Atkins v Co-Operative Group Ltd

The Defendant appeals the order of Master Gidden made on 25 March 2015 by which, inter alia, it was ordered that:

The Defendant seeks an order that:

On 20 November 2015 Singh J granted the Defendant an extension of time in which to appeal the order of Master Gidden and permission to appeal the order.

In these proceedings the Claimant claims damages for diffuse pleural thickening (“DPT”) and asbestosis caused by his exposure to asbestos dust during the course of his employment by the Defendant between June 1958 and November 1962.

The claim was issued on 4 July 2014.

On 25 March 2015 a CMC was held before Master Gidden by telephone. Mr Matthew Philips appeared for the Claimant and Mr Edward Broome for the Defendant. Mr Broome agreed to judgment being entered for the Claimant (Transcript at 1F). An interim payment was not agreed, but after hearing submissions from Counsel Master Gidden made the order for an interim payment in the terms set out in paragraph 2 of the Order (see para 1(ii) above). The order made by Master Gidden, which contained in addition various directions, was sealed on 26 June 2015.

By paragraph 4 of the Order the Claimant was permitted to rely upon the evidence of Dr Sinclair, consultant respiratory physician, and the Defendant was permitted to rely upon the evidence of Dr Limbrey, consultant respiratory physician.

By an application notice dated 16 July 2015 the Defendant sought permission to rely upon the report of Dr Peebles, a cardiothoracic radiologist, dated 2 April 2015 (addressed to Dr Limbrey). Mr Chris Booth of Forbes, solicitors for the Defendant, in a witness statement dated 16 July 2015, in support of the application stated (at para 23) that without such evidence “the court will be incapable of properly considering the issue of medical causation and, indeed, diagnosis of any compensable condition”.

On 18 August 2015 Master Eastman dismissed the Defendant’s application.

By an application notice dated 19 August 2015 the Defendant applied for the judgment entered on 25 March 2015 to be set aside and there to be substituted an order for “judgment to be entered on breach of duty, with causation and quantum to be assessed”, and to have permission to rely on the report of Dr Peebles dated 2 April 2015. This application was supported by a witness statement by Ms Evans, a senior litigation executive at the Defendant’s solicitors.

On 24 September 2015, having heard by telephone counsel for the Claimant and counsel for the Defendant, Deputy Master Partridge dismissed the Defendant’s application.

By an appellant’s notice dated 7 October 2015 the Defendant appealed against the order of Master Gidden dated 25 March 2015, and applied for an extension of time for filing the appeal notice.

Mr Booth in a witness statement dated 2 October 2015, in support of the application for permission to appeal, states:

“6.

Counsel was instructed to attend the telephone CMC on 25 March 2015 at 12 noon and counsel’s instructions were clear, namely that liability was admitted subject to medical causation and quantum and indeed, this had been confirmed for the Claimant’s solicitors by letter dated 20 January 2015.”

Mr Booth continues:

“10.

On the morning of the hearing on 25 March 2015 my colleague Angela Evans confirmed to counsel that judgment could be entered but that the interim payment was to be opposed (because medical causation was still in issue).

11.

It is only as a result of having reviewed a copy of the transcript of the hearing on 25 March 2015 which was received from the Claimant’s solicitors at 4.42pm on 21 September 2015, ahead of the hearing on 22 September 2015 that it became apparent to me that counsel had in fact conceded liability without making the qualification that medical causation was and remained in issue. At the time of the judgment although an interim payment became due as a result of the order, I had not appreciated that the matter of medical causation was not still in issue.”

Indeed on 20 January 2015 Mr Booth had confirmed to the Claimant’s solicitors that “liability is admitted subject to medical causation and quantum”. On 26 January Ms Francois of Fentons, the Claimant’s solicitors, replied:

“We note that you have now conceded breach of duty and that the remaining issues relate to medical causation and quantum.

That being the case, we should be grateful to receive written confirmation that the Defendants accept that the Claimant was exposed to such level of asbestos dust that was liable to cause him to an asbestos related injury.”

In a further letter on the same day Ms Francois wrote to the Defendant’s solicitors:

“In essence, we require the Defendants to confirm that they concede that the Claimant was exposed to injuries [sic] level to asbestos dust sufficient for the Claimant to develop both diffuse pleural thickening and asbestosis. We also require the Defendants to confirm that they concede that in essence the Claimant is able to establish the evidential burden in this regard.”

