Occupational disease case law update

An round-up of recent prominent court decisions relating to occupational disease.

Time exposure apportionment preferred to dose based apportionment for Pleural Thickening

David Kearns v Delta Steeplejacks Ltd [2017] EWHC 149 (QB)

The claimant pursued the defendant for damages for Pleural Thickening which he alleged was sustained as a result of exposure to asbestos during his employment with the defendant at various periods between 1981 and 1991 as well as with one other employer.

The claimant sought apportionment of damages on a time exposed basis which equated to 39% of the total whereas the defendant sought a dose related apportionment which would have equated to around 15%.  On the issue of apportionment, the court held that without details of exposure from the other employer a time-exposure based apportionment was the most appropriate. 

Causation was also in issue.  Whilst it was agreed the claimant had a respiratory disability of 60%, 40% of which was due to Chronic Obstructive Pulmonary Disease caused by smoking and 20% due to diffuse pleural thickening, the medical experts disagreed about the cause of the diffuse pleural thickening in one lung. It may have been caused by asbestos or by a significant trauma in following a fall 1999. The medical experts also disagreed about the sufficiency of the evidence to diagnose diffuse asbestos related pleural thickening in the other lung.

As 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 the 1999 trauma. However, in considering all the evidence the court concluded that there was insufficient evidence of diffuse pleural thickening in the left lung and so the changes to that lung did not amount to an actionable injury.

Company liable to indemnify

English Electric Co Ltd v Alstom UK [2016] EWCA Civ 1314

The Court of Appeal upheld a decision that a company was liable to indemnify another company in respect of a damages claim made by a former employee's widow following his death from mesothelioma. 

The claimant had worked for Associated Electrical Industries Limited (“AEI”) between 1956 and 1961.  His widow successfully brought a claim against AEI and was awarded damages.  The issue was then whether liability for those damages could be passed down a contractual chain of agreements which had been made for the sale of AEI’s business that had been sold to English Electric Co Ltd (“EEC”) in 1970.  EEC had agreed to indemnify AEI against any claims arising from 1 April 1970. In 1989, EEC sold the business to Alstom UK (“AUK”).

At first instance it was held that EEC was liable in relation to the widow's claim. AUK had already accepted that if EEC was liable to indemnify AEI in respect of the claim, then it was liable to indemnify EEC pursuant to an indemnity provision in the 1989 sale agreement. As such, AUK brought the appeal to determine whether the liabilities had passed from AEI to EEC.

The Court of Appeal held that liability for damages could be passed down the contractual chain of agreements which had been made for the sale and purchase of the business between AEI and EEC and EEC and AUK.  The Appeal was therefore dismissed.

Relief from sanctions was granted for a company's failure to file its costs budget on time

Intellimedia Systems Ltd v Richards & Others (Ch D (Warren J)) 01/02/2017

The claimant had omitted to file a costs budget within the required time.  It was advised that this had been due to the claimant’s solicitor falling ill.  However the defendant argued that this was not a sufficient reason and that someone ought to have taken responsibility in such circumstances.  An application for relief from sanctions was therefore made and contested by the defendant. 

The court held that although the delay in filing the costs budget had disrupted the parties' case management conference, imposing a sanction to limit the claimant’s costs of the action to court fees would be disproportionate.  The claimant was therefore granted relief but ordered to pay the costs of the application hearing on an indemnity basis. 

Damages awarded in living mesothelioma case but assessment adjourned until after death

Andreou v S Booth Horrocks and Sons Ltd [2017] EWHC 174 (QB)

The Claimant alleged exposure to asbestos whilst employed as a heating and plumbing engineer with the Defendant in the 1960’s. Liability was admitted and the matter proceeded on the issue of quantum only. 

The court assessed various heads of damage claimed but adjourned until after his death its assessment of the value of the services the claimant would have provided to his wife but for the disease, in respect of a hotel and rental properties they owned as well as acres of land at their residence.

The claimant essentially sought recovery for loss of services during the ‘lost years’ which is a dependency claim and not recoverable in a living claim. The defendant argued that on this basis it should be dismissed. Giving her judgment, HHJ Walden-Smith held:

‘…it is accepted by the claimant that these are matters that properly will need to be dealt with post mortem if there is not agreement between the parties. There has not been agreement between the parties and while it is said by the defendant that the claimant has made an election to bring a claim now and that therefore this matter should be dealt with now and, as it is not something that can be recovered now, the claim should be dismissed. I do not agree with that stance. This is a proper claim that will be made in due course. In the circumstances, while it is clear from the authorities that this is not something that this court can order, given that it has not been agreed between the parties, I will adjourn this part of the claim in order that it can be dealt with post mortem. It would not be right in my judgment for the claimant or the claimant’s estate or his widow in due course not to be able to make a claim for something to which he is entitled simply by reason of it having been brought into these proceedings. This discrete matter will therefore be adjourned’.

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