It’s only logical: Davies v University Hospital of North Staffordshire [2014] EWHC 4004 (QB)

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Case Background

This was a claim against the Defendant NHS Trust for failure to arrange a brain scan (either a CT or MRI) on two occasions in early 2001. The Claimant subsequently underwent a scan which revealed the presence of a tumour located in the frontal section of the brain. It was accepted by the parties that had a scan been undertaken on the dates in question (the 6th and 28th January 2001) the tumour would have been identified and that it could not be said that the tumour was the cause of her symptoms at that time.

The Claimant had a history of severe headaches which, on occasion, were accompanied by vomiting. On the 6th January the Claimant was suffering from a severe headache (indeed it was the evidence of her mother, which was accepted by the judge, that she was screaming in pain) so was taken to A&E by her mother. On that occasion the records note that the Claimant was vomiting and that antibiotics were prescribed for a sinus infection. Further information was recorded which suggested that the Claimant was vomiting because of the antibiotic prescribed (ciproxin) on a previous visit to hospital where the Claimant was diagnosed as suffering from sinusitis. A discharge summary was sent to the Claimant’s GP which recorded the treatment of Augumentin for 1 week; Augumentin being an antibiotic used for the treatment of sinusitis.

On the 28th January 2001 the Claimant again complained of a terrible headache. The Claimant’s mother took her to see the out of hours doctor on two occasions that day. The Claimant was referred to the paediatric ward and was admitted with vomiting and a headache for 24 hours. The judge found as a fact that the treating doctor (Dr Rao) did consider the possibility of an underlying neurological condition as the notes identified that there was no evidence of morning headaches. In addition, Dr Rao investigated the fundus and found no signs of papilloedema. It was concluded that the Claimant was suffering from either a migraine or sinusitis. The notes advised a follow up by the Claimant’s GP and that a referral to an ENT specialist may be necessary.

Between the 29th February and November 2001 (when the Claimant was diagnosed as having a brain tumour) the Claimant had several further severe headaches which necessitated medical attention. In September 2001 the Claimant spent a further short period in hospital where again it was suggested that sinusitis was the cause and that neurological problems were discarded. The Claimant’s notes record that a CT scan should be considered if there were no clinical signs of sinusitis. The circumstances changed dramatically in late October when the Claimant was again admitted to hospital and a fundoscopy was carried out which revealed a blurred outline (suggesting raised intracranial pressure). In response an MRI was urgently requested which confirmed the presence of a tumour.

Lewis J rejected the Claimant’s argument that the Defendant had failed to exercise reasonable care by not arranging for a brain scan to take place on either the 6th or 28th January 2001. In reaching this decision Lewis J preferred the evidence of Dr Koyar for the Defendant and reasoned that the action taken by the Defendant accorded with the standard practice for children who presented with headaches and that all options had been considered when the Claimant was examined.

Contributor Comments

This is by no means a ground breaking decision but it does illustrate the difficulty Claimants can face when attempting to overcome the Bolitho threshold (Bolitho v City and Hackney Health Authority [1998] A.C. 232). As is invariably the situation, when a case is before the court there will be expert evidence which supports both the Claimant’s and Defendant’s case and it is unlikely that such evidence will be considered to be unreasonable in a Bolam sense. In such a case the court is presented with the task of deciding which opinion is considered logical and that will invariably depend upon an accurate understanding of the facts as they unfolded. The decision in Davies is a classic example of one expert giving their opinion without due regard to the facts; this was a key aspect of Lewis’ J reasoning when he stated:

“In my judgment, the opinion of Dr Conway as to what professional practice would have mandated on 6 January 2001 is based on an assessment which does not accurately reflect the facts as they existed and were known, or ought to have been known, by the doctor involved.”

…

“Dr Conway gave evidence which was that further investigations, including arrangements with a view to a brain scan, were mandated on 28 January 2001 and that the failure to make these arrangements meant that the treatment received fell below the standard of care which Tracy could reasonably expect from a competent practitioner. Again, that opinion is not, in my judgment, accurately based on the facts as they were known, or ought to have been known, to the treating clinician on 28 January 2001.” (At paragraph 55 and 61 respectively.)

In such a situation it is not surprising that the opinion was not considered to be logical. In assessing what is, and is not, logical the medical notes will often be of great assistance. It is illustrative that in Davies both experts agreed that no criticism could be made of the notes. The importance of full notes has been stressed by the court time and time again (for example Skelton v Lewisham & North Southwark HA [1998] Lloyd’s Rep. Med 324). When faced with a set of poor records, and competing expert opinions, that opinion which supports the record is less likely to be viewed as logical; in contrast the opinion which supports a detailed set of notes is more likely to be seen as logical.

A final interesting (albeit hypothetical) point is raised by the decision. Limitation was not in issue before the court but imagine the situation if it were. In the normal course of events, a Claimant seeking to rely on section 33 will be faced with a counter argument that the fact (as in this situation) that a witness cannot be located prejudices the Defendant (see the House of Lords decision of Horton v Sadler [2006] UKHL 27 for a detailed discussion of prejudice under section 33). However, in the present situation, because the medical notes are detailed, the Claimant’s position is in fact weakened by the inability to cross-examine the witness. This issue was touched upon by the High Court in the case of Rogers v East Kent Hospitals [2009] EWHC 54 (QB) on appeal from the Canterbury County Court. It was argued, and accepted, before Griffith Williams J that no prejudice existed despite one doctor not being located as the records were extensive and an expert report could be produced from them without difficulty. With that in mind, Defendants should be mindful of the difficulties surrounding section 33 where a practitioner cannot be located; equally, they should be alive to the possibility of situations where detailed notes strengthen their position through the inability to cross-examine the practitioner.

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McDonald v National Grid Electricity Transmission [2014] UKSC 53

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Case Background

This was an appeal by the appellant Defendants against the decision of the Court of Appeal in which they held that the Defendants were liable for breach of statutory duty under Asbestos Industry Regulations 1931 regulation 2(a). The respondent Claimant cross appealed against the decision that the Defendants were not in breach of their statutory duty under the Factories Act 1937 section 47.

The Claimant died of mesothelioma shortly before the hearing in the Supreme Court. Mr McDonald was a lorry driver who, as part of his employment, would attend Battersea Power Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month. Between January 1957 and March 1959 he was there roughly twice every three months. The power station did not contain asbestos in its raw sense but did contain asbestos based lagging. While at the power station the Claimant would visit other areas and so, it was argued, came into contact with asbestos dust generated through the lagging. In order to create the lagging paste, asbestos powder was mixed with water in large drums. At first instance the judge found that the Claimant’s exposure had been modest.

Two issues were before the Supreme Court:

  1. The applicability of regulation 2(a) of the Asbestos Industry Regulations 1931 to factories not involved in the manufacturing of asbestos products; and
  2. Whether the Defendant had breached its statutory duty under section 47 of the Factories Act 1937.

On the first ground of appeal their Lordships were divided by a majority of 3:2; Lords Kerr and Clarke, and Lady Hale held that regulation 2(a) did apply in the instant case whereas Lords Neuberger and Reed held that it did not. On the second ground, the court rejected the Claimant’s argument that the Defendants had breached their duty under section 47 by a majority of 4:1 (Lady Hale dissenting).

The majority of the court took the opinion that the 1931 Regulations were not confined to a clearly identifiable asbestos industry and extended to all industries where certain specified processes were carried out. The decision in Shell Tankers UK v Jeromson [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2001] EWCA Civ 101 (also known as the decision in Cherry Tree) was applied. Following on from this reasoning, the majority held that the term ‘mixing’, as contained in the preamble to the 1931 Regulations, was not to be given a restrictive, technical, meaning but a broad meaning which included mixing asbestos powder with water for the purpose of making a paste. In contrast Lord Reed (with whom Lord Neuberger agreed) took the opinion that, on a reading of the Regulations, combined with the historical background and subsequent legislation, the Regulations were not intended to apply to power stations and the term ‘mixing’ had a technical meaning.

