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1 July 2013 STOP PRESS STOP PRESS STOP PRESS STOP PRESS STOP PRESS Important information for disease claims. Click here to view changes which will apply from 31 July Note to self H&S matters Brumder v Motornet and Aviva [2013] EWCA Civ March 2013 The claimant severed a finger owing to a faulty hydraulic ramp in Motornet s workshop. The trial judge found that because he was the sole director and shareholder in Motornet and had failed to give any consideration to health and safety matters, he was 100% contributorily negligent. (on appeal) It was the claimant s acts and omissions that constituted Motornet s breach of PUWER Having abrogated his responsibilities for health and safety he was also in breach of his duty as a director under the Companies Act He was therefore a wrongdoer and could not derive advantage from his own wrongdoing. This case provides encouragement for defendants who may seek to argue that a claimant should be precluded from recovering damages from his company (or its insurers) if the company s breaches were co-terminus with his own breaches of duty for instance to provide hearing protection or protection against the inhalation of hazardous dust. It also serves as a reminder to be alert to the prospect of a Holtby-type discount if a claimant s disease has been contributed to by exposure during a period of self-employment. However, as Beatson LJ made clear, Brumder is not authority for any general principle that where a director s company is prima facie liable for the director s injury, the company will be able to shelter behind a specific defence (the Ginty/Boyle defence) and the director s claim will fail. In Brumder there were two crucial features: the director s egregious conduct an apparent cavalier disregard for health and safety and the duty for which the company was found liable was considered absolute. The same result might not have ensued if (for instance) the director had: taken his duty of care to his employees seriously but had not kept up with material relating to developing knowledge? kept up with developing knowledge and had protected his employees but neglected only his own safety? 1

2 Asbestos exposure: getting the levels right Hill and Billingham v John Barnsley & Sons Limited and Others [2013] EWHC 520 (QB) 13 March 2013 It was claimed on behalf of the deceased (who had developed mesothelioma) that his job entailed testing the strength of steel girders by throwing chains over them and adding weights, an activity which frequently showered him with dust. Liability was disputed on the basis that if the activity resulted in the disturbance of asbestos dust, the asbestos levels were unlikely to have breached the concentration specified in TDN13, issued a year after the deceased s period of employment. The deceased had worked in an area where asbestos dust had been allowed to settle in substantial quantities. Although it was impossible to be precise about the fibre levels, the crucial issue was whether reasonable precautions had been taken given the date of knowledge when the alleged exposure took place (in the late 1960s). The 1966 HM Chief Inspector of Factories Report indicated that stringent measures had to be taken owing to the serious risk to health associated with the inhalation of asbestos fibres. Williams v University of Birmingham was no authority that average exposure below levels set out in TDN were safe it was rather that if an employer in the 1970s had no reason to think the TDN13 levels would be exceeded, then injury was not reasonably foreseeable. Judgment for the claimant. This is a warning for defendants to be wary of over-reliance on TDN13 and other guidance relating to fibre levels particularly where (as in this case) the average exposure might have been low but individual instances of exposure might have given rise to high concentrations, albeit over very short periods of time. Note also that TDN 13 was arguably not the appropriate guidance document as TDN 13 was not published until March 1970 and the deceased in Hill was exposed to asbestos for about a three month period in 1968/69 to 1969/70. The appropriate guidance in the late 1960s would be Dust and fumes in factory atmospheres (published in 1965, 1966 and 1968). The exposure limits in these documents approximate to the range 5-30 fibre/ml. The judge s acceptance that "Williams was correctly decided and is binding on me," is likely to be helpful to defendants in cases where the level of exposure is low unlike the situation in Hill. When is a Part 36 offer not a Part 36 offer? Wilson v Ministry of Defence Winchester County Court 23 April 2013 and Sutton Jigsaw Transport Limited v Croydon LBC [2013] EWHC 874 (QB) 27 February 2013 In Wilson. the claimant sought damages for mesothelioma having been exposed to asbestos from her husband s work clothes. She made a Part 36 offer which the defendant rejected on the basis that the claim was statute barred. At a preliminary limitation trial judgment was given for the claimant whereupon the defendant attempted to accept the claimant s offer. The provisions of CPR 36.9(3)(d) meant that the defendant could not accept the offer without the court s permission. The trial had commenced. Trial was to be construed as the start of the trial. The interpretation contended for by the defendant could not be sustained as it could not be right to allow a defendant to bank early Part 36 offer by a claimant pending the result of a trial on a preliminary issue and then, depending on the result, either accept the offer or continue to reject it. In Sutton, the defendant made a Part 36 offer shortly before trial. It was not formally withdrawn. On the first day of the trial negotiations took place which resulted in the claimant 2

