Compass Reparation Members:
Iain Armstrong QC
Ian Mackay QC
Susan O'Brien QC
Andrew Smith QC
Geoff Clarke QC
Robert Milligan QC
Barry Divers
Malcolm McGregor
Peter Milligan
David Sheldon
Astrid Smart
Calum Wilson
Kay Springham
Robin Cleland
Amber Galbraith
Steve Love
David McNaughtan
Graeme Middleton
Barry Smith
Craig Thomson
Yvonne Waugh
Craig Murray
Richard Pugh
Gavin Thornley
Steve Laing
Derek Reekie
Compass Clerking Contacts:
Irene Mackenzie
Michelle Williamson
Grace Moran
To view previous
Bulletins:
October 2009
December 2009
|
There have been a number of important decisions, particularly in England, relating to asbestos-related disease claims.
1. Horsley v Cascade Insulation Services & Others [2009] EWHC 2945 (QB)
The claimant, aged 55, developed asbestosis following his exposure to
asbestos during his employment with the first and second defendant
employers. It was a matter of agreement that asbestosis is a divisible
injury and so the defendants were only liable to the extent to which
they had contributed to the condition. The parties agreed that the
total contribution to the claimant’s exposure from the two
defendants (as opposed to other sources) was approximately 54 per cent,
and that the first defendants should take responsibility for 23 per
cent and the second defendants 31 per cent of liability. It was
accepted that the claimant suffered from asbestosis and also had
pleural thickening and pleural plaques. Matters were complicated by the
fact that the claimant had been a heavy smoker for 35 years. Whilst he
had a respiratory disability of 15 per cent attributable to asbestosis,
a number of other uncertainties and risks existed relating to his
condition, including that the asbestosis had a 50 per cent chance of
progressing, there was a five per cent chance that he would contract
mesothelioma, which would lead to death in 12 to 18 months following
diagnosis, and a 36 per cent risk of lung cancer as a result of the
synergistic effect of the asbestosis and his smoking.
In respect of general damages, it was held that when at the stage of
assessing risk and including an increase attributable to smoking, it
was right to apply the principle that a defendant had to take his
"victim" as he found him and, therefore, to exclude any question of
disallowance because the particular claimant happened to have
voluntarily undertaken the risks associated with smoking. That factor
would, however, be relevant when addressing contributory negligence.
The JSB guidelines suggested that for asbestosis giving rise to
respiratory disability at between 10 and 20 per cent, an award of
£45,000 would be appropriate.
In respect of future losses, which largely concerned loss of future
earnings, the claimant’s evidence was somewhat limited, and some
of it relating to possible earnings from a Dubai company was not relied
upon at all. The claimant’s future lost earnings were therefore
calculated on the basis of the potential loss of salary from his
British business based upon the risks of mesothelioma and lung cancer.
A fair and appropriate award was most likely to be arrived at by
compensating for contingencies or the "chance of a loss", rather than a
purely arithmetical or percentage-based "loss of a chance" approach,
Herring v Ministry of Defence [2004] 1 All ER 44 applied. Accordingly,
the notional loss would not occur until 2.64 years had elapsed, and a
discount for accelerated receipt would therefore be appropriate so as
to yield a multiplier of 2.39. A further discount would have to be made
to take account of future payment of tax, and a 15 per cent discount to
take account of the risk of H being unable to work because of his
smoking habit. So far as future care was concerned, the risk was so low
as to be de minimis, and the figure of £1,500 conceded by C and X
was appropriate.
Finally, and perhaps most importantly, there was a discount in respect
of the sum ultimately awarded in respect of contributory negligence,
Badger v Ministry of Defence [2006] 3 All ER 173 (20% contributory
negligence) and Shortell v BICAL Construction Ltd (unreported, 16th May
2008, QB; 15% contributory negligence) applied. Of the 36 per cent
overall risk that the claimant would contract lung cancer, only 12 per
cent was attributable to smoking, for which the defendants were not
responsible. Whilst it was true that defendants had to take their
victim as they found him, that did not exclude contributory negligence.
The claimant had to have known throughout his smoking career of the
health risks, as a matter of general knowledge, quite apart from
regular warnings he had received from medical practitioners. An award
of damages for future losses was to be calculated in accordance with
those conclusions, and the extent of each defendant's liability
determined in accordance with the agreed apportionment.
