Whether second asbestos-related claim against employer/insurer was an abuse of process

http://www.bailii.org/ew/cases/EWHC/QB/2015/525.html

The claimant was exposed to asbestos by various employers between the 1950s and 1970s. He issued a claim for damages for asbestosis against some of these former employers and that claim eventually settled. The defendant to this action did not join that settlement though, since its insurers were awaiting the outcome of the Trigger Litigation case (reported in Weekly Update 12/12). It will be recalled that in that case, the Supreme Court held that mesothelioma sufferers sustain injury when they are exposed to asbestos.

After his claim for asbestosis settled, the claimant developed mesothelioma and eventually brought a claim for damages for mesothelioma against the defendant. One of the issues in this case is whether that second claim was an abuse of process. Although it is more likely to be an abuse of process for a claimant to sue the same defendant twice, there can be abuse where a claimant brings two claims against different defendants.

The defendant (and its insurers) argued that, in light of the volume of claims, the courts should apply especially robust rules to litigation involving industrial injuries which have a long latent period, and claimants should be stopped from bringing successive claims for the same injury against different employers. Although the judge described that argument as "attractive", she did not believe that an employee must sure all employers in one go. She commented that the real difficulty in this case was that asbestosis is a divisible injury (so a defendant is only liable for that part of the injury which can be attributed to the tortious exposure for which he is responsible) whereas mesothelioma is not. The claimant "only had one cause of action against each of his employers. But he had a separate cause of action against each. I do not consider that, on the facts of this case, there is any abuse in settling claims arising from the causes of action against the former employers whose insurers did play ball, and not wasting time pursuing the employer whose insurer would not".

The judge also considered whether the claim was time barred and referred to a well-settled principle of personal injury law that if a person has suffered actionable personal injury as a result of a defendant's breach of duty, he can and must claim damages in the same action for all the damage which he has suffered or will suffer in consequence of that breach of duty. She rejected an argument that that rule did not apply where mesothelioma develops from asbestosis. Accordingly, the claimant should have claimed for all the consequences of the tortious exposure to asbestos at the same time (ie in the first action which he brought). Nevertheless, the judge decided, on the facts, to exercise her discretion under section 33 of the Limitation Act 1980 to allow the claim to proceed.