3 wishing to accept the defendant s offer. Oral acceptance having been refused, the claimant handed over a handwritten note at 1:58 pm purporting to accept the offer. This was followed by a fax two minutes later whereby the defendant formally withdrew its offer. Had there been a valid acceptance? There had been no valid acceptance. CPR Part 36 provided clear rules with specific consequences, constituting a code to ensure that parties were on a level playing field. Acceptance could only be effected by serving written notice on the offeror and personal service (as here) was only permissible where no address for service had been provided. To accede to the claimant s argument would give it an unfair advantage over the defendant, which had complied with the Rules (by formally and validly withdrawing the offer by the prescribed method). These two cases reinforce the care which must be adopted in considering the effect of Part 36 offers. Not only are the questions of offer and acceptance governed by Part 36 (as opposed to normal contractual principles) but also the technical requirements must be rigorously compiled with. Committee on Carcinogenicity report April 2013 The Committee was invited by the Department of Education to consider the relative vulnerability of children to asbestos compared to adults in May It concluded that owing to differences in life expectancy for a given dose of asbestos the lifetime risk of developing mesothelioma is about five times greater for a child first exposed at the age of five than for an adult first exposed at the age of 30. In conjunction with the estimation that more than 75% of the 24,372 schools in England have some asbestos-containing products, there is vast potential for exposure. Although the report conceded there were a number of uncertainties and data gaps it has fuelled efforts by campaigners to persuade the government to formulate plans for the removal of asbestos from all of England s schools. It remains to be seen whether the Department for Education, which commissioned the report, changes its current position namely that asbestos must be managed properly and that it is usually safer to leave it undisturbed. All change: timing overruled for a consent order Ministry of Defence v Blyth [2013] EWHC 1422 (QB) 2 May 2013 In 1990 a provisional damages consent order was approved entitling the claimant to apply for further damages within 20 years. Despite having developed none of the diseases specified under the return conditions, the claimant applied for an extension of time. He argued that what might have been an entirely conventional case management decision under the RSC in 1990 could now be varied as there was nothing in the CPR which suggested the 20 year period was the norm. The defendant argued that there were no proper grounds on which to vary the consent order (which should be treated as a binding contract), that a final order should not be re-opened and in any event had the claimant wished to apply for an extension he should have done so within the 20 year time limit, which had elapsed two years before the application was made. CPR 3.1(2) gave the court a wide discretion to extend or shorten the time for compliance with any court order. This was not restricted to case management orders. There was nothing in the CPR which precluded the operation of this rule where the time limit had already expired. Claimants are now unlikely to be dissuaded from applying for a further award of damages, even if the time limit in the provisional damages order has expired. It should not be difficult for them to persuade a court to exercise discretion in their favour. Perhaps from the defendants perspective there is little point incurring significant costs arguing about the period within which 3

4 a claimant must return for a further order if whatever deadline is agreed/ordered can so easily be overridden. Time runs out for asbestos claim Collins v Secretary of State for Business Innovation & Skills and Stena Line [2013] EWHC 1117(QB) 2 May 2013 The claimant was a former dock worker who had unloaded asbestos cargoes in the course of his employment. In 2002 he was diagnosed with terminal lung cancer and was told he had only a few months to live. His subsequent medical treatment was unexpectedly successful and it was not until July 2009 that he instructed solicitors after seeing a newspaper advertisement. Having obtained experts reports in October 2009 and April 2010, his claim form was issued in May The issue between the parties was whether the claim was time-barred. The claimant did not have actual knowledge of the possible link between his lung cancer and exposure to asbestos until July Understandably his attention was focussed on the prognosis rather than the cause of the cancer. However, on the question of constructive knowledge, the claimant had suffered a significant injury and ought to have been curious enough to seek advice. Having been told he only had a few months to live, even a reasonable man would have concentrated on matters other than the cause of his illness. Once he had responded so positively to treatment, this should have prompted curiosity in the mind of a reasonable man and the claimant would have recalled at that stage that the doctors were interested in his work history. A reasonable man in the claimant s position, with his knowledge of the history of asbestos handling in the docks, ought to have known that it was hazardous to health. Allowing him a little time to consider his position he was deemed to have had the necessary knowledge by the middle of As to section 33 discretion the primary limitation period expired in mid The claim form was not issued until six years later. The majority of the delay was unexplained, and this caused further prejudice to the defendants even against the background of a lengthy time lag since the exposure. Additionally, since the events in question occurred over 45 years ago, the claim was a difficult one, and the claimant s memory was imprecise, discretion was exercised in the defendant s favour. This is a very useful reminder that it is the claimant who has the burden of establishing that section 33 discretion should be exercised in his favour and he will face difficulties if, once the claim is time barred, there are unexplained periods of delay. Importantly, the court was influenced by inconsistencies in the claimant s evidence and was persuaded that the delay was likely to make the evidence less cogent as a result. Thus, further prejudice was inferred even though the defendant could not specifically point to witnesses or documents going missing after mid Berrymans Lace Mawer acted for the successful defendant. Asbestos: judges show caution Garner v Salford City Council and P McGuiness & Company Limited (unreported) RCJ 13 June 2013 The 45-year-old claimant, suffering from mesothelioma, issued proceedings against the defendants as (respectively) the owners of some swimming baths which were demolished around 1978 and the demolition contractors. The demolition resulted in significant quantities of dust blowing across the adjacent school playground where the claimant was a pupil. There was nothing else to account for the claimant s mesothelioma which she contended must therefore have been caused on the balance of probabilities by release of asbestos dust in an uncontrolled manner from asbestos lagging around the boiler and/or pipes in the swimming baths. 4

