Recent Developments in Asbestos Litigation - Niall Maclean, 12 King’s Bench Walk

15/10/14. Asbestos-related illnesses continue to be litigated controversially, with no apparent let-up in the number of new claims and the complexity of the issues they generate.

In this article I hope to give a flavour of some of the most important developments in this area over the past year or so. I approach the issues from the perspective of someone who acts for claimants in asbestos cases, although I hope the analysis offered is of general interest.

Breach of duty

The Court of Appeal’s decision in Williams v University of Birmingham¹ remains an important and influential backdrop against which thorny questions on breach of duty are considered. On the (in my opinion questionable) authority of this case, defendants continue to place great stock on historic attempts to set “safe” exposure levels in, for example, the Factory Inspectorate’s series of Technical Data Notes. These official attempts to regulate exposure levels have been described with the benefit of hindsight as being “gravely erroneous”², but after the Supreme Court’s decision in Baker v Quantum Clothing Group Ltd³ hindsight is irrelevant and consideration of the historic standards of the time is paramount.

The Williams approach to breach of duty was well exemplified again this year in the case of McGregor v Genco (FC) Ltd⁴. The claimant worked in a large department store in the mid-1970s, a period during which some escalators were replaced close to where she worked. During the six week duration of the works, she had to clean up a fine white powder which had settled on surfaces. She saw workmen wearing masks, and the escalator works were cordoned off behind a floor-to-ceiling screen. Since the joint expert engineering evidence was that asbestos insulation boards would have been cut and rendered during the course of the works, the court was prepared to infer that the white powder contained asbestos dust. It was further held that inhalation of this dust had caused the claimant’s mesothelioma. However, the claim failed on breach of duty. There was no evidence she was exposed to levels of asbestos in excess of those set down in Technical Data Note 13, which was deemed to be the best guide as to acceptable standards at the time when she was exposed. Usage of the screen as a precautionary measure was also deemed acceptable judged by the standards of the day. The fact that the men working on the escalator wore masks was not deemed suggestive that a higher standard should apply, since these masks were routinely used by those working in close proximity to large quantities of non-hazardous dust simply to make breathing more comfortable.

Two cases from 2013 show how a close analysis of the nature and pattern of the alleged exposure can often tip the balance when breach of duty is considered. In Garner v (1) Salford City Council (2) McGuiness and Co. Ltd⁵ the claimant was a pupil at a school in the late 1970s which was situated adjacent to some old swimming baths which were in the process of being demolished. Her case was that asbestos dust was liberated in the course of these works and this was the cause of her mesothelioma. The court was prepared to infer from how the works were carried out that asbestos dust was probably liberated in the process, but it also inferred from the fact demolition professionals were used that steps were probably taken to mitigate the volume of dust that was released. When the nature and pattern of the exposure was considered – in the open air, over a long distance – it was deemed likely the asbestos fibres would have been significantly dispersed and would not have breached the relevant Technical Data Note for the time in question (number 42) nor related guidance in an Environmental Hygiene Note issued by the Health and Safety Executive in 1976. On this basis, there was held to have been no breach of duty.

Consideration of the nature and pattern of exposure worked to the claimant’s advantage in the case of (1) Hill (2) Billingham v John Barnsley & Sons Ltd and ors⁶. For about three months in the late 1960s Mr Billingham worked in a newly built power station testing the strength of the steel girders used in its construction. This he did by throwing a chain over them, and suspending weights from the chain. It was agreed that a good deal of asbestos dust from insulation material used in the construction of the plant had probably been deposited on the top surface of the girders. During the testing exercise, Mr Billingham was showered in large quantities of this asbestos dust, albeit for relatively short periods of time. The defendant’s case was that these very short-burst exposures did not offend against Technical Data Note 13. Bean J (as he then was) disagreed. It was impossible to be exact about exposure levels. However, it was very likely that Mr Billingham was exposed on each burst to very high levels of airborne asbestos fibres which would take some time to settle, and those bursts were repeated many times a day for a six week period. Even based on the standards of the time, this was held to give rise to a foreseeable risk of injury. Since the defendant took no precautionary or remedial measures, liability followed ineluctably.

In the few days prior to writing this article, David Pittaway QC (sitting as a Deputy Judge of the High Court) gave judgment for the defendant in the case of Macarthy v Marks and Spencer PLC⁷, seemingly placing stock yet again on official attempts to set “safe” exposure levels and following the approach laid down in Williams. It appears also that the Deputy Judge rejected the claimant’s arguments on the stringency of the 1976 Health and Safety Executive Guidance Note. The full text of the judgment is awaited.