When addressing the cross appeal it was accepted that to succeed under section 47 that the Claimant must show: (1) that the dust was given off in connection with a process carried on in the power station; (2) that he was a ‘person employed’ within the meaning of the section; (3) the quantity of dust given off was substantial; and (4) that he inhaled the dust given off by the relevant process. The majority held that, based upon the trial judge’s conclusions, the Claimant had not been exposed to a substantial quantity of dust. All members of the panel accepted that process should be given its ordinary meaning. In addressing a ‘person employed’, the emphasis should be on the need for protection rather than the involvement in a process and that it was sufficient that the Claimant was employed in the station rather than by the station’s operator. When addressing substantial, the court rejected the Defendant’s submission that it must be substantial at point of inhalation as opposed to at the time of giving off.

Contributor Comments

The majority decision has essentially confirmed the earlier decision of the Court of Appeal in Cherry Tree (Shell Tankers UK v Jeromson [2001] EWCA Civ 101), where Lady Hale, then Hale LJ, gave the leading judgment.

The essential issue, that is whether the Asbestos Industries Regulations could be applied to factories, not within the asbestos industry, but where processes as described in the Regulations were in fact being carried out, could plausibly be argued either way, as evidenced by this finely balanced decision.  Ultimately, the difference is one of basic approach; that is the majority’s liberal approach or the minority’s conservative approach.  The liberal approach essentially considers that there is no good reason why the Regulations should not be applied beyond the situations originally envisaged where the same risk is present and where all other facts necessary to prove a breach of the Regulations are established. Whereas the minority take the view that, in the context of penal legislation, the same should only be applied in the explicit context in which it came into force otherwise there could be inadvertent criminal liability.  This view is reinforced by the result of the cross-appeal, where it was accepted that there had been no breach of the Factories Act (which would be the legislation with which the Defendant’s predecessors would have sought to comply).  There is no evidence, or reason, to believe that they ever considered that the Asbestos Industry Regulations 1931 would apply to their premises.

The dismissal of the cross-appeal, albeit with Lady Hale dissenting, appears less debatable, although Lord Kerr left the door open to an extent, referring to the lack of evidence of visible dust.  However, to find that the mere visibility of dust would make it substantial would not be consistent with the approach under the Factories Act. Intermittent and moderate exposures were tolerated under the Act and this was, in fact, the finding at first instance in the Cherry Tree case.

In practical terms, whilst this was always an interesting issue, the decision will have little effect on future cases. The Asbestos Industry Regulations were repealed with the coming into force of the Asbestos Regulations 1969. It is likely that more and more mesothelioma claims will relate to exposures in the 1970s and 1980s, where very different issues will arise. Further, the Asbestos Industry Regulations became of lesser relevance after 1965, and the publication of the risk of mesothelioma from low level exposures.

It is clear from considering the processes within the Asbestos Industry Regulations 1931 that most will only have been carried out within asbestos factories and probably the only significant exception is that seen in this case and the Cherry Tree case; that is the mixing of asbestos in other factory premises. This case will, therefore have relevance in practical terms to claims pre-1965 where mixing in factory premises is approved.

It may be that this decision will be ultimately considered most significant in relation to changing judicial trends and the acceptance of a more conservative approach to liability in personal injury claims by the minority.  It is reasonable to consider that for most of the past decade the approach of the appellate courts, in particular in the context of disease claims, has been a liberal one usually resulting in liability either for breach or causation. Despite this, a different trend may be emerging which might encourage Defendants to approach the appellate courts with more hope.

Note

Issues relating to asbestos exposures in the 1970s and 1980s and mesothelioma claims are discussed in the pro-vide webinar “Mesothelioma – a new generation of claims”.

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Macarthy v Marks & Spencer [2014] EWHC 3183 (QB)

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Case Background

Mr Heward died of mesothelioma aged 61. Mr Heward started working for this father’s company aged 16 as a trainee draughtsman and subsequently rose to the position of Managing Director in 1981 upon his father’s death. D H Allan & Sons (the third party) undertook shop fittings and were responsible for maintenance of 13 of the defendant’s stores in North-East England. Mr Heward gave evidence in his witness statement, produced before his death, that the only asbestos he had been exposed to was during work to stores operated by Marks & Spencer.

The precise circumstances of the deceased’s exposure to asbestos was unknown but the evidence highlighted two distinct periods which were ultimately relied upon. First, was a period of approximately three weeks in the summer of 1967 whilst working as a joinder in York; and second, was between 1967 and 1990 when the deceased carried out inspections of the Defendant’s stores.

The following issues required determination:

  1. Did the Claimant contract mesothelioma;
  2. was the Claimant exposed to asbestos dust during the course of his employment at the Defendant’s stores; if so:
  3. did that exposure cause the mesothelioma;
  4. what was the extent of his asbestos exposure;
  5. was the asbestos exposure negligent and/or in breach of the Occupiers’ Liability Act 1957. In particular did the exposure give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of the exposure; and
  6. if the Claimant is successful, can the defendant rely upon contribution or indemnity from the third party.

Points 1-4 were answered without any  undue difficulty. The judge accepted that asbestos was used ‘extensively in the defendant’s stores’, particularly as ceiling tiles which probably contained amosite but possibly also crocidolite.

The judge rejected the Claimant’s submission with regards to the Occupiers’ Liability Act 1957 and the presence of a warehouseman. In considering whether the exposure was negligent, the judge preferred the evidence of the Defendant’s expert (Mr Stelling) to that of the Claimant’s (Mr Glendenning) where they differed. Both experts agreed that the work in 1967 would not have exceeded 30 fibres/ml which was the applicable standard. Reaching his conclusions on the exposure, the judge did not believe that, assessed by the standards of the time, it was reasonably foreseeable that the Defendant should have appreciated that the presence of asbestos dust was likely to be injurious to the health of site workers (Williams v University of Birmingham [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] EWCA Civ 1242 applied).

When assessing the later exposure (during the period when the deceased was a store inspector) the Claimant put particular emphasis of HSE Guidance Note EH10 of 1976. The court rejected this submission and again concluded that the exposure was not negligent. By July 1984 the risks were firmly recognised and by May 1985 the Defendant had issued a code of practice. Both experts agreed that the level of exposure during this time would not have been in excess of guidance in force at the time.

In considering the final question (albeit briefly given the conclusion on negligence), the judge rejected the submission that the Defendant was precluded from claiming against the third party because the deceased was in breach of his duty to the company. In reaching this conclusion the judge distinguished the case of Brunder v Motornet Service and Repairs [2013] 1 WLR 2783 on the basis that in Brunder the Claimant was the sole director and controlling mind.

Contributor Comments

This case had the implausibility of an exam question in combining three significant, but distinct, issues for adjudication in the same case.

First, the Deputy High Court Judge had to consider what degree of involvement in works involving asbestos in the exposure in the 1960s might give rise to liability as a joint tortfeasor, where the Defendant was the occupier of the relevant premises and the employer under the relevant building contract.  The Court of Appeal in the Fairchild Occupiers’ Appeal had rejected liability on the basis solely of status as occupier, but held open the possibility of liability as a joint tortfeasor following Ferguson v Welsh.  This possibility would require some degree of actual involvement at the relevant works; the extent of involvement was clearly an issue for future consideration.

In this case, the Claimant sought to argue that the presence of a warehouseman who had some remit for health and safety was sufficient.  The Deputy High Court Judge considered this to be too limited a remit and, in practical terms, the responsibility of the warehouseman did not go beyond basic occupier’s liability, that is for the static or physical condition of the premises.  The degree of involvement required to create liability as a joint tortfeasor therefore remains unresolved.

Secondly, the Deputy High Court Judge had to consider when the appreciation of risk of asbestos exposure was such that should, in practical terms, be zero tolerance, which is the current day position.  Following the decision of the Court of Appeal in Williams v The University of Birmingham, those acting for the Claimants have sought to argue that zero tolerance became mandatory when the HSE Guidance Note EH10 of 1976 indicated that asbestos exposure should be reduced to the lowest level reasonably practicable. However, the Deputy High Court Judge accepted the Defendant’s and third party’s submission that this was reading too much into too little.  EH10 appears to have been a document drafted by a committee and there is a certain degree of ambiguity within it.  The expression, “so far as reasonably practicable” implies a situation in which risk has been identified and the contention that risk should always be identified when there was any suggestion of asbestos exposure is not consistent with other guidance in EH10, in particular in relation to the use of respiratory protective equipment.  The Deputy High Court Judge considered that prior to 1984, by which time the Defendants were taking action, a reasonable occupier or employer would not have considered exposure at the level experienced by the Deceased to be foreseeably hazardous.

