November 2007. Edition 2
Welcome to the second edition of Disease review, BLM’s e-bulletin update service relevant to law and practice in disease claims.
We will continue to provide newsflashes on important cases when they arise, commentaries on
significant judgments and matters of interest and Disease matters.
This edition’s featured article is Developments in the law of limitation in disease claims which
reviews this important area of disease litigation and considers how developments have been
applied in recent BLM cases.
We hope you enjoy this edition of Disease review and if you would like any further information please contact one of the editors.
Practice and procedure
Policy issues and legislation
Nick Pargeter Boris Cetnik Partner, BLM London Partner, BLM London
Partner, BLM Liverpool
Disease review 2 November 2007
Margaret Cameron (Widow and Administratrix of the Estate of Donald
Cameron, Deceased) v Vinters Defence Systems Ltd  EWHC 2267 (QB)
(High Court, 12 October 2007)
Where the deceased experienced symptoms of mesothelioma for about six months before he
died, an award below the lower bracket in the JSB Guidelines was appropriate. A payment
pursuant to the Pneumoconiosis etc (Workers’ Compensation) Act 1979 to the widow was not a
benefit for the purposes of s4 of the Fatal Accidents Act 1976 and consequently had to be taken
into account in the calculation of damages.
In this BLM case, the deceased, who was born in 1933, was employed at the Palmers Hebburn
Shipyard by the defendant’s predecessors in title between 1958 and 1968 where he was regularly
exposed to asbestos. The deceased first became ill in about April or May 2004 and was admitted
to hospital in September 2004. He died by reason of malignant mesothelioma in October 2004,
having spent the last two weeks of his life at home in the care of the claimant, his widow. The
claimant issued proceedings in December 2006, claiming damages as the executrix of the
deceased’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 (LRMPA) and as
his widow and sole dependant under the Fatal Accidents Act 1976 (FAA). Judgment was entered
in the claimant’s favour in March 2007 leaving quantum as the only outstanding matter. The trial, in July 2007, dealt with the two items of quantum which remained at issue.
The first issue – general damages
The JSB Guidelines indicate that the bracket for the award of general damages for pain, suffering
and loss of amenity is ?47,850 to ?74,300 and that ‘for periods up to 18 months awards in the
bottom half of the bracket may be appropriate’. Here the deceased experienced symptoms for
approximately six months prior to death. Holland J considered Gallagher v Vinters Armstrong
(Newcastle County Court, 17 January 2007, unreported; see Disease review, issue 1), the only
case offering pertinent comparison. In Gallagher (in which the defendant, as here, was a subsidiary of Rolls Royce Group Plc), the court went below the lower figure in the bracket and
held that the appropriate award where the symptoms of mesothelioma lasted for about three
months prior to death was ?20,000.
Holland J decided that the appropriate award here (recoverable by the claimant as executrix
pursuant to the deceased’s estate’s claim under the LRMPA) was ?35,000 - an amount, as in
Gallagher, below the lower figure in the bracket to reflect the relative length of the period of
The second issue – whether a payment under the Pneumoconiosis etc (Workers’
Compensation) Act 1979 to the widow should be disregarded in the calculation of
damages under the FAA
In November 2005, the claimant applied for a payment pursuant to the Pneumoconiosis etc
(Workers’ Compensation) Act 1979 (PWCA) under which the Department for Transport, Local Government and the Regions (DTLR) administers a scheme providing lump sum payments out of
state funds to be made to persons disabled by certain diseases including mesothelioma or to their
dependants. Her application was successful and in February 2006, about ten months before she
issued proceedings, she was awarded ?4,496.
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The defendant argued that the PWCA payment should be deducted from the award of damages
under the FAA. The claimant submitted that the PWCA payment was a benefit under s4 of the
FAA and should therefore be disregarded in the calculation of damages. Section 4 FAA states:
In assessing damages in respect of a person’s death in an action under
this Act, benefits which have accrued or will or may accrue to any
person from his estate or otherwise as a result of his death shall be
The judge then considered Ballantine v. Newalls Insulation Co Ltd  PIQR Q327 where the
Court of Appeal ruled that, in proceedings issued by the deceased’s widow on behalf of the estate
pursuant to the LRMPA, the PWCA payment should be taken into account in the calculation of
damages. The purpose of this was to prevent the injustice of double recovery. In Ballantine the
deceased had successfully applied for PWCA benefits in his lifetime.
