April 2012 edition 8. matters. Asbestos. Jackson and costs. Deafness. Harassment. Strategy. Case law

Disease April 2012 edition 8 matters Asbestos Jackson and costs Deafness Harassment Strategy Case law

Contact BLM Birmingham Val Hughes T 0121 633 6625 E val.hughes@blm-law.com BLM Cardiff Matthew Harrington T 02920 447621 E matthew.harrington@blm-law.com BLM Leeds Chris Gannon T 0113 218 6522 E chris.gannon@blm-law.com BLM Liverpool Brian Goodwin T 0151 471 5455 E brian.goodwin@blm-law.com BLM London Boris Cetnik T 0207 865 3358 E boris.cetnik@blm-law.com Nick Pargeter T 0207 865 3361 E nick.pargeter@blm-law.com BLM Manchester Vivienne Williams T 0161 838 6798 E vivienne.williams@blm-law.com BLM Southampton Andrew West T 023 8038 2647 E andrew.west@blm-law.com Changing your details If any of your details have changed, you would prefer to receive publications by email alert, or you no longer wish to receive this publication, please let us know by emailing Janet Willmott at janet.willmott@blm-law.com Disclaimer You have been sent this material because you have previously registered your interest in receiving information from Berrymans Lace Mawer LLP. If you no longer wish to receive the mailing, please unsubscribe. 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 LLP. Specialist legal advice should always be sought in any particular case. Solicitors with offices in Birmingham, Bristol, Cardiff, Leeds, Liverpool, London, Manchester and Southampton. Berrymans Lace Mawer is a trading name of Berrymans Lace Mawer LLP, a limited liability partnership registered in England under number OC340981, which is authorised and regulated by the Solicitors Regulation Authority and accredited to quality standards ISO 9001 and Lexcel. The registered office is at Kings House, 42 King Street West, Manchester M3 2NU where a list of members is available for inspection. Information is correct at the time of release. Berrymans Lace Mawer 2012

Editorial Welcome to the 8th edition of Disease matters Contents Page 2 - Back on the menu breach of duty in asbestos claims Page 4 - EL Trigger Litigation status quo restored Page 5 - Page 6 - Page 8 - Page 9 - No more, and no less in Guernsey Short term confusion over success fees Mesothelioma quantum and no solace? Knowledge and belief: Nuclear Test Veterans in the Supreme Court Page 10 - Damages for dismissal Page 12 - Löfstedt review and short-tail disease claims Page 13 - Stress and harassment: e-disclosure Page 16 - Common sense in statutory duty Will some collateral damage for insurers and employers from Lord Jacksons reforms lie with disease? A particular feature of disease claims justifying a specialist approach is the fact that the negligent act or exposure may occur over a long period rather than a specific point in time and a long time ago. This means liability is often contentious, for example, a risk of injury was not foreseeable when exposure occurred, the disease may have an alternative cause not related to employment, or possibly a claimant will be deemed with limitation knowledge many years before proceedings were issued. Im stating the obvious I know but please bear with me. These claims represent a significant risk to claimants lawyers and legal expenses insurers. In particular RSI and stress claims have a CFA success fee fixed at 100% and in HAVS and NIHL claims at 62.5%. These are high success fees for a reason. They reflect data that a claimant will be unsuccessful in approximately one out of two stress/rsi claims and one out of three NIHL/HAVS claims. Claimant lawyers have bucked the system to ensure that the success rate in their portfolio of claims is better than the average. If this is assessed correctly then there is good money to be made for claimant lawyers and ATE insurers. This has acted as a filter though and claims with a marginal prospect of success will not be pursued when they dont represent a comfortable risk. One-way costs shifting marks an important change in the way disease claims will be prosecuted and defended. And although claimants costs will generally be reduced because a CFA success fee is no longer recoverable the change also means: Legal expense insurance and a claimants liability to pay defendants costs has barred speculative claims. That barrier is to be lifted. The commercial justification to defend a disease claim takes into account the recovery of defence costs if the defence is successful. Following the reforms defence costs will only be recoverable rarely. The costs of defending a claim will be more difficult to justify commercially. A CFA will act as the most important deterrent. The claimants lawyer will not take on a claim unless he/she believes they will be paid. But many will remember Legal Aid funding of claims and the type of claims that were prosecuted with legal aid backing. Legal Aid similarly applied one-way costs shifting. An increase in claims by litigants in person has also been predicted. Whatever the effect of these changes, we will keep you informed. Nick Pargeter Partner Berrymans Lace Mawer page 1

Back on the menu breach of duty in asbestos claims Williams v University of Birmingham [2011] EWCA Civ 1242 The battle lines in mesothelioma and other asbestos-related disease claims have in recent years been drawn around the issue of causation, with prospects for defendants on breach of duty being regarded increasingly pessimistically. Mesothelioma claims have driven much legal development in the area of causation over the last 10 years due to the almost unique difficulties associated with the aetiology of that condition. With roots in the 1970s, following Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 and ultimately section 3 of the Compensation Act 2006, in mesothelioma the test for causation now is, uniquely, a material increase in risk, with liability (after breach of duty and causation are established) being joint and several. Even the most recent Supreme Court decisions in relation to mesothelioma (Sienkiewicz v Greif (UK) Ltd and Willmore v Knowsley Borough Council [2011] UKSC10) were cases focusing on the causation issue. Other than in the well known cases of Shell Tankers v Jeromson (Dawson v Cherry Tree Machine Company) [2001] EWCA Civ 100 and Maguire v Harland & Wolff [2005] EWCA Civ 1 (11 and seven years ago respectively) the issue of breach of duty in mesothelioma claims has not received the same level of judicial attention. There was a hint, however, that senior judges may be supportive of a more forensic analysis of this issue in Willmore in which Lord Mance in particular encouraged trial judges not to make findings of fact about exposure to asbestos on a slender and speculative basis. Even in Williams v University of Birmingham itself, so focused on causation was the trial judge that she conflated the issues of breach of duty and causation in formulating the wrong test when she put it as follows: The University plainly had a duty to take all reasonable measures to ensure that [Mr Williams] was not exposed to a material increase in the risk of mesothelioma. That test, as the Court of Appeal confirmed, is plainly wrong. The re-emergence of the breach of duty issue A re-appraisal of the importance of the prior issue of breach of duty in mesothelioma claims, and asbestos claims in general, was made possible by the approach taken by the Supreme Court in one of the few Noise-induced Hearing Loss claims ever to reach the Supreme Court, Baker v Quantum Clothing Group Limited [2011] UKSC17. The principles considered in that case have a resonance well beyond the field of NIHL. For present purposes, the key points to emerge, or at least be restated, in Baker were perhaps as follows: 1 At common law the test of negligence, or breach of duty, is whether the defendant ought reasonably to have foreseen the risk of contracting the disease concerned. 2 The standard of conduct to be page 2 Berrymans Lace Mawer

