Jones and others v The Secretary of State for Energy and Climate Change and Coal Products Ltd [23.10.12]
Claims involving respiratory disease succeed on causation; those involving bladder cancer and basal cell carcinoma fail.
The Court distinguished between the test for causation applied for mesothelioma cases and for lung cancer. In Sienkiewicz v Greif (UK) Ltd it was held that a claimant only had to establish that tortious exposure led to a material increase in the risk of developing mesothelioma. However, a higher burden of proof was required for lung cancer, since a claimant was required to prove a "doubling of risk".
This case involved a group action brought by former employees and the families of former employees at a phurnacite plant in Aberaman, South Wales. A large number of claims were brought for various forms of respiratory disease and cancers alleged to have been caused by exposure to harmful dust and fumes. Eight test cases were selected for trial. At the trial, a huge amount of evidence was presented about:
- Working conditions at the plant
- Chemical composition and properties of the dust and fumes produced there
- Concentrations of harmful substances to which employees working in various parts of the plant would have been exposed
- Medical effects of that exposure
Mrs Justice Swift held as follows:
- Breach of duty - from the very early years of its operation, there were serious concerns about the dust and fumes produced by the manufacturing process and emitted from the plant. The dust and fumes to which men were regularly exposed contained substances which were known to be harmful. Overall, the attitude of the management team to the safety of its workforce appeared to have been reactive rather than proactive. The operators of the plant were in breach of statutory duties owed to their employees throughout the period of its operation.
- Causation - the "doubling of risk" test was an appropriate approach to this issue. This involved careful examination of epidemiological and other medical evidence. The Claimants succeeded in establishing the necessary causal link with the development of lung cancer, chronic bronchitis and chronic obstructive pulmonary disease. However, they failed to establish a causal link with the development of bladder cancer and basal cell carcinoma.