Thirdly, the Deputy High Court Judge had to consider the relevance of the Deceased’s status as Managing Director of the third party and whether this, in effect, precluded a claim against the third party.  The findings on this point are understandably brief as the issue did not arise directly for consideration given the Claimant’s failure to prove that the exposures were foreseeably hazardous.  The Deputy High Court Judge considered the case of Brunder could be distinguished on the basis that the Claimant in Brunder was a sole Director and controlling mind, and that Brunder in any event did not concern a claim for contribution under the Civil Liability (Contribution) Act 1978.  Given that the Judge’s comments are obiter and not detailed, this issue will require consideration in future cases. It is suggested that the Judge should first consider whether the Director was in breach of duty in terms of his obligation towards the company.  If a finding of breach of duty is made, then it needs to be considered whether this breach would give rise to an obligation to indemnify the company, even if the Claimant or Deceased was not the sole Director. The usual basis of such tortious liability is joint and several  and in these circumstances, the Claimant could not recover against the company, but would have a right against his fellow Directors. In considering whether  there is a claim for contribution against the employers under the 1978 Act, it is reasonable to argue that a claim for contribution does not arise if the Claimant’s right of action against his employers is extinguished by a counterclaim for indemnity.

Charles Feeny will be speaking on the Heward case and other recent authorities on mesothelioma at DWF Solicitors, 4.30pm, 16 October in “Mesothelioma – the new generation of claims”.

CHARLES FEENY
ST JOHNS BUILDINGS

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Dowdall v William Kenyon & Sons [2014] EWHC 2822 (QB)

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Case Background

John Dowdall had been exposed to asbestos through a greater part of his working life. In June 1998 he was diagnosed as suffering from asbestosis and pleural plaques and later that year started legal proceedings against seven of his former employers (the first action). At the time of the first action the only symptomatic injury which the Claimant was suffering from was asbestosis. In April 2003 the Claimant obtained a judgment against the seven Defendants to that action for the sum of £26,000 and it was accepted that this was in full and final settlement against those Defendants. The judgment related to the Claimant’s actual damage (the asbestosis) and the risk of developing mesothelioma. A claim for provisional damages, relating to the risk that the Claimant would later develop a serious disease or condition, was made but not pursued.

Unfortunately, the Claimant subsequently developed mesothelioma and sought damages against the three Defendants. The court was required to reach a decision on three issues:

  1. whether the second proceedings were an abuse of process;
  2. whether the Claimant was estopped from bringing the second proceedings; and
  3. whether the second proceedings were barred under the provision of the Limitation Act 1980.

Ultimately, the court dismissed the Defendants’ submissions and concluded that the Claimant was entitled to bring a claim for the mesothelioma. In considering whether the claim was an abuse of process, the court followed the guidance laid down in Henderson v Henderson (1843) 3 Hare 100, as developed by Lord Bingham in Johnson v Gore-Wood (No.1) [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2002] AC 1 (HL), and concluded that the decision not to sue the current Defendants in the first action was honestly made and that the Claimant had not manipulated the process of the court with his intention of ‘having his cake and eating it’ (see paragraph 35). The decision not to sue the Defendants in the first action was taken on the basis that they could not be located after proper enquiries had been made.

The court rejected the argument that the 2003 judgment was intended to represent the full measure of his estimated loss. The Defendants brought an argument based upon the decisions in Jameson v Central Electricity Generating Board [2000] 1 AC 455 and Heaton v AXA Equity & Law Life Assurance Society [2002] 2 AC 329 that the order included damages for the risk of contacting mesothelioma. The court rejected this and concluded, ‘it is quite clear…that the action for damages for mesothelioma is not conceptually the same as an action for the risk of mesothelioma’ (at paragraph 45) and, on that basis, said it was clear that the Claimant had not accepted a sum which was intended to represent the full measure of his estimated loss.

The judge concluded that the Claimant did have knowledge within the meaning of s.14(1)(b) of the Limitation Act 1980 Act in June 1998 as far as the second and third Defendants were concerned and 12 months later as concerned the first Defendant. However, the court considered it appropriate to dis-apply the limitation period by virtue of section 33. The court was particularly mindful of the fact that the Claimant had a substantial claim for a very serious injury and that he had a very good prospect of establishing liability agains the Defendants.

 Contributor Comments

This case raises issues which have arisen in the past decade, but this appears to be the first occasion upon which such issues have been litigated to a conclusion.

The opportunity to pursue further Defendants in these circumstances arises because of greater openness in the insurance industry, in particular through the employer’s liability tracing office.

Whilst in the circumstances the Defendant’s arguments clearly merited serious consideration, the Deputy High Court Judge’s approach was consistent with authority.  It would be difficult to argue that the second action was an abuse in the face of a clear finding that the first action had not been settled for full value and the Claimant’s conduct in relation to that action could not be criticised.

The question of whether the settlement of the first action was at full value is made more difficult by the problem in reconciling the decisions in Jameson v Central Electricity Generating Board [2000] 1 AC 455 and Heaton v AXA Equity & Law Life Assurance Society [2002] 2 AC 329, notwithstanding the attempts of the Law Lords in the latter case to achieve such reconciliation.  However, it appears reasonable to assume that Jameson will only be followed in circumstances in which there is clear evidence that the first action was settled at full value, which in most circumstances would render the second action unnecessary.

In relation to limitation, whilst the one action rule remains the law in practice it appears to be circumvented by limitation and findings; in particular, Claimants, as here, obtaining a Section 33 discretion when proceeding for a malignant condition having previously had knowledge of a benign condition.  The courts only appear willing to entertain limitation defence in asbestos cases where the Claimant is bringing an action for the same condition in respect to which he had earlier knowledge; see Buckler v Sheffield City Council [2004] EWCA Civ 920 and Collins v Secretary of State for Business Innovation and Skills [2013] EWHC 1117 (QB).

Given the nature of the application, the Deputy High Court Judge did not have to consider what might be the most difficult issue, that is whether the Claimant should give credit in his current action for the full value of the earlier Defendant’s contribution to the risk of him developing mesothelioma; in other words he had accepted an apportioned approach by his agreement to full and final damages in the earlier action.  The nature of the cause of action in these circumstances has been something of an intellectual rollercoaster ride through Fairchild, Berkeley, Section 3 of the Compensation Act 2006 and the Trigger litigation.  There may be developments or even surprises in the Supreme Court decision in IEG (International Energy Group v Zurich Insurance Plc UK).  However, it appears reasonably arguable that the Claimant should give credit in these circumstances, not just for the sums received from the Defendants in respect of the risk of mesothelioma, but for the full value of those Defendants’ contribution to the risk.  Otherwise, at least, in this respect, he is having his cake and eating it.  The Claimant, in agreeing to a full and final settlement in the earlier action, was accepting against those Defendants that he should not be entitled to further damages if he, in fact, developed mesothelioma.  It is difficult to see why he should now receive these sums via another route, in particular where he has had to rely upon the court’s discretion under Section 33 of the Limitation Act.  The modified Jameson approach could result in it being accepted that the Claimant had received full value in respect of the risk created by the earlier Defendants and have to give credit for the value of this in his current action.  Such an approach would have the result of the clear injustice of the Defendants to the first action now facing contribution claims being avoided.

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McGregor v Genco Ltd- identifying the issue and then the risk

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Case Background

The claimant, aged 58, developed mesothelioma and at the time of trial her prognosis was poor. The claimant’s symptoms first appeared around May 2012 and the diagnosis was confirmed in August 2012. The claimant alleged that her illness was caused by exposure to dust which was the result of escalator construction work taking place alongside her work station. Upon leaving school, the claimant worked in the shoe section of Lewis’s department store in Liverpool. The claimant was employed by the British Shoe Corporation who operated a concession within the department store.