2. Sienkiewicz v Greif (UK) Ltd [2010] 2 WLR 951
The claimant's mother, who died of mesothelioma, had been exposed to
asbestos dust between 1966 and 1984 during the course of her employment
with the defendant's predecessor. Due to where she lived she had also
been exposed to a low level of asbestos in the general atmosphere. On
the claimant's claim, as administratrix of her mother's estate, for
damages in negligence the judge held that the cause of the mesothelioma
was the inhalation of asbestos dust and that the defendant had been in
breach of either its statutory or its common law duty to the deceased
throughout her employment. However, the judge found that the total
tortious exposure was modest compared with the total environmental
exposure and had increased the risk due to the environment by only 18%
and he dismissed the claim on the basis that the claimant had not shown
that the tortious occupational risk of the deceased contracting
mesothelioma had more than doubled the risk from the non-tortious
environmental exposure.
The Court of Appeal held that under section 3 of the Compensation Act
2006 it was sufficient for a claimant in a mesothelioma case involving
both tortious and non-tortious sources of asbestos exposure to show
that the tortious exposure had resulted in a material, or more than
minimal, increase in risk; that, therefore, the judge had erred in
requiring the claimant to show that the risk arising from the tortious
exposure was more than twice the risk arising from the non-tortious
environmental exposure; and that, had the judge applied the correct
test, he would have found that the defendant was liable for the
mesothelioma which caused the deceased's death.
This is now the leading case on the approach to be adopted in relation
to causation under the 2006 Act and follows the general trend in
facilitating such claims for pursuers. It is sufficient for the pursuer
to show that the defender’s breach of duty has materially
increased the risk of contracting mesothelioma.
3. Willmore v Knowsley Metropolitan Borough Council 2010 ELR 227
The appellant local authority appealed against a decision that it was
liable after the respondent had contracted mesothelioma following her
exposure to asbestos. For approximately seven years W had been a pupil
at the local authority's school, in a building containing asbestos. The
judge found that the local authority had, by failing to take
precautions, contributed materially to the claimant's exposure to
airborne asbestos fibre while she was a pupil at the school. He found
that she had been exposed to a risk from asbestos fibres in three
particular circumstances, including the practice by pupils at the
school of bullying by removing ceiling tiles and putting other pupils'
belongings in the cavities and then replacing the tiles. He concluded
that those three matters materially contributed to the claimant's risk
of contracting mesothelioma. The local authority submitted that the
judge had mistakenly considered that he was determining whether there
had been exposure to a risk of asbestos rather than to a risk of harm.
The local authority further argued that he had failed to establish more
than minimal exposure and that his findings of fact were not supported
by the evidence. It was accepted that there is no “safe”
level of exposure to asbestos and there was unchallenged evidence that
a “significant” level of exposure would be “a level
above that commonly found in the air in buildings and the general
outdoor environment” (1996 Report of the Industrial Injuries
Advisory Council).
The appeal was dismissed. (1) The judge had not substituted risk of
exposure for risk of harm or confused and conflated the two matters.
There was no discernible error in the judge's approach to the question
of whether the claimant's exposure had been minimal or material or his
resolution of that question. Where asbestos was involved, a risk of
exposure was a risk of harm. So long as there was evidence capable of
justifying his findings, the conclusion that avoidable exposure in the
school had made a material contribution to the risk and therefore to
the eventual materialisation of W's illness was an entirely reasonable
conclusion. (2) The judge had overlooked that the room or rooms in
which, under cross-examination, W had said the bullying occurred, were
rooms with concrete ceilings. The undoubted bullying could not have
taken place in those rooms. That left uncertain the composition of the
ceiling tiles which were disturbed in the course of the bullying. The
evidence was therefore insufficient to support the second of the
sources of exposure found by the judge. However, the judge had been
entitled to find a likelihood of significant exposure from the other
two sources of exposure he had identified. That, in the absence of any
error of law, was enough to sustain his judgment. It was not enough to
eliminate one source of exposure if another or others remained in
place, because there was no safe dose of asbestos. Once exposure above
a minimal level was found, a risk of harm was established.
