Updates: Asbestos Claims and litigation In
The UK
3 December 2008
For the purpose of this briefing note it is convenient to consider the various diseases which asbestos exposure can produce as the position concerning each has different considerations and, in some cases, the ability of a Claimant to recover damages is currently under consideration both by Parliament and the UK Courts.
1 Pleural Plaques
This is invariably an asymptomatic condition for which compensation was payable until a series of Test Cases (Johnson –v- NEI Combustion Ltd) eventually ruled that, for a number of reasons, the condition did not meet the relevant threshold for attracting an award of damages. The final decision (by The House of Lords 0n 17 October 2007) was regarded by some as a surprising result. Since then two developments have occurred; one in England and one in Scotland. In England the Government set up a consultation process inviting interested parties to opine on whether legislation should be introduced to overturn the House of Lords. A report on the consultation process is due to be published within weeks, the consultation process having ended on 1 October 2008.If Legislation is not to be enacted there remains the possibility that Insurers will be encouraged to develop a voluntary compensation scheme albeit with damages expected to be at a very low level of about £5k per claim. In Scotland a Bill to overturn the decision of the House of Lords has already been submitted although press reports indicate that some Liability Insurers are to challenge through the Courts the issue of whether the Scottish Parliament has power to enact the Bill. Therefore, in both jurisdictions, it cannot be said with certainty that Pleural Plaques claims will not be seen in some form in the future.
2 Pleural Thickening
This is a different condition from Pleural Plaques and in most cases a Claimant experiences a restrictive breathing disability. However, a number of cases are asymptomatic and such claims are mostly ‘stayed’ pending the result of some Test Cases due to be heard in Newcastle County Court from 12 January 2009. The losing party is expected to appeal and it is possible the issue will be taken to The House of Lords.
3 Asbestosis
This condition affects the inner cells of the lung and, like Pleural Thickening, frequently causes a respiratory disability although this is obstructive rather than restrictive. However, again like Pleural Thickening, we see cases which are asymptomatic and the issue of whether compensation should be paid in such cases will also be considered by Newcastle County Court from 12 January 2009.
4 Lung Cancer
A recent Court decision is worth noting. In Shortel V Bical (2008) MacKay J held that the Claimants damages should be reduced by 15% consequent upon his failure to cease smoking cigarettes. In a previous decision (Badger V MOD) the reduction was 20%. Claims of this type are invariably expensive and more cases are expected to go for trial in the future both on the contributory negligence point and on issues of causation and diagnosis.
5 Mesothelioma
Claims of this type are the most expensive to settle. The number of new claims is expected to double within the next 10 years. Unlike the other conditions noted above, this disease is known as an ‘indivisible’ condition. This means that the ‘damage’ cannot be conveniently divided between different Tortfeasors in order to apportion ‘blame’. Two recent House of Lords decisions have looked at claims of this type in detail and following one case (Barker) The Compensation Bill, then going through Parliament, was amended at a late stage to over rule the Lord’s decision. The effect of Section 3 of the Compensation Act 2006 is that any one defendant (usually an employer) is liable for the whole of a Claimants damages even if he was exposed to asbestos with other employers who cannot, for whatever reason, be sued.
The consequences of this Act and the result of one first instance decision (Phillips V Syndicate 992) are that where an Insurer is unable to deal with it’s ‘share’ of a claim the totality of damages will be awarded against the solvent Insurer(s).
6 Other issues
(a) The cases of Rice & Thompson V NDLB are noteworthy. The Court of Appeal held that the NDLB owed a duty of care to Stevedores working under the auspices of the old NDLB scheme albeit as casual labourers. The NDLB’s Insurers (The Zurich) are now challenging the effect of that decision and the ‘Second Tranche’ (as it is known) of the Rice & Thompson litigation is currently before the High Court sitting in Manchester. The decision is likely to be appealed by the losing party. If the ultimate decision goes against the NDLB there will be contribution claims brought against Ship owners and the NDLB’s Insurers have already given notice of their intention to pursue such claims.
(b) The decision of Senior Master Whitaker (the High Court Master in charge of the Special Procedure List for Mesothelioma claims in London) in the case of Purdue V Port Line Limited also deserves mention in view of the findings of the Court.
The Claimant was a sea going engineer with Port Line between 1955 and 1958. He was undoubtedly exposed to asbestos. In particular he was exposed whilst supervising a refit, spending 3.5 months on board whilst the vessel was in dry dock.
Master Whitaker held that because Port Line employed shipwrights and joiners, as members of their shore gang based in London, the Factories Act 1937 applied to such workers and, therefore, the defendant company should have had an ongoing rapport with the Factory Inspectorate and, in consequence, should have sought advice from the latter when it knew that sea going engineers such as the Claimant were going to be working on board ships supervising, or at least overseeing, the work of workers from the dry dock.
3 December 2008