expected of the defendant is that of a reasonable and prudent employer at the time what is not acceptable now may have been regarded as acceptable at the time. To borrow an old analogy of Denning LJ, we must not look at what happened perhaps a number of decades ago through 2012 spectacles. 3 The need to allow a period of implementation of developing knowledge, or guidance related to it, and to make changes to industrial or other processes. 4 Section 29 of the Factories Act 1961 and the concept of safety has to be judged according to the general knowledge and standards of the time by extension many other commonly deployed statutory provisions will bear a similar interpretation. Williams v University of Birmingham The late Michael Williams died from mesothelioma. He had undertaken speed of light experiments in his final year at Birmingham University in an underground service tunnel. The trial judge made a finding of fact that asbestos lagging in the pipes in the tunnel was in poor condition and that dust on the floor contained asbestos fibres, particularly crocidolite fibres at a level close to or above 0.1f/ml, but less than 0.2f/ml. The late Mr Williams spent between 52 and 78 hours in total in the tunnel. Those findings of fact were not overturned on appeal. The Court of Appeal (CA) held that, drawing on the Supreme Courts judgment in Baker, the question of what the university ought reasonably to have foreseen and the reasonable conduct that the university ought to have adopted must be judged by reference to the state of knowledge and practice as at 1974 and the degree of knowledge the university ought to have had in 1974 about the risks of exposure at the fibre levels concerned. Williams was considered by the CA after the Supreme Court judgment in Baker v Quantum Clothing. The case followed a trickle of mesothelioma cases which looked at the breach of duty issue at High Court level, predating Baker. Some of these cases will be familiar to readers, and included Abraham v G Ireson & Son (Properties) Limited and another [2009] EWHC1958 (QB), Asmussen v Filtrona United Kingdom Ltd [2011] EWHC1734 (QB) and Reynolds v Secretary of State for Energy and Climate Change [2010] EWHC1191 (QB). Individual aspects of these cases had made it unclear to what extent a general principle was emerging. The importance of Williams is that not only does it come after Baker v Quantum, but it concerns exposure to asbestos occurring in 1974 some nine years after the previously understood watershed of 1965. Key among the points to emerge from the Williams decision was the view that: The best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorates Technical Data Note 13 of March 1970, in particular the guidance given about crocidolite. The University was entitled to rely on recognised and established guidelines such as those in Note 13. TDN13 was published as guidance to accompany the Asbestos Regulations 1969, which came into force in March 1970, and set threshold limit values, or TLVs, at 2.0f/ml for chrysotile and amosite and at 0.2f/ml for crocidolite. Indeed the very first TLV was introduced in 1960, introducing a single limit value broadly equivalent to 30f/ml. There must be a strong argument that, in the absence of any special knowledge on the part of a particular defendant, controlling exposure to below the published guidance as to limit values from time to time would not give rise to a foreseeable risk of injury. It was not until the publication of EH10 in 1976 that the guidance was amended to recommend that employers control exposure to below these limits as far as reasonably practicable. The landscape following Williams Arguably, opportunities for defending mesothelioma claims involving very light exposure to asbestos are now greater than in recent years. Analysing the wealth of published material often listed but perhaps seldom read in individual cases, including reports to government, annual reports of the Factories Inspectorate and debates in Parliament published in Hansard, it is clear that developing knowledge about the risks of low level asbestos exposure were very much in flux through the 1960s and beyond. Not until 1960 did it begin to be appreciated that mesothelioma might be associated with asbestos exposure, and indeed it was not until after this point, towards the middle of the 1960s, that there was a growing appreciation that shorter periods of exposure might be implicated. Even then, the type of exposure being considered was still what would be considered today as moderate to heavy exposure, as opposed to the type of very light or incidental exposure which arose in cases such as Williams, Reynolds, Asmussen and Abraham. A fresh forensic analysis of the now famous Newhouse and Thompson paper of 1965 and subsequent Sunday Times article in October 1965 suggests that perhaps 1965 was not the absolute watershed for which claimants contend. Indeed even in 1967 and 1968 there was conflicting material coming from Berrymans Lace Mawer page 3

government, with the Advisory Panel of the Chief Scientific Officer recommending that, given a clear link between blue asbestos and mesothelioma, industry should switch to white and brown asbestos (as a positive recommendation) but the Factories Inspectorate taking a more cautious approach. There is much material in Hansard commenting as to the impracticability of Britain abandoning the use of asbestos and the fact that at the time, alternatives, now known to be safe, were not in fact known to be safe even in the 1970s. It should be difficult to criticise a defendant for complying with technical guidance issued officially as to fibre levels and limit values, particularly where white and brown asbestos was used, given the fact that throughout the 1960s and beyond it was blue asbestos specifically which was thought to be linked with mesothelioma. It may be that Williams is not the end of the story. Claimants have already begun to criticise the decision on the basis that there was no consideration of the earlier CA decision of Jeromson/Dawson, which put the foreseeability of injury at a much earlier date, but that case arguably looked at heavier exposure and the court did not perhaps have the benefit of the same detailed submissions about the relevance of threshold limit values, nor of the Supreme Court decision in Baker. What is clear is that there is now much more fertile ground for defence and survival at show cause hearings, in at least very low level exposure cases of mesothelioma with exposure dates possibly well beyond 1965. This will be an increasingly important area as we see more and more cases arising not from exposure in traditional heavy industry, but later incidental exposures in less ubiquitous environments. Christopher Fletcher Partner EL Trigger Litigation status quo restored The Supreme Court handed down its long-awaited judgment on 28 March. It unanimously endorsed the traditional application of employers liability (EL) policies to mesothelioma claims, namely that the policy which responds is the one in force when the culpable asbestos exposure took place that is when the mesothelioma was caused. The genesis of this epic litigation was the decision in Bolton v MMI [2006] which held that in a public liability (PL) mesothelioma claim, the injury occurs when the tumour starts to develop approximately 10 years before manifestation of symptoms not when it was caused. Four insurers (the Boltonites) decided to start applying this rationale to EL mesothelioma claims. They contended that by adopting the precise and commonly used words in the trigger clauses of their policies, that mesothelioma was contracted or sustained on occurrence of the tumour, not on inhalation. As Lord Mance observed in his leading judgment, if successful this would have largely obliterated their potential liability for mesothelioma claims since by the time these started to emerge in numbers in the 1980s, these insurers, insofar as they were still writing this business, had changed to a causation wording. This stance led to numerous black holes in cover, leaving many mesothelioma victims uncompensated and solvent employers shouldering the burden of these claims without effective insurance backing, despite their having paid premiums over many years anticipating that cover would be provided. Their expectations had been reinforced by the fact that pre- Bolton, all insurers had adopted the practice of paying out on a causation basis without demur, irrespective of the precise wording of the trigger clause in their policies. Lord Mance was eager at the outset to avoid over-concentration on the meaning of single words and phrases viewed in isolation, and to look at the insurance contracts more broadly. Adopting this approach, he was satisfied that as a matter of contractual construction, the wordings as a whole demonstrated a page 4 Berrymans Lace Mawer