The following issues were considered and determined during the course of the trial: was the claimant exposed to asbestos dust during the course of her employment; what was the extent of her asbestos exposure; did the exposure cause her mesothelioma; and was the exposure negligent, in particular did the exposure give rise to a foreseeable risk of injury based upon the knowledge at the time of her employment.

In 1976 work was undertaken on the removal of the old and construction of new escalators within the store. The new escalators were to be in the centre of the store as opposed to the rear of the buildings. The work was undertaken during the day and customers were still allowed to enter the store. It was accepted that the new escalators were installed before the old ones and that the claimant worked approximately 10 feet from both the old and new escalators. The claimant gave evidence that she had to dust the shelves roughly three or four times a day to remove the white dust which had gathered on them. Although the claimant could not recall any plastic sheets being put down it was accepted by the court that there were such sheets to separate the work from the shop floor. The shop assistants were provided with no masks or any other form of respiratory protection.

Both experts agreed it was likely that asbestos insulating boards (AIBs) were used in the construction of the escalators removed and the new ones put in. Both agreed that (on the basis of HSE guidance in place at the time) breaking and ripping out AIBs was likely to be associated with the production of asbestos dust concentrations in the order of 5-20 fibres per millilitre in the breathing zone of the operator carrying out the work. Circular sawing was likely to be associated with levels of 20 fibres per millilitre in the breathing zone of the operator. The experts agreed that, as a rule of thumb, dust concentrations reduced to 10% of the value at source at a distance of 20-30 feet. No dust readings were taken  during the work but the court concluded it was unlikely the claimant was exposed to levels of dust in excess of the recommendations in TDN 13.

Patterson J concluded that, on the balance of probabilities, there was a barrier erected from floor to ceiling but that it was not airtight or polythene. Despite this barrier it was accepted that dust was still escaping and that it was causing shop assistants to regularly remove dust from the shelves and stock room. Therefore the claimant was subjected to asbestos exposure during her employment by the defendant at Lewis’s store. Following on from this it was accepted that the exposure to dust was causative of the claimant’s mesothelioma.

In respect of negligence the claimant submitted that the defendant was under a duty to ensure a safe place of work and that by 1976 it was known that there was a real risk of injury as a result of slight asbestos exposure. In contrast, the defendant argued that the central issue was whether it was reasonably foreseeable that the claimant might be at risk and that that is to be judged according to the knowledge of the time. Patterson J concluded that there was no negligence on behalf of the defendant. In reaching this decision the judge was influenced by the likelihood that the claimant was not exposed to levels of asbestos in breach of TDN 13 and that both experts agreed the erection of a floor to ceiling barrier would have been regarded as adequate at the time. The judge considered, and rejected, whether a further duty arose to make enquiries about the risk the work presented to employees. The protection offered by the defendant was not ‘clearly bad’ and that although the dust was a nuisance there was nothing to put the defendant on notice to make such an enquiry.

Contributor Comments

In Shell Tankers (UK) Limited v Jeromson and Dawson (2001) PIQR P.19 Lady Justice Hale (as she then was) stated at paragraph 35,

“The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk; the issue is whether the risk should have been identified.  With the benefit of hindsight, it is now quite clear that the exposure in these cases was sufficient to cause mesothelioma, the disease from which Mr Dawson and Mr Jeromson eventually died. The link between asbestos and mesothelioma was not established until 1960. Until then the known risk of lung disease, in particular asbestosis, and in the 1950’s, lung cancer associated with asbestosis. The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk.”

There are different facets to proof of a breach of duty of care. The starting point has to be that a reasonable person in the position of the defendant would have identified a risk. If this is proved then consideration has to be given as to what steps ought to have been taken to avoid or reduce that risk. A reliance by advocates on behalf of claimants on guidance to reduce asbestos exposure in particular “as far as reasonably practicable” does not necessarily assist in relation to the threshold issue of whether risk ought to have been identified. Guidance of this nature implies the risk has already been recognised.

Mrs Justice Patterson approached the case on the basis of an evaluation of all the evidence and followed the guidance of Lord Justice Aikens in Williams v University of Birmingham at paragraph 37:

‘I would adopt the same approach in relation to the standards by which the University is to be judged in the present case. What is not acceptable now may have been regarded as acceptable in 1974. As Simon J summarized the position in Lilian Rose Asmussen v Filtrona United Kingdom Limited (but substituting “the University” for “the employer” to apply to this case):

“…the foreseeability of injury has to be tested against the standard of the well-informed [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][University] who keeps abreast of the developing knowledge and applies [its] understanding without delay, and not by the standard of omniscient hindsight. [A University] can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless (a) the practice is clearly bad practice, or (b) in the light of developing knowledge about the risks involved in some location or operation a particular [University] acquired greater than average knowledge of the risks.”’

Following the decision of the Court of Appeal in Williams a perception has developed that cases of exposure from 1970 onwards can be assessed simply by reference to whether the exposure has shown to have exceeded the guidance in TDN 13 of 1969.  This was the argument of the defendants in Billingham v Barnsley. This argument over simplifies the position and the question in each case is one of fact as to whether there were circumstances which indicated risk.  In this context, the level of exposure by reference to published standards is highly relevant but not necessarily determinative. In the Barnsley case there were clearly, on the evidence, heavy exposures which were suggestive of risk and the fact that with hindsight the relevant individual’s exposure was not shown to exceed the guidance did not assist the defendants. The nature and level of the exposure should have been avoided even if not every exposed individual had a cumulative level of exposure which exceeded the relevant guidance.

By way of contrast with Barnsley, in the present case there was no evidence at all which indicated that anyone in a responsible position employed by the defendants should have considered risk. The dust was a nuisance but on the evidence nothing more. The expert witnesses agreed that the enclosure would have been considered adequate by contemporaneous standards and that the levels did not exceed those in TDN 13 of 1969. There was therefore nothing on the evidence which would indicate that the defendants were not themselves directly engaged in the relevant activities should have appreciated that their employees were at risk.

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Explaining the unexplainable? Shovelton v Central Manchester University Hospital NHS Foundation Trust & PE v Royal Liverpool University Hospital

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Case Background

Shovelton v Central Manchester University Hospital NHS Foundation Trust

In November 2007 the Claimant underwent a carotid endarterectomy intended to lessen the risk of suffering a stroke. Unfortunately, while the operation was a success in that the Claimant avoided having a stroke, the Claimant suffered complications from the surgery. The Claimant was left with a weakened and painful left shoulder.

All parties agreed that this was a complex operation that carried with it the risk of complications. The Defendant argued that the damage suffered by the Claimant were entirely the result of the operation’s natural complications. The Claimant argued that the Defendant had been negligent in performing the operation which caused damage above and beyond the natural complications of the surgery. The Claimant alleged that Mr Serracino-Inglott, the surgeon who performed the operation, damaged the three nerves in the brachial plexus.

In performing the operation, Mr Serracino-Inglott put a sandbag under the Claimant’s shoulders and placed her head within a gel headset and then turned her head to the right thereby exposing the left side of the neck where the incision was made. A carotid endarterectomy requires the moving of the jugular vein by means of a retractor which can be done in one of two ways, either the anterior approach or the retro jugular approach. The operation was carried out under the retro jugular approach. Mr Serracino-Inglott favoured a longer incision to gain access to the tissues beneath the skin; his explanation for this was that it provided a clearer view of the site where the bypass was necessary and, although it carried an element of risk, that risk was outweighed by greater vision.

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The Claimant’s allegations of negligence were twofold: that the Defendant failed to position the Claimant on the operating table in a manner that ensured her safety, and specifically so as to prevent any injury to the brachial plexus by stretching or traction; and that excessive/sustained traction was applied, hyperextended the Claimant’s head and neck during surgery and so stretched the brachial plexus as to cause significant and permanent damage to the left long thoracic nerve, the suprascapular nerve and the axillary nerve.

It was agreed that the accessory nerve was damaged in the course of the operation and that it was not damaged negligently. It was also agreed by everyone, including Mr Serracino-Inglott, that were the three brachial nerves to have been damaged this would have been the consequence of negligence and that the negligence would be causing or allowing the nerves to be stretched or crushed. The mechanism of that negligence is either mal-positioning on the table or use of undue traction.

