Albert Victor Carder v The University of Exeter (2016) Court Of Appeal - Richard Johnson, Browne Jacobson
02/11/16. The background to the case was that Mr Carder, who was 87 years of age, suffered from asbestosis as a result of exposure to asbestos dust during four periods of employment as an electrician. The exposure period ranged from the 1950s to the 1980s.
Asbestosis is a dose-related disease in that unlike conditions such as lung cancer, the extent and severity of the disease is related to the quantity of fibres ingested. It was conceded by the respondent that Mr Carder's condition was caused by asbestos exposure.
Only part of the claimant's respiratory disability was attributable to asbestosis. It was submitted by the respondent that the breach of duty involving exposure by the respondent amounted to 2.3% of the total lifetime dose and that had made no difference to the claimant’s symptoms, disability or prognosis. On that basis the exposure had not caused any actionable damage.
At the earlier hearing below, the court had found for the claimant on the basis that:
2.3%, although small was not de minimis
the extent of asbestos increase was an indicator that the claimant had become worse off physically even though it was not noticeable or measurable. The dose of 2.3% had made a contribution to the overall condition
the claimant was at an increased risk of developing lung cancer
the claimants condition was likely to worsen to the point where the claimant will be virtually confined to bed and be dependent upon others
unlike cases such as pleural plaque, where damage is measurable but symptomless and no damages are payable, the condition of asbestosis cannot be described as benign.
The respondent appealed on the grounds that the contribution to the asbestosis by the respondent while material was very small and made no addition to the claimant's disability and had not caused him to be worse off physically or economically. The factors the judge had referred to at the earlier hearing were all factors which considered the effect of the condition of asbestosis as a whole, including the risk of malignancy, which would all have existed without the 2.3% additional exposure caused by the respondent's breach of duty.
The Court of Appeal considered the issue of what constitutes ‘actionable damage’ and considered the case of Rothwell v Chemical and Insulating Company Limited (2007) UKHL. Rothwell concerned asbestos exposure causing pleural plaques to develop, which meant there were physical changes to the claimant's lungs but these were symptomless.
In the case of Rothwell, Lord Hoffmann described damage as an abstract concept of the claimant being worse off physically or economically and it did not simply mean a physical change. The claimants could not recover damages in such cases.
In the index case the Court of Appeal stated that the only relevant question was whether the claimant was materially worse off as a result of the alleged breach i.e. whether he had suffered damage.
In this case the respondent had conceded that the increase of 2.3% was material i.e. not de minimis. This concession was crucial. The judge was right to hold that the claimant was worse off as a result of the 2.3% exposure.
One of the interesting points about this case is that the claimant discontinued proceedings against the one of the defendants because exposure had contributed only 0.3% to the claimant's overall condition and another employer which had contributed only 0.2%. Discontinuamce followed the claimants medical expert Dr Rudd advising that the 0.3% contribution was de minimis. In this case the appeal proceeded with the concession by the respondent that their exposure was material and not de minimis.