The crucial question in the present case was thus whether the PWCA payment which had been
applied for by the widow after her husband’s death amounted to a benefit which ‘had accrued or
will or may accrue’ to the claimant as a result of the deceased’s death (and so be disregarded).
Holland J held that the answer to this question turned upon the construction of s4 FAA.
The PWCA payment did result from the deceased’s death. However, it was not a benefit for the
purposes of s4 FAA. The payment only arguably came within s4 because it had accrued prior to
the commencement of proceedings. This accrual reflected the timetabling of the claimant’s
solicitors in bringing proceedings after the PWCA payment had been made more than it reflected
the claimant’s entitlement to that payment.
Had proceedings been commenced in a timely manner, no PWCA award would have accrued.
The judge could not accept that whether a payment amounted to a benefit for the purposes of s4
or not could be the result of the timing of the application for the payment. Therefore, the PWCA
payment was not a benefit for the purposes of s4 FAA and it would be taken into account in the
calculation of damages pursuant to the FAA claim.
Johnston v NEI International Combustion Ltd; Rothwell v Chemical Insulating
Company Ltd & Others; Topping v Benchtown Ltd (formerly Jones Bros Preston
Ltd); Grieves v FT Everard & Sons & Others
 UKHL 39, (House of Lords, 17 October 2007)
Pleural plaques caused by negligent exposure to asbestos do not constitute compensatable
damage and do not give rise to a cause of action even when combined with anxiety associated
with the risk of future disease.
The question before the House of Lords was whether a person who has been negligently
exposed to asbestos in the course of his employment can sue his employer for damages on the
ground that he has developed pleural plaques as a result of their exposure.
Pleural plaques are areas of fibrous thickening of the pleural membrane which surrounds the
lungs. They do not cause asbestos-related diseases and except in very exceptional cases cause
no symptoms. However, the existence of pleural plaques is a marker of past asbestos exposure
and other fibres may give rise to an asbestos related disease (such as mesothelioma) for which
compensation is paid . In consequence, a diagnosis of pleural plaques may cause a patient to
suffer anxiety or even clinical depression.
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In the Court of Appeal, it was accepted that symptomless pleural plaques caused by negligent
exposure to asbestos did not, of themselves, constitute actionable damage. The Court of Appeal
( EWCA Civ 27) found that neither did the pleural plaques become actionable when
aggregated with two other non-actionable factors: future anxiety and the increased risk of future
disease. The claims were therefore dismissed and the claimants appealed to the House of Lords.
Findings of the House of Lords
Proof of damage is an essential element in a claim in negligence and the House of Lords held
that symptomless plaques are not compensatable damage. The risk of future illness or anxiety
about the possibility of that risk actually materialising does not amount to damage capable of
founding a cause of action.
As no compensatable injury exists, there is no cause of action under which damages can be
claimed. Therefore, the development of pleural plaques, whether or not associated with the risk of
future disease and anxiety about the future is not an actionable injury even if the anxiety causes a
recognised psychiatric illness such as clinical depression.
A cause of action in relation to psychiatric injury is not founded where the illness would only be
suffered by an unusually vulnerable person because of that person’s fear of suffering an
actionable injury. Neither the risk of the future disease nor a psychiatric illness caused by
contemplation of that risk are actionable.
This case affirms the traditional rule that damages in negligence will not be awarded for the risk of
injury without actual damage. This rule subsists no matter how anxious the claimant may become.
Practice and procedure Ruttle Plant Hire Ltd v Secretary of State for the Environment, Food and Rural
Affairs  EWHC 1773 (TCC)
(High Court, QBD, Technology and Construction Court, 16 July 2007)
The claimant successfully applied to amend its particulars of claim and the rule in Henderson v
Henderson (that the court will strike out a claim which should have been raised in earlier litigation but was not) could not be invoked in order to prevent a party from pleading at a later stage in
litigation issues which might have been pleaded earlier.
