Williams v University of Birmingham [2011] EWCA Civ 1242 Court of Appeal, 28 October 2011

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1 November 2011 Williams v University of Birmingham [2011] EWCA Civ 1242 Court of Appeal, 28 October 2011 In a mesothelioma claim, the Court of Appeal (CA) found that the defendant was not in breach of duty at common law in relation to exposure to asbestos for a period in 1974 when the claimant had carried out experiments in a service tunnel at the defendant university containing pipes lagged with asbestos. The deceased was exposed to asbestos (including crocidolite) at a level of close to or above 0.1 fibre/ml, but below 0.2 fibre/ml. The deceased spent between 52 and 78 hours in the tunnel in total. The best guide to what was an acceptable and what was an unacceptable level of exposure to asbestos was that found in the Factory Inspectorate s 1970 guidance document Technical Data Note 13. The guidance document stated, amongst other things, that, in relation to crocidolite a respirator should be worn unless concentration was below 0.2 fibre/ml. The defendant was entitled to rely on recognised and established guidelines such as those in Note 13. Williams shows that the defendant s date of common law knowledge in mesothelioma cases is not fixed. The CA in Williams has pushed the potential for date of knowledge arguments in low dose exposure cases forward in time substantially. It has often been thought that the cutoff date for knowledge was generally likely to be no later than October 1965 (papers by M Newhouse and H Thompson Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area, Brit. J. Ind. Med. 1965, 22(4) 261 and Epidemiology of Mesothelial Tumors in the London Area, Annals NY Acad. Sci. 1965, 132(1), 579 led to an article in the Sunday Times in October 1965: Scientists track down killer dust disease. In relation to breach of duty, foreseeability of harm is key and depends on knowledge. Official guidance documents are pivotal in relation to knowledge. The defendant must be judged by, and guidance documents must illustrate, the state of knowledge and practice at the time. Standards are not immutable: they change with time as knowledge and society s acceptance of risk changes. Williams explains how such changes cannot be applied retrospectively. The Supreme Court s decision in Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10 received some coverage suggesting that the prospects of defending low dose mesothelioma claims was now poor (albeit there were some positive points for defendants such as discouraging generous inferences in the claimant s favour from evidence relating to his or her exposure). Sienkiewicz focused on causation. Williams provides appellate support for defences in low dose exposure cases based on breach of duty. The battleground may now shift away from causation to breach of duty in low dose mesothelioma claims. Pleural plaques at the Supreme Court Introduction The Supreme Court s decision handed down on 12 October 2011 upheld the validity of the Damages (Asbestos-Related Conditions) (Scotland) Act 2009, entrenching fundamental jurisdictional difference in the recoverability of damages for pleural plaques north and south of the border. 1

2 The Act An Act not of Westminster but of the devolved Scottish Parliament, the Damages (Asbestos- Related Conditions) (Scotland) Act 2009 came into force on 17 June The Act only applies to Scotland. By contrast in England and Wales, since the House of Lords decision in Johnston v NEI [2007] UKHL 39 in October 2007, pleural plaques caused by negligent exposure to asbestos have not constituted compensable damage and cannot give rise to a cause of action even when combined with anxiety associated with the risk of future disease. The Act applies to: 1 Asbestos-related pleural plaques. 2 Symptomless asbestos-related pleural thickening 3 Symptomless asbestosis. The Act provides a cause of action for damages for any of these conditions where a claimant has been negligently exposed to asbestos. No proof of injury or disability is required. Supreme Court The insurers challenge to the Act had two main bases: 1 That the Act is incompatible with their rights to property (financial reserves) under the European Convention on Human Rights, and therefore outside the legislative competence of the Scottish Parliament under the devolution legislation. 2 That the Act is open to judicial review on common law grounds as an unreasonable, irrational and arbitrary exercise of the Scottish Parliament s legislative authority. Findings i. The insurers were entitled to bring proceedings in relation to legislative competence (basis 1. above). However, although the Act did constitute interference with insurers convention rights it pursued a legitimate aim and the means chosen by the Scottish Parliament were reasonably proportionate to that aim. The Act was not outside the legislative competence of the Scottish Parliament. ii. In principle, Acts of the Scottish Parliament are amenable to common law judicial review. However, Acts of the Scottish Parliament are not subject to judicial review at common law on the grounds of irrationality, unreasonableness or arbitrariness. There is a statutory limit in the devolution legislation on the Scottish Parliament s legislative competence if a provision is incompatible with a Convention right. Implications The Act has potentially far-reaching implications. For example, its effect on tort liability in general is uncertain. The Act might also encourage forum-shopping: English litigants seeking to find a jurisdictional connection to allow them to bring their claims in Scotland. In addition, the Act s financial ramifications are uncertain. Price v Isotemp Ductwork Limited - Coles guidelines approved In Price v Isotemp Ductwork Limited (Cardiff CC, 26 August 2011) BLM acted in the successful defence of this case. This was a claim for Noise-induced Hearing Loss (NIHL). It was accepted by both parties that the claimant had been exposed to a level of noise which was capable of causing this condition. 2