close link between the actual employment undertaken during each insurance period and the premium payable. It was thus improbable that the contracting parties would have intended the policy to cover injury sustained in a certain policy year if it was attributable to negligent conduct committed many years previously. He also recognised that the Boltonites position would lead to other anomalies. For example, if their position was correct, the policies would not respond if the employee suffering the exposure was no longer an employee at the time the tumour started to develop unlikely given the long latency period). He concluded: The natural inference to draw from the references to being engaged in the employers service and in work forming part of the employers business is that it was envisaged that the accident or disease would and should arise out of such service and work, rather than merely occurring during it. That points to an underlying focus on causation Being thus satisfied that sustained and contracted were essentially synonymous with caused (a view with which his fellow judges agreed) it was not necessary for the Supreme Court to enter into more contentious murky waters by considering for example whether mesothelioma as a matter of medical science could be said to be sustained on inhalation, or whether to trigger the policy the disease needs to be actionable on inhalation. There was, however, dissent from Lord Phillips, who took the view that EL policies which are deemed to have a causation wording would not in any event be triggered in mesotheliomna claims. This is because a claimants right to damages under current mesothelioma jurisprudence is the creation of the risk of (and not causation of) mesothelioma, whereas the insured risk is causing an injury or disease. Needless to say, if this notion had held sway there would have been very far-reaching consequences as it would effectively have neutered any employers liability insurance for mesothelioma. Fortunately, none of the other judges agreed, Lord Clarke in particular devoting much of his judgment to an exposition of why policies should indeed respond as it is not the mere the creation of a risk that creates the cause of action, but deemed causation of the mesothelioma. In summary therefore, the pre-bolton position adopted by insurers has now been restored. Claimants whose cases against insolvent employers with Boltonite insurers have been stayed will now be able to proceed. Employers who have had to settle claims out of their own resources can now seek an indemnity from their Boltonite insurers (subject to a strict six-year time limit for doing so). Insurers who have had to pay a greater share owing to the Boltonites refusal to contribute will now be in a position to reclaim the appropriate contribution. The judgment therefore restores what, for many years, had been a pragmatic and workable practice for handling mesothelioma claims efficiently and ensuring that all relevant paymasters contribute their fair share. It brings much-needed certainty back into the market and should be welcomed by all. Brian Goodwin Partner No more, and no less in Guernsey Simon v Helmot [2012] UKPC 5 Privy Council, 7 March 2012 The claimant suffered catastrophic injuries in a road traffic accident in Guernsey. He would require 24-hour care for life. Liability was admitted. In relation to future losses, the defendant argued that the Guernsey courts should follow the single discount rate set by the Lord Chancellor (2.5%). At first instance, the court applied a single discount rate of 1% for both earnings-related and non-earnings related losses. Damages totalled about 9.3 million. The claimant successfully appealed to the Court of Appeal of Guernsey, arguing that the discount rate should instead be (i) minus 1.5% for earnings-related losses and (ii) 0.5% for other losses. The result was that total damages increased to about 13.8 million. The defendant appealed. Privy Councils findings The claimant was entitled to full compensation. The aim is to award a sum of money which is no more, but also no less, than the net loss. Where the award is a single lump sum, it must be taken into account that money is being paid out now for losses that will not arise until the future. Section 1(1) of the Damages Act 1996 requires the court to take into account the rate of return set by the Lord Chancellor. In 2001, the Lord Chancellor fixed the rate of return for England, Wales and Northern Ireland at 2.5%. Section 2 of the 1996 Act allows damages to the form of periodical payments. However, in Guernsey there is (a) no statutory discount rate and (b) no statutory power to order periodical payments. Berrymans Lace Mawer page 5

The assessment of damages for future losses is determined in Guernsey by the application of common law principles. 1 The correct discount rate in relation to non-earnings related loss was 0.5%. 2 In relation to earnings-related loss: 1 It was acceptable in principle for there to be different discount rates for different heads of loss. If the evidence shows that inflation will affect different heads of loss in different ways and that the differential is capable of being evaluated, the court should not close its mind to using different rates. 2 It was also acceptable in principle to apply a discount rate which was not in fact a discount but an adjustment of the lump sum upwards. There could be no objection to this where the evidence shows that an adjustment which increases the multiplier is needed to ensure that the lump sum will continue to be large enough to meet future losses. 3 The correct rates were: 0.5% for future non-earnings related losses and minus 1.5% for future earnings related losses. These figures had been established by the evidence. The defendants appeal was thus dismissed. Comment Helmot is a Guernsey case, and, as a decision of the Judicial Committee of the Privy Council, is not binding on English courts. (See for example Worcester Works Finance Ltd v Cooden Engineering Co Ltd [1972] 1 QB 210.) In addition, there is no statutory discount rate in Guernsey, and no statutory power to order periodical payments. Nonetheless, it could have significance in England and Wales. Section 1(2) of the Damages Act 1996 allows the court to use a different rate from the one set by the Lord Chancellor if any party to the proceedings shows that it is more appropriate in the case in question. But as Lord Clarke observed in Helmot, the Court of Appeal has been disinclined to depart from the set rate. It is arguable that Helmot could encourage the argument that a rate lower than the statutory 2.5% might be appropriate in a particular case. It is likely that there will be a government consultation on the discount rate later this year. Helmot might also increase political pressure on the Lord Chancellor in relation to the discount rate. The Association of Personal Injury Lawyers (APIL) has argued that the discount rate is too high. APIL applied for permission to apply for judicial review of the rate. That application was refused in August 2011. In the notice of the decision to refuse APILs application for judicial review, Holman J noted that the Lord Chancellor intended to review the discount rate. Holman J stated that if the Lord Chancellor fails to carry out a public consultation, then there might be grounds for a fresh claim for judicial review. However, given the current focus on reducing costs in civil litigation, and the political backdrop of public spending, it is arguable that the government is unlikely to change the discount rate and thus increase the cost of damages. In addition, a decrease in the discount rate and the associated increase in damages would directly impact public spending, for example via claims against bodies such as the Ministry of Defence and NHS trusts. Malcolm Keen Solicitor Short term confusion over success fees Success fee uplifts are generally recoverable from the losing side in any civil claim, as an additional liability in costs, under provisions of the Access to Justice Act 1999. Since 2005 and for the time being at least, recoverable success fees in employers liability disease claims have been fixed in accordance with CPR Part 45 V. The other additional liabilities recoverable by virtue of the Act are After the Event (ATE) insurance premiums and amounts in respect of funding by membership organisations principally trades unions. The present governments policy is to bring an end to the recoverability of all additional liabilities. This is based on Jackson LJs recommendations for reforming and controlling civil costs and is now set out in part 2 of the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill. At the time of writing the Bill had completed its scrutiny by the House of Lords and was scheduled to be passed to the Commons for further consideration on 17 April 2012. During debates in March, the Law Lords made two potentially important amendments which would, if they survive in the final text of the Act, significantly dilute the governments preferred policy of ending the recoverability of these additional liabilities in disease claims. One amendment would preserve recoverability in cases involving industrial respiratory conditions. The other would do so for all disease claims in which an employer had breached a duty. To some extent therefore these amendments overlap and could hence create confusion. page 6 Berrymans Lace Mawer