The claimant had been engaged by the defendant to provide plant and labour for the purpose of
controlling an outbreak of classical swine fever in East Anglia in August 2000.
The claimant alleged that the defendant had not paid all the monies due under the relevant
contract and issued proceedings in January 2006.
A trial of several preliminary issues crucial to the dispute took place in December 2006 and, in
consequence of the preliminary issues judgment, the claimant applied to make several
amendments to its particulars of claim. The present case concerned the claimant’s application to
amend the particulars of claim by inserting several new paragraphs.
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The defendant’s grounds for opposing the amendments
The defendant consented to some of the proposed amendments but opposed others on two
? The amendments offended against the principle that a party cannot return to court to
advance arguments which it could have put forward earlier but failed to raise. This was
based on the rule in Henderson v Henderson (1843) 3 Hare 100, which established that
the court will strike out as an abuse of process, a claim which should have been raised
(but was not) in the course of earlier litigation.
? The amendments were incompatible with the overriding objective of the Civil Procedure
? The issue here, therefore, was whether the rule in Henderson v Henderson could be
invoked to prevent a party from pleading, at a late stage in litigation, issues which might
have been pleaded earlier.
The court’s findings
Jackson, J concluded that the rule in Henderson v Henderson could not be invoked to prevent a
party from pleading at a late stage in litigation issues which might have been pleaded earlier as:
1. The rule in Henderson v Henderson is focused upon re-litigation.
2. The rule is directed against the mischief of bringing a second action when the
first action should have sufficed.
3. The rule has always been invoked in cases where there have been at least two
separate actions. It has never been invoked as a ground for opposing an
amendment in the original action.
4. There is no need to extend the rule in Henderson v Henderson into the area of
applications to amend pleadings. The CPR (Part 17) sets out the court’s power to
allow or disallow proposed amendments and an established body of judicial
authority in this area already exists.
Jackson, J then considered the defendant’s second ground of opposition, that it would be
inconsistent with the overriding objective (to deal with cases justly) of the Civil Procedure Rules to
permit the proposed amendments.
The judge concluded that the amendments did not conflict with the overriding objective.
The proposed amendments had been obvious from the outset as matters which might need to be
resolved between the parties and could only have been avoided if the preliminary issues had
been decided differently.
The amendments were necessary in order to establish the true issues to be resolved between the
parties and in order to give financial effect to the court’s decision on the preliminary issues.
On the question of costs, the usual order when the court gives permission to amend is that the
party applying for the amendment should pay the costs of and caused by the amendment. The
respondent can therefore recover the costs of preparing for and attending the application hearing
and also the costs resulting from any consequential amendment to its own pleadings.
Jackson, J concluded that, since the claimant won on the issues of principle and obtained
permission to amend in the face of strong opposition from the defendant, that the usual order
ought to be departed from somewhat.
The appropriate costs order here was that the claimant should bear the costs of issuing the
application to amend, the claimant should bear the costs of amending the particulars of claim and
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the costs of consequential amendments to the defendant’s pleadings and that each party should
bear its own costs of preparing for and attending the hearing of the claimant’s application to
amend. Visit: http://www.bailii.org/ew/cases/EWHC/TCC/2007/1773.html
IXIS Corporate & Investment Bank v (1) WestLB AG, (2) CIBC World Markets Plc (3)
Terra Firma Capital Partners Ltd and Calyon  EWHC 1852
(High Court, QBD, Commercial Court, 27 July 2007)
The claimant successfully applied for an order that a non-party disclose document relevant to the
claimant’s underlying action where the documents in question were likely to either assist the
claimant’s case or be adverse to the defendants’ case and disclosure was necessary in order to
dispose of the claim fairly.
In a claim founded in negligence and deceit arising from a corporate reorganization of two
television rental companies, the claimant (IXIS) sought disclosure of various documents from
Calyon, a non-party to the proceedings.
