Issue of principle
Rothwell v Chemical & Insulating Co Ltd & Another, Court of Appeal, 26 January 2006
'One person may make light of a risk the fear of which may blight the life of another.' Lord Phillips, paragraph 103.
'I would hold that the need to do justice to these injured claimants, in accordance with what I believe are the expectations of most reasonable people, should outweigh the policy considerations advanced by the appellants.' Lady Justice Smith, paragraph 146.
These quotes would suggest that the Court of Appeal was at one in finding for the respondents in relation to their claims for damages arising out of asbestos-induced pleural plaques. Sadly, for the injured claimants, the majority found against them, with Lady Justice Smith dissenting.
It was accepted by the parties that pleural plaques in themselves are insufficient to create a cause of action. The physical damage is, in all but 1% of cases, minimal. The case put forward by the claimants was that the aggregation of the plaques, together with the risk of developing a malignant condition, and the anxiety at the prospect of that risk eventuating creates a cause of action.
The approach of Lord Phillips and Lord Longmore, rather surprisingly outlined in a joint judgment, was to find for the appellants on the basis of policy. According to Lord Phillips, the key question they had to answer was: 'Can physical changes to the body negligently caused, which are of themselves insufficiently serious to give rise to a cause of action, found a claim in negligence if they carry a risk of causing significant injury, and give rise to consequent anxiety?' The majority found that there was no legal precedent for aggregating three heads of claim that individually could not found a cause of action. They accepted the submission of defendant's counsel, Michael Kemp QC, who identified six policy reasons that they found persuasive. In brief, these are as follows:
Lady Justice Smith's judgment merits careful consideration. She stated: 'It is a question of fact whether a claimant has suffered an actionable injury.' Although the risks of those with plaques contracting the 'extremely painful terminal condition' of mesothelioma is usually in the range of 1-5%, this equates to a 100 to 500-fold increase in the risk of contraction. Such risk is 'very substantial'.
Lady Justice Smith saw no reason to apply policy in place of established legal principle. Her argument was that the tissue change amounts to an injury because pleural plaques can give symptoms in a small number of cases and it is the plaques not the extent of symptoms that define the injury. Equally, the plaques, which are in effect a scar on the lining of the lung, would be classed as an injury if they developed on the skin rather than inside the body. She identified that four respected High Court judges had, in previous decisions in the 1980s and most recently in the High Court in the instant case, found different ways of awarding damages to claimants suffering from pleural plaques, and both claimants and defendants had accepted the actionable nature of such cases for a period of more than 20 years.
Legal principles establish that an individual has a single cause of action arising out of tortious exposure and he must sue when he knows of it. He gains protection in relation to the development of more sinister consequences of the exposure by means of provisional damages pursuant to the Supreme Court Act 1985. Because there is only one cause of action, damage must include the risks that other serious conditions may develop. Therefore, both the existing condition and future risks are taken into account in awarding damages, hence pleural plaques claims should succeed.
Lady Justice Smith found no basis for consideration of policy but, nonetheless, took the opportunity of addressing the six points put forward by the defendant's counsel and adopted by the majority. Her response shreds the conceit that policy has a place in relation to these matters. Her responses were:
Apparently, the appellants did not produce figures to prove their point that the costs of litigation were disproportionate but, as Lady Justice Smith stated, disease cases by their nature often require difficult and time-consuming investigation. In part, this is because the employers have not kept adequate records of past employment. It is unreasonable to attach these difficulties to an argument to stop the claimants pursuing claims for damages.
Worryingly, if this approach is taken further within occupational disease litigation, noise-induced hearing loss and hand-arm vibration syndrome cases will also come under greater scrutiny, for the damages for those illnesses are relatively low in relation to the costs. Additionally, all cumulative illness cases potentially entail pursuing actions against multiple employers, with the necessary costs consequences. This is unavoidable if a claimant is going to be permitted to pursue his legal rights.
Lady Justice Smith said the law has to draw a line somewhere in relation to those who can pursue a claim and those who cannot. Any unfairness in relation to those who cannot &150; namely, those who have not developed pleural plaques but still have the anxiety of the risk &150; is not a reason that 'everyone should be transferred to the 'non-recovery' side of the line.