Mr Booth replied later on the same day:

“You have sent two letters in quick succession…

Your first letter refers to a breach of duty. We can concede liability so a breach of duty and factual causation are conceded. That issue has been clarified several times. … You then ask us to concede that the asbestos exposure is sufficient to cause asbestosis and DPT. Medical causation is still in issue so this cannot be conceded.”

The following day, 27 January, Ms Francois wrote to Mr Booth:

“… In light of your confirmation that there is no need to exchange engineering evidence as breach of duty and factual causation is conceded, but that medical causation is still an issue, we shall be proceeding to serve the care reports on 30 January 2015 and medical evidence on 26 February 2015.”

At 11:25 on 25 March Ms Francois sent to Master Gidden, with a copy to Mr Booth, an e-mail enclosing the revised proposed draft order in readiness for the CMC at 12 noon that day. That draft order, so far as is relevant, is in the same terms as the order that was made, and included, in particular, “judgment be entered for the Claimant with damages to be assessed” (para 1). It appears that Mr Booth forwarded that revised proposed draft order to Mr Broome in time for the hearing.

Following the hearing on 25 March Ms McGinley, employed by the Claimant’s solicitors, sent Mr Broome (with a copy to Ms Evans) the draft order. On 1 April 2015 Mr Broome wrote to Ms McGinley (with copies to Ms Evans and Ms Francois):

“I am aware that my instructing solicitor has also written to you about the draft of the Order from the hearing last week. I have attached an amended version of the draft you have e-mailed me.”

On 11 May Ms Evans wrote further to Ms McGinley about the terms of “the recent Consent Order”.

Paragraphs 1 and 2 in every version of the order are identical, paragraph 1 stating: “Judgment be entered for the Claimant with damages to be assessed”.

Mr Levene submits that at the hearing on 25 March Mr Broome at the very least had ostensible authority to consent to judgment being entered for the Claimant with damages to be assessed, and it is accepted by Ms Foster that Mr Broome agreed judgment could be entered without qualification.

I find it a little surprising that Mr Booth says that it was only on 21 September as a result of reviewing the transcript of the hearing on 25 March that he appreciated that “counsel had in fact conceded liability without making the qualification that medical causation was and remains in issue” and that “at the time of the judgment although an interim payment became due as a result of the order, [he] had not appreciated that the matter of medical causation was not still in issue” (see para 14 above). He had been sent a revised proposed draft order shortly prior to the hearing (see para 19 above), and Ms Evans, his colleague, had been involved in finalising the terms of the order after the hearing (see paras 20-21 above). In every version of the Order paragraph 1 provided for judgment to be entered for the Claimant without qualification.

Moreover the Application Notice dated 19 August 2015 (see para 10 above) states at paragraph 3 that the Order the Defendant is seeking is “1. Judgment entered on 25.03.15 with damages to be assessed should be set aside and there be substituted an order for ‘judgment be entered on breach of duty, with causation and quantum to be assessed’”. At paragraph 8 of her witness statement in support of the application Ms Evans says that “ Judgment was entered on 25.03.15 in the context of the evidence as it was then understood”.

Ms Foster suggests that in the light of the instructions that Mr Booth says that he and Ms Evans gave to Mr Broome there appears to have been “some confusion” as counsel actually consented to judgment being entered without any qualification being attached. Ms Foster submits that “Whilst it may well have been appropriate for Master Gidden to enter judgment at that stage on the basis that the Claimant had developed asbestosis, … this cannot now be justified in the light of the events” that subsequently occurred (see her skeleton argument, para 6).

I am satisfied that Master Gidden was entitled to enter judgment by consent in the terms that he did. The relevance of these matters relating to the circumstances in which judgment was entered is only in respect of the application to extend time for permission to appeal. However Singh J determined that application in the Defendant’s favour on 20 November 2015, and there is no challenge by the Claimant to that decision.

The Defendant contends (1) that there has been a material change of circumstances since judgment was entered in that the radiological evidence has now been interpreted by an expert in cardiothoracic radiology, Dr Peebles, with a conclusion that the Claimant has not in fact developed asbestosis; and (2) it would be wholly artificial for the Claimant to be compensated on the basis that he has developed an asbestos related condition when this is not the case and where the Defendant’s arguments on causation, which will be addressed by Dr Limbrey, will necessarily be founded on the premise that he does not have asbestosis.

