Personal Injury law

By Simon Allen, Russell Jones & Walker, London

Asbestos disease litigationFairchild v Glenhaven Funeral Services and Others, 1 February 2001, The High Court, Mr Justice Curtis Executors of Twohey v Leeds City Council, 1 September 2000, Leeds Combined Court Centre, His Honour Judge BushBabcock International v National Grid Co, 15 June 2000, Royal Courts of Justice, Mr Justice EadyPendleton v Stone & Webster Engineering, 22 February 2001, The Court House, Manchester, His Honour Judge TetlowFox v Spousal (Midlands) Ltd, 27 March 2001, The Law Courts, Derby, His Honour Judge MackayIn November the Court of Appeal will hear appeals in five matters in a four-day hearing.

All the cases involve injury to claimants exposed to asbestos fibres, with the Fairchild case (Fox covers the same issue) being perhaps the most awaited decision and one that is likely to proceed to the House of Lords.Fairchild was considered in the Gazette (see [2001] Gazette, 22 March, 40).

It is useful to look at the other cases to see the issues that currently arise in relation to asbestos claims.Babcock and Twohey are cases involving duties under the Occupier's Liability Act 1957.

In the former, the deceased welder had been employed by Babcocks (the claimant) and had contracted mesothelioma from exposure to asbestos while working as an installation contractor at the defendant's power station between 1953 and 1955.The welding work that he performed did not, in itself, result in contact with asbestos but he worked in the vicinity of laggers who were repairing and modifying boilers lagged with asbestos.

The claimant argued that the defendant should have taken action to avert or minimise the risk of exposure by provision of protective equipment.Mr Justice Eady asked: 'Could the CEGB [Central Electricity Generating Board] reasonably expect the claimant to take care of their staff so far as the risks associated with the lagging of power station boilers were concerned?' The claimant's workers were on site for months, the risks from asbestos were known, and the CEGB's degree of management and control was limited.

In the circumstances, the claimant's case failed.In Twohey the deceased worked as a contractor at premises occupied by the defendant, Leeds City Council.

He removed asbestos lagging.

The agreed medical evidence was that such exposure materially contributed to the contraction of mesothelioma.

The judge found that the council should have known of the dangers of such exposure at the time.However, the primary issue was whether the council was entitled to regard the deceased's employers as competent to do the work for which they were engaged.Reference was made to Ferguson v Walsh 1987 1WLR 1553, in which the House of Lords held that, providing the defendant had taken steps to satisfy himself that the contractor was competent and the work would be properly done, he would not be responsible unless 'special circumstances' (Lord Goff) existed.

Counsel for the claimant argued that such circumstances existed in the instant case; that is, the council was a large public authority which engaged the employers, a small firm of plumbers and heating engineers, and the defendant knew of the potentially lethal substance present on its premises.The judge disagreed, and may have been influenced by Lord Denning's view expressed in Roles v Nathan 1963 1WLR 1117 that 'the householder can reasonably expect the sweep to take care of himself so far as the dangers from the flues are concerned'.The judge, in passing, said he would have applied the Holtby approach to the issue of apportionment of damages had the claimant succeeded.This is a disappointing decision in that a large organisation, with knowledge of the dangers of a potentially fatal substance on its premises, can apparently pass all the responsibility for its removal to a small local firm and not have to monitor its operations to ensure competency.The Pendleton case concerned apportionment of damages in a provisional damages case under section 51 of the County Court Act 1984.The claimant had been exposed to asbestos fibres with four employers and contracted bilateral calcified pleural plaques.

Liability had been agreed and apportioned between the four.

An order for provisional damages was also agreed in respect of the risk of the 'cumulative' conditions of asbestosis and pleural thickening.Following the Fairchild case, no agreement was reached on the 'indivisible' conditions of mesothelioma and lung cancer because it was argued that the claimant would not be able to establish causation.The fact that the third defendant had exposed him to 52% of the 'guilty exposure' should, on the balance of probabilities argument, mean that this will not be an issue in any event and that that employer will likely be held to be the responsible defendant.The judge sensibly decided that, under section 51, the time to argue causation is on the unfortunate occurrence of the claimant suffering one of the sinister conditions and not at this time when no illness had been caused.

In doing so the judge followed the ratio of Hurditch v Sheffield Health Authority 1982, All England Reports 869.Finally, the Fox decision is one very much on all fours with the case of Fairchild.

The claimant's husband died from mesothelioma from asbestos exposure.

He had two sources of exposure, with the defendants for two years as a pipe lagger and for various companies at the Liverpool Docks for more than 20 years.The trial post-dated Fairchild and, while the judge conducted a thorough review of the authorities, including Wilsher and McGhee, finding any real understanding of the medical or legal issues is difficult.This is best exemplified by the remarks on the penultimate page of the judgment: 'We come back to the burden of proof.

We come back to the fact that the claimant cannot prove that these particular defendants were the relevant employers at the time when the disease was started.' The claimant lost.What poor Mrs Fox thought listening to such a convoluted and peculiar judgment is hard to imagine.

The Court of Appeal will, one suspects, find it all quite amusing were it not for the plight of the deceased's wife.Therefore, the Court of Appeal will have to consider whether to uphold Fairchild and the avoidance of responsibility of defendants if it cannot be proved that, on balance, a particular defendant was responsible for the contraction of mesothelioma, and the occupier's liability responsibility of major employers who employ contractors to remove asbestos fibres.One expects that Fairchild and Fox will be overturned and a Holtby-type apportionment applied to mesothelioma cases on the basis that each exposure increases the risk of developing the condition.Additionally, one hopes that the Court of Appeal will properly consider the responsibility of major employers, such as the power industry and public authorities, and whether they can properly ditch their responsibility for the use and removal of asbestos fibres on their premises.