September 2009
Introduction
Welcome to the September edition of BLM’s Disease review e-bulletin.
There have been several recent important decisions on asbestos-related injury including guidance on damages for minimally symptomatic asbestosis, the date of knowledge in mesothelioma cases where exposure to asbestos is low and in mesothelioma claims where asbestos exposure occurred in school buildings many years ago.
The High Court has provided guidance on the type and frequency of conduct required for a claimant to recover under the Protection from Harassment Act and on appropriate damages for associated anxiety. The High Court and the Court of Appeal (CA) have considered date of knowledge and exercise of the discretion to disapply the limitation period. This issue also looks at the CA’s decision in a pesticides campaigner’s claim for judicial review of the UK’s regulatory regime’s compliance with European pesticides law.
We hope you enjoy Disease review and welcome your feedback. For further information please contact one of the editors.
Contents
Asbestos
Harassment
Pesticides
Limitation
Featured article
News and press
Editors
Nick Pargeter Boris Cetnik
Partner, BLM London Partner, BLM London
Brian Goodwin
Partner, BLM Liverpool
Principal author
Malcolm Keen
Solicitor and professional support lawyer, BLM London
Asbestos
Watson v Cakebread Robey Ltd [2009] EWHC 1695 (QB)
High Court, 10 July 2009
Summary
The High Court held that a claim for anticipated funeral expenses could not be made in a living mesothelioma case. A claim for funeral expenses under the Law Reform (Miscellaneous Provisions) Act 1934 could only be made for the benefit of the estate after the deceased’s death.
Introduction
In a mesothelioma case, judgment for the claimant was entered in July 2008. The issue at the hearing was the amount of damages. The claimant was born in October 1951 and was exposed to asbestos whilst employed by the defendant as a warehouseman and general labourer between 1967 and 1969. He was first admitted to hospital in respect of his condition in October 2007 and was told he had malignant peritoneal mesothelioma in December 2007. The claimant was alive (and present) for the hearing in June 2009. His life expectancy from the date of the hearing was nine months. It was stated in his medical report of February 2008 that, as a result of his condition, his life expectancy was reduced by about 23 years.
Damages
The court awarded total damages of £246,011.41. This included general damages of £75,000 and future loss of earnings of £102,571.36. The court also considered whether funeral expenses could be awarded.
Funeral expenses claimed by a living claimant
This was the most significant part of the decision. The claimant argued that he was entitled to an award of £3,000 for funeral expenses. Is a claimant who is still alive entitled to compensation for funeral expenses which have not yet been incurred? The High Court’s answer was no.
In a fatal case, the claim for funeral expenses may arise in one of two ways:
i) Dependants
If the deceased’s dependants have incurred funeral expenses, those expenses can be recovered under the Fatal Accidents Act 1976.
ii) The estate
Under the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A), the claim for funeral expenses can be made for the benefit of the deceased’s estate. The estate inherits the cause of action the deceased had at his death. As the judge put it in Watson, ‘the estate in effect steps into the shoes of the deceased.’
The claimant’s argument
Following Bateman v Hydro Agri (UK) Ltd [1995], the claimant sought to claim funeral expenses on the basis that they probably formed part of his future loss. In Bateman, the claimant was expected to die from mesothelioma within three months of the trial. The judge held that a claim for funeral expenses under the LR(MP)A was valid. The claimant in Watson argued that he could step into the shoes of his own estate.
Findings
The judge rejected the claimant’s argument. A claim for funeral expenses for the benefit of the estate under the LR(MP)A can only arise on the deceased’s death.
If the claimant’s argument was correct, a living claimant with reduced expectation of life would be entitled to claim for funeral expenses irrespective of the extent of the reduction in life expectancy – even a slight reduction would give rise to a claim for funeral expenses. The judge considered that this underlined the fact that a living claimant could not properly make a claim for anticipated funeral expenses as a result of a reduction in his expectation of life.
Comment
Watson establishes a useful principle. It indicates that claims for funeral expenses cannot properly be made by a living claimant. Watson may be cited in counter-schedules of loss to oppose such claims. It must be borne in mind, however, that it is a first instance judgment. Also, policy considerations peculiar to mesothelioma claims should also be considered in such cases.