3 During the course of the claim the claimant underwent three audiograms dated 2008, 2009 and The claimant s medical expert Mr Clayton argued that all three showed some degree of NIHL. Mr Parker, the defendant s medical expert was of the opinion that all three were within the margin of measurement error and did not satisfy the necessary requirement of R3 in the Coles Lutman guidelines (ie, there was no discernable notch or bulge.) His Hon Judge Curran QC heard evidence from both experts, during which Mr Clayton admitted that he had only included the 2009 audiogram in his final report, that he had relied on the Black Book rather than the Coles guidelines and that he had arrived at his diagnosis of NIHL by reference to the claimant s history of noise exposure rather than by any diagnostic indicators. It was noted that the Black Book (Assessment of Hearing Disability Guidelines for Medico/Legal Practice, King, Cole, Lutman and Robinson, 1992) only dealt with the assessment of NIHL and not the cause. HHJ Curran confirmed in his summing up of the case that the Coles guidelines were designed to assist in borderline cases of this nature. It is not enough to simply rely on a history of noise exposure. Audiograms must show the diagnostic indicators laid down in the guidelines. This reiterates Vicky Mallard s conclusions in the current BLM newsletter Disease matters (September 2011) that there must be some identifiable element of NIHL regardless of the claimant s history of noise exposure. The courts are clearly recognising the importance of the Coles Lutman guidelines and any medical expert not considering the guidelines in their report should be challenged. A careful analysis of the relevant diagnostic indicators is essential. Seventh edition of the Ogden Tables The edition was published on 10 October It shows a modest rise in multipliers. The seventh edition uses UK life expectancy data from 2008 from the Office of National Statistics which, generally, show improvements in life expectancy when compared to the 2004 data used in the sixth edition (published in 2007). Use of this newer data causes whole life multipliers to increase for both genders and across all age ranges. In disease claims these are most likely to impact on fatal claims (such as mesothelioma and lung cancer) and in HAVS claims in which post-diagnosis the claimant can be regarded as under a disability. Discount rate A significant presentational change is that the 5% spread of notional discount rates in the tables moves from 0% to 5% to -2% to 3%. This does not affect the statutory discount rate of 2.5%. The Lord Chancellor set the discount rate at 2.5% in It was based on yields generated by index-linked government stock (ILGS). Since then, yields on ILGS have gradually declined and over the last four years the average gross yield has been less than 1%. Discount rate in the courts In Helmot v Simon [ ] GLR 465, arising out of a road traffic accident, the original lump sum award at first instance in January 2010 was for damages of 9.3 million plus interest. The court used a single discount rate of 1% for all future losses. The claimant had argued for differential rates of 0.5% for non-earnings-related losses and of minus 1.5% for earningsrelated losses. The claimant s arguments succeeded on appeal and the final amount of the award was increased to more than 14 million. Helmot is a decision of the Guernsey Court of Appeal. As such it is not binding in England. Also, there is no statutory discount rate in Guernsey. Helmot has been appealed to the Judicial Committee of the Privy Council (the highest appellate court for Guernsey cases). The hearing is currently listed for 25 and 26 January