Not only that, the amendments are silent as to whether other, interlocking reforms within the Jackson package would apply to cases covered by either amendment. The relevant interlocking measures are a ten per cent general damages uplift in respect of success fees and the introduction of qualified one-way cost shifting (QOCS) in respect of ATE insurance and trade union funding. If additional liabilities were to remain recoverable in claims within the scope of the amendments then as a matter of principle those same claims should not be subject to either the damages uplift or to QOCS protection. Given that the Bill is due to return to the Commons shortly, it seems certain that Parliament will have to address the problems above. Although the outcome of these debates is unpredictable, it is likely that the government will seek to reverse matters and that it will probably be successful, if not entirely, then in such a way that any preservation of the recoverability of additional liabilities is limited to a much more narrowly-defined set of disease claims. Support for this conclusion can be found in the Law Lords debates and in developments since. First, ministers spoke very clearly of the intention not to erode the general ending of recoverability. Lord Wallace said that: Abolishing the recoverability of success fees and after the event, or ATE, insurance is key to the governments aim of returning a sense of proportion and fairness to the current regime... Lord McNally added that: Allowing an exception for victims of industrial diseases would introduce an advantage to claimants in those specific categories which would be unfair to those in otherwise similar positions whose claims fell into a slightly different category... Second, even in recognising the dreadful nature of mesothelioma as a disease (and, in passing, it should not be forgotten that Lord McNallys sister died from the condition), ministers were not convinced that claims should be ring-fenced from costs reform. Lord McNally said that: Although we can agree on the tragic nature of [mesothelioma] and its impact, I cannot agree that those cases should be exempted from our reforms. Third, the prospect of quite significant numbers of mesothelioma claimants going uncompensated because they cannot trace an insurer or because of a gap in cover due to the technical triggering of insurance policies has receded with the decision of the Supreme Court on 28 March 2012 in the EL Trigger test litigation. The importance of this is that had the case been decided the other way, then there would have been a stronger argument for saying that mesothelioma claims were riskier at law than other disease cases and as a consequence justified additional liabilities remaining recoverable. Lord Mance cited this possibility of a gap as part of his reasoning for finding that the employers liability insurance policies were triggered on exposure... there is a potential gap in cover as regards employers breaches of duty towards employees in one period which only lead to injury or disease in another later period. For these reasons it seems fairly likely that the Government will seek to use its Commons majority to reverse or at least temper the impact of the two Lords amendments which deal with costs in disease claims. These amendments, however, are merely two of eleven reverses which the Government suffered during the Law Lords debates on the LASPO Bill. No government bill in the last 20 years has been defeated to such an extent. It remains to be seen if the Berrymans Lace Mawer page 7

government chooses to deploy its political capital in reversing these changes or in overturning other nine defeats on potentially more costly matters such as the scope of civil legal aid. Alistair Kinley Partner and head of policy development Mesothelioma quantum and no solace? Ball v Secretary of State for Energy and Climate Change Guidance on awards for general damages for pain, suffering and loss of amenity (PSLA) is found in the Guidelines for the Assessment of General Damages in Personal Injury Cases (Judicial Studies Board the JSB Guidelines). In the last five years, guidance in relation to mesothelioma has changed not just in relation to value (as, given inflation, one would expect) but also in relation to the effect of duration of symptoms. Judges have made awards inside and outside the relevant bracket, and have criticised the JSB Guidelines themselves. In Ball v Secretary of State for Energy and Climate Change [2012] EWHC 145 (QB), the High Court considered the various factors influencing the size of the award. The claimant, aged 92, developed mesothelioma as a result of exposure to asbestos whilst employed by the defendants predecessors between 1967 and 1985. Judgment was entered, and the issue for the High Court was general damages for pain, suffering and loss of amenity (PSLA). The bracket for mesothelioma PSLA awards in the latest (10th) edition of the JSB Guidelines is between 35,000 and 83,750. The accompanying commentary states that the duration of pain and suffering accounts for variations within the bracket. Swift J considered that there are a large number of factors other than duration of symptoms which affect the level of award, including the following: 1 Invasive investigations (extent and effect). 2 Type of mesothelioma. 3 How the tumour has spread. 4 Level of symptoms. 5 Duration of symptoms. The assessment of damages in mesothelioma cases is more complex than the emphasis in the JSB Guidelines on duration of symptoms would suggest. The claimant had been experiencing symptoms for almost exactly one year. He had undergone an invasive procedure to drain fluid from his chest though he had not had radical surgery, chemotherapy or radiotherapy. He was likely to live for about another two months. This was not a case where duration of symptoms was short, or the extent of pain and suffering was (as yet) unusually severe. He had been well aware of the diagnosis and prognosis for more than five months. The claimants case could be regarded as typical of mesothelioma except for his age. The claimants age meant he did not have the distress of knowing that he had been denied many years of life. He did not have to give up work or active hobbies as a result of his illness. However, his condition forced the claimant to leave his home and lose his independence. Despite his age, his disease had a devastating effect on his life. The appropriate award was 50,000: below the lower level of the bracket identified in previous editions of the JSB Guidelines but significantly above the lower level in the latest edition. Comment Ball states that assessment of general damages for PSLA in mesothelioma claims depends on more than just duration of symptoms. Also, in the last five years judges have made awards inside and outside the relevant bracket. Perhaps, as the defendant in Gallagher v Vinters Armstrong [2007] submitted, the brackets could be characterised as guidelines not tramlines. Barbara Milne Partner page 8 Berrymans Lace Mawer