Beddoes v Vintners Defence Systems,
Unreported, Newcastle County Court, 14 July 2009
Summary
Newcastle County Court held that i) a claimant who had suffered actionable asbestosis as a result of the defendant’s breach of duty was entitled to damages for anxiety arising from the risk he might develop other conditions with fatal consequences such as mesothelioma; and ii) assessed the appropriate level of damages in two minimally symptomatic asbestosis claims.
Background
In four claims, the defendant admitted exposing the claimant to asbestos in breach of duty and that this exposure probably caused asbestosis. However, each claimant’s condition was either symptomless or minimally symptomatic. In the first judgment, on liability, HHJ Walton held that two of the claimants’ conditions amounted to actionable damage and two did not. This second judgment concerned the amount of damages.
Anxiety and future risk
The first issue was a question of principle: was a claimant who had suffered actionable asbestosis entitled to damages for anxiety arising from the risk that he might develop other conditions with fatal consequences (such as lung cancer or mesothelioma) which had not yet actually developed? The answer was yes.
All adverse consequences of the breach of duty should be included in one cause of action. Once a claimant has suffered actionable damage, he can recover for all other adverse consequences (subject to remoteness and policy limitations). Accordingly a claimant may recover damages for the risk of future deterioration in his health as a result of the defendant’s breach. If this risk causes him to suffer anxiety, he can recover compensation for that too.
HHJ Walton summarised his conclusion:
… a claimant whose cause of action is complete can recover for anxiety about the possible onset of future conditions, even if they were not the condition which in fact constituted the material injury which completed that cause of action.
As Lord Scott said in Rothwell v Chemical & Insulating Co [2007] UKHL 39 in the House of Lords:
... if some physical injury has been caused … so that a tortious cause of action has accrued to the victim, the victim can recover damages not simply for his injury in its present state but also for the risk that the injury may worsen in the future and his present and ongoing anxiety that that may happen.
The CA in Rothwell also provided guidance on quantum. Lord Phillips said:
Had the claimants sustained actionable injury, we consider that an award of provisional damages could properly reflect anxiety at the risk of sustaining mesothelioma or other serious asbestos-related disease consequent upon the breach of duty that caused the physical injury.
Compensation in the two claims – Beddoes and Cooksey
Provisional award
The provisional award related to present disability plus anxiety in respect of future risks. The risks themselves would be ignored and left for future compensation if they eventuated. What was the appropriate award? In the symptomless pleural plaques claims in which the claimants suffered anxiety about future deterioration in Rothwell, Smith LJ considered £5,000 appropriate. In Owen v Esso Exploration and Production UK Ltd, unreported, 2006, a symptomless asbestosis case, the judge indicated he would have made a provisional award of (in today’s terms) £8,250. Both claimants had minor symptoms: each had an overall respiratory disability of 5% to which asbestosis contributed 1.6% in Mr Beddoes’ case and 1.25% in relation to Mr Cooksey. HHJ Walton considered the appropriate provisional award to be £9,000.
Full and final damages
a) General damages
Beddoes
The claimant was aged 65. The appropriate general damages award was £62,500 – this was the midpoint between the brackets for mesothelioma and lung cancer. The accumulated risk of these conditions occurring was 4.75% (3% risk of mesothelioma occurring and a 1.75% risk of lung cancer). Applying 4.75% to £62,500 gave £2,968.75. This was discounted by 0.8 to reflect accelerated receipt of damages assuming notionally that the lung cancer or mesothelioma would occur halfway through the claimant’s remaining lifespan. This gave £2,375. Adding the provisional damages award of £9,000, the final figure for general damages was £11,375.
Cooksey
The claimant was aged 70. The appropriate general damages award was again £62,500. The accumulated risk figure was 9%. This gave £5,625. This was discounted by 0.82 giving £4,612.50. The final figure (after adding provisional damages) was £13,612.50.
b) Other damages
Nursing care and lost pension could either be agreed between the parties or dealt with at a later hearing – but similarly to be calculated applying a full valuation in the event of mesothelioma or lung cancer and discounted to reflect the chances of the conditions developing and the accelerated payment.