4 Mortality rates The 2008-based projections used in Ogden 7 suggest increased projected life expectancies. The impact of improved mortality rates is more marked for older claimants, and particularly for males. This is likely to impact mesothelioma cases which typically involve older, male claimants. Watch this space Appellate courts continue to be busy with disease cases The Supreme Court (SC) is scheduled to hear the appeal in the Employers Liability Insurance Trigger Litigation [2010] EWCA Civ 1096 starting on 5 December The principal issue is what constitutes the trigger for liability of an insurer to indemnify the insured employer: in particular whether it is the tortious exposure of a victim to asbestos dust when asbestos is inhaled; or is liability triggered much later, when the tumour has begun to develop? The answer turned on construction of the policy wording. The Court of Appeal (CA) held that, in relation to an EL policy with an injury or disease sustained wording, the policy which responds is the one in place when the tumour develops (as in Bolton MBC v MMI [2006] EWCA Civ 50). In contrast, disease contracted referred to its causative origin. A disease is contracted at the time it is caused when the employee is exposed to asbestos. The policy in place at that time responds. Between the 14 and 17 November 2011, the SC heard the claimant s appeal in Ministry of Defence v AB and Others [2010] EWCA Civ 1317 (Nuclear test veterans). The SC is likely to give definitive guidance on the law of limitation. The main issues are whether the CA (1) applied the wrong legal test for knowledge under section 14 of the Limitation Act 1980; and (2) adopted the incorrect approach to the exercise of discretion under section 33 of the Act. As well as limitation the SC may also give guidance on causation in disease claims particularly in relation to cancer. This is particularly significant because this will be the first SC case to consider this subject since Sienkiewicz v Greif (UK) Ltd [2011] UKSC 10. As in Sienkiewicz, the justices in AB were headed by Lord Phillips PSC. Lord Phillips, of course, made obiter comments casting doubt on the doubles the risk test for causation in asbestosrelated lung cancer in Sienkiewicz. The CA is scheduled to hear the defendant s appeal in Chandler v Cape Plc [2011] EWHC 951 (QB) (an asbestosis case) on the 7 or 8 February The CA is likely to provide guidance on the circumstances in which a parent company will be held to owe a duty of care to an employee of a subsidiary company. At first instance, Chandler showed how such a duty might arise: where the defendant controls or has overall responsibility for the measures adopted by the employer to protect its employees against a foreseeable risk of harm. Finally, it had been hoped that the CA would have the opportunity to provide further guidance on post-1965 date of knowledge and the relevance of exposure standards in low-level mesothelioma claims in the appeal in the case of Reynolds v Secretary of State for Energy and Climate Change [2010] EWHC 1191 (QB), which concerned alleged exposure to asbestos between 1977 and 1986, following the recent decision in Williams v University of Birmingham [2011] EWCA Civ 1242, covered earlier in this review. However, this appeal was settled before it was due to begin earlier this month, leaving Williams as the most recent progressive authority in this area. News TCE and link to Parkinson s disease It has been reported in the press that a cleaning solvent has been linked to Parkinson s disease (see The Daily Telegraph, 14 November 2011). Media reports are based on a study, Solvent exposures and parkinson disease risk in twins by Goldman et al at the Parkinson s Institute and Clinical Center in California (Ann Neurol 14 November 2011, doi: 4

5 /ana.22629). The study examined 99 pairs of twins in which one twin had Parkinson s disease and the other did not. The researchers questioned them on lifelong work and hobbies, and estimated their exposure to six specific solvents. Exposures were compared in the twins with and without Parkinson s disease. The study found that there was a significantly increased risk of developing Parkinson s disease in those exposed to trichloroethylene (TCE). However, as Parkinson UK stated, further studies are needed to investigate the potential link. As the study itself noted, it does not prove that TCE causes the condition (TCE has been used for surface degreasing. It is classified as a substance which may cause cancer, see EH40/2005 Workplace exposure limits). Mobile phones and brain cancer New research suggests no link between mobile phones and brain cancer. The study, by researchers at the Institute of Cancer Epidemiology in Copenhagen, Use of mobile phones and risk of brain tumours: update of Danish cohort study, Frei et al, BMJ 2011; 343: d6387 doi: /bmj.d6387 considered 358,403 Danish mobile phone subscribers and examined data relating to tumours between 1990 and It found no increased risk of tumours of the central nervous system, providing little evidence for causal association. In particular, there was no increase of glioma in the temporal lobes in long term subscribers (as the temporal lobe has been described as the region of the brain with highest absorption of energy emitted from mobile phones. The study allowed researchers to investigate effects in people who had used mobile phones for 10 years or more and that this long term use was not associated with higher risks of cancer. In a BMJ editorial Ahlbom and Feychting noted that a weakness in the study was that having a mobile phone subscription is not equivalent to using a mobile phone and conversely some users will not be subscribers, see Mobile telephones and brain tumours, BMJ, 2011;343:d6605 doi: /bmj.d6605. The resulting misclassification could dilute association between mobile phone use and cancer risk. Cancer research UK s Hazel Nunn, head of evidence and health information, stated that study s results are the strongest evidence yet that using a mobile phone does not seem to increase the risk of cancers of the brain or central nervous system in adults (see No link between using mobile phone and brain tumours, Cancer Research UK [click here] However, she added that even longer term follow up of cancer risk in mobile phone users is still needed, as are studies of effects of mobile phone use in children. The study itself concluded that further studies with large populations are warranted. Legal Aid, Sentencing and Punishment of Offenders Bill The Bill, which amongst other things makes various provisions in respect of civil litigation funding and costs, and implements the recommendations of the Jackson Review and the government s response in relation to CFAs, has already been through all the Commons stages. The Committee stage begins on 20 December 2011 and is likely to run into the New Year. The main differences in the latest version of the Bill from the original version (in relation to litigation funding and costs) relate to the numbering of existing clauses. A new Clause 54 has been added which provides rules against referral fees. As the Minister of State (Lord McNally) said during the second reading: We also propose to ban referral fees. Committee stage in the House of Lords comes next (a line by line examination of the Bill). Berrymans Lace Mawer LLP 2011 Disclaimer This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to clients of Berrymans Lace Mawer. Specialist legal advice should always be sought in any particular case. Information is correct at the time of release. O:\PUBLICATIONS\7 BLM PUBLICATIONS\E-BULLETINS AND STATS\DISEASE REVIEW\NOVEMBER 2011\DISEASE E-BULLETIN - NOVEMBER 11 FULL.DOC 5