Mayne v Atlas Stone Company Ltd & Ors

Sandra Mayne is the executrix of the estate of Keith Norman, who sadly died aged 80 on 28 September 2014. While he was still alive Mr Norman commenced personal injury proceedings against three former employers in respect of diffuse pleural thickening, resulting from his exposure to asbestos in the 1950s and early 1960s. No insurance cover could be identified for the First and Third Defendants, Atlas Stone Company Ltd and Walker Bros. (Darlington) Ltd, and the claim was served only against the Second Defendant, Wheatley Winton Hayes Ltd (referred to hereafter as “the Defendant”).

The claim has been continued by Ms Mayne after Mr Norman’s death, but the claim is limited to that made by his estate under the Law Reform (Miscellaneous Provisions) Act 1934. The claim is solely in respect of Mr Norman’s pain, suffering and loss of amenity. A claim for special damages is no longer pursued. On the evidence, subject to liability, the appropriate sum by way of general damages is agreed to be small, but the case raises an issue of principle which both parties agree may have an impact on other cases. The trial was therefore heard in this court.

The trial was a short one since all the evidence is agreed. The dispute relates to how that evidence is to be interpreted in light of the relevant authorities, and the parties therefore made submissions upon it at the hearing. The sole issue in this case is whether there is an evidential basis for a finding of actionable injury attributable to the admitted breach of duty by this Defendant.

The periods of Mr Norman’s exposure to asbestos were as follows. Between 1951 and 1953 he worked as a labouring assistant for Atlas Stone, removing chunks of rubble and asbestos cement roofing sheets from their factory site. After a period in the army he then did the same work for Atlas Stone again, for two to three years, before going to work as a driver for the Defendant, a building company, for a period of eight months between 1958 and 1959 doing the work described below. He then went to work as a driver for Walker Bros. between 1959 and 1962, collecting asbestos sheets from a factory in Watford and driving them to Biggleswade.

During his period of employment with the Defendant, in addition to transporting asbestos sheets, he was regularly involved in the demolition of prefabricated buildings which contained various asbestos products. He attended the site on a daily basis, loading the broken debris on to his lorry, stamping it down to compact it and driving it away.

By its Amended Defence the Defendant admits that it was negligent and in breach of statutory duty in relation to Mr Norman’s exposure to asbestos during his employment with them. However, causation is denied. Specifically the Defendant contends that “but for its breach of duty, the deceased would not have been appreciably (i.e. materially) worse off (either in terms of appreciable respiratory disability, or appreciable/measureable loss of expectation of life).”

Dr Prowse and Dr Moore-Gillon (instructed by the Claimant and the Defendant respectively) are agreed on all matters relating to Mr Norman’s condition. Mr Norman had pleural plaques and diffuse pleural thickening with associated infolded lung, attributable to occupational asbestos exposure.

The percentage contributions of the three employers to his total asbestos exposure have been agreed between the parties as follows: Atlas Stone – 55.1 (that is, two periods at 24.49 and 30.61 combined); the Defendant – 8.16; and Walker Bros. – 36.73.

The medical experts agree that Mr Norman’s cardio respiratory disability was between 70% and 80%. The vast majority of that disability, however, was due to very significant co-morbid medical conditions, principally obesity, severe obstructive sleep apnoea, diabetes and chronic heart failure. His death was unrelated to his asbestos-induced disease.

If diffuse pleural thickening had been present on its own, without the co-morbid conditions, the experts agree that this would probably have resulted in a 15% disability in an otherwise active and unrestricted individual. The severity of his co-morbid conditions means that the additional disability caused by asbestos induced diffuse pleural thickening was only very minor, at around 5% of the 70% - 80% disability.

The effects of this were agreed in the first joint statement in August 2014 (when Mr Norman was still alive) to be as follows:

“Mr Norman is clearly severely limited by his various medical conditions and in need of care and assistance. On balance, we think that the 5% disability attributable to diffuse pleural thickening is not preventing him from doing things which he would otherwise be able to achieve, nor is it necessitating a significantly increased level of care and assistance which would not otherwise be necessary. Rather, it is probably making him a little more breathless than he would otherwise be when he is undertaking those activities of which he is capable.”