4. Pleural plaques
The first case to come to proof in relation to quantification of a
pleural plaques case under the Damages (Asbestos-related Conditions)
(Scotland) Act 2009 was due to come to court in the Court of Session in
March. The action was settled on the basis of a quantification
following the approach advocated by the Court of Appeal in Rothwell v Chemical & Insulating Company and others [2006] ICR 1458 and followed in Hindson v Pipe House Wharf (Swansea) Limited [2007] EWHC 273 (QB). The defenders were represented by Robert Milligan QC and David Sheldon, both of Compass Chambers.
HARASSMENT CLAIMS IN THE WORKPLACE
In the case of Frederick Marinello v City of Edinburgh Council, [2010]
CSOH 17 Lord Uist heard a procedure roll about the relevancy of a claim
brought by an employer against his employers under the Protection from
Harassment Act 1997.
Mr Marinello was a former social worker employed by the defenders who
claimed that, on a number of occasions he had been verbally abused and
threatened by two of his work colleagues. He brought a claim under s8
of the 1997 Act
Relying on the House of Lords authority, Majrowski v Guy's and St Thomas's NHS Trust [2007] 1 AC 224, the pursuer claimed that the defenders were vicariously liable for the actions of their employees.
In total, there were ten separate allegations of harassment. All bar
the last took place in 2004 and 2005. The last took place in March 2007
and only involved one of the perpetrators and not apparently in the
course of his employment. He was driving a minibus towards the pursuer
and made a threatening gesture by sounding the horn and clenching his
fist.
The defenders argued that the last incident was so isolated from the
previous ones that it could not be included within a course of conduct
– which is required to establish harassment under s8. The
importance of this was the claim was timebarred if that last incident
fell.
There was much discussion about whether or not, to found a claim of
harassment, the action itself had to be a criminal one, as seems to be
the case in England. That had been doubted in previous Scottish cases
and Lord Uist, it is submitted correctly, also took the view that was
not required. He considered that “criminality is a consequence,
rather than a prerequisite, of civil harassment” under the 1997
Act. Accordingly, the last of the allegations was, in itself capable of
amounting to harassment.
Nevertheless, Lord Uist took the view that there was insufficient nexus
in time, place and circumstances between the last act and the previous
ones. There was a 17 month gap. It took place in a public street
whereas all the other actions had taken place in the workplace. It was
opportunistic and isolated. Interestingly, however, there appeared to
be no argument that the last act was not per se one for which the
defenders could never be vicariously liable in spite of it not
apparently being in the course of employment.
The 2007 incident was accordingly deleted as irrelevant. The result of
that was that the action had been raised more than three years after
the last incident in October 2005 and so was dismissed as timebarred.
The pursuer had no s19A plea under the Prescription and Limitation
(Scotland) Act 1973
This provides us useful guide on what conduct may amount to harassment
under the 1997 Act and what a pursuer requires to prove to establish a
course of conduct.
To read a full copy of the judgment follow the link :
http://www.scotcourts.gov.uk/opinions/2010CSOH17.html
ACCIDENTS AT HOME
In the case of Kathleen Kirkham v Link Housing [2010], a pursuer
slipped on a footpath in her garden. She was a tenant and the
defenders, a housing association, were her landlords.
The court accepted that the pursuer had slipped on a hazard, being one
that, had the defenders been aware of it, would have required immediate
remedial action by them. It is likely it had been in that condition for
at least six months. However, the pursuer had not previously complained
about the defect. The defenders operated an ad hoc system of inspection
given that the locus was within the pursuer’s garden. That system
was only in response to complaints being made to them about the
existence of such defects.
The pursuer brought her case both in delict and in contract under her
tenancy agreement with the defenders. She failed in both. The case
showed the difficulties in establishing fault against your landlord as
opposed to a local roads authority as it is clear that, had she fallen
on a section of public pavement, the defenders would likely have been
at fault absent any proper inspection regime.
This reaffirms the difficulties in establishing fault in these types of
accidents and makes the need for evidence of prior complaints even more
important. It does highlight the need to at least explore whether there
may be a contractual case under any tenancy agreement albeit it that
such a case failed here.
Interestingly, had the Lord Ordinary found for the pursuer, he would
not have found that she had been contributorily negligent and he offers
some interesting comment on this. Although such an argument is
invariably made by defenders in any case where a pursuer slips or
trips, it does not automatically follow that this argument will
succeed.
To read a full copy of the judgment follow the link:
http://www.scotcourts.gov.uk/opinions/2010CSOH31.html
|
Compass Chambers