipulation. In Blythe v Ministry of Defence [2013] All ER 326, the Master had ruled that an application by a living victim to extend time made 2 years after the initial period had expired was permissible. That decision was upheld on appeal to the single judge and subsequently by the Court of Appeal.

Having made the findings summarised above the Judge found that the requirements of CPR 19.2 had been satisfied and the Claimant could be substituted so that the claim under section 1(1) of the 1934 Act claim could proceed.

Although not central to the issue before the Court the Judge also heard submissions about the impact of limitation. He found that no new limitation period applied in respect of the estate claim. This decision is consistent with Lloyd v Humphries [2015] EWHC 525 (paras 89 – 90). The time period within which an application for further damages could be made was determined by the terms of the PDO. If he was wrong about that the Judge stated that CPR 19.5 applied. CPR 19.5 permits substitution after the expiry of a relevant limitation period, and for personal injury actions provides that the court may defer resolution of that issue to trial.

A further question concerned a proposed amendment of the original claim to join the Fatal Accidents Act claim on behalf of Mr Hammacott’s widow. Section 3 of the Damages Act 1996 expressly permits a claim by the dependants where a provisional damages order has previously been made. CPR 17.4(2) permits the addition of a new claim after limitation has expired where it arises out of the same or substantially the same facts as the existing claim. The Judge stated that it was not necessary for him to rule on the question of whether it would be appropriate to permit an amendment of the existing proceedings to add a claim under the 1976 Act but nevertheless went on to consider the point. He stated that in order to succeed it would have to be shown that Mr Hammacott’s death arose out of the original tort; those facts were no part of the proceedings that were brought by Mr Hammacott and therefore the 1976 Act claim did not arise out of substantially the same facts as the existing claim.

Commentary

The Judge rejected the Defendants’ argument that the meaning of the PDO was to be found in the agreed statement of facts. By contrast, in Green v Vickers  [2003] EWCA Civ 904, the Court of Appeal determined the meaning of a term dealing with causation in a provisional damages claim by reference to the agreed statement of facts in that case. Inevitably each case will turn on its own facts, but where the language of the order appears inconsistent with the agreed statement of facts it should be the order that prevails.

The author also respectfully suggests that the Judge was wrong about the application of CPR 17.4(2). That rule states: “The court may allow an amendment whose effect will be to add or substitute a new claim, but only if the new claim arises out of the same facts or substantially the same facts as the claim in respect of which the party applying for permission has already claimed a remedy in the proceedings.” In the present action the claimant is seeking further damages because of the Mr Hammacott’s more serious asbestos disease and consequent death. The 1976 Act claim on behalf of his widow arises precisely because, it is alleged, Mr Hammacott died as a result of his asbestos related injury. Both claims arise out of the same tortious exposure to asbestos dust and concern the same asbestos disease. It is difficult to see how the two claims do not arise out of the same or substantially the same facts.

The issues that arose in this case are not uncommon in asbestos litigation, but they can also arise in other provisional damages claims. They concern the interpretation of provisional damages orders made many years earlier and under a rules regime that has since been replaced by the CPR. Language that was thought to be watertight when the original order was made may now be found not to achieve the result originally intended.

Problems can easily be avoided if the language of the provisional damages order specifically provides for claims by the injured victim’s estate (and/or dependants). When required to do so the Courts have provided for this outcome. The judge in Guilfoyle ordered that any further application for damages had to be made within 12 months of the victim’s death. In Prater v British Motor Holdings Ltd [2016] Lawtel, the judge specified a period of 3 years after the date of death.

Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB)

This blog is written by John-Paul Swoboda and Cressida Mawdesley-Thomas. John-Paul Swoboda successfully acted for the Claimant, instructed by Shaheen Mosquera of Fieldfisher, in Keegan v (1) Independent Insurance Company Ltd (2) Zurich Insurance PLC [2022] EWHC 1992 (QB).

Keegan is the first case to go to trial, so far as we are aware, to consider the application of The Third Parties (Rights against Insurers) Act 2010 (‘the 2010 Act’) in the context of claims for mesothelioma. Regular readers of this blog will no doubt remember the case of Brooks (link to blog here) which considered the issue through the prism of a strike out application.

It is, we think, a significant decision:

• It makes any argument that the cause of action is complete in mesothelioma cases years before the onset of symptoms hard, if not untenable.
• Arguments against suing an insurer(s) directly in mesothelioma claims (where the employer is no longer a live entity) on the basis that the cause of action was complete before 1 August 2016 are therefore hard, if not untenable.

Background

Claimant

Mr Keegan was exposed to asbestos whilst working for his employer Jas. C. Flaxman & Sons Ltd at various Marks & Spencer stores between 1972 and at least 1984. He began to suffer from symptoms of mesothelioma in about January 2021. His claim was supported by witness statements and also medical evidence. To avoid the delay of restoring Jas. C. Flaxman & Sons Ltd to the register Mr Keegan brought his claim directly against their insurers (IICL and Zurich), relying on the 2010 Act. This was particularly important as he was paying for expensive dual agent immunotherapy from his own funds.

