Case Report: M (Children: Applications by Email) [2021] EWCA Civ 806 - Harry Peto, Temple Garden Chambers

16/06/21. While a family case, this case highlighted the importance of the rules of procedure in instances of cases that are litigated by correspondence.

If a party applies to the Court by email, the fact that the application was made in this way and the fact that the application was decided without a hearing do not mean that the Court should not scrutinise the application with reference to procedural rules. The importance was stressed of the Court being mindful that rules and orders are to be complied with and that procedural fairness is upheld in the same way as it would be had the parties appeared in person.

While reference was made to the Family Procedure Rules (specifically r.184), the equivalent in the Civil Procedure Rules is r.23.3, which states that an application notice must be filed, and that an application may only be made without filing an application notice if this is permitted by a rule or practice direction, or the court dispenses with the requirement for an application notice.

R.18.9 of the Family Procedure Rules is mirrored by r.23.8 of the Civil Procedure Rules, each providing that an application may be dealt with without a hearing if the parties agree or if the court does not consider that a hearing would be appropriate.

The Court held that the fact that it has given a general permission for applications to be made by email does not prevent the Court from requiring an application notice to be filed in a specific instance. Similarly, the Court must discriminate between applications that require hearings and those that do not.

The central point is that the same standards of procedural fairness must apply regardless of whether the general requirement for an application notice was dispensed with and regardless of whether a hearing is deemed appropriate by the Court.

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R (on the application of Wandsworth Borough Council) v Her Majesty’s Senior Coroner for Inner West London - Jim Hester, Parklane Plowden Chambers

10/06/21. This Judicial Review case was brought by the claimant council following an inquest. The Inquest had concluded that one of the council’s tenants had died as a result of malignant mesothelioma which had been caused by exposure to asbestos in one of the council’s properties.

(The Queen on the application of Wandsworth Borough Council v Her Majesty’s Senior Coroner for Inner West London [2021] EWHC 801 (Admin) per Lord Justice Popplewell Mr Justice Cavanagh and His Honour Judge Teague QC , Chief Coroner of England and Wales)

The facts 

The facts in the case were largely agreed.

The tenant was 51 years old when she died in 2018. She had been a tenant of the local authority between 1989 and 2018.

It was agreed that there was asbestos present in the property following a survey undertaken in 1984.

In 2003, the council had instructed contractors to remove some asbestos boards. At the same time some of existing radiators were replaced with a central heating system. The tenant vacated the flat while the asbestos was being removed.

It was said that during that asbestos-removal operation a piece of equipment resembling a vacuum cleaner malfunctioned. The machine ‘exploded’ staining and damaging some of the tenant’s possessions. Items were covered in what looked like talcum powder.

On return to her property, the tenant had made some efforts to clean items contaminated with the powder/ dust. The contractors eventually paid for the carpets and sofa covers to be professionally cleaned.

A few days later, a few old radiators were removed and a new central heating system was installed. Though some boards were removed in the process, it was not known whether these contained asbestos or not.

Expert Evidence

There was no doubt that the claimant had contracted malignant mesothelioma. On the pathologist’s evidence, there was an extremely strong association between asbestos dust exposure and malignant mesothelioma.

It was explained that there is usually a long delay between exposure and development of the disease. The pathologist said that it was ‘reasonable to assume’ that exposure to asbestos whilst the tenant was living at the property had led to and caused the mesothelioma.

The pathologist continued to tell coroner that the dust explosion from the vacuum cleaner, which was thought to contain a ‘polimeric coating’, would not have caused or contributed in any way to the death.

However, it was said by the pathologist that he was satisfied on the balance of probabilities that living in accommodation where asbestos exposure had occurred had led to and caused the condition. The Administrative Court noted that this went beyond the pathologist’s area of medical expertise.

Evidence and legal causation

For the purposes of a coroner’s court, it was found that for causation of death to be established, it must be said that the conduct had either caused the death, or more than minimally, negligibly, or trivially contributed to it. It was noted that this is a different test to the material contribution test in the civil courts.