5 On the available evidence pipework in the swimming baths was lagged, but water was used to prevent the liberation of dust when the lagging was removed. Consequently the chance of dust containing asbestos fibres being released into the atmosphere was minimal. The judge concluded that effectively was the end of the case. Even though no other possible source of the exposure had been identified, that was insufficient to undermine the primary finding of fact. Eliminating the impossible does not mean that whatever remains must be the truth however improbable (Rhesa Shipping Co SA v Edmunds (1995)). One positive outcome from the Willmore/Sienkiewicz cases is that trial judges are now more cautious about drawing inferences which are scarcely supported by the available evidence. Public authorities are understandably concerned that in view of the widespread knowledge that many school buildings contain asbestos, they are an obvious target for those who cannot readily identify exposure elsewhere. The claimants in Willmore and Garner provide two examples. Other unreported first instance decisions demonstrate that the courts may now be disinclined (post-willmore) to make claimant-friendly decisions which might be regarded as heroic. One example is the unreported West v Wirral MBC where Berrymans Lace Mawer acted for the local authority. The trial judge was not prepared to infer that a caretaker was probably exposed to more than background levels of asbestos when sweeping the floor of a school boiler room in circumstances where a few years earlier the asbestos had been encapsulated. Foreseeable hurdle for jockey? Hide v The Steeplechase Company [2013] EWCA Civ May 2013 The claimant jockey was injured when he fell from his horse and struck a post. He sought damages relying on Regulation 4 of PUWER 1998 which provides that work equipment must be suitable ie, suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person. The trial judge dismissed the claim on the basis that: 1 the way in which the claimant was injured was very unusual, and 2 the defendant had abided by all the requirements of the British Horseracing Authority and could not be expected to do more. The question for the Court of Appeal was whether the judge was correct to use the concept of reasonable forseeability in this classic common law manner. Reasonably foreseeable must be interpreted so as to be consistent with the concept of foreseeability in Article 5(4) of the Framework Directive. So once the claimant shows that he has suffered injury as a result of contact with a piece of work equipment which is (or may be) unsuitable, it will be for the defendant to show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided in spite of the exercise of all due care on his part. Those factors might once have excused a defendant in a common law case but the Directives and therefore the Regulations exist in a world different from the common law. Here the defendant could not show that the accident was due to unforeseeable circumstances beyond his control or to exceptional events the consequences of which could not be avoided. An unusual fall could not be classed as either. The claimant s appeal thus succeeded. Hide confirms that in interpreting statutory language in UK statutes which implement European Directives, the meaning of words must be construed in accordance with the relevant Directive. In respect of work equipment, this puts a much greater (and many would argue unfair) burden on employers than at common law and it involves a reversal of the burden of proof. 5

6 Interestingly, the phrase reasonably practicable appears in several regulations in PUWER 1998 but not in the Directives. Yet reasonably practicable has often been considered to incorporate foreseeability, and in Commission of the European Communities v UK (2007) C- 127/05, the European Court of Justice upheld the test of reasonable practicability in UK health and safety regulations. So Hide appears to result in the somewhat paradoxical situation that a duty under a regulation qualified by reasonably foreseeable is stricter than a duty qualified by reasonably practicable. Editors Brian Goodwin brian.goodwin@blm-law.com Other members of the editorial board Nick Pargeter nicholas.pargeter@blm-law.com Simon Morrow simon.morrow@blm-law.com Berrymans Lace Mawer LLP 2013 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:\PUBLIC ATIONS\7 BLM PUBLIC ATIONS\E-BU LLET INS AND ST ATS\DISEASE R EVIEW\JU LY 2013\ART WORK\DISEASE E-BU LLETIN _JU LY13.DOC 6