Knowledge and belief: Nuclear Test Veterans in the Supreme Court By a majority of four to three, the Supreme Court has recently dismissed the appeals of all nine claimants in the Nuclear Test Veterans Litigation, Ministry of Defence v AB [2012] UKSC 9. The claimants possessed relevant knowledge under the Limitation Act 1980 more than three years before they issued proceedings. The Court of Appeal was correct to decline to exercise its discretion under section 33 to disapply the limitation period. Background Ten lead claimants (chosen from 1,011 most of whom were former UK servicemen) alleged that they developed a variety of illnesses (including cancers of the prostate, oesophagus, lung and colon, and certain skin conditions) as a result of exposure to ionising radiation during atmospheric tests of thermonuclear devices in the Pacific in the 1950s. At first instance, the judge held that all 10 claims could proceed (five were in time ie, were issued within three years of the claimants date of knowledge; five were late but the judge exercised his discretion under section 33 of the Limitation Act 1980 to disapply the limitation period and let them proceed). The Court of Appeal dismissed nine out of the 10 claims (the one claim not dismissed was brought in time). The claimants appealed to the Supreme Court. The law Section 11 of the Limitation Act 1980 provides that for personal injury claims brought in negligence, nuisance or breach of duty the claimant must issue proceedings three years from either the date on which the cause of action accrued or the date of knowledge (if later). Under section 14(1) the date of knowledge is the date on which the claimant first became aware that the injury in question was significant, that it was attributable to the act or omission complained of (knowledge of attributability), and the identity of the defendant. Under section 14(3) a claimants knowledge includes not only actual knowledge but also constructive knowledge. A late claim, barred by section 11, might still proceed if the claimant can persuade the court to exercise its discretion under section 33. Supreme Courts findings The majority (Lords Wilson, Walker, Brown and Mance JJSC) dismissed the claimants appeals. The Court of Appeal (CA) was correct to conclude that the nine claimants had the requisite knowledge more than three years before they issued proceedings. More than three years before the claims were issued, each claimant reasonably believed that his injury was able to be attributed to the nuclear tests conducted by the defendant in the 1950s. The claimants held these beliefs with sufficient confidence to have made it reasonable for them to begin to investigate whether they possessed valid claims against the defendant. The CA was also correct to decline to exercise its discretion to disapply the limitation period under section 33. The court had a mass of material which enabled it to assess the claimants prospects of establishing causation. The claimants acknowledged that their claims had no real prospect of success. Implications As Lord Walker stated, the opinions of the Supreme Court Justices were divided and so their judgments might not be an ideal source of guidance to lower courts However, some principles can arguably be derived: 1 As noted above, to be fixed with knowledge, the claimant must possess knowledge of attributability. The majority considered that a claimant who has issued his claim form must possess relevant knowledge. As Lord Brown put it: once a claimant issues his claim, it is no longer open to him to say that he still lacks the knowledge necessary to set time running. 2 When does the claimant possess knowledge of attributability? Lord Wilson considered that a claimant is likely to have acquired knowledge of the facts specified in section 14 when he first came reasonably to believe them. Lord Wilson did not accept that a claimant lacks knowledge until he possesses evidence with which to substantiate his belief in court. How strongly must this belief be held before it amounts to knowledge? Lord Wilson considered that it must held with sufficient confidence to justify embarking on the preliminaries to the issue of the claim. Lord Walker found that attributable has been interpreted as meaning the real possibility of a causal link. Lord Mance, approving Lord Wilsons analysis, considered that attributable means capable of being attributed as a possible cause of the damage, as opposed to a probable one. Lord Mance considered that courts are focusing not so much on whether or how far the belief is evidence-based, but more on whether it is held with a sufficient degree of confidence to justify embarking on the preliminaries to making a claim including collecting evidence. Thus MoD v AB suggests that it is knowledge of possibilities which is determinative, not evidence-based certainty. Berrymans Lace Mawer page 9

3 In relation to section 33, the strength of the claim is relevant. As Lord Wilson said: it would have been absurd for the Court of Appeal to have exercised the discretion to disapply section 11 so as to allow the [claimants] to proceed in circumstances in which the next stage of the litigation would be likely to have been their failure to resist entry against them of summary judgment Lord Mance said: If proceedings have no basis in fact, they should not be allowed to persist. In addition, there is no mention in the judgment of KR v Bryn Alyn [2003] QB 1441. Smith LJ in the CA in MoD v AB considered that the CAs view in Bryn Alyn that the burden on the claimant of proving that it would be equitable to disapply the limitation period under section 33 is heavy is no longer good law. The Supreme Court has thus left the question open. Bryn Alyn should continue to be cited to indicate that the burden of showing that it would be equitable to disapply the limitation period lies on the claimant Charlotte Owen Associate Damages for dismissal The relationship between common law and employment law claims: Johnson exclusion area The Supreme Court has recently confirmed the relationship between the overlapping jurisdictions of the County Court and the Employment Tribunal (ET) in stress at work claims. Edwards v Chesterfield; Botham v Ministry of Defence [2011] UKSC 58. It was established in Dunnachie v Kingston upon Hull (2004) that an employee pursuing a claim for unfair dismissal in the ET cannot be awarded general damages for personal injury. In Johnson v Unisys Ltd [2001] ICR 480), the House of Lords held that neither could the claimant recover damages in a common law claim in relation to his dismissal. The principle behind this being that where Parliament has legislated on a particular cause of action, the common law cannot be used to vary the parameters of that liability. The facts in Johnson relate to an unfair dismissal claim and it was held that Parliament had provided for compensation where a person had been dismissed under the Employment Rights Act 1996. Johnson was revisited by the House of Lords in the cases of Eastwood v Magnox and McCabe v Cornwall County Council, both [2004] UKHL 35, where it was held that the appropriate remedy for unfair dismissal was that provided by statute. However, if the claimant had a cause of action prior to his dismissal (such as for breach of contract or negligence) that cause of action would survive the later unfair dismissal and exist as a separate cause of action. The claimant would be able to bring proceedings in the ET in relation to his unfair dismissal claim but he would not be able to recover more than once for the same loss. Consequently, if a claim for workplace stress arises from the manner in which the claimant was dismissed then this claim must be brought in the ET. In cases of constructive unfair dismissal, the situation becomes less clear cut. A claimant has to prove that the employer fundamentally breached the contract of employment and the employee was entitled to (and did) resign in response to it. In stress claims, the conduct which is alleged to page 10 Berrymans Lace Mawer