Lord Phillips appears to be on a quest to apply proportionality at the expense of access to justice. Last year, I drew attention to his peculiar comments in relation to the costs of a complex occupational stress claim (see [2005] Gazette, 16 December, page 16). Both sides of the litigation world accept success fees of 100% in such cases, which demonstrates their complexity. A reality check in relation to occupational illness claims was, thankfully, provided by Lady Justice Smith from her experience as a former disease counsel. It is, nonetheless, a profound concern that Lord Phillips appears too ready to accept the propaganda spat out in the media about scan vans and the less fragrant end of the personal injury market, and to remove the legal entitlement of those who, as he says himself, may have their lives 'blighted' by the fear of the risk of developing a malignant condition.
Leave to appeal has been granted. Lord Phillips said: 'There are difficult issues of principle and this will affect a very large number of claims and in these circumstances we have concluded that we should take the rare course of giving permission to appeal to the House of Lords on the issue of liability.'
But what are the prospects for the claimants? The House of Lords ruled that the Court of Appeal's approach in Fairchild v Glenhaven Funeral Services & Others was 'morally wrong' (Lord Hoffmann) and 'reflected no credit on the law' (Lord Bingham). One would hope that they would advance the same policy approach used in Fairchild, namely, to ask which of the two sides, the injured claimants or the employers, should bear the hardship.
However, I am pessimistic. Lord Phillips chose to sit on this case as he no doubt felt it appropriate to do so. One bleakly gains the sense that he is the advance party constructing a path along which the Law Lords can follow.
There is one positive note for the claimants in that the judges were in agreement that the reduction in damages made by Mr Justice Holland was wrong, and that the bracket for provisional damages is £4,000 to £6,000. Full and final settlement awards should be based on the level of the risk, with the inference that awards of £6,000 to £7,000 are too low.
However, there is a further anxiety that the defendants will undoubtedly have noticed, and that is Lord Phillips' passing reference to pleural thickening. This condition can be disabling but in its early stages can also be benign (as, incidentally, can asbestosis). He states: 'This judgment may focus attention on the question of the stage at which pleural thickening gives rise to a cause of action.' I think he grossly undervalues the importance of this comment.
An appeal will proceed to the House of Lords on actionability alone. There is no leave to appeal the quantum issues.
A smoking gun
Badger v Ministry of Defence [2005] EWHC 2941 (QB), Burnton J &150; contributory negligence in an asbestos-related lung cancer case
This case produced some emotive commentaries in the media following a reduction in the damages awarded to a widow of an asbestos-induced lung cancer sufferer because he smoked.
The decision of the High Court is logical and follows settled law in respect of contributory negligence. The interesting aspect of the case is that, to date, no claimant in the UK has succeeded in recovering damages against a manufacturer of cigarettes, yet, in this instance, a reduction for contributory negligence was made against the claimant for smoking.
The defendant, the Ministry of Defence, admitted negligence and 'significantly greater blame' for the deceased's condition. It had exposed him to large amounts of asbestos fibres at its dockyards over a period from 1954 to 1987.
However, the ministry alleged that Mr Badger was a smoker and, importantly, continued to smoke after the dangers were made known to him. Lung cancer is an 'indivisible' condition. While each exposure to a carcinogen will not increase the disability suffered, it will increase the risk of contracting the cancer. A party will be responsible if, through his own fault, he increases the risk of contraction of the cancer. By smoking, Mr Badger increased his risk of injury, particularly as medical research shows that there is a synergistic effect on risk of injury if there is a combination of asbestos and smoking exposure.
The judge found that by 1971 there were warnings on cigarette packets, and it was reasonably foreseeable to the prudent man that there was a danger of illness through smoking. In fact, Mr Badger had specifically been advised of the dangers a little earlier in 1968. While there was no criticism of him for starting to smoke in 1955, in the absence of any evidence to convince the court that he was so addicted to nicotine so as to be unable to stop smoking, his later smoking history after the early 1970s was held to be a contributory factor.
The finding of 20% contributory negligence &150; which coincidentally mimicked the percentage in Barker v Saint Gobain Plc &150; appears to have been created in a 'broad jury-like and common-sense way' rather than by any mathematical method of assessing contribution to risk and reflected the defendant's concession that it should take the lion's share of responsibility.
The judgment is correct in principle and on its facts. The courts have always taken into account self-inflicted harm. Both asbestos and smoking contributed to the risk of injury for the claimant.
There are two points of particular interest: the judge noted that he had been provided with less information on public awareness of the risks of smoking than Lord Nimmo Smith in the Scottish case of McTear v Imperial Tobacco; and the judge was unable to reach any conclusion on the addictive effect of smoking in the absence of evidence.
The judgment suggests that an appeal is likely.
See law report
By Simon Allen, Russell Jones & Walker, Sheffield
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