Ms Foster observes that the Master did not make any determination of the merits of the issue of liability and the Defendant does not seek to appeal any findings of fact, none having been made.

It is common ground that the court must seek to give effect to the overriding objective of doing justice, but the principles reflected in Ladd v Marshall [1954] 1 WLR 1489 remain relevant and they are matters which the court must consider in the exercise of its discretion, when deciding whether to admit fresh evidence (see White Book, Vol.1 at 52.11.2).

The “special grounds” set out in Ladd v Marshall were: (1) the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; (3) the evidence must be such as is presumably to be believed; it must be apparently credible, though it need not be incontrovertible.

Ms Foster submits that the real issue between the parties concerns the first condition. The second and third conditions are, she submits, plainly satisfied, and Mr Levene did not contend otherwise.

At the time when judgment was entered the Defendant had a report from Dr Limbrey, dated 4 February 2015. Dr Limbrey did not accept the Claimant had developed DPT, but she did accept the presence of asbestosis on the basis of a radiological report dated November 2011 by Dr Brant, a consultant radiologist, in which he had provided his interpretation of a high-resolution CT scan of the Claimant’s thorax that he had undergone on 18 November 2011. At paragraph 19.6 of her report Dr Limbrey expressed the opinion that:

“On the balance of probabilities Mr Atkins’ pulmonary fibrosis is as a consequence of his occupational exposure to asbestos, namely asbestosis.”

Earlier in her report (at para 15.2) Dr Limbrey had noted that she understood that the Claimant underwent a further high resolution CT scan of his thorax the previous week, and she said that she would be pleased to review this and add an addendum to her report if required.

In addition to the CT imaging performed on 26 January the Claimant was to undergo further lung function tests in early February.

On 8 February 2015 Dr Limbrey wrote to Ms Evans:

“I saw Mr Atkins last Tuesday. Report dictated and waiting to be typed. Of note he had a CT chest performed last week and is due full formal pulmonary function tests this coming week. I think it would be useful to see these and ask my cardiothoracic radiology colleague to report the new CT and compare to his previous scan.”

On 31 March and 15 April 2015 the Defendant’s solicitors requested the Claimant’s solicitors as a matter of urgency to provide the relevant documents relating to the lung function test results which were received by Dr Limbrey on 30 May 2015.

In her Addendum Report dated 30 May 2015 Dr Limbrey referred (at para 1.2) to the fact that at the time of her consultation with the Claimant on 3 February 2015 he had very recently undergone up-to-date pulmonary function testing and CT thorax. Previous imaging was from November 2011 and pulmonary function testing at December 2012. She said (at para 1.4):

“Formally reporting a CT thorax is out of my area of expertise. Respiratory Physicians rely on a working partnership with Radiologists. I have recommended that the CT thorax should be formally reviewed and reported by a dedicated Cardiothoracic Radiologist with expertise in asbestos-related lung disease.”

Dr Limbrey stated that her Addendum Report was based on, inter alia, (1) the review of thoracic imaging 2011-1015 by Dr Peebles in a report dated 2 April 2015, and (2) pulmonary function tests dated 30 March 2015.

In section 2 of her report Dr Limbrey analyses the pulmonary function tests. In section 3 under the heading “Radiology” she considers the report by Dr Peebles. Dr Peebles reviewed the Claimant’s chest X-ray from 3 August 2011, the CT chest from 18 November 2011 and the CT chest from 26 January 2015. At para 3.6 Dr Limbrey notes Dr Peebles’ conclusion that it is his opinion that

“Mr Atkins has quite extensive asbestos-related pleural disease with associated lung tethering, but no evidence of established interstitial fibrosis to suggest asbestosis and that the extent of pleural plaque does not equate to diffuse pleural thickening.”

It is the opinion of Dr Peebles that the sub-pleural interstitial changes relate to adjacent pleural plaques and lung adhesion and are not typical or diagnostic of an established interstitial fibrosis or asbestosis. The two CT scans show no interval change.

