Asbestos: Breach, Causation and Damages David Kearns v Delta Steeplejacks Limited [2017] EWHC 149 (QB)

By Sabrina Hartshorn

 

Where an apportionment for exposure to asbestos was carried out using a time based apportionment as opposed to a dose based apportionment

A copy of this case can be found at

http://www.bailii.org/ew/cases/EWHC/QB/2017/149.html

Key points

• The diffuse pleural thickening in the claimant’s right lung had been caused by asbestos exposure. The position in respect of his left lung was different: the changes in the left lung did not amount to diffuse pleural thickening and/or an actionable injury. The claimant had a respiratory disability of 60%. His cigarette-induced COPD had contributed to 40%, and the remaining 20% was asbestos-related
• A time based apportionment is normally used in disease claims involving divisible injury which included divisible asbestos related injury such as pleural thickening where exposure was likely to have been broadly similar and/or the exposure is such that precise calculations of dose and apportionment are impossible
• In the absence of any findings on the factual evidence relating to the other employer (discontinued Defendant), a time based apportionment was more appropriate in this instance than a dose based assessment which lacked precision
• Based upon a 20% respiratory disability due to asbestos, general damages for pain, suffering and loss of amenity, on a provisional basis, were assessed at £40,000. The claimant was also awarded special damages of £300. The award had to be reduced to reflect the apportionment between the claimant’s two employers, and the total award of general damages for pain, suffering and loss of amenity payable by the defendant was therefore £15,717

Facts

The Claimant pursued a claim for personal injury against his employer, the Defendant for a period of 7-8 years (1981/82 to 1990/1991). During that time the Claimant was exposed to asbestos by virtue of working as a steeplejack. The Claimant did bring a claim against another Defendant which was discontinued before trial

Breach of duty and causation were in issue as was issue of apportionment.

Breach of duty

Both parties instructed engineers to deal with exposure to asbestos and apportionment but the engineers not required to give evidence at trial as the extent of exposure was a question of fact. The court heard from the Claimant and a witness, Mr Bird, for the Defence. Having heard the evidence, it was conceded by counsel for the Defence that the Defendant had breached its duty of care as required under the Control of Asbestos Regulations 1969 and the Control of Asbestos at Work Regulations 1987. If the Claimant’s evidence was accepted as to his work with asbestos blankets then his exposure to asbestos was very high. The Claimant’s expert, Mr Glendenning, concluded that if the Claimant’s evidence was accepted, the exposure amounted to 30fibre ml/years with the Defendant’s expert, Mr Stear,  concluding that the exposure amounted to 5.2 fibre ml/years. Mr Glendenning preferred a time based apportionment whereas Mr Stear preferred a dose based assessment. Both suggested either 14% or 17% apportionment for a dose based assessment However if a time based apportionment was preferred, both experts agreed that the apportionment for the Defendant was 39%.

Causation

The court also had to decide if the Claimant suffered from bilateral diffuse pleural thickening and if so, whether it was caused by exposure to asbestos. The Claimant began smoking in and around 1970 (aged 16/17) and on and off until 2012. He started getting shortness of breath in 2007 and was diagnosed with cigarette induced COPD. In 2008 he was admitted to hospital for an exacerbation of the COPD. He developed bilateral asbestos related pleural plaques. He had a respiratory disability of 60%, 40 % of which was a consequence of COPD and 20% of diffuse pleural thickening. His life expectancy was reduced by 9 years by his COPD. The medical experts disagreed about the cause of the diffuse pleural thickening in the right lung. The medical experts also disagreed about the sufficiency of the evidence of diffuse asbestos related pleural thickening in the left lung.

Apportionment

The Claimant suggested a time based apportionment was normally used in disease claims involving divisible injury which included divisible asbestos related injury such as pleural thickening where exposure was likely to have been broadly similar and or the exposure is such that precise calculations of dose and apportionment are impossible. The Defendant argued that whilst it may sensible to utilise a time based apportionment where there is insufficient evidence to do otherwise, a dose based apportionment is the most appropriate way of addressing an exercise “shot through with imprecision” where it is available.

Judgment

David Pittaway QC accepted the Claimant’s evidence as to the extent of the asbestos exposure being impressed by the Claimant’s description of working with the asbestos blankets whilst employed by the Defendant. He came to the conclusion that the Claimant was exposed to 25 fibre ml/year or more.

Given that it was accepted that the Claimant was exposed to high levels of asbestos during his employment with the Defendant, the court accepted that the diffuse pleural thickening in the right lung was a result of asbestos exposure as opposed to a significant fall/trauma in late 1999. Having considered the evidence submitted by both medical experts on the presence of diffuse pleural thickening, the court concluded that whilst there was evidence of pleural plaques, there was insufficient evidence of diffuse pleural thickening. Therefore the changes to the left lung did not amount to an actionable injury.

As to apportionment, the court was not in a position to make findings as to his (the Claimant’s) exposure whilst he was working with his other employer (discontinued Defendant). David Pittaway QC stated that “in the absence of any findings on the factual evidence relating to the other employer, I should accept Mr Bowley’s submissions and adopt the alternative conclusion in the experts’ joint statement that the apportionment should be based on time exposure of 39%, upon which both experts agreed. I should also accept Mr Glendenning’s evidence concerning the imprecision of a dose based assessment.”

Damages

The Claimant’s general damages were assessed, on a provisional basis, in the following way: £40,000 for pain, suffering and loss of amenity having considered Chapter 6(C)(c) of the 13th edition of the JC guidelines. Special damages were awarded in the sum of £300 and the reduction of 39% was applied to the sum of £40,300 which meant an award of £15,717 for the Claimant’s general damages. The risk conditions were (a) mesothelioma (b) progression of diffuse pleural thickening due to asbestos causing a significant increase in respiratory disability (c) asbestosis, and (d) lung cancer caused by asbestos. The Claimant or the Claimant’s estate or dependant will be entitled to apply for further damages in the event that any of the risk conditions develop during the life of the Claimant or within 3 years after the date of the Claimant’s death.