These activities included climbing stairs, lifting objects or washing and dressing himself.

The impact upon his life expectancy was agreed to be minor, namely a reduction of some one to three months. He was agreed to be at risk of malignant mesothelioma, that risk being estimated at 2% taking into account his very short remaining life expectancy. He was also agreed to be at risk of progression of the diffuse pleural thickening to a degree sufficient to give rise to an increased level of disability, assessed as a 5% risk.

In their second joint statement, dated 24 October 2015, the experts repeated their agreed opinion that the 5% asbestos-attributable disability would probably not have prevented Mr Norman from undertaking any specific activity, but would have made him a little more breathless when undertaking those activities of which he was capable at the upper limit in terms of exertion. On the basis that it was agreed between the parties that this Defendant had contributed 8.16% of Mr Norman’s total asbestos exposure, the experts further agreed as follows:

“On the broad principle that causation is in proportion to exposure, exposure with the defendant contributed 8.16% of the totality of Mr Norman’s asbestos attributable disability – i.e. approximately one twelfth of it. One twelfth of a 5% disability is just over 0.4%. ”

They also agreed (at paragraph 7):

“… that the difference between the presence or the absence of a ‘0.4% disability’ could not be perceived by Mr Norman, nor by anybody observing him. ”

In his skeleton argument Mr Glynn, appearing for the Claimant, has set out the arithmetical calculations for the percentage contributions of the other employer tortfeasors to the Claimant’s 5% disability, namely Atlas Stone – 2.7% (two periods at 1.2% and 1.5%); and Walker Bros. – 1.8%. These calculations are not in dispute.

In his subsequent letter of 24 February 2016, no objection being raised at trial as to its admissibility, Dr Prowse referred to this arithmetical apportionment of the remaining 4.6% disability between the other two Defendants and stated:

“In my opinion and on balance of probabilities it is unlikely that any of the individual attributed levels of disability would have been perceptible by the Claimant.”

It is common ground that diffuse pleural thickening is classified as a divisible injury, being a condition that worsens with increasing amounts of exposure to asbestos dust and fibres.

In industrial disease claims based on negligence and breach of statutory duty it is trite law that the Claimant must prove on a balance of probabilities that the Defendant’s breach of duty caused or materially contributed to his injury. What is a material contribution is a question of degree, but any contribution which does not fall within the ‘de minimis’ exception will be regarded as material.

The origin of this approach was the decision of the House of Lords in Bonnington Castings Ltd v Wardlaw [1956] AC 1956, and the facts of that case bear revisiting given the issue raised in this case. The Claimant contracted pneumoconiosis as a result of inhaling air containing silica dust. The main source of that dust was pneumatic hammers, the use of which involved no breach of duty. Some of the dust, however, came from swing grinders for which the Defendants failed to maintain the dust extraction equipment. There was no evidence as to the proportions of the different dusts inhaled and on the evidence the Claimant could not prove “but for” causation, in the sense that it was more probable than not that if the dust extraction equipment had been working efficiently he would not have contracted the disease. Nevertheless the Claimant succeeded in full, because he was able to show to the required civil standard on the evidence that the dust from the defective swing grinders had materially contributed to his disease. He was not required to prove that the Defendant’s breach of duty caused the disease, merely that it contributed to its onset.

It is also trite law that a personal injury claim in negligence is incomplete without proof of damage. The Claimant must show that he has suffered an actionable injury. The concept of actionable damage was explained in the following terms by Lord Hoffmann in Rothwell v Chemical and Insulating Company Ltd and Another [2008] 1 AC 281:

“7 … Damage in this sense is an abstract concept of being worse off, physically or economically, so that compensation is an appropriate remedy. It does not mean simply a physical change, which is consistent with making one better, as in the case of a successful operation, or with being neutral, having no perceptible effect upon one’s health or capability.

