Asbestos-related illness

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Asbestos-related illness ...

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.

Asbestos-related illness

Practice and procedure


Featured article

Press releases

Policy issues and legislation

    Nick Pargeter Boris Cetnik Partner, BLM London Partner, BLM London

Brian Goodwin

    Partner, BLM Liverpool

    Disease review 2 November 2007

Asbestos-related illness

    Margaret Cameron (Widow and Administratrix of the Estate of Donald

    Cameron, Deceased) v Vinters Defence Systems Ltd [2007] 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.

    Disease review 2 November 2007

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 [2000] 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

[2007] 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.

    Disease review 2 November 2007


    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

    ([2006] 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 [2007] 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.

Disease review 2 November 2007

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

    Disease review 2 November 2007

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:

IXIS Corporate & Investment Bank v (1) WestLB AG, (2) CIBC World Markets Plc (3)

    Terra Firma Capital Partners Ltd and Calyon [2007] 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) [2003] 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 [2007] EWHC 2091

High Court, QBD, 13 September 2007

    Disease review 2 November 2007


    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.


Life expectancy

    The claimant’s total life expectancy was 66 years (or a term certain of 41 years beyond his

    current age).

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) [2002] 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 [2007] 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.

Crofton issue

    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

    Disease review 2 November 2007

the state (known as the Crofton issue after the Court of Appeal’s decision in Crofton v NHS

    Litigation Authority [2007] 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:


    Douglas Tribe v (1) Southdown Gliding Club Limited, (2) Robert Adam, (3) The

    Estate of Ron King [2007] 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.

    Disease review 2 November 2007

    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 [2003] 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

    Disease review 2 November 2007

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.

Case management

    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

    Disease review 2 November 2007

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