The judge concluded on the evidence that the Claimant’s head had not been placed incorrectly on the table and that great care was afforded to her during the course of the surgery. A wealth of expert evidence was heard in order to determine whether the brachial plexus was in fact damaged and whether the Claimant’s symptoms were the result of damage to the brachial plexus or the accessory nerve. Having heard the expert evidence, the judge concluded that the operation was carried out with the care and attention required and that the harm suffered was not the consequence of damage to the brachial plexus but was the result of damage to the accessory nerve. Given that all parties agreed that this was a natural complication of the surgery the Defendant was not liable in negligence.

PE v Royal Liverpool University Hospital 2014 (unreported) Liverpool CC HHJ Trigger 

The Claimant in this case was born in 1944. In 2006 she began to suffer from amaurosis fugax which is a temporary loss of vision. In May 2007 she was assessed at the Walton Centre for Neurology and Neurosurgery and thereafter referred to an experienced surgeon at the Defendant Trust.

The Claimant was seen by an SHO on the 31st May 2007 who made the correct diagnosis of her condition and she was subsequently advised to undergo a right carotid endarterectomy. There was a fear that if the Claimant was left untreated she would be at considerable risk of suffering a fatal stroke.

The operation took place on the 18th June 2007 and the principal surgeon was Professor Brennan. Professor Brennan was an experienced surgeon who was well used to performing the operation in question. On the occasion of the operation Professor Brennan was supervising Mr Thavarajan who was training in vascular surgery.

The judge found that Mr Thavarajan carried out certain aspects of the surgery including the initial incision but that he was supervised at all times during this process. It was stated in evidence that there were two principal means of carrying out the operation: the anterior approach; and the retro jugular approach. Professor Brennan favoured the retro jugular approach and this was the means by which the Claimant’s operation was carried out.

The operation involves the removal of plaque which is expected to be found in the region of the bifurcation of the carotid artery. The judge found that Professor Brennan undertook this part of the operation as it was the most delicate part of the procedure. In doing this it is necessary to ensure that there is a clear window so that the artery can be seen. This involves dissecting the jugular vein from the muscle and holding it in the anterior position. In addition the sternocleidomastoid muscle (SCM) has to be retracted backwards in this operation. Retraction involves using an instrument that is similar to a ratchet designed to hold the muscles to one side thereby allowing access to the artery. The judge found that the operation took one hour and forty-five minutes and that the retractor was used for up to one hour.

Both Professor Brennan and Mr Thavarajan gave evidence that the spinal accessory nerve (SAN) is not in the operative field, this was supported by the Claimant’s expert (Professor Bradbury). Professor Bradbury confirmed that on occasion he had seen the SAN whilst performing this procedure, particularly when utilising the retro jugular approach and felt that it is potentially in the operative field where there is a particularly high incision of the skin. His evidence was that the incision in this particular case was high.

Post operative the Claimant complained of a drooping right eyelid. Tests were carried out to assess the cranial nerves including the SAN. It was accepted by the court that these tests were carried out diligently and in accordance with the training received.

Upon discharge the Claimant complained of pain in her right shoulder. The Claimant was examined and found to have a right SAN injury. The Claimant was referred by his GP to Professor Brennan who, after consultation, accepted that the Claimant had suffered an inter-operative injury to the SAN. Following this the Claimant underwent reconstructive surgery, at the time Professor Brennan commented to colleagues that the injury was unusual as the SAN is not near the operative field but that it must have been injured during the operation as her symptoms commenced after its completion.

The central question that court was required to address was whether the care provided was below that expected by a responsible body of vascular surgeons. Professor Bradbury took the view that the use of the retro jugular approach likely led to more force being applied to the SAN during retraction. In contrast the Defendant’s expert, Professor Brearley, said that excessive retraction would not have been necessary because of the Claimant’s slim build and that considerable force would have been necessary to cause the damage to the nerves complained of.

The experts considered the possibility that the Claimant’s symptoms could be explained by idiopathic neuritis. Dr Doran, consultant neurologist, for the Claimant said this was not the case as the Claimant’s symptoms began after the surgery and that the pain was not sufficiently severe. It was accepted that the normal course for idiopathic neuritis is considerable pain for a number of weeks, followed by muscle atrophy and musculoskeletal pain. Dr Doran did not believe the pain described by the Claimant followed this pattern. Professor Venables for the Defendant took the view that the Claimant’s nerve dysfunction was not caused intra-operatively and that it was idiopathic neuritis. On balance he felt that the cause of the post-operative problems, was inflammation of the nerve triggered by the fact of the operation, but not as a result of any negligent treatment.

In reaching his decision HHJ Trigger felt that the medical experts were all doing their best to explain the outcome and that the human body is not a robot. The judge found that the Claimant’s symptoms were inconsistent with direct intra-operative injury to the nerve and, therefore, the allegation of negligence was not successful.

Contributor Comments

These were two cases both involving damage to the spinal accessory nerve during a carotid endarterectomy. In both cases the essential allegation was excessive traction during surgery. The two cases are slightly different but ultimately reach the same decision, namely that negligence played no role and that the damage suffered was a complication of the surgery. Shovelton involved the allegation that in addition to the spinal accessory nerve there was damage to the brachial plexus, caused by excessive traction, and that this was the consequence of negligence. The court was asked to conclude whether such damage had in fact occurred. In PE the question was whether the traction had caused the damage or whether it has inflamed the nerve which triggered the complication.

The fact that negligence played no part is illustrative of the unpredictable nature of the human body.

As is obvious, no two individuals are the same and the courts have sought to emphasise that they should not be over zealous in finding negligence where medical evidence presents no likely explanation. The approach is summed up in the classical reference to Aeschylus by Brooke LJ in Ratcliffe v Plymouth & Torbay Health Authority [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][1998] PIQR 170 at page 176:

“In my judgment the judge was entitled to reach this conclusion on the evidence before him. It was clear that the very experienced medical witnesses were doing their best to explain an untoward event which was on the frontiers of medical understanding. The human body is not a man-made engine. It is possible that a man’s body contains hidden weaknesses, particularly after nearly 50 years of life, which there has been no previous reason to identify. Medical science is not all-knowing. The Greek tragedian Aeschylus addressed the unforeseen predicaments of human frailty in terms of the sport of the gods. In a modern scientific age, the wisest of experts will sometimes have to say: “I simply do not know what happened.” The courts would be doing the practice of medicine a considerable disservice if in such a case, because a patient has suffered a grievous and unexpected outturn from a visit to hospital, a careful doctor is ordered to pay him compensation as if he had been negligent in the care he afforded to his patient. I will therefore turn now to that part of the case which was concerned with the evidence of what happened when the spinal injection was administered.”

This approach is not just limited to the human body and has received endorsement at the highest level (with an altogether more modern literary reference) in Rhesa Shipping Co SA v Edmunds (The Popi M) [1985] 1 WLR 948:

“My Lords, the late Sir Arthur Conan Doyle in his book The Sign of Four, describes his hero, Mr. Sherlock Holmes, as saying to the latter’s friend, Dr. Watson: “How often have I said to You that, when You have eliminated the impossible, whatever remains, however improbable, must be the truth?” It is, no doubt, on the basis of this well-known but unjudicial dictum that Bingham J. decided to accept the shipowners’ submarine theory, even though he regarded it, for seven cogent reasons, as extremely improbable.” (per Lord Brandon at page 955)

At first glance both PE and Shovelton may appear to be cases of res ipsa loquitur, however a closer inspection reveals that to be misleading. The starting point of res ipsa is that the event is usually caused by negligence but where the event is known to occur without apparent explanation such a presumption cannot arise. In practical terms the situation was helpfully summed up by Hobhouse LJ in Ratcliffe when he stated, “where expert and factual evidence is being called on both sides at trial its usefulness will normally have been long since exhausted” (at page 177).

There is a tendency to look for negligence in situations where an outcome is hard to explain. Judges usually start by expressing their sympathy towards the claimant and in that vein feel compelled to find negligence. However, the fact that experts are straining to explain why a consequence materialises bears logical force even if unpopular to the claimant. A judge should not quite pronounce the matter as elementary but remember the limits of medical science.