8 How much worse off must one be? An action for compensation should not be set in motion on account of a trivial injury. De minimis non curat lex. But whether an injury is sufficiently serious to found a claim for compensation or too trivial to justify a remedy is a question of degree. Because people do not often go to the trouble of bringing actions to recover damages for trivial injuries, the question of how trivial is trivial has seldom arisen directly. It has however arisen in connection with the Limitation Act, under which the primary rule is that time runs from the date on which the cause of action accrues. In an action for negligence, that means the date upon which the claimant suffered damage which cannot be characterised as trivial. To identify that moment was the vital question in Cartledge v E Jopling & Sons Ltd [1963] AC 758, in which the employees had suffered death or serious injury from damage to their lungs caused by exposure to fragmented silica. At a date earlier than the commencement of the limitation period their lungs had suffered damage which would have been visible upon an x-ray examination, reduced their lung capacity in a way which would show itself in cases of unusual exertion, might advance without further inhalation, made them more vulnerable to tuberculosis or bronchitis and reduced their expectation of life. But in normal life the damage produced no symptoms and they were unaware of it. The House of Lords affirmed the view of the trial judge and the Court of Appeal that a cause of action had arisen and the claims (as the law then stood) were statute-barred.

9 The members of the Court of Appeal and the House of Lords used slightly different words to express the degree of injury which must have been suffered. In the Court of Appeal [1962] 1 QB 189,199 Harman LJ spoke of loss or damage ‘not being insignificant’ and Pearson LJ said, at p 208, that the cause of action accrues when ‘the plaintiff concerned has suffered serious harm’. In the House of Lords [1963] AC 758, 771-772 Lord Reid said that the cause of action accrues when the wrongful act has caused personal injury ‘beyond what can be regarded as negligible’. Lord Evershed, p 774, spoke of ‘real damage as distinct from purely minimal damage’. Lord Pearce (with whom all the rest of their Lordships agreed) said, at p 779:

‘It is for a judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree … It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onset of disease he may suffer from his hidden impairment tells in favour of the damage being substantial.’”

What is the position where an actionable injury has been materially contributed to by a number of different tortfeasors? Bonnington and other earlier cases had concerned causation in the context of liability rather than quantification. The Defendants argued only that the Claimant’s evidential difficulties meant that they were not liable at all, not that if they were liable it was only to the extent of their material and measurable contribution.

The answer to that question was provided by the Court of Appeal in Holtby v Brigham and Cowan (Hull) Ltd [2000] ICR 1086. Stuart-Smith LJ, with whom Mummery LJ agreed, said this at paragraph 20:

“In my judgment … the onus of proving causation is on the claimant; it does not shift to the defendant. He will be entitled to succeed if he can prove that the defendant’s tortious conduct made a material contribution to his disability. But strictly speaking the defendant is liable only to the extent of that contribution. However, if the point is never raised or argued by the defendant, the claimant will succeed in full as in Bonnington Castings Ltd v Wardlaw [1956] A.C. 613 and McGhee v National Coal Board [1973] 1 WLR 1. I agree with Judge Altman that strictly speaking the defendant does not need to plead that others were responsible in part. But at the same time I certainly think it is desirable and preferable that this should be done. Certainly the matter must be raised and dealt with in evidence, otherwise the defendant is at risk that he will be held liable for everything. In reality I do not think that these cases should be determined on onus of proof. The question should be whether at the end of the day, and on consideration of all the evidence, the claimant has proved that the defendant is responsible for the whole or a quantifiable part of his disability. The question of quantification may be difficult and the court only has to do the best it can using its common sense … Cases of this sort, where the disease manifests itself many years after the exposure, present great problems, because much of the detail is inevitably lost. … But, in my view, the court must do the best it can to achieve justice, not only to the claimant but also to the defendant, and among defendants.”