The jurisdiction of the court to order non-party disclosure
Aikens, J considered the Supreme Court Act 1981, s34 and CPR Part 31.17 and the court’s
jurisdiction to order ‘third party disclosure’.
The court has the power to order non-party disclosure if it is satisfied that the non-party is likely to
have relevant documents in his possession, custody or power.
The court may decline to exercise this power if it regards such an order as unnecessary,
oppressive or against the interests of justice or the public interest.
The court may only make such an order where the documents in question are likely to support the
applicant’s case or adversely affect the case of another party and the disclosure must be
necessary in order to dispose of the claim fairly or to save costs.
The disclosure order must also specify the documents (or classes of documents) to be disclosed
and require the respondent (the party making the disclosure) to specify which (if any) of those
documents are no longer in his control or of which he claims a right or duty to withhold inspection.
In Three Rivers District Council v Governor & Company of the Bank of England (No 4)  1
WLR 210, the Court of Appeal decided, amongst other things, that, under CPR 31.17(3)(a), the
requirement that the documents are ‘likely’ to support the applicant’s case or adversely affect
another party’s case, means that the disclosure ‘may well have that effect’. If disclosure of a class
of documents is sought, the court must be satisfied that all the documents within the class will
meet the requirement (or threshold condition) that they ‘may well’ support the applicant’s case or
adversely affect another party’s case. If all the documents in the class meet this requirement, it is
immaterial that some of the documents in the class will turn out neither to support the applicant’s
case nor adversely affect another party’s case.
Anthony Burton v Guy Francis Kingsbury  EWHC 2091
High Court, QBD, 13 September 2007
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In a catastrophic injury case, the High Court ordered that the appropriate multiplier for assessing
a lifetime loss where life expectancy had been reduced was Table 28 of the Ogden Tables and
also gave practical guidance in relation to the ‘Crofton issue’.
The claimant, a passenger in a car driven by the defendant, was rendered quadriplegic after a
road traffic accident which occurred when he was 18 years old. The defendant, admitted liability
shortly before trial. The trial concerned issues of quantum.
The claimant’s total life expectancy was 66 years (or a term certain of 41 years beyond his
The appropriate multiplier
The next area of dispute was in relation to the appropriate multiplier into which the figure for life
expectancy should be translated.
thThe defendant submitted that the court should use Table 1 in the Ogden Tables, (6 edition) to
derive this figure. The use of Table 1 results in an adjustment to the figure for the multiplier to
take account of the claimant’s mortality. The claimant argued that Table 28 (multipliers for terms
certain) ought to be adopted.
The judge, Flaux J, considered that in assessing the claimant’s life expectancy, the medical
experts had already taken into account the reduction in his life expectancy compared with the
average for a man of his age as set out in Table 1; since mortality had already been considered in
this exercise, to use Table 1 again to establish the discount (or adjustment) for damages for
future cost of care and other future losses would result in a double discount. The reason for this
was the same as that given by Tuckey LJ in Royal Victoria Infirmary & Associated Hospitals NHS Trust v B (a child)  Lloyd’s Rep (Med) 282:
… the quantification of B’s expectation of life already took into account
the chance that she might die earlier or live longer and that she would
almost certainly not die on the predicted date. If one also had to take
mortality into account in determining the discount this would, as the judge
said, be a double discount.
This reasoning was applied by Lloyd Jones J in Sarwar v Ali  EWHC 274 in adopting Table
In the present case, Flaux J held that, since the greater proportion of risks to the claimant’s life
had already been taken into account by the medical experts in their assessment of life
expectancy, it would be more appropriate to use Table 28 to establish the apposite multiplier for
the claimant. Taking a term certain of 41 years and applying a discount rate of 2.5% the
appropriate multiplier, derived from Table 28, was 25.78.
The judge also considered the extent to which the award of damages should be adjusted to
reflect the funding for care received by the claimant (and which he may continue to receive) from
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the state (known as the Crofton issue after the Court of Appeal’s decision in Crofton v NHS
Litigation Authority  1 WLR 923).