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Amaca Pty Ltd v Ellis [2010] HCA 5- The synergistic relationship between tobacco and asbestos

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Case Background

In this note Charles Feeny and Professor Damien McElvenny of the Institute of Occupational Medicine discuss the legal and epidemiological reasoning behind synergy.

The synergistic relationship between tobacco and asbestos was considered in the Australian case of Amaca Pty Ltd v Ellis [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2010] HCA 5. The plaintiff was the executrix of her husband, Mr Cotton, who died of lung cancer. Mr Cotton had been a heavy smoker and was exposed to low levels of asbestos during his working life. The evidence at trial did not show that this was a cancer peculiarly associated with exposure to asbestos. The court was asked to determine whether it was more probable than not that the asbestos caused the cancer. Key to the plaintiff’s case was the argument that there was a synergistic relationship between tobacco smoke and asbestos.

At first instance the defendants were held liable. By a majority the appeal to the Court of Appeal of Western Australia was dismissed however, the appeal to the High Court of Australia was upheld.

Contributor Comments

Prof. McElvenny’s note (below) confirms the potent causative effect of synergy when there are significantly elevated risks, both from asbestos exposure and cigarette smoking. In these circumstances, the contribution to risk from exposure to asbestos when the synergy is taken into account is so strong that it is reasonable to infer that the victim would not have suffered from carcinoma in the absence of asbestos exposure. It may be that this perception of the effects of synergy has resulted in a belief that the increased risk of causation from synergy will result in causation by both factors, where both are known to be present. This erroneous belief appears to have been reflected in Lord Phillips’ comments in Sienkiewicz v Grief [2011] UKSC 10,

“Epidemiological evidence indicated that, had the victim not been a smoker, his exposure to asbestos would have more than doubled the risk that he would get lung cancer. I do not, however, see that it was essential for the Claimant to prove this” (paragraph 76).

And,

“For reasons that I have already explained, I see no reason for the application of the “doubles the risk” test in cases where two agents have operated cumulatively and simultaneously causing the onset of a disease. In such a case the ruling in Bonnington applies” (paragraph 90).

The Supreme Court in Sienkiewicz did not have the advantage of detailed evidence on relative risk and synergy in cases of carcinoma of the lung. However, in such cases the crucial issue is likely to be whether there was sufficient evidence of exposure to asbestos to make synergy a relevant factor which, in practical terms, involves proving at least a doubling of risk from asbestos exposure.

These issues were well illustrated and subject to detailed evidence in the Australian authority of Ellis (Cotton) v Amica Property Limited [2010] HCA 5. The case involved a man with slight asbestos exposure and a heavy smoking history. There were a number of estimations of relative risk from these two sources but the one specifically quoted in the decision of the High Court of Australia was that of Professor Berry, as follows:

  1. Due to smoking alone 92%
  2. Due to asbestos alone 0.1%
  3. Due to smoking-asbestos combination 0.9%
  4. Background risk 7%

The High Court in Australia, allowing the Defendant’s appeal, rejected an argument which was essentially to the effect that synergy must implicate asbestos in the causation of asbestos related carcinoma of the lung, where asbestos exposure was known to have occurred. This was clearly set out in the dissenting judgment of Martin C.J. in the first appeal to the Court of Appeal of Western Australia ([2006] WASC 270):

“When the analysis undertaken by Mr Rogers (and others) is properly understood there is, with respect to the trial judge, no unspecified fallacy in the calculations. That is because, it does not follow from the synergistic effect that the instances of cancer due to a combination of asbestos exposure and smoking, must be greater than the incidence attributable to smoking alone in a group of cancer sufferers who have been exposed to both tobacco smoke and asbestos. Rather, the proportion within the group of cancer sufferers (as opposed to a group of community members generally) who would have suffered their disease irrespective of exposure to one or other of the carcinogens depends critically upon the assumptions made with respect to the levels of exposure. If the assumption is of a high level of exposure to tobacco smoke and a low level of exposure to asbestos, the evidence of all the experts (with the possible exception of Dr Leigh to whom I will refer below), was to the effect that the largest cohort within the group of cancer sufferers will be those who would have suffered lung cancer irrespective of exposure to asbestos. Conversely, if the assumption is of a group of cancer sufferers who have a slight history of smoking and a history of heavy exposure to asbestos, the largest group will be those who would have suffered lung cancer irrespective of their exposure to tobacco smoke. In either of these assumed cases, the group who would only have contracted lung cancer because of their exposure to both carcinogens will be much smaller than the group who would have contracted lung cancer because of their exposure to the predominant carcinogen, irrespective of their minor exposure to the other carcinogen.” (Paragraph 207)

The High Court of Australia made similar comments (at paragraph 57):

“It may be accepted (at least for the purposes of debate) that the synergistic or multiplicative effect suggests that in some cases the two carcinogens will have contributed to the development of an individual patient’s cancer. But the proposition which the plaintiff advanced was an absolute proposition of universal application:  smoking and asbestos must work together and they must have worked together in this case. That proposition was not established.”

This point was reinforced by the court at paragraph 60:

“If the description of exposure to smoking and asbestos as “more dangerous” than exposure to one or the other was intended to reflect a quantitative comparison of risk, it is a description that did not accurately reflect the evidence given by the witnesses about the relative risks of smoking compared with the relative risks of exposure to asbestos. And if the description “more dangerous” was intended to convey no more than that those who were exposed to both smoking and asbestos were at greater risk of developing cancer than those who were exposed to only one of those carcinogens, it is necessary to bear steadily in mind that the evidence did not establish that smoking and asbestos must work together.”

The Claimant’s arguments, based upon the evidence of Dr James Leigh, ultimately try to make the risk from asbestos exposure in carcinoma of the lung equivalent to the stochastic risk known to exist in mesothelioma claims. However, there are clear distinctions between the two. In a mesothelioma claim, unless there is some argument that the mesothelioma is idiopathic, the causation issue is that it could not be proved which of any particular exposures had been causative, as any one on its own could have been the cause. The Fairchild exception was essentially created to avoid the undesirable result flowing from the logic of this argument. However, in a carcinoma of the lung case, as in Cotton (Ellis) the issue is not which exposure was causative but whether the asbestos exposure could be considered causative at all. In this context, Professor Berry’s figures indicated that, even with the synergistic effect taken into account, the chance of the victim’s carcinoma being related to asbestos was at the 1% level, whereas there was a 92% chance that it was related to cigarette smoking alone. This, therefore, is an argument that can be disposed of on a conventional basis.

Clearly, within a cohort of 100 persons with similar histories and similar diagnosis, there will be one who in fact suffered carcinoma of the lung as a result of asbestos exposure, but as Patrick Walsh of Pannone pointed out, in the discussion in the webinar (Causation in asbestos: Minimal or material? Risk or probability), there is no way in the absence of any medical or pathological evidence that it can be established whether a particular victim was this one person, as opposed to being one of the 92 who suffered from carcinoma of the lung as a result of their cigarette smoking habit.