constitute the fundamental breach may become confused with the conduct that is alleged to have caused the psychiatric injury. This was considered in Jones v Caerphilly County Borough Council (unreported, Cardiff County Court, 7 April 2006), HHJ Hickinbottom considered Johnson and Eastwood and noted that: Compensation for the fact and manner of dismissal is determined exclusively under the statutory scheme of the Employment Rights Act 1996. He also observed that: In respect of the dismissal itself, a claim may be brought in an employment tribunal under the statutory scheme but cannot be brought in the courts; whereas a claim may be brought in the courts (but not in an employment tribunal) in respect of other breaches of duty by the employer during the claimants employment which caused her injury. The jurisdictions to this extent are mutually exclusive [ ] In addition HHJ Hickinbottom stated that where an employment tribunal makes findings necessary to its decision, these findings are binding on other tribunals and other courts. The other tribunals and courts will be prevented from reopening these issues by issue estoppel. Consequently, where a claimants psychiatric injury is caused by the employers conduct which gave rise to the constructive dismissal, the ET is the only relevant jurisdiction and there can be no award for injury. In Troquet v Nicolas UK (unreported, Kingston-upon-Thames County Court, 27 September 2006), the claimant successfully claimed for constructive unfair dismissal in the ET and, since the tribunal is unable to award damages for non-financial losses in such cases, she made a common law claim for psychiatric injury. The court held that the claimant would only be able to make a common law claim if she had a separate cause of action prior to the conduct which resulted in her constructive dismissal. The claimants psychiatric injury was a result of her dismissal and had not accrued prior to this conduct. Therefore, the court had no jurisdiction and the claim was struck out. In Edwards v Chesterfield; Botham v Ministry of Defence [2011] both claimants were dismissed for gross misconduct. Each claimants contract of employment contained an express term relating to the disciplinary procedure to be followed. Both claimants sought damages for breach of contract, arguing that failures to follow the correct disciplinary procedures, in breach of express terms in their contracts, had resulted in their dismissals. The House of Lords decision in Johnson v Unisys Ltd [2001] UKHL 13 (in which the claimant alleged that he suffered a mental breakdown as a result of the manner of his dismissal), established that loss arising from the unfair manner of dismissal is not recoverable as damages for breach of the implied term of trust and confidence in the employment contract. The issues for the Supreme Court were whether the same restriction applies to damages for loss arising from the unfair manner of dismissal in breach of an express term of an employment contract, and whether the claims fell within the Johnson exclusion area. Supreme Courts findings Parliament has provided a statutory code regarding unfair dismissal. This regime places significant limitations on the ability of an employee to complain of unfair dismissal, and on the remedies available. The unfair dismissal legislation precludes a claim for damages for breach of contract in relation to the manner of a dismissal. This applies whether or not the claim is formulated as a claim for breach of an implied term or breach of an express term regulating disciplinary procedures. Parliament has made policy choices as to the circumstances in which an employee may be compensated for unfair dismissal. The Supreme Court held that the reasoning in Johnson also creates a bar to a claim for breach of an express term of an employment contract as to the manner of a dismissal. Notwithstanding this, the Supreme Court noted that if an employer starts a disciplinary process in breach of the express terms of the contract of employment, it is open to the employee to seek an injunction to stop the process. Both claims fell within the Johnson exclusion area in that they arose from the dismissal process. The Supreme Court rejected both claims (and allowed the defendants appeals). As stress at work claims remain difficult for claimants to pursue, they seek alternative causes of action to recover damages. These recent cases are helpful in reminding claimants that injury which results from dismissal, in whatever form that takes, cannot give rise to an award for injury. Vanessa Latham Partner Berrymans Lace Mawer page 11

Löfstedt review and short-tail disease claims Implications for business and claims The government has stated that its better regulation strategy is to: 1 remove or simplify existing regulations that unnecessarily impede growth 2 reduce the overall volume of new regulation by introducing regulation only as a last resort 3 improve the quality of any remaining new regulation, and 4 move to less onerous and less bureaucratic enforcement regimes where inspections are targeted and risk-based (See www.berr.gov.uk/bre/) In June 2010, the government asked Lord Young to review the operation of the UKs health and safety laws and the growth of the compensation culture (see www.dwp.gov.uk/ policy/health-and-safety/#common). In his report, Lord Young noted that the aim of his recommendations was to free businesses from unnecessary bureaucratic burdens and the fear of having to pay out unjustified damages claims and legal fees (Common Sense, Common Safety). Chris Grayling MP, Minister for Employment, took over responsibility for implementing the changes, and in March 2011 the government announced a package of changes to Britains health and safety system in Good Health and Safety, Good for Everyone, March 2011. One of the three key aspects of the changes was to seek to simplify health and safety regulation and legislation, and in doing to ease the burden on business. As part of this, the government established an independent review of health and safety regulation. Professor Ragnar Löfstedt, Director of the Kings Centre for Risk Management, Kings College London, chaired an independent review of health and safety legislation, The Löfstedt review: An independent review of health and safety legislation call for evidence, May 2011. Löfstedt report Professor Löfstedts report (Reclaiming health and safety for all: An independent review of health and safety legislation) and the governments response to it (The Government Response to the Löfstedt Report) were published in November 2011. The report examined about 200 regulations and 53 Codes of Practice and concluded that in general the problem lies less with the regulations themselves and more with the way they are interpreted and applied. Recommendations in the governments response particularly relevant to short-tail disease claims included: 1 that the HSE review all its Approved Codes of Practice (ACoP). The initial phase of the review should be completed by June 2012. 2 regulations imposing strict liability should be reviewed by June 2013. The government accepted the recommendation that regulations imposing strict liability should be qualified by reasonably practicable where strict liability is not absolutely necessary. In regulations where strict liability in relation to criminal prosecution is required, the government will look at ways to redress the balance, in particular preventing civil liability from attaching to a breach of such provisions. Approved Codes of Practice ACoP are intended to assist employers in understanding and meet their health and safety obligations. However, the government in its response considered that in trying to be comprehensive ACoP have often been written in a complex and legalistic manner which confuses rather than helps dutyholders. The government considered that it is vital that ACoP are reviewed to ensure they are the best way of fulfilling the purpose originally intended, making it easier for employers to understand and meet their legal obligations. The Control of Substances Hazardous to Health ACoP (L5, HSE, 09/09) (relevant to short-tail claims such as occupational asthma and dermatitis), for example, runs to 137 pages and states that it concentrates on giving practical guidance and methods of complying with goalsetting regulations, on what is considered reasonably practicable and on advised, but not mandatory, methods of meeting legal obligations. page 12 Berrymans Lace Mawer

Strict liability and reasonably practicable Professor Löfstedt stated in his report that the concept of reasonable practicability is widely supported and assumed to underpin health and safety regulation He also noted a number of instances where regulations impose strict liability unqualified by reasonable practicability and, cases where strict liabilities in health and safety regulations have resulted in individuals being paid compensation even though the employer did everything that was reasonably practicable and foreseeable. He identified three cases in this context: Stark, Dugmore and Allison. In Dugmore v Swansea NHS Trust and another [2002] EWCA Civ 1689 the Court of Appeal held that the duty under Regulation 7 of COSHH imposes strict liability to ensure that exposure to hazardous substances is prevented or, where this is not reasonably practicable, adequately controlled. This appears to suggest that an employers duty is not limited by the reasonable foreseeability of a risk, nor by the outcome of a risk assessment. It suggests that an employers duty is absolute or nofault if injury caused by exposure to a hazardous substance occurs, an employer will be liable even if a risk assessment could not, through lack of scientific knowledge at the time, have identified any health risk. However, Dugmore was reassessed in Allison v London Underground Ltd [2008] EWCA Civ 71 The Court of Appeal in Allison was that the court in Dugmore did not hold that exposure was not adequately controlled merely because the claimant developed an allergy. Rather, control was not adequate because the employer could have discovered the risks of exposure (to latex) and provided vinyl gloves before the claimant developed the allergy. Regulation 7 of COSHH thus imposed strict liability. This duty required action on the employers part to discover the risks and take appropriate action. But it was less burdensome than absolute or nofault liability. Allison suggests that liability does not attach merely because illness or injury occurs. It is likely that the addition of reasonably practicable to statutory duties which might appear strict will assist in confirming that foreseeability of harm is required before liability can attach. Claire Lawlor Associate Stress and harassment: e-disclosure MacLennan and King recent High Court judgements Two recent stress and harassment cases illustrate the current approach to these claims and, in particular, the importance of foreseeability at common law, and the seriousness of conduct needed to breach the Protection from Harassment Act 1997 (PHA). Whilst there is a good deal of overlap between what is required for a claimant to succeed in a claim brought in negligence and one brought under the Act, there are also striking differences. The two causes of action diverge in relation to: 1 foreseebility required at common law, not under the PHA, and 2 the award of damages for anxiety without psychiatric injury under the PHA. At common law there must be an injury. The limitation period under the PHA is six years compared to three years for a claim in negligence. In addition, some insurance policies under the Employers Liability (Compulsory Insurance) Act 1969 may not provide an indemnity in a case where there is no recognised psychiatric illness. Interestingly both claimants had senior positions in HR but the similarities do not stop there. E- disclosure played an important role in both cases along with the fact that both claimants remained employed long after they went off sick. MacLennan last worked in January 2006 and King in August 2006 and King was still an employee at trial. In the main this was a result of the impact of PHI (Permanent Health Insurance). Berrymans Lace Mawer page 13