First Defendant

The First Defendant, an insolvent insurer, did not respond to the claim and took no part in the proceedings. That is not to say there is no potential paymaster however, as the FSCS agreed in principle to indemnify but took issue with the fact that an action had been brought directly against the insolvent insurer. That issue of whether the FSCS is liable for the judgement against the insolvent insurer was not resolved during the current action.

Second Defendant

The Second Defendant expressly denied that the 2010 Act applied or operated to confer any cause of action against the insurers. The Second Defendant contended that any liability of the insured to the Claimant was incurred prior to the commencement of the 2010 Act and accordingly it did not apply.

Settlement was reached with the Second Defendant shortly before trial for £650,000 plus an indemnity for future treatment costs. This left a shortfall of about £200,000 on the total claimed (which was £854,076.23 per the schedule of loss) which is the sum which the Claimant went to trial on in the action against the First Defendant.

The 2010 Act

The 2010 act operates to transfer to third parties’ the rights against the insurer that the ‘relevant person’ has when that relevant person incurs an insured “liability”. This is set out in section 1 of the 2010 Act which provides (emphasis added):

(1) This section applies if—

(a) a relevant person incurs a liability against which that person is insured under a contract of insurance, or

(b) a person who is subject to such a liability becomes a relevant person.

(2) The rights of the relevant person under the contract against the insurer in respect of the liability are transferred to and vest in the person to whom the liability is or was incurred (the “third party”).

(3) The third party may bring proceedings to enforce the rights against the insurer without having established the relevant person’s liability; but the third party may not enforce those rights without having established that liability.

What this means in the context of a Claimant suing an insurer directly in a PI action is that the Claimant is vested with the right to bring a claim directly against an insurer who provided relevant EL / PL cover so long as the employer/occupier is a relevant person (i.e., either in some kind of insolvency situation or dissolved). The rights are enforceable once liability is established and liability is established under the 2010 Act by a declaration of the insured’s liability. It should be noted that this marks an important departure from the 1930 Act, which the 2010 Act repealed, which required liability to be established against the insolvent company/person before the claim could be brought against the insurer and before details of applicable insurance could be obtained.

The Issue

The central issue was whether the former employer had “incurred a liability” (that phrase being used in s1(1) of the 2010 Act) before 1 August 2016, the date that the 2010 Act came into force, such that the Claimant was entitled to bring the claim against the insurers directly.  

That task was made  easier  as Redman v Zurich Insurance Plc [2017] EWHC 1919 (QB) had already decided what the phrase “incurs a liability” means in section 1(1) the 2010 Act:

“Liability is incurred when the cause of action is complete and not when the claimant’s rights against the wrongdoer are thereafter crystallised whether by judgment or otherwise.”  [23]

In Keegan, there was no issue that the negligence occurred long before 1 August 2016 (the tortious exposure was between 1972 and 1984). The issue was when was damage, sufficient to complete the cause of action, sustained.

Discussion of the case

The Court considered the relevant case law on actionable damage fully and thoroughly the cases of Cartledge v E Jopling & Sons Ltd [1963] AC 758; Pirelli General Cable Works Ltd v Oscar Faber & Partners (A firm) [1983] 2 AC 1; Hicks v Chief Constable of South Yorkshire Police [1992] P.I.Q.R. p433; Rothwell v Chemical & Insulating Co Ltd [2008] AC 2981; Dryden v Johnson Matthey PLC [2018] UKSC 18 all being considered. The Court also considered the insurance cases, and in particular The Trigger litigation and whether that shed light on when actionable damage arose in the context  of mesothelioma.

This is accordingly a fully considered decision albeit one-sided as the First Defendant was unrepresented and the Second Defendant did not, and could not, make any submissions to prejudice the position of Zurich in light of the agreement with the Claimant. Accordingly, Yip J’s finding that it is only when the mesothelioma “manifests itself by radiological changes and/or symptoms that actionable damage occurs. Until then, the claimant is not appreciably worse off either physically or economically.” is a decision to be treated with the utmost respect. Following this decision, it is our view that the mere fact that an insurer has been sued directly is no reason for judgment not to be entered at the show cause stage.

Further Yip J’s indication that where symptoms onset after 1 August 2016 it is for the Defendant to prove that actionable damage in fact occurred is important. It is no longer tenable, it is suggested, for a Defendant to baldly assert at a show cause that the cause of action was complete before 1 August 2016 where symptoms onset much later: such an assertion would fail to meet the burden (whether evidential or legal) which Yip J indicated applies.

Finally it would be churlish to quibble with Yip J over whether actionable damage occurs at the point of asymptomatic pleural effusion or the onset of symptoms as it will be irrelevant to the question of whether the cause of action was complete before or after 1 August  2016: as Yip J noted, “… On either basis, I am satisfied that there was no actionable damage until long after the commencement date of the 2010 Act.” That, it is suggested, will be the same in any mesothelioma diagnosed in the past few years.