Taylor v Fascia Future [2018] EWHC 3049 QB

Taylor v Fascia Future [2018] EWHC 3049 QB is the only reported case in which Keefe v The Isle of Man Steam Packet [2010] EWCA Civ 263 has been applied in an asbestos case.

Harry Steinberg QC and Max Archer appeared for the Claimant.

Background

The Claimant had contracted lung cancer. He alleged that he was exposed to asbestos whilst working for the Defendant between 1994 and 2006 in the roofing trade.

The Claimant’s case was that he removed asbestos soffits, fascias and guttering from residential properties in the Northampton area. He alleged that he encountered asbestos on the majority of jobs he undertook. He alleged that in order to remove the materials he would have to cut them with handsaws and sometimes with an angle grinder, he would then break the materials up on the ground and place them in a van for disposal. The materials would be taken to the tip, however, in the late 1990s the tip refused asbestos materials and the Claimant was instructed to take them to his employer’s mother in law’s garage. He alleged that he smashed up the asbestos materials in this garage.

The Defendant’s case was starkly different. It was alleged that only a very small percentage of the Claimant’s jobs involved asbestos and that these would typically involve asbestos cement guttering and sometimes soffits. It was said that the materials came off in one piece and would be placed in the van. It was flatly denied that asbestos materials were stored in the garage.

Trial

The matter was listed for a preliminary issues trial on the facts only. Breach of duty was admitted two days before the trial. The preliminary issues trial was concerned with such findings of fact necessary to determine causation.

At trial the Claimant maintained that he was exposed in the majority of jobs. The Defendant called the Claimant’s employer as a witness. He made a large number of concessions, conceding a greater frequency of exposure than had previously been alleged. He conceded that asbestos was stored in the garage and that it may have been broken up there. He also conceded that he had not taken any steps to comply with the Control of Asbestos at Work Regulations 1987, crucially he had not undertaken any testing on the materials, any training as to how to recognise asbestos or safely dispose of it.

Keefe

There nonetheless was a conflict in the evidence as to the frequency of exposure, the materials that the Claimant was exposed to and the processes of removing and disposing of the materials. The Claimant sought to rely upon  Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683  a case in which the Court of Appeal had held that:

“in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant’s breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor.” (paragraph 18).

 

“If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not in fact excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. … [A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.”  (paragraph 19):

 

The judge was asked to accept that had the Claimant’s employer complied with the relevant regulatory regime at the time (The Control of Asbestos at Work Regulations 1987 SI 1987/2115, and 2002 SI 2002/2675) then, to put it at its lowest, the task of establishing the extent of his exposure would have been very much easier because there would have been relevant records. The Defendant argued that Keefe had no application as it was concerned with breach of duty, which had been admitted.

 

The judge found as follows:

 

‘I do, however, accept the relevance of Keefe to the present case to this extent. The Court was clearly focused in that case on the specifically factual component of liability, and even more specifically on the particular factual issue of frequency of exposure to a potentially causative hazard. In my view it would be fair to conclude that the Defendant in this case should not benefit from the absence of records by expecting me to do other than take the upper end of Mr Walpole’s accepted range of frequency – 60% – as the lowest point of the credible range.

 

The judge largely accepted the Claimant’s evidence. It was found that the Claimant’s evidence was ‘consistent with a factual situation in which asbestos was encountered frequently, more often than not…I am satisfied that it would be fair to say, as a very general average, Mr Taylor encountered asbestos in as many as three quarters of the jobs he did.’ Further, it was accepted that the materials were broken up on removal and that they were disposed of in the garage and smashed up by the Claimant.

Analysis

This decision demonstrates the importance of Keefe for asbestos litigators. The 1987 Regs. impose a great number of duties on defendants, most importantly in the context of Keefe, duties to test and keep records. Keefe is therefore exceptionally potent in these circumstances and may come to the aid of many claimants whose evidence is impaired by the passage of time where the defendant has not complied with the duties under the Regs.