In section 4 (“Summary and Opinion”) of her report Dr Limbrey states that the Claimant has CT evidence of extensive asbestos-related pleural disease, but no asbestosis or diffuse pleural thickening (para 4.2). In conclusion she states:

“Mr Atkins has high resolution CT chest confirmation of pleural plaque disease, but no changes consistent with asbestosis or diffuse pleural thickening. Pulmonary function tests have now remained stable for a number of years, as has his CT thorax.”

The Addendum Report of Dr Limbrey was received by the Defendant’s solicitors on or about 19 June 2015, together with the report from Dr Peebles dated 2 April 2015, and was reviewed by them at that time. Mr Booth states (in his witness statement at para 26) that:

“It was not until the supplemental report of Dr Limbrey was received on or about 19 June 2015 that it was apparent for the first time that the CT scan imaging and updated lung function tests were pivotal in determining the extent to which the Claimant had a compensable condition, namely whether the Claimant was suffering from diffuse pleural thickening and/or asbestosis or neither. On the basis of Dr Peebles’ evidence the Claimant is not suffering from either condition.”

In a letter dated 18 August 2015 Dr Limbrey writes:

“Further to my report dated 30 May 2015 I have been asked to clarify the reason for my change in diagnosis. The original CT thorax from Basingstoke Hospital in 2011 was reported by a general radiologist who described changes thought to be consistent with asbestosis. Following relocation to the Isle of Wight Mr Atkins underwent up-to-date pulmonary function testing and CT thorax to further characterise his respiratory condition. I recommended that this imaging be reviewed by a dedicated Cardiothoracic Radiologist. Dr Peebles and I work in the Regional Interstitial Lung Disease Unit at Southampton and as such regularly assess those with asbestos related lung conditions. Dr Peebles, as an expert in this field, did not consider the diagnosis to be one of either asbestosis or diffuse pleural thickening.

My diagnosis therefore is now one of benign pleural disease.”

Ms Foster submits that it was not until after judgment was entered on 25 March 2015 that the Defendant had the benefit of Dr Peebles’ report of 2 April 2015 dealing with the recent CT scan and the addendum report of Dr Limbrey dated 30 May 2015 in which, having considered the report of Dr Peebles and reviewed the outstanding lung function test results, she concluded that the Claimant has not developed asbestosis.

Mr Levene submits that there is no new or unforeseen evidence. That the Claimant had recently undergone a CT scan was referred to by Dr Limbrey in her report of 3 February 2015, and the results of that scan were received by the Defendant’s solicitors sufficiently in advance of the judgment for them to be considered. Further Dr Peebles in his report confirms that the two CT scans show “no interval change” (para 3.8). Mr Levene submits that what the Defendant is seeking to do is to rely on the different opinion of Dr Peebles on evidence that was available at the time judgment was entered into. The Defendant had, Mr Levene submits, ample opportunity over a two-year period since the letter before claim to obtain any medical evidence on which they wished to rely.

I do not accept this submission. In my view the evidence which the Defendant seeks to adduce could not have been obtained with reasonable diligence by 25 March 2015. It is both the analysis of the recent CT scan by Dr Peebles and the pulmonary function test results that have led Dr Limbrey to the conclusion that she has now reached.

Further, I agree with Ms Foster that there are practical difficulties that would arise from not admitting this new evidence. It cannot be appropriate for Dr Limbrey to be required to express her opinion on the false assumption that the Claimant does in fact have asbestosis; nor can it be appropriate for the court to proceed in circumstances where the Claimant’s medical expert, who is not a radiologist, has not had the benefit of considering the evidence as a whole. The prognosis of the Claimant’s condition and the issue of the Claimant’s life expectancy will depend on whether he has developed DPT and/or asbestosis.

Mr Levene submits that it would be unjust for paragraph 2 of the order, relating to the interim payment, to be varied in the terms the Defendant seeks. The Claimant is elderly and in ill-health and, Mr Levene contends, it would be unfair for him to have to worry that he may have to repay the monies that he has received. However the Defendant does not seek repayment at the present time. If at the conclusion of the trial an issue arises as to whether the interim payment should be repaid it will fall for determination by the trial judge, having regard to all material circumstances.

For the reasons I have given this appeal is allowed and paragraphs 1 and 2 of the order made by Master Gidden on 25 March 2015 shall be varied. I substitute the following order: