Asbestosis and divisibility

The Queen’s Bench decision in Albert Victor Carder v (1) Secretary of State for Health (2) University of Exeter on 28 July 2015

This decision considered whether a defendant who was responsible for only 2.3 per cent of the claimant's total exposure to asbestos was liable in the same proportion for damages for his asbestosis. It was also considered whether the same defendant could escape liability on the basis of evidence of the particular exposure making no discernible difference to his condition. The Court was convinced on the first point but not on the second.

Background

The claimant was 85 years old and he had worked as an electrician, being negligently exposed to asbestos by a number of employers, including the second defendant, University of Exeter. Unfortunately the claimant developed asbestosis and he also suffered from unrelated conditions which affected his lung function.

What did the medical evidence say?

The medico legal evidence was that the claimant’s asbestosis was gradually getting worse and contributing to his disability. The evidence confirmed that it increased the claimant’s risk of lung cancer and the claimant sought provisional damages under the Senior Courts Act 1981 s.32A.

So what happened?

The claimant’s claim proceeded solely against the University and it was accepted that each source of exposure would have contributed to the development of the claimant's asbestosis in approximate proportion to the dose received.

It was accepted that the exposure and therefore contribution attributable to the University was only 2.3 per cent of the claimant's total exposure.

The University therefore amended its defence to plead that no injury could be proved to have been caused by any breach of duty by them and this was made on the basis of medical evidence that the claimant's state of health and disability would not have been noticeably different in the absence of the exposure while in the University’s employment.

What was the University’s case?

It was the University’s case that that Cartledge v E Jopling & Sons Ltd (1963) and Grieves v FT Everard & Sons Ltd (2007) required the claimant to show that he had suffered damage from physical changes that had made him perceptibly worse off.

What was decided?

It was held that the University would be given permission to amend their defence (subject to costs conditions) and would be permitted to plead that the particular negligent exposure while in its employment had not given rise to any actionable damage.

It was absolutely clear from Holtby v Brigham & Cowan (Hull) Ltd (2000) that asbestosis was a "divisible" disease – meaning that damages awarded for the condition could be split proportionally across all exposers on a time-exposed basis. However, the case of Holtby failed to mention anything about whether a particular injury was actionable or not.

The cases of Cartledge and Grieves did not support the University’s case either. In fact, those same cases made it clear that a claimant could suffer an actionable injury without being aware of it or suffering any symptoms and where it had not been and could not be discovered.

Therefore the question that must be asked in these types of cases is whether the claimant had suffered real damage and is worse off to a level that was not so trivial that a claim in damages was not justified.

This is a question of fact and degree on the totality of the evidence.

Accordingly, although a mere 2.3 per cent contribution was small, it was material and not de minimis. It may have been a small contribution yet it was found to be very different in nature, and was contrasted with, an even smaller exposure while the claimant worked for another employer which accounted for only 0.2 per cent of the total exposure. The 2.3 per cent contribution was therefore not insignificant in that context.

It was also accepted that the disease increased in severity with exposure and the claimant was "worse off" physically even if that was not noticeable or measurable, since each source contributed in proportion to the overall condition.

As for the claimant’s risk of lung cancer, his asbestosis increased that risk and was progressive. Even if the asbestosis was asymptomatic it could not be described as "benign", as the pleural plaques disease had been in the case of Grieves.

The claimant had suffered actionable damage and injury and the University’s argument was rejected. The Court decided that the claimant was entitled to £60,000 for pain suffering and loss of amenity and £7,500 for future care, and the University was liable for 2.3 per cent of those damages that being £1,552.50.

In terms of the University’s costs, I cannot be certain as to what element of the claimant’s costs were picked up by them. The transcript of the Judgment is silent on that point. However, as the claimant proceeded only against the University, I fully expect that the University were accountable for 100 per cent of the claimant’s costs. That being the case then the paltry damages figure of £1,552.50 will offer them little comfort bearing in mind the eye-watering costs that both parties would have incurred in running this case to the Queen’s Bench Division of the High Court.

This highlights just how important it is for self-insureds and insurers alike to not lose sight of their costs liability when running expensive litigation like this - where any potential saving on damages is likely to be small.