 

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Cape disclosure documents: Supreme Court grants permission to appeal

The Supreme Court has granted the parties permission to appeal the Court of Appeal’s decision in Cape Intermediate Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2018] EWCA Civ 1795: https://www.supremecourt.uk/docs/permission-to-appeal-2018-10.pdf

It appears from the Supreme Court’s website that Cape brought the initial appeal and the Forum has cross-appealed. We don’t know on what basis the parties have appealed the decision.

Permission was granted on 31 October 2018.

Links to our previous posts on this case can be found below:

The post on the first instance decision: https://asbestoslawblog.wordpress.com/2017/12/06/concept-70-disclosure-documents-made-publicly-available-dring-v-cape-distribution-ltd-and-others-2017-ewhc-3154-qb/

The post on the Court of Appeal’s decision: https://asbestoslawblog.wordpress.com/2018/07/31/cape-disclosure-documents-appeal-allowed/

Asbestos Exposure and Choice of Law – Docherty Revisited

This post was written by James Beeton.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops.

Decision of the Inner House

Lord Brodie (with whom the Lord President and Lord Menzies agreed), noted that linguistic analysis of the term locus delicti was unlikely to assist the court: the term was ‘a concept rather than a matter of pure objective fact. Identifying it involves a mixed question of fact and law’ (at [33] and [34]). The position in Scots law had never been authoritatively settled prior to the introduction of the 1995 Act and therefore required fresh consideration by the Inner House on this occasion.

Whilst he agreed with Lord Tyre’s conclusion in the Outer House that the cause of action did not arise until injury had been suffered, Lord Brodie held that he had erred in also concluding that the deceased’s presence in England when the ‘final event’ occurred meant that the relevant locus delicti was England ([36]). The second conclusion did not necessarily follow from the first: ‘why should it matter where the deceased happened to be when he succumbed to what was to prove a fatal injury?’ ([38]).

In fact, the relevant features of the case all pointed to the locus delicti being Scotland: this was where the shipyard was located; it was where the deceased was employed; it was where he was exposed to and inhaled asbestos dust; and it was in consequence of those facts that the deceased’s employer was bound to conduct their operations by reference to the requirements of Scots law.

On the other hand, the employer could well object if they were held responsible by reference to the rules of some other system – a real possibility on the basis of Lord Tyre’s interpretation of the locus delicti ([40]). This ‘surprising’ consequence, which undermined a central purpose of the locus delicti rule, was also specifically raised by the Lord President of the Inner House at the beginning of his concurring judgment (at [2]).

Just as the employer was entitled to conduct its operations by reference to Scots law, ‘the deceased was entitled to look to Scots law for the protection of his interests, including his interest in bodily integrity, and therefore, it might be thought, he was entitled to the benefit of such remedies as Scots law affords in the event of these interests not being properly protected.’ The effect of Lord Tyre’s decision was to deprive the deceased of this protection.

In reality, Lord Brodie considered that the issue of geographical location was so unconnected with the development of injury and consequent crystallisation of a cause of action that ‘one might even go the distance of questioning whether there is truly any foreign element in this case at all’ ([41]). The appeal was therefore allowed with the result that Scots law applied.

Comment

The decision of the Outer House came as something of a surprise to the insurance industry given the prevailing market practice of adopting the place of exposure as the relevant locus for choice of law purposes. This decision therefore represents a return to what may be considered normalcy.

Our previous post commented that Lord Tyre was right to conclude that the cause of action would only develop where damage was suffered. Although he agreed with that conclusion, Lord Brodie sidestepped the further conclusion that this was also sufficient to determine the locus delicti. In his view, the place where the cause of action crystallised did not determine the applicable law: a broader analysis capable of taking into account a variety of factors was required.

Of central importance to this conclusion was the need for employers to be able to rely on their adherence to domestic health and safety regimes in Scotland, rather than being held to a potentially higher (and unforeseeable) foreign standard. Similarly, there was no good reason for depriving the deceased of the protections and remedies offered by Scots law where this governed the work he was doing when exposure took place.