Synergy (asbestos and tobacco smoking and the risk of lung cancer)- Damien McElvenny

Using data from Hammond et al (Hammond EC, Selikoff IJ, Seidman H (1979). Asbestos exposure, cigarette smoking and death rates. Ann N Y Acad Sci 1979; 330: 473-490), the relative risk (this can be thought of as approximately the ratio of the probability of getting the disease if exposed divided by the probability of getting the disease if unexposed) of lung cancer from tobacco smoking versus not tobacco smoking was approximately 10, and in non-smokers, the relative risk from exposure to asbestos was approximately 5.  These risks may be higher or lower in other working populations depending on the level of asbestos exposure and the level of tobacco smoking, and so are used for illustrative purposes only.  These relative risks can be represented by the following table, where the relative risk from asbestos 5 (in non-smokers) is the value in bold:

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos   Exposed 5.0
Unexposed 10.0 1.0

If the effects on lung cancer from tobacco smoking and asbestos exposure were completely independent of each other (i.e. didn’t interact in any way), then the excess relative risks (the amount of relative risk above 1.0) would be additive and the table of relative risks would be as shown below (as before the relative risks for asbestos are in bold):

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos   Exposed 14.0 5.0
Unexposed 10.0 1.0

In this (non-interaction) scenario, for every lung cancer case in a non-smoker unexposed to asbestos, there will be an additional 13 cases of lung cancer, 9 of which are due to tobacco smoking and 4 of which are due to asbestos.  However, because the cases in practice will be clinically indistinguishable from each other, we cannot say which cases are due to which exposure, nor say which cases are the ones that would have happened anyway.  If we knew a case didn’t have either exposure (i.e. didn’t smoke and weren’t exposed to asbestos), they are most likely to be one of the background cases (i.e. a case caused by some other lung carcinogen).  If they had exposure to asbestos in the absence of tobacco smoking, then asbestos would be the most likely cause, and ditto for tobacco smoking in the absence of asbestos exposure.  Where it is a little more difficult, is in the situation where a lung cancer case has had both exposures.  Here, we would have to say on the balance of probabilities that the case is most likely due to tobacco smoking (9 cases due to tobacco smoking versus 4 due to asbestos exposure).  (This could be further refined if levels of exposure were taken into account).

If the effects are synergistic in a fully multiplicative way, which is believed to be approximately the actual situation, then we have the following table (as before the relative risks for asbestos are in bold):

Relative risk Relative risk of tobacco smoking
Smoker Non-Smoker
Relative risk of asbestos    Exposed 50.0 5.0
Unexposed 10.0 1.0

In this scenario, the individual effects of asbestos and tobacco smoking in the absence of each other (or both) are the same, but now we have 49 excess cases for every case unexposed to either causal agent, 36 (49-13) of which are due to the synergy or multiplicative effect of asbestos and tobacco smoke.  Under the synergy model, the majority of the lung cancer cases (36 out of 50) are due to the synergy.  Unlike for the additive model, for those cases with both exposures, we’re not able to reach a judgment on whether asbestos or tobacco smoking is the most likely cause.  Here (because they are clinically indistinguishable from each other), we can only say that they are jointly responsible (the “but for” test), since the removal of either cause, would prevent these 36 excess cases due to the synergistic effect from occurring.

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Breach of duty in historic hearing loss cases – adverse inferences

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Case Background

Keefe -v- Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683

Shawe-Lincoln -v- Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB)

Heavey -v- TMD Friction Limited, Wakefield County Court, 25th October 2012, HHJ Cockcroft, Lawtel report 14 November 2013.

Contributor Comments

All of these cases concern the difficulties faced by Claimants in proving breach of duty due to excessive noise, often from many years ago, and by Defendants in defending the same issue.

In Keefe, the deceased (the claim was brought by his widow) worked in the galley of a sea going ferry between Heysham in Lancashire and the Isle of Man from 1978 and June 1998. The deceased (ante mortem) contended that he was exposed to noise from vehicles being driven onto and off the Ro-Ro ferry on which he worked and from the galley. Two of the deceased’s shipmates corroborated the deceased’s account that it was noisy in the galley. Specifically, one witness said that it was necessary to shout or augment oral communication with hand signals.

The trial judge dismissed the claim because the Claimant had not proved that the deceased was exposed to daily average noise levels in excess of the relevant daily limits (90dB(A) LEp,d before 1st January 1990, 85dB(A) LEp,d thereafter).  Specifically, he recorded that the lay evidence did not show that the daily average noise levels exceeded those limits and that the disclosure from the Defendant did not assist him in reaching such a conclusion as the Defendant had not recorded the noise levels in the galley.

However, the trial judge’s decision was reversed on appeal. In particular, the Court of Appeal (Longmore LJ) held that:

  1. the Defendant was subject to a duty to measure noise levels where the deceased’s exposure was likely to exceed the relevant limits (based on the Code of Practice for the Reduction of the Exposure of Employed Persons to Noise 1972);
  2. the Defendant’s failure to record the noise levels was in breach of that duty, especially where there was ‘colloquial’ evidence (that is, lay evidence) that suggested that such levels may have been exceeded (paragraph 18);
  3. accordingly, “any difficulty of proof for the Claimant has been caused by the Defendant’s breach of duty in failing to take any measurements” (paragraph 18);
  4. “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.”  His Lordship relied on the principle that where a party can adduce evidence to rebut a fact and fails to do so, an adverse finding can be made by the court (see British Railways Board -v- Herrington [1972] AC 877); and
  5. “In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically.” (paragraph 19)

However, the ambit of this case appears to be misunderstood (or, at least, wrongly cited). To imply that where a Defendant does not have records regarding the noise levels in question, then the court should view the Defendant’s evidence critically and that of the Claimant benevolently. This misapplication often arises in historic cases, in which the Defendant’s inability to adduce evidence regarding noise levels has been caused by long delay since the cause of action accrued or other factors such as the destruction of historic records.

This misunderstanding ignores the important qualification set out in the numbered list above at 1 and 2. Specifically, the court may draw an adverse inference from the Defendant’s failure to record noise levels if  that failure can be proven to be in breach of its duty of care. Not in circumstances in which records that are likely to have existed have been destroyed or lost due to the passage of time, lost through the dissolution of the company or for some other ‘innocent’ reason.

In clinical negligence, an attempt was made to misapply Keefe to urge a court to draw an adverse inference (and effectively to reverse the burden of proof) in Shawe-Lincoln v Dr. Arul Chezhayan Neelakandan [2012] EWHC 1150 (QB) in which the Claimant sought to utilise the Defendant’s failure to take a full note to reverse the burden of proof regarding delay in diagnosis and treatment (paragraphs 79 to 82). Claimant’s Counsel correctly conceded that there was very little evidence to support his case on deterioration. The trial judge, Mr Justice Lloyd Jones, held that even adopting a benevolent approach to the evidence relied on by the Claimant, that evidence did not discharge the burden of proof. Simply put, the Defendant’s admitted negligence in taking a full note did not reverse the burden of proof, nor enable the court to make findings that were not grounded in the evidence relied upon. (It is of note that the judge held that the principle in Keefe was not limited to occupational disease cases.)

In Heavey -v- TMD Friction Limited, the Claimant failed to adduce any engineering evidence at trial and sought to rely upon the (misapplication of the) principle in Keefe to argue that, in the absence of noise measurement records, it was probably noisy. In fact, the learned judge correctly held that in order to bring the case within the ambit of Keefe (as set out above in the numbered list), the Claimant would need to show that the noise levels to which he was exposed were likely to have exceeded 90dB(A) LEp,d at the relevant times. Specifically, His Honour Judge Cockcroft said (at paragraph 24):

“in Keefe, it is apparent from the transcript that there was some expert evidence that, based upon the anecdotal evidence given about sign language and hand signals for communication at a distance of 10 feet or so, an inference could be drawn that noise levels were at or about 90 decibels, and that such levels were maintained for eight hours or more in a 16 hour shift. Here, there is no such evidence. I find it quite impossible, in the circumstances, to make any safe and proper inferences about decibel levels reached at the claimant’s workplace, or the length of time the highest level of noise was maintained, with obvious implications when I come to consider liability.”

In extremis, if His Honour Judge Cockcroft was wrong to limit the application of Keefe and it was not necessary for the Claimant to discharge the burden of proof, the principle would have its widest application in quiet environments where the Defendant did not measure noise levels because it simply was not noisy (thus the duty to measure was not ‘triggered’ by paragraph 5.1 of the Code of Practice or Regulation 4 (1) of the Noise at Work Regulations 1989).

Summary

The burden remains on the Claimant to prove, in rudimentary terms but nevertheless on the balance of probabilities, that he was exposed to noise levels that were in breach of duty before Keefe applies (to bring the case within the ambit of the principle). Keefe only then permits a court to make an adverse finding where proving to what extent the noise levels exceed the relevant limits (such as where specialist machinery or circumstances exist) in the absence of noise surveys or engineering evidence (which would be based on such measurements anyway). It does not reverse the burden of proof nor does it relieve the Claimant of the duty of discharging his evidential burden. The cases to which Keefe assists the Claimant are likely to be limited.