In MacLennan v Hartford Europe Ltd [2012] EWHC 346 (QB), the claimant, a human resources manager at the defendant company, was diagnosed with chronic fatigue syndrome (CFS) in early 2006. She alleged that her work caused her stress resulting in her immune system being undermined so that she suffered from persistent infections from January 2005, culminating in chickenpox in autumn 2005. She argued that her chickenpox triggered her CFS. The claimant alleged that during her employment the indications of impending harm to her health arising from stress at work were sufficiently plain that the defendant realised, or ought to have realised, that it should have taken steps to prevent that harm occurring. The issues were medical causation and foreseeability. Findings MacLennan 1 The claimants CFS was not caused by stress at work. The evidence showed that the claimant was not ill throughout 2005. There is no proven causal link between stress or a deficient immune response and CFS. The judge was not satisfied that stress at work caused any diminution in the claimants immune system or that her CFS resulted from a reduced immune response. 2 The judge considered that to succeed, a claimant must show that the employer knew, or ought to have known that, as a result of stress at work, there was a risk he or she would suffer harm of the kind in fact suffered. The foreseeability threshold is high. An employer is entitled to assume that an employee can withstand the normal pressures of the job, and an employers duty to consider taking steps to protect the health of the employee only arises if the circumstances of the particular job or particular employee warrant it. Nothing in the claimants job gave rise to such a duty. There was no evidence that anyone else became ill as a result of this work. The defendant did not have actual knowledge of any predisposing characteristics of the claimant. The defendant did not realise that any of the claimants illnesses were related to her work. The evidence did not show that the defendant ought reasonably to have foreseen that as a result of her work she was at risk of suffering from CFS, or any other physical or psychiatric illness. The claim was thus dismissed. E-disclosure The nearly 100 lever arch files of evidence included 20,000 pages of e-mails. It was the personal emails that the claimant sent to her friend which persuaded the judge that the claimants account of her illness was inconsistent. The judge considered that the claimant was attempting to recast her claim and was not a reliable witness. In King v Medical Services International Ltd, unreported, 2012 EWHC 970 (QB), the claimant, employed as executive manager at the hospital operated by the defendant, alleged that she developed psychiatric injuries as a result of harassment and bullying by the hospitals acting chief executive officer (CEO). The claimant sought damages for: 1 harassment in breach of the Protection from Harassment Act 1997 2 breach of the Management of Health and Safety at Work Regulations 1999, and 3 common law negligence. The claimant relied on 45 incidents alleged to have occurred between April 2003 and August 2006. The judge dealt with the more relevant incidents 32 of them. The accusations against the CEO included over-familiarity, inappropriate physical contact, aggressive language, personal and professional humiliation and intimidating behaviour. Findings King The judge considered that the claimant came to believe that the CEO had set out to destroy her career: as a result she could not see what happened in an objective, balanced way. 1 The judge identified two incidents as undermining, one as approaching harassment and another as bullying or tantamount to bullying. These four incidents were not sufficient to justify a finding of breach of the Protection from Harassment Act 1997. The judge bore in mind that the claimant was the executive manager. He stated that executives are expected to withstand the demands and criticisms of their CEOs. 2 The guidance in Hatton v Sutherland [2002] 2 All ER 1 makes it clear that it is injury to health resulting from stress and not mere stress that has to be foreseeable. An employer is entitled to assume an employee can withstand the normal pressures of the job unless he knows some particular problem or vulnerability. There was no evidence that anyone foresaw injury to the claimants health. There was no record of the claimant having mentioned problems at work causing her stress to any of the doctors she saw over the three years before August 2006. No one at work was aware of any risk to her health. The absence of reasonable grounds for foreseeing injury to health was fatal to the common law claim. 3 There was no evidence of a page 14 Berrymans Lace Mawer

breach of the Management of Health and Safety at Work Regulations 1999. The claim also failed on causation. The operating cause or causes of the claimants psychiatric injury (which the psychiatric experts agreed was a depressive disorder, the course of which had been from mild to severe) were not the CEOs conduct but a condition which had developed due to other causes, and which had reached breaking point by August 2006. E-disclosure This had a significant impact on the judges findings. The claimant described her harasser at trial as a tyrant a megalomaniac but a personal e-mail to a friend at the time described him as her flirty friend. The e-mails generally between the claimant and her alleged harasser just reflected a straightforward professional relationship. The judge found that the claimant was suffering from significant marital difficulties in 2005/2006. The claimant had denied this and described these difficulties at trial as just a blip. A personal e-mail to a friend made it absolutely clear the extent of these difficulties. Overview It is possible to defend these types of claims but they will involve a great deal of time and effort particularly in respect of documentary evidence in the form of e-disclosure. As both claimants had senior positions in the defendants organisations they created a significant amount of documents and entered into e-mail exchange, both of which were highly relevant to all the issues in their claims. As usual, these are the type of documents that are destroyed once an employee leaves it was fortunate that the claimants remained employed for so long. The other message from King is that it is possible to defend an harassment claim without calling the evidence of the harasser. Notwithstanding, it is probably preferable to have them give evidence if indeed it looks like they might be helpful. Michelle Penn Partner Michelle acted for the defendant in King. Berrymans Lace Mawer page 15