Cape Disclosure Documents: Appeal Allowed

The Court of Appeal today allowed Cape’s appeal against the judgment of Master McCloud in respect of the so-called Cape disclosure documents, setting aside the Master’s original Order. The Court of Appeal’s decision was reached on the basis that the Master did not have jurisdiction to allow inspection of many of the categories of documents that fell within the scope of the Order. 

Readers of this blog will recall that on 5 December 2017, Master McCloud determined that many of the documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks at the start of 2017 before Picken J) could be made publicly available. Our post about that decision can be read here.

The Master refused permission to appeal. Cape applied to the High Court for permission, which was granted by Martin Spencer J, who ordered  that the appeal be heard by the Court of Appeal, pursuant to CPR 52.23 in view of the importance of the issues raised.

The hearing before the Court of Appeal took place on 18 and 19 June, and judgment was handed down today.

We will write a detailed post in due course, but for the moment, the key passages of the decision are extracted below. They are taken from the lead judgment of Lord Justice Hamblen. The full decision can be read here.

112. I would accordingly summarise the current position on the authorities as follows:

(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

113. The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c). There may also be additional compliance costs which the non-party should bear, particularly if there has been intervening delay.

114. In the light of my conclusion on inherent jurisdiction it follows that the Master had no jurisdiction to allow inspection of a number of the categories of documents identified in the Order. The documents for which it is likely that there was jurisdiction are the witness statements (but not exhibits), expert reports and written submissions and skeleton arguments. It may also be that there is jurisdiction to allow inspection of a number of the documents relied on at trial, but not on the generalised basis set out in the Order.

Asbestos Contaminated Talc

This post was written by Aliyah Akram.

In the latest in a series of claims against Johnson & Johnson in the US a St Louis jury has ordered that the pharmaceutical company pay a total $4.69 billion to 22 women who have suffered ovarian cancer as a result of using J&J’s asbestos contaminated talcum powder.  The award against both J&J and a subsidiary includes compensatory damages of $550 million and punitive damages of $4.14 billion.

The plaintiffs’ lead attorney, Mark Lanier, argued that J&J had known that their ‘Baby Powder’ and ‘Shower to Shower’ products contained asbestos since at least the 1970s but had failed to disclose this to the FDA, the federal agency responsible for protecting public health in the US.  Expert evidence proved that asbestos fibres entered the body when talcum powder was inhaled or applied.  Asbestos fibres were then found in the ovarian tissue of many of the women.

Another 9,000 cases are currently being pursued where it is alleged that asbestos contaminated talc has caused either ovarian cancer or mesothelioma.  Unsurprisingly Johnson & Johnson have made it clear that they plan to appeal this judgment.

Bussey v Anglia Heating Ltd: the postscript

In February of this year, the Court of Appeal allowed the Claimant’s appeal in Bussey and set aside the judgment in the Defendant’s favour. It remitted the case to the trial Judge for him to redetermine the issue of liability.

The case has now settled. Quantum was agreed before trial, subject to liability. The case settled on terms that the Defendant would pay the Claimant the agreed amount in full plus costs to be assessed.

See below for links to our previous posts about Bussey:

  • For the post about the outcome of the trial, click here;
  • For the post about the Claimant’s successful application for permission to appeal, click here;
  • For the post about the outcome of the appeal, click here.

Compensation for Immunotherapy: The End of the Beginning

Michael Rawlinson QC has written a paper about awards for immunotherapy treatment in mesothelioma claims. In particular, he writes about the different forms such awards can take, having acted in two cases which settled last week in which the awards were compromised on different bases: one in the form of a variable PPO, and the other as a ‘float’ agreement. The paper can be read here.

Regular readers of this blog will recall that Michael has previously written about this topic. For those that missed it, the post can be viewed here.