Finally, two first instances decision from earlier this year – Abbott v Cannock Chase DC⁸ in May and Atkinson v Secretary of State for the Department of Energy and Climate Change⁹ in July – emphasise the importance of good quality lay and (in particular) expert evidence in establishing that what the claimant was exposed to was in fact asbestos, and in quantities sufficient to give rise to a foreseeable risk of harm.

Burdens of proof

In McDonald v (1) Department for Communities and Local Government (2) National Grid¹⁰theclaimant was employed by the first defendant as a lorry driver in the 1950s. He was sent during the course of his employment to the premises of the second defendant, at which he claimed to have been exposed to asbestos as a result coming into close proximity to laggers who were mixing and removing asbestos lagging.

It was found as a fact at first instance that the claimant’s exposure to asbestos was light and intermittent. Based on the standards and knowledge of the time when the claimant was exposed, there was held to be no breach of any common law duty of care nor of s.47 of the 1937 Factories Act.

The claimant also sued under regulation 2(a) of the Asbestos Industry Regulations of 1931. In terms, this calls for the usage of mechanical exhaust equipment whenever any individual is engaged in the mixing or blending of asbestos. The trial judge held that whilst the claimant was in principle entitled to the protection of regulation 2(a) when visiting the second defendant’s premises, he had failed to show that certain exceptions to the application of the regulation (relating to the frequency and duration of the relevant processes) did not apply in his case.

Importantly, the Court of Appeal reversed this decision. The exceptions effectively operate as a defence, and knowledge as to their application or otherwise will usually be the preserve of defendants. The trial judge had wrongly reversed the burden of proof on this issue – the burden was on the second defendant to prove the exceptions applied, not on the claimant to prove they did not. Since the second defendant led no evidence on this issue, liability was established.

The Supreme Court has heard the second defendant’s appeal and the claimant’s cross-appeal on whether he was entitled to the protection of s.47 of the 1937 Factories Act, and the judgment is awaited with interest.

Identifying defendants

This can be a particular problem in asbestos litigation due to the long period of time that often elapses between exposure and the manifestation of disease. Potential defendants may be difficult to trace or no longer in existence. Restoring non-extant companies to the register is often a fruitless exercise since many exposed their workers to asbestos at a time when liability insurance was not compulsory, and there is consequently no way any judgment could be satisfied.

One way possible way round these problems is to sue the extant parent company of a non-extant subsidiary, a tactic successfully pursued by the claimant in the case of Chandler v Cape PLC¹¹. A case from this year shows the limitations of this approach, however.

In Thompson v Renwick Group PLC¹² the claimant was employed by two companies from the late 1960s to the late 1970s. Those companies were purchased in 1975 by a subsidiary of the defendant. That same year, the defendant appointed a new director to the board of the subsidiary company and tasked him with running the site where the claimant worked. The claimant was engaged at this site in the hand baling of raw asbestos in quite appalling conditions the Court of Appeal would go on to describe in trenchant terms as “really quite shocking” and “a cause for shame”¹³. Furthermore, the two companies that employed the claimant did not have employers’ liability insurance (despite their legal obligation to do so) and would not be able to meet any judgment obtained for the claimant’s disabling pleural thickening.

The claimant therefore brought proceedings against the defendant, as the parent company. His case was that it, through the new director it appointed to the subsidiary company, had taken sufficient control of his day-to-day work to mean it had assumed a duty of care to ensure his safety. Alternatively, he argued that the parent company should have such a duty imposed upon it due to the taking of this level of control.

The Court of Appeal rejected the claimant’s arguments. In running the day-to-day work, the director was merely acting in accordance with his fiduciary duties and he had not assumed any duty of care in relation to health and safety matters. There was no scope to impose such a duty either, since the well-known test for doing so laid down by the House of Lords in Caparo Industries PLC v Dickman¹⁴ could not possibly be satisfied. The relationship between the claimant’s work and the parent company was insufficiently proximate to make it fair, just and reasonable to impose such a duty. There was no evidence the parent company did much over and above simply holding shares in the subsidiary company. In these respects, the facts of the case were far removed from those in Chandler, where the defendant parent company had actually employed a group medical adviser with responsibility for the health of all employees within the group of companies for which it was parent, and a scientific officer specifically tasked with investigating ways of suppressing airborne asbestos dust. Furthermore, in Chandler there was evidence that many aspects of the work process had in fact been discussed by the parent company’s board of directors.