The court concluded that it could not safely be assumed that malignant mesothelioma was invariably caused by exposure to asbestos. Although there is an extremely strong link, the link is not absolute on the evidence provided to the court. Accordingly, it was incapable of establishing a causal link by itself.

It was said that a causal link could not properly be inferred without some evidence specific to the index case.

Although it was noted that the property contained asbestos, there was no evidence that asbestos was freely circulating. It was said that living in close proximity to products or materials that happened to contain asbestos does not necessarily entail exposure to the fibres.

The only event that could have caused exposure appeared to the be the removal of asbestos in 2003. It was noted at the time the tenant was away from the property. Further, that there was no evidence that the dust which was produced in the vacuum cleaner ‘explosion’ contained asbestos fibres. Indeed, the evidence from the pathologist was that it would not have caused or contributed to the death in any way.

Finding

Ultimately, the court found that whilst the diagnosis was consistent with exposure to asbestos from around the time of 2003, or the period of tenancy in general, the facts taken together could establish no more than a possibility that the mesothelioma was a result of asbestos exposure at the property.

There was not sufficient evidence to find that on the balance of probabilities any such exposure had in fact taken place.

The only evidence to the contrary was from the pathologist. He stated ‘it was reasonable to assume’ that the exposure led to the mesothelioma was from the property. However, it was not a matter within his sphere of expertise. It was not an opinion he should have been allowed to express. Ultimately the decision was quashed. It was simply stated that the tenant was diagnosed with malignant mesothelioma which caused her death.

Thoughts

The area of asbestos exposure, and consideration of historical evidence, has provided other cases of interest recently: Smith v Secretary of State for Transport and Bannister.

As set out in this Judgment, there is a different test in the coroner’s court than in the civil courts.

However, the Judgment centred upon the factual findings. Simply because the tenant lived at a property where asbestos was known to be present and she was subsequently diagnosed with malignant mesothelioma, was not sufficient to state that the mesothelioma had been caused by asbestos exposure at the property. The court pointed out that given the commonplace nature of the material during the potential latency period of the illness and the tenant’s age, other sources of asbestos exposure may have been the cause, even if such exposure was unknown.

Of course, what this case does show is that there needs to be a factual basis for exposure. Simply being in a building or other environment where our asbestos might have been present, but where there is no evidence that it was ever disturbed so as to provide exposure, is not enough.

This article was originally published at https://jimhester.me

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Procedure: First instance County Court decision suggests that low value product liability claims fall within the EL/PL protocol - Paul Erdunast, Temple Garden Chambers

14/05/21. X (a Minor) -v- MPL Home & Senza Group Ltd, 17 March 2021, as reported on Civil Litigation Brief – The RTA and EL/PL protocols provide fixed costs regimes as well as specific procedures that apply to claims within their ambit (the main feature of such claims being that they are valued at no more than £25,000). The Claimant in this case argued that product liability claims fall outside the EL/PL Protocol. DJ Vernon sitting at Cardiff disagreed.

Facts

The essential facts of this case were that the young Claimant sought compensation for injuries sustained when a defective hairdryer set off a spark that burned her wrist. Settlement was approved, but there was a question as to costs: did the case fall within the public liability protocol such that the costs were fixed?

The Claimant’s arguments that product liability claims fall outside the EL/PL protocol

The definition of ‘public liability claim’ is found at 1.1(18) of the EL/PL protocol:

“(18) ‘public liability claim’-
(a) means a claim for damages for personal injuries arising out of a breach of a statutory or common law duty of care made against—
(i) a person other than the claimant’s employer; or
(ii) the claimant’s employer in respect of matters arising other than in the course the claimant’s employment; but
(b) does not include a claim for damages arising from a disease that the claimant is alleged to have contracted as a consequence of breach of statutory or common law duties of care, other than a physical or psychological injury caused by an accident or other single event;”

The Claimant made four arguments to demonstrate the product liability claims in general, and therefore this specific claim, fall outside the EL/PL protocol...

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