In Crofton, the Court of Appeal held that where the claimant is being funded for care and will continue to be funded at least for a period after any award, that funding must be taken into
account. Dyson LJ, in Crofton, stated:
But if the court finds that a claimant will receive direct payments for at
least a period of time and possibly much longer, it seems to us that this
finding must be taken into account in the assessment.
Flaux J observed, however, that the Court of Appeal gave little guidance as to how the state
funding should be taken into account other than by discounting the multiplier. He noted that
discounting the multiplier might not be the correct approach if there was a possibility that, in the
future, the state funding may cease.
Here, it was likely that an award of periodical payments for the cost of care would result in
Hampshire County Council requiring the claimant to contribute to the cost of care provided to him
by the local authority and the Primary Healthcare Trust. However, the amount of such contribution
in the future was uncertain. Given this uncertainty, it would not be appropriate or fair to the
claimant for the court to simply reduce the multiplier.
The court also rejected a proposal by the claimant that this issue be resolved by a ‘reverse
indemnity’ whereby the claimant would receive his full award of damages without any reduction
but would undertake to use his best endeavours to obtain the maximum amount of funding for
care from the local authority.
The court held that the appropriate course was to order that the defendant pay any shortfall
between the funding provided by the state for the cost of care and the amount assessed by the
court for the annual cost of care (the damages for the cost of care being received by way of
periodical payments). Visit: http://www.bailii.org/ew/cases/EWHC/QB/2007/2091.html
Douglas Tribe v (1) Southdown Gliding Club Limited, (2) Robert Adam, (3) The
Estate of Ron King  EWHC 90080
Supreme Court Costs Office, 4 June 2007
The costs which the receiving party could recover after a discontinuance were substantially
reduced where the costs estimate in the allocation questionnaire was significantly lower than the
costs claimed. The paying party had reasonably relied upon the costs estimate and the receiving
party had not adequately explained the difference.
On 19 July 2000, the claimant, Mr Tribe, suffered multiple serious injuries when the glider he was
piloting crashed immediately after launch. On 11 July 2003, the claimant issued proceedings for
negligence against the first defendant (from whom he had hired the glider), the second defendant
(the owner of the glider) and the third defendant (who had been responsible for inspecting and
helping to maintain the glider). The claimant funded his claim with a conditional fee agreement
(CFA) dated 2 May 2003 and purchased an ‘after the event’ (ATE) insurance policy providing coverage up to ?100,000 against the cost of his own disbursements and against the defendants’
costs should he lose his action.
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The parties filed their allocation questionnaires on or about 19 November 2003, the claimant’s containing very little information. The first and third defendants’ allocation questionnaire included
an estimate for overall costs of ?50,000. The second defendant’s allocation questionnaire
included an estimate of overall costs of ?15,000 plus VAT.
On 21 September 2005 the claimant offered to discontinue his claim against the first and third
defendants on the basis that there be no order for costs. On 27 September 2005 the first and
third defendants served their listing questionnaire and breakdown of costs which showed costs
incurred to date of ?234,379.14 (including profit costs excluding VAT of ?146,478) and estimated
future costs for a trial on liability (estimated to last five days) of ?79,984.25, giving a total of
?314,363.39 up to the conclusion of the liability trial.
On 30 September 2005 the claimant served notice of discontinuance thus entitling the three
defendants to their costs on the standard basis.
The second defendant’s bill (?19,818.74) was settled by the claimant in the amount of ?17,800.
The first and third defendants’ bill was ?244,509.72 comprising ?150,640 profit costs, ?57,670.10
for disbursements and ?36,199.62 VAT – sums broadly in line with the breakdown in the listing questionnaire but almost five times greater than the amount estimated in the allocation
On 10 November 2006 a directions hearing was held at which Master Gordon-Saker directed that
an interim costs certificate in the sum of ?50,000 should be issued to the first and third
defendants, to be paid by the claimant (or his ATE insurer) by 8 December 2006 and that four
preliminary issues required determination.
The preliminary issues
1 Should the costs claimed by the first and third defendants be limited to the sums
estimated in their allocation questionnaire?