In Dowdall v (1) William Kenyon and Sons Ltd (2) BECA Ltd (3) Greenield & Payne Ltd¹⁵ the claimant had settled in 2003 a claim for asbestosis against seven of his ten former employers. He did not pursue the other three because his solicitors had at the relevant time been unable to trace insurers able to meet any judgment. The 2003 settlement excluded any compensation for the claimant’s risk of contracting mesothelioma, a risk that sadly went on to materialise. Andrew Edis QC (sitting as a Deputy Judge of the High Court) found that the subsequent proceedings against the remaining three defendants were not an abuse of the court’s process. Those employers had not been pursued in the first action for perfectly good reasons. This decision reflects the broad, merits-based approach the courts have taken to abuse arguments since the House of Lords’ decision in Johnson v Gore Wood & Co (No.1)¹⁶.

Quantum

The Court of Appeal’s decision from January of this year in the case of Haxton v Phillips Electronics Ltd¹⁷ has far-reaching implications for the law of damages well beyond asbestos litigation.

Mrs Haxton sought damages from the defendant as a result of her husband’s fatal mesothelioma. Tragically, she too went on to develop the disease, probably from washing her husband’s work clothes. Her dependency claim under the Fatal Accidents Act 1976 was hugely truncated due to her reduced life expectancy as a result of her mesothelioma. Her case was that, but for the defendant’s negligence, her life expectancy would not have been reduced and her dependency claim would concomitantly have been far greater. She claimed for the diminution in the value of a chose in action, as a result of the defendant’s negligence. The Court of Appeal held there was no principled reason why any such claim should not be allowed. Certainly, such a claim was not inconsistent with the wording of the Fatal Accidents Act 1976 nor the policy that lay behind it. Just as any detrimental effect on a contractual right can sound in damages, so too ought it to be the case that the diminution of a statutory right can also attract compensation. Furthermore, the defendant’s argument that the claimant’s reduced dependency claim was too remote was rejected by the Court of Appeal. It is perfectly foreseeable that any reduction in a person’s life expectancy could have a detrimental impact on any claim for damages brought by that person. Any defendant unfortunate enough to reduce the life expectancy of such a person would, in the usual way, have to take its victim as it found him.

In Knauer v Ministry of Justice¹⁸, the trial judge was invited to depart from the conventional approach of assessing multipliers for future losses under the Fatal Accidents Act 1976 as at the date of the deceased’s death. There had been a delay of almost five years between Mrs Knauer’s death from mesothelioma and the assessment of damages at trial, in large part due to the robust but ultimately unsuccessful stance taken by the defendant on the issues of liability and medical causation. The claimant argued that assessing his future losses as at the date of his wife’s death meant, due to the credit for accelerated receipt built into multipliers in the Ogden tables, that he was in effect giving credit for accelerated receipt on what was in part a past loss. Instead, the claimant invited the judge to treat the losses in the period between Mrs Knauer’s death and trial as past losses, and to assess the multiplier for future losses as at the date of the trial. Bean J (as he then was) accepted the claimant’s arguments but held himself bound by the House of Lords authorities of Cookson v Knowles¹⁹ and Graham v Dodds²⁰ to adopt the conventional approach. However, he granted the claimant a “leapfrog” certificate to petition the Supreme Court directly for permission to appeal on the issue. The Supreme Court’s decision is awaited.

The year ahead

We can confidently predict another busy year for first instance and appellate courts.

Buoyed by the Court of Appeal’s decision in Williams and its apparent ongoing influence, defendants are very likely to defend claims robustly where they feel they have good prospects of showing exposure levels to fall within contemporaneous official threshold levels of “safety”. We can expect claimants to continue attacking this line of reasoning, at least partly on the basis that many such levels were never designed to form the touchstones of civil liability. Rather, they were put in place to mandate onerous forms of state enforcement action and therefore, it might be argued, they set a less demanding standard than ought to be expected by the civil courts.

There are clear advantages to be gained both for claimants and defendants in really drilling down into the nature and pattern of the alleged asbestos exposure, especially given how the courts have approached breach of duty post-Williams. Increased time and effort will probably need to be spent marshalling good quality lay and expert evidence on these issues. At a time when the costs associated with personal injury litigation are under more scrutiny than ever before²¹, it can only be hoped that asbestos cases continue to be litigated with the care and attention they deserve.

Niall Maclean is a barrister at 12 King’s Bench Walk who specialises in personal injury, clinical negligence and industrial disease work. He has a particular interest and expertise in asbestos litigation, and has acted in cases involving complex issues of liability and quantum.