Later on, referring to the division of responsibility by insurers in cases involving divisible injury, Stuart-Smith LJ said this at paragraph 25:

“This method of dividing responsibility on a time exposure basis is, I understand, adopted among insurers in such cases as these. In the absence of some unusual feature, such as for example periods of exposure to a particularly dangerous blue asbestos during some periods, that seems to me to be not only the sensible, but the correct approach in law. In practice, many years afterwards, such distinctions are likely to be impossible to prove. ”

A similar issue to that arising in the present case was considered recently in Carder v University of Exeter [2015] EWHC 2399 (QB). The claimant claimed damages for asbestosis caused by his exposure to asbestos for two periods in the 1980s and 1990s by Exeter University, the second and only remaining defendant. His overall disability was assessed at 60 per cent, 40 per cent being due to asbestosis and 20 per cent to other, unrelated causes. The expert engineer estimated that the second defendant’s contribution to his total asbestos exposure was 2.3 per cent and that figure was agreed. Part of the agreed medical evidence was that this 2.3 per cent contribution would not have made any noticeable or measurable difference to the objective appearance and condition of the claimant’s lungs, or to his perception of his symptoms and his ability to cope with daily tasks.

Relying on this evidence the defendant contended that because its asbestos exposure made no addition to the claimant’s symptoms and disability it had not caused any actionable damage to the claimant, whose claim therefore failed on causation.

Rejecting this argument, which it was noted had not previously been advanced in a claim for asbestos induced disease, HHJ Gore QC sitting as a Judge of the High Court found on the evidence, inter alia, that the 2.3 per cent contribution to exposure was more than de minimis; that it did make a contribution to the claimant’s development of asbestosis and his overall disability; and that the claimant was properly to be regarded as ‘worse off’ in Rothwell terms. He had therefore suffered an actionable injury which sounded in damages. At paragraphs 35-36 the judge said as follows:

“35.

I test the correctness of that determination by the following observation. If you take two laggers who demonstrated exposure to exactly equal doses of asbestos fibre during their working lives, each in excess of the minimum threshold associated with the cause of asbestosis, and each of whom developed asbestosis, then, in my judgment, it cannot be correct that the man who had 40 different and equal exposures contributing 2.5% each gets no compensation but the man who had, say, 10 equal exposures contributing 10% each recovers from all of them simply because, if that be the case, whereas 2.5% could not cause detectable symptoms 10% would. That is not what, in my judgment, either Cartledge or Johnston [Rothwell] say, but that is the result that [the defendant’s] submission would produce.”

Mr Glynn relies upon this reasoning in the present case and submits that it is correct. Mr Kent QC submits that this case is distinguishable from Carder on its facts, alternatively that I should decline to follow it since it is inconsistent with more recent appellate authority, namely Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 11 and Williams v Bermuda Hospitals Board [2016] UKPC 4. I am told that by permission of Tomlinson LJ Carder is to be reviewed by the Court of Appeal in July this year on the hearing of the defendants’ appeal.

Based on the agreed medical evidence, in particular at paragraph 7 of the second joint statement, Mr Kent submits that Ms Mayne has not discharged the burden upon her to show that Mr Norman suffered any actionable injury attributable to the Defendant’s breach of duty. Since neither Mr Norman nor anybody else could have discerned any changes or measurable effects of the disease process as a result of the Defendant’s contribution, it cannot be shown that he was physically or measurably ‘worse off’ because of his exposure to asbestos by this Defendant, as required by Cartledge and Rothwell.

He submits that defendants can only be held liable for that part of a claimant’s ultimate damage to which they can be causally linked (Causation in Negligence, Professor Green, Hart Publishing, 2015, chapter 5, p97). Since diffuse pleural thickening is a divisible and cumulative condition the Defendant can only be held liable for the additional damage, if any, that can properly be attributed to its own breach of duty. It must therefore be proved not only that the Defendant made a material contribution to Mr Norman’s exposure to asbestos but that there is ‘causation in respect of a quantifiable part of his disability by the Claimant against the Defendant’ (per Stuart-Smith LJ in Holtby at paragraph 23). In this case the evidential basis for a finding of actionable injury attributable to the Defendant’s breach of duty is lacking and the claim should be dismissed.