Comment
Beddoes indicates that once a claimant has a complete cause of action for his injury, he can recover for the anxiety associated not only with his actual condition but also for anxiety associated with a future condition from which he does not suffer but which might arise as a result of the defendant’s breach. Beddoes also provides guidance on likely provisional and full and final damages awards in minimally symptomatic asbestosis claims.
Willmore v Knowsley Metropolitan Borough Council [2009] EWHC 1831, (QB), High Court, 24 July 2009
Summary
The defendant local authority was liable for the claimant’s mesothelioma. The High Court held that she had been exposed to more than a de minimis level of asbestos whilst a pupil at the defendant’s school in the 1970s, and accordingly the Fairchild exception applied.
Introduction
The claimant began to experience breathlessness in 2006 and was diagnosed with malignant mesothelioma in March 2007. In April 2009, her life expectancy was estimated as less than six months. The claimant alleged that her condition was caused by negligent exposure to asbestos whilst a pupil at the defendant’s secondary school between 1972 and 1979. There was no real dispute that it was more likely than not that the claimant’s mesothelioma was caused by asbestos. Damages were agreed at £240,000 but liability was disputed.
Proving causation
It was agreed that because of the House of Lords’ decision in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32, it was not necessary for the claimant to show that asbestos from the school was responsible for her condition to the exclusion of other possible causes, and that it would be enough if the defendant’s exposure materially contributed to the risk of the claimant contracting mesothelioma. The claimant received significant PWCA benefits on the basis that she had been exposed to asbestos whilst working at a shop between 1978 and 1981, but the judge considered this was irrelevant as long as she was exposed to asbestos at the school in a way that materially increased the risk of her contracting the disease.
Other causation issues
As the defendant pointed out, this occupational exposure – or indeed asbestos in the general environment or from some other unknown source – could explain the claimant’s mesothelioma. In legal argument the defendant referred to the Peto research published in March 2009 (Occupational, Domestic and Environmental Mesothelioma risks in Britain. A Case Controlled Study) as showing that in a high proportion of cases – particularly those where the mesothelioma sufferers were women – it was impossible to identify a particular source of asbestos exposure. Therefore, even if the claimant’s mesothelioma was probably caused by asbestos, this could have been encountered in the general environment or from some other unknown source.
It was also agreed that, as Maurice Kay LJ noted in Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189, for a claim to succeed, the extent and duration of exposure to asbestos had to materially increase the claimant’s risk of contracting mesothelioma, and exposure which was de minimis would not be sufficient.
The critical issues in this case were:
§ what asbestos exposure (if any) had the claimant suffered at her secondary school?
§ whether any such exposure was de minimis.
The claimant accepted that her being near asbestos dust in the school on one occasion would not be enough. The defendant argued that some degree of regularity of exposure was necessary.
Negligence
The claimant had to prove that the defendant was in breach of duty. As the occupier, the defendant clearly owed the claimant a duty of care whilst she was at the school. To decide whether it was in breach of that duty, Nicol J considered the state of knowledge of the dangers of asbestos in 1972-79.
The broader danger from asbestos, even for those not working with it, was not really highlighted until the Newhouse and Thompson study in 1965. The Annual Report of HM Chief Inspector of Factories in 1966 noted that: ‘While [epidemiological] studies are proceeding, the only safe course is to eliminate the escape of asbestos dust into the air.’ The claimant submitted that the defendant would be negligent if it had exposed her to asbestos when there were reasonably practicable alternatives which would not have involved exposure.
Asbestos at the school
A type 2 survey (not involving disturbance of the fabric of the building) was conducted in 2008. This found asbestos in a variety of places in the school including in insulating board panels and in debris, rope and gaskets in the boiler house. It was also reported in 2002 that amosite (brown asbestos) had been found in ceiling panels in various parts of the school. A memo between employees of the defendant in 1982 stated that many of the defendant’s schools had asbestolux ceiling tiles.
It was agreed that the mere presence of asbestos in the fabric of the school was not enough. The claimant argued that she was exposed to the dangers of asbestos dust in a variety of ways including work on the ceiling tiles whilst walking through a certain corridor, general construction work at the school, the installation of a suspended ceiling, the disturbance of ceiling tiles by pupils’ misbehaviour and ceiling tiles having been temporarily stacked in the girls’ toilets.