DOUG R. COOPER
St Johns Buildings

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Alison West (Widow and Administratrix of the Estate of Keith West, Deceased) v Wirral Metropolitan Borough Council

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Case Background

The Claimant brought an action alleging that the Deceased was exposed to asbestos, which subsequently led to the development of mesothelioma, while in employment at a school run by the Defendant between 1993 and 1997. Previously, the Deceased had worked as a mechanist involved in cutting asbestos sheets on a cross bench saw for twelve months between 1954 and 1955. In addition, between 1989 and 1993, the Deceased was in charge of maintenance at a Harlow hotel. As part of his employment the Deceased was responsible for cleaning the boiler room however, it could not be said with any certainty, that he was exposed to asbestos as part of this.

The claim focused on the Deceased’s work as a caretaker at South Wirral High School. As part of his responsibilities he maintained the boiler room which was found to have asbestos in two places: first, in the lagging on pipe work; and second, sprayed asbestos insulation within the ceiling. The basis of the Claimant’s argument was the poor practices employed by the Defendant in relation to asbestos management which- mainly- occurred before the Deceased’s employment. It was argued that these practices led to an inference that the Deceased was exposed to asbestos. The Defendant’s records showed a knowledge that asbestos was present within the boiler house and a recommendation for its removal. The records indicated in 1987 that the lagging and ceiling were damaged and in need of repair. In 1987 the asbestos was encapsulated but not removed. In 1988 the sprayed ceiling was sealed rather than the asbestos being removed and replaced.

The Defendant relied upon evidence of the Borough’s architect in relation to the condition of the asbestos after encapsulation and of the past and current Head Teacher at the school. Both Head Teachers gave evidence that they made infrequent visits to the boiler room and expressed no concerns about damage to the lagging or any other part of the room.

The court held that the evidence before it showed that the Defendant was exposed to no more than background asbestos during his employment and, consequently, there was no breach of duty. The court also expressed the opinion that even if there had been a breach, the exposure was not sufficient to have materially contributed to the risk of contracting mesothelioma.

Contributor Comments

This claim will be recognised by practitioners in this area of the law as being representative of a type of action being seen with increasing prevalence; that is a victim who has had ample historic exposure but cannot pursue the likely guilty party because they are no longer traceable, insured, or solvent.  The Claimant is therefore driven to pursue a difficult claim against a more recent and viable defendant.

Such claims put into very clear focus the issues of material increase in risk and de minimis in the context of the Fairchild exception.  The consequence of a finding of material exposure is compensation in full even though it is obvious that the likelihood is that most of the risk, and indeed the causation of the injury, has come from another source.

In ‘The Dust Settles? Fairchild to Williams’ (2013) 21 Tort L Rev 87, I tentatively suggested that the use of de minimis in this context would appear to be an accident of legal history.  It seems incongruous that a level of risk which is just above de minimis should entitle a Claimant to full compensation where the vast preponderance of the risk, and likely causation, lies elsewhere.  However, it has to be acknowledged that identifying a touchstone for materiality will be difficult even arbitrary.

The essential allegations of exposure related to asbestos in situ and the failure to maintain the same.  Again, this is an increasingly prevalent feature of mesothelioma claims.  The evidence served on behalf of the Defendants indicated that they, like others, may have been slow to react to this particular type of risk.  However, by the time of the Deceased’s employment, the Judge accepted that proper procedures were in place and the Deceased’s account of exposure could not be squared with the evidence of care which was shown to have been taken in other respects.

The Judge went on to consider that any exposure would have been de minimis.  As this was not a determinative decision, his comments are understandably brief but appear, essentially, to be correct.

Remarks by Lord Phillips in Sienkiewicz v Grief [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] UKSC 10  implied that de minimis could be established by reference to a comparative exercise involving other exposures.  In other words, an exposure which might be considered material on its own could become de minimis if it was shown to be a very small part of the overall exposure history (see paragraphs 107-111).  Lord Justice Aikens in Williams v University of Birmingham [2011] EWCA Civ 1242 (at paragraph 71) also indicated that such an exercise was possible but was understandably reluctant to go further in his analysis on the facts of that particular case.  It does appear to be reasonable that a point must be reached at which a contribution to risk is so slight that it cannot be considered material.

The Claimant’s essential attack on this approach, as reflected in their submissions in this case, is that comparative exercises are so shot through with imprecision that they should be completely ignored.  However, it is one thing to say that something is imprecise and prone to error and another to say that it is wholly unhelpful.  Whatever realist assumptions were applied to the relative exposures on the facts of the case, it would appear that the vast preponderance of risk came from the earlier exposures and the Judge was entitled to regard such evidence as being helpful in forming a view as to whether the exposure was de minimis.

Clearly, further consideration by the Appeal Courts of these difficult and important issues is both necessary and inevitable.

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Supermarket Mental Patient!

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Case Background

Today’s press coverage of a well known supermarket selling a costume of a blood soaked mad man and labelling it a “mental patient” is a good example of the difficulties businesses face when dealing with mental health. Mental health problems still carry stigma and businesses find it increasingly difficult to know how to manage staff with mental health issues whilst trying to run a viable business.

Contributor Notes

Anyone that represents businesses in the Employment Tribunal knows how many problems are created when a claimant appears in person. A claimant in person usually has a limited understanding as to what is expected of them in the Tribunal and can turn up on the day of the hearing with new witnesses; without witness statements; with new documents; or seeking permission to rely upon that evidence.

Whilst experienced litigators know how to tackle such problems, there are occasions when even the most experienced are pushed to the limit. I have appeared before Employment Tribunals for over 14 years but in 2011, and into 2012, my skills as a litigator were tested to the limit.

The case involved a former employee of a NHS Trust who had been dismissed by reason of capacity. The claimant had spent many years being moved from one job to another in an attempt to accommodate an apparently growing mental health problem. The facts of the case, therefore, spanned several years. The claimant raised allegations covering those years and, as a claimant in person, the metaphorical kitchen sink was thrown in. This approach only increased the cost to the Trust at a time when public funds would have been better served saving lives.

The respondent Trust had to address those issues through witness evidence which meant that there were a significant number of witnesses.

The hearing took place over three weeks; split between 2011 and reconvened in 2012 because the claimant’s health problems caused a long adjournment.

So why was this case different than any other? First, the claimant took over ten minutes to ask each and every question or to make a note of an answer; even if the answer was a simple ‘yes’ or ‘no’.

Second, the claimant became aggressive and made inappropriate comments when questioning witnesses and this caused great upset to those witnesses.

Third, the claimant took constant breaks and made multiple daily unmeritorious applications which meant the hearing had to stop so the Tribunal could hear each and every application. This required my response and then a Tribunal decision. This caused significant delay and further distress to the witnesses.

Why did the Tribunal accommodate such behaviour and why did I not object? The difficulty in this case was that it was almost impossible to differentiate between unacceptable behaviour and behaviour linked to the claimant’s mental health problems. The case highlighted the tight rope all organisations face in trying to manage mental health whilst not tolerating poor behaviour and protecting other staff.

The Tribunal and I were both concerned to ensure the claimant had a fair hearing and so, absent clear evidence as to what was part of the behaviour was linked to the claimant’s mental health and what was just an example of poor behaviour, there was little choice but to accommodate the behaviour. That was extremely difficult as an advocate as I had to make many decisions during the hearing as to matters I would take issue with and those I would not because of the claimant’s mental health. It was a difficult balancing act which caused significant frustration to all involved. I have no doubt that in inexperienced hands the case had potential to go disastrously wrong. Not because the respondents had done anything wrong but because when cases are handled badly by advocates in a hearing setting it can set the case, and the Tribunal, off on the wrong footing and that tends to be the beginning of the end.

After three testing weeks of long pauses, interruptions and aggression the Tribunal finally heard all of the evidence. The result? The Tribunal produced a 50 page judgment unanimously in favour of the Trust.

Was this a victory? Yes and No. No, because the case had cost the Trust; the costs were paid through public funds and the witnesses’ distress was unacceptable. Yes, because the Trust had behaved impeccably and as a result of careful handling the Tribunal vindicated that in the judgment.