Common sense in statutory duty The Supreme Courts decision in Baker v Quantum Clothing Group and others [2011] UKSC 17 has settled the approach to NIHL claims arising from exposure to noise not exceeding 90 db(a) L EP,d before 1 January 1990. The ordinary employer, not possessing special knowledge, will not be in breach of duty, either at common law or under the Factories Act 1961, in relation to noise exposure below 90 db(a) L EP,d before 1 January 1990 (db(a). (L EP,d is a measure of a persons daily noise exposure the average dose of exposure over an eight hour day.) But the decisions effect is broader than this. This article examines Bakers potential impact on the interpretation of a statutory duty which figures prominently in mesothelioma claims: section 63 of the Factories Act 1961. Baker and statutory interpretation In Baker, the statutory duty under consideration was section 29(1) of the Factories Act 1961. This required employers to keep the workplace safe. Liability had two elements: (i) the claimant must show that the workplace was not safe. If he does, (ii) the burden shifts to the defendant to show that it was not reasonably practicable to make and keep the workplace safe. The Supreme Court in Baker analysed the meaning of safe, and held that there is no such thing as an unchanging concept of safety. Whether a place is safe involves a judgment objectively assessed by reference to the knowledge and standards of the time. Since safety is a relative concept, then foreseeability must play a part in determining whether a workplace is or was safe. This approach to safe is relevant to the interpretation of two words/phrases in section 63: likely to be injurious and substantial. The meaning of these words/phrases is key to the effect of the section. Section 63 Section 63(1) of the Factories Act 1961 states: In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume... [emphasis added]. These provisions were formerly contained in section 47 of the Factories Act 1937; cases considering both sections are relevant to interpreting the duty. The duty under section 63(1) has been characterised as setting out two distinct conditions, either of which gives rise to a duty on the employer to take all practicable measures to protect employees: Jones v Metal Box Ltd, unreported, Cardiff County Court, 11 January 2007. 1 there is given off dust or fume or other impurity of such a character and to such an extent as to be likely to be injurious or offensive to the persons employed, and 2 there is given off any substantial quantity of dust of any kind. Likely to be injurious This concept has been interpreted as incorporating foreseeability. In Carmichael v Cockburn & Co, 1955 SC 487, the Court of Session was page 16 Berrymans Lace Mawer

clear that likely to be injurious should be read according to the estimation of a reasonably wellinformed factory occupier, or which the actual occupier knew, or ought to have known, to be likely to be injurious. In Cartwright v GKN Sankey Ltd [1973] 14 KIR 349, Edmund Davies LJ noted that the claimant accepted that section 63(1) must be read as referring to fumes likely to be injurious according to the estimation of a reasonably well-informed factory occupier or which the actual occupier knew, or ought to have known, to be likely to be injurious to health, and that this matter must be considered in the light of knowledge current [at the time between 1965 and 1968 here]. In Abraham v Ireson [2009] EWHC 1958, Swift J was clear that the phrase required a degree of foreseeability. In Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734, Simon J found that: the words likely to be injurious' plainly involve a degree of foresight. Substantial It has been argued that this limb of the section (assuming that the section is so divided) does not incorporate foreseeability. Quantity can only be regarded as substantial when its quantity is what makes it harmful because there are no preceding qualifying words. Thus foreseeability of a risk of injury need not be shown. However, it is arguable that, applying the common sense approach to statutory interpretation in Baker, this interpretation is not correct: how can an employer take precautions against risks it could not have known about at the time of the alleged breach? In Anderson v RWE Npower Plc, Unreported, Chester County Court, 22 March 2010, Irwin J considered that: The phrase substantial dust itself may add little [to the duty required in relation to dust that is likely to be injurious], since in context it almost certainly meant so substantial as to be likely to be injurious. In Carmichael v Cockburn Lord Thomson said: Section 47(1) appears to deal with two separate matters. Measures of protection are to be taken (1) when there is an injurious element present and (2) where what is present is a substantial quantity of dust of any kind. The contrast appears to be between something which has an injurious quality and something where mere quantity has the injurious effect. Lord Thomsons view suggests that in relation to the second limb, a quantity can only be regarded as substantial when its quantity is what makes it harmful in other words, it is large enough to have a known injurious effect. A quantity of asbestos dust could therefore only be regarded as substantial if it was of an amount known at the time to have an injurious effect. Knowledge of its effect (and so whether it was substantial) would be determined by available guidance documents. In Boyle v Laidlaw & Fairgrieve Ltd [1989] SLT 139, Lord Morison considered that the level found in the HSE guidance note Occupational Exposure Limits in 1985 (10 mg/m -3 8-hour time weighted average total dust) determined the issue: exposure in excess of this was substantial. It is therefore arguable that some standard is necessary for the determination of what is substantial. Conclusion It is arguable that both limbs of section 63 (assuming it is even correct to so divide the section) can incorporate foreseeability. In relation to both likely to be injurious and substantial, the level found in guidance documents at the time of the alleged breach would appear the most appropriate standard. Malcolm Keen Solicitor Berrymans Lace Mawer page 17

News Events occupational disease team The BLM occupational disease team has a number of events planned for 2012. For updates or further details of any of the events listed, visit the events section at blm-law.com Details of these events may change at any time. Occupational disease conferences BLMs industry-leading occupational disease conferences are to be held on 26 April (London) and 19 September (Manchester). These events will include key information on a range of topical issues for those handling disease claims. Following the positive feedback from the 2011 event, the 2012 programme will once again include interactive workshops on NIHL, HAVS and stress. Short-tail disease seminars 31 May (London) and 14 June (Manchester) Other dates for your diary in 2012 Claims review Planning is already underway for BLMs ever-popular Claims review events. These will be held on 8 November in London and 14 November in Manchester. Details will be released closer to the time on the events section at blm-law.com Corporate risk Today, perhaps more than ever, the risks faced by individuals and businesses have come to the fore with the recent strengthening of health and safety and corporate manslaughter laws. Are you completely up to date with how these and other laws can affect you and your business? BLM specialists are active in providing key corporate risk updates and information for handling a response to an incident, managing reputation and liabilities. BLM is involved in the following corporate risk events: AIRMIC 11 to 13 June (Liverpool) 26 September (Manchester) 3 October (London) Other publications Did you know that BLM also produces Disease review, a regular e-bulletin? Each edition keeps contacts up to date on topical issues which directly affect them and their businesses. To subscribe please email janet.willmott@blm-law.com Birmingham 63 Temple Row Birmingham B2 5LS T 0121 643 8777 F 0121 643 4909 Bristol St Thomas Court Thomas Lane Bristol BS1 6JG T 0117 933 7700 F 0117 933 7777 Cardiff 23 Neptune Court Vanguard Way Cardiff CF24 5PJ T 02920 447667 F 02920 489041 Leeds Park Row House 19 20 Park Row Leeds LS1 5JF T 0113 236 2002 F 0113 244 2002 Liverpool Castle Chambers 43 Castle Street Liverpool L2 9SU T 0151 236 2002 F 0151 236 2585 London Salisbury House London Wall, London EC2M 5QN T 020 7638 2811 F 020 7920 0361 Manchester Kings House 42 King Street West Manchester M32NU T 0161 236 2002 F 0161 832 7956 Southampton 2 Charlotte Place Southampton SO14 0TB T 023 8023 6464 F 023 8023 6117 Disease matters is published by the marketing department of Berrymans Lace Mawer LLP (Castle Chambers, 43 Castle Street, Liverpool L2 9SU) on behalf of Berrymans Lace Mawer. Visit blm-law.com for electronic copies. This information is correct at the time of printing. Printed in England by The Pureprint Group. 0412_795 Berrymans Lace Mawer