In developing these submissions Mr Kent referred me to various passages in a number of other authorities, which he said lent support to the Defendant’s argument, in particular Baker v Willoughby [1970] AC 467, Performance Cars Ltd v Abraham [1962] 1 QB 33, Steel v Joy [2004] EWCA Civ 576, Reaney v University Hospital of North Staffordshire NHS Trust [2015] EWCA Civ 11 and Williams v Bermuda Hospitals Board [2016] UKPC 4.

I do not consider it necessary to refer to these passages because none of these cases was concerned with asbestos-induced disease involving multiple tortfeasors, and none of them seems to me to undermine or cast any doubt on the long-standing and well established principles laid down by the House of Lords in Bonnington and Rothwell and by the Court of Appeal in Holtby, and which apply directly to cases such as the present. I agree with Mr Glynn that the position on the evidence in this case is straightforward.

In my judgment the essential question in this case, as Mr Glynn submits, is whether it has been proved that Mr Norman suffered an actionable injury as a result of the totality of his exposure to asbestos, to which this Defendant made a material contribution.

The Defendant accepts that there was here an actionable injury. Given the agreed medical evidence, Mr Kent did not pursue the pleaded averment that Mr Norman’s asbestos-related injury was ‘de minimis’ and not compensatable. That is plainly right. As a result of his total exposure over the specified periods his overall 5 per cent disability is clearly actionable, notwithstanding his substantial co-morbidities, and a contribution of 8.16 per cent to that actionable injury is small but nevertheless material.

The suggestion that a claimant seeking damages for asbestos-related disease must go on to prove in addition that a particular defendant made a material contribution to his disease process, in the sense that the contribution of itself gave rise to a discernible or measurable injury, is unwarranted and is in my view unsupported by authority. Such a requirement would ignore the totality of the claimant’s exposure to asbestos during his working life and the quantifiable disability caused by that exposure. It would not accord with either the reality of this industrial disease or, as Stuart Smith LJ saw it, “common sense”. It would lead, in my view, to uncertainty and to arbitrary results and unfairness, both to claimants and among defendants.

The reality in this case, as shown by the medical evidence and the arithmetical percentage calculations of the individual contributions, is that none of the separate contributions of the three Defendants would have been measurable or perceptible to Mr Norman. If Mr Kent’s submissions were correct, Mr Norman would therefore have no cause of action against any of the Defendants, despite the fact that he had suffered an actionable injury as a result of his total exposure. That as I understand it is the point being made by HHJ Gore in Carder and I respectfully agree with his reasoning at paragraphs 35-36.

It is no answer to say, as does Mr Kent, that the fact that other Defendants could take the same point is “just hard luck” for a claimant unless and until there is a change in the law. I do not accept that submission. Certainly I am satisfied that the court in Holtby never intended such an outcome, and that that decision cannot be said to lend any support to the Defendant’s submissions in this case. In my judgment the law in this particular area is clear. In this case it has in my view been proved on all the evidence that the Defendant is responsible for a quantifiable part of Mr Norman’s disability, as that phrase is properly understood.

The correct approach therefore, as Mr Glynn submits, is to assess the damages otherwise awardable for the 5 per cent disability in this case and then apportion this to the Defendant relative to its contribution to the asbestos exposure. By its Amended Defence it is admitted at paragraph 8 that damages fall to be apportioned by reference to the extent to which the Defendant has contributed to Mr Norman’s condition.

Mr Norman suffered recurrent pleural effusions in 2008 and 2009, so that by the time he died he had suffered from asbestos-related disease and its effects for a period of approximately six years. As the experts agreed, his condition was such that it still caused him to suffer breathlessness on exertion even in respect of those activities of which he was capable, in the way that they described. Mr Glynn submits, having regard to the Judicial College Guidelines and to what Smith LJ said in Rothwell v Chemical and Insulating Co Ltd [2006] EWCA 27 (at para 162), that the appropriate award is 8.16 per cent of £12,600, namely £1,028. Mr Kent made no submissions to the contrary and in my judgment that is the appropriate award for general damages in this case.