2 What should be the effect of the estimate of costs in the allocation questionnaire on the
claim for costs?
3 Are the costs claimed disproportionate? 4 What amounts should be allowed for the solicitor’s hourly rates?
Issues (1) and (2)
Master Gordon-Saker considered whether the costs claimed by the first and third defendants
should be limited to the sums estimated in their allocation questionnaire and what effect, if any,
the estimate in the allocation questionnaire should have on the claim for costs. He observed that
the first and third defendant’s estimate of overall costs in their allocation questionnaire was
surprisingly low and he would have expected a figure between ?100,000 ?150,000.
The costs judge then considered section 6 of the Practice Direction to CPR Part 43 which allows
the court to consider costs estimates when assessing the costs claimed and which provides (at
6.6(2)) that where there is a difference of 20% or more between the base costs claimed and the
costs shown in an estimate and the receiving party has not satisfactorily explained the difference
or the paying party reasonably relied on the costs estimate, the court may regard the difference
between the costs claimed and the costs shown in the estimate as evidence that the costs
claimed are unreasonable or disproportionate.
The costs judge considered Leigh v Michelin Tyre plc  EWCA Civ 1766, where the
claimant’s solicitor had estimated overall costs in the allocation questionnaire at ?6,000 plus VAT.
The bill after settlement was for ?21,741 (assessed by the district judge at ?20,488) and the
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defendant argued that the claimant should be bound by the estimate in the allocation
questionnaire. The Court of Appeal held that the claimant’s solicitor had not satisfactorily
explained the difference between the estimate and the final figure. However, the defendant (the
paying party here) had not relied on the estimate in the allocation questionnaire. Consequently
the claimant ought not to be bound by the costs estimate purely because the estimate had been
made and was too low.
In Leigh, Dyson, LJ provided guidance on para. 6.6:
i a substantial (and not satisfactorily explained) difference between the costs estimate
and the costs claimed allows the court to consider the costs claimed unreasonable.
ii where the paying party relied on the costs estimate, the court may take the estimate
into account in deciding what it would be reasonable for the paying party to pay.
iii The estimate may be taken into account where the court would probably have given
different case management directions had the estimate been more realistic.
The costs estimate was not a costs cap and costs should not be reduced simply because they
exceed the amount in the estimate. Dyson, LJ explained that, where, having regard to the
guidance, the court holds that the costs should be reduced, the amount of the reduction depends
upon the circumstances of the individual case and is for the court to decide.
Master Gordon-Saker then considered the claimant’s reliance on the costs estimate and had no
doubt that the claimant relied on the first and third defendants’ costs estimates and that his
reliance was reasonable – the estimate, whilst too low, was not so low that it was unreasonable
for the claimant to rely on it.
The defendants’ explanation for the difference
The first and third defendants identified eight factors to account for the difference between the
costs estimate and the costs claimed, including the amount and complexity of evidence and the
identification of further witnesses. However, the costs judge did not consider this explanation for
the difference satisfactory.
The costs judge doubted that the case would have been managed very differently had a higher
costs estimate figure been given at the outset or if the first and third defendants’ solicitors had
provided the court with a higher figure subsequently.
Reduction in costs
Following the guidance in Leigh, this was an appropriate case in which the costs to be recovered
by the receiving party ought to be reduced to take account of the paying party’s reliance on the
estimate. The starting point in deciding the amount of the reduction was to determine the costs
the court would expect to see in this case – the costs judge put the first and third defendants’
reasonable costs of defending the claim to trial at ?100,000 to ?150,000. He then made
allowances for three competing factors:
1 The costs estimate in the allocation questionnaire was low, suggesting a starting point at
the bottom of the ?100,000-?150,000 bracket.
2 A deduction of the costs of trial and the costs of dealing with the assessment of damages
should be made. 3 The additional costs of the eight factors identified by the first and third defendants to
account for the difference between the costs estimate and the costs claimed.
Taking these factors into account (given the low costs estimate, the claimant’s reliance on it and
the absence of a satisfactory explanation for the difference) the reasonable figure for defending
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