Introduction

In this update we consider

  1. Dryden and others v Johnson Matthey Plc – de minimis loss
  2. CC and JC v TD - Dependency claims and martial breakdown
  3. RSA v Generali – contribution claims between insurers
  4. Fudge v Harkins & Holmes Ltd and others – limitation in an asbestosis claim
  5. Goldscheider v ROH – acoustic shock
  6. Ongoing developments for funding of immunotherapy treatments for mesothelioma claims
  7. Doherty & others – Scottish jurisdiction in asbestos claims

Allergen claims: Dryden v Johnson Matthey Plc [2018] UKSC 18

In Dryden the court held that notwithstanding that the claimants suffered no symptoms as a result of occupational exposure to platinum salts the fact they had been sensitised to the same amounted to an actionable injury.

The claimants were exposed to platinum whilst producing catalytic converters and were subject to health screening. The health screening identified that the claimants had been sensitised and the claimants were removed from the area ceasing their respective exposures.

The Supreme Court held that it was common ground that physiological changes had occurred in the claimants which made them more susceptible to further exposure to platinum and this limited the work that the claimants could undertake in the future which were more than mere evidence of exposure to platinum and therefore the claims were actionable.

Dependency: CC (widow and dependant of JC (deceased), on behalf of herself and his dependants) v TD [2018] EWHC 1240 (QB)

The question of how a claim for financial dependency and dependency on services should be assessed, when the deceased and claimant were in the process of divorcing at the time of the accident, was considered by HHJ Freedman in the High Court in CC (as widow and dependent of JC) v TD, judgment in which was handed down on 23 May 2018.

The deceased and claimant were living separately, the claimant had commenced divorce proceedings, and the deceased was in a new relationship at the time of his death.

Following Davies v Taylor [1974] AC 207, HHJ Freedman stated that the test for a claim by a dependant under the Fatal Accidents Act was whether there was a reasonable expectation of pecuniary benefit from the deceased, which, in the case of a separated couple, meant that the claimant had to show some significant chance that there would have been a reconciliation. Significant chance or prospect was to be contrasted with mere speculative possibility. In the event that the court concludes that there was a substantial possibility of a resumption of cohabitation, then the next stage is to assess, in percentage terms, the prospect of such reconciliation. Such percentage then falls to be applied to the amount of dependency which would otherwise have been awarded to the claimant.

In this case, the judge was unable to find that there was a significant chance that, but for his death, the deceased and the claimant would have been reconciled: he concluded that the chances of this marriage being saved and not proceeding to a Decree Absolute were no more than a speculative possibility.

The damages awarded were assessed on the basis that the claimant and deceased would have divorced, and the loss of financial dependency was assessed based on the maintenance payments which would have been made following the divorce.

Contributions/Asbestos: RSA Insurance PLC v Assicurazoni Generali SpA [2018]

RSA insured a company which employed a certain Mr Merritt as a painter and decorator. Mr Merritt was exposed to asbestos during his employment from 1975 to 1986 and subsequently developed mesothelioma. RSA were on risk for only 6 months of the alleged exposure. The claim was settled on 17/01/11 in the sum of £173,750.00 on a 100% basis by RSA as per s.3 of the Compensation Act 2006.

Following settlement of the claim further insurance cover was identified with Aviva (1976-79) and Generali (1981-83) and contribution was sought from those insurers by RSA. The contribution sought from Generali was 32% and from Aviva 60%. Aviva agreed to contribute but Generali declined to do so.

RSA issued proceedings against Generali seeking a contribution under the Civil Liability (Contribution) Act 1978 on 13/01/17. The issue then arose whether the claim for contribution against Generali was statute barred by s.10(1) of the Limitation Act 198 i.e. 2 years from the date on which the right to a contribution accrued. A further issue arose as to how the proportionate share of a contributing insurer was to be calculated.

The court held that:

  1. Claims for contribution between insurers were governed by the Civil Liability (Contribution) Act and therefore the 2 year limitation period applied under s.10 of the Limitation Act 1980.
  2. Contributions were to be assessed on time exposed to risk basis equivalent to s.3 of the Compensation Act 2006.

Practice Point:

When considering a contribution (whether from co-insurers or co-defendants) the date from which limitation begins to fun is the date of judgment or settlement whichever is earlier. Settlement should be considered not as the date on which damages are paid but the date on which agreement is reached to make the payment i.e. the date of acceptance of an offer.

Limitation/Asbestos: Richard Fudge v (1) Harkins & Holmes Ltd (2) FG Minter Ltd (3) Charles Winstone (Builders) Ltd [2018] EWHC 453 (QB)

Barbara Goddard's note regarding this can be found at: https://www.dacbeachcroft.com/en/gb/articles/2018/march/asbestos-a-limitation-decision/

In short, it was accepted that the claimant had brought his claim some 5 and a half years after expiry of the primary limitation period and notwithstanding the court's natural sympathy for a claimant suffering from asbestosis, it was neither just nor reasonable to allow the claimant to proceed with his claim out of time.

Goldscheider v the Royal Opera House Covent Garden Foundation [2018] EWHC 687 (QB)

James Tallent has prepared a note on this widely reported case previously which can be found at:https://www.dacbeachcroft.com/en/gb/articles/2018/march/musician-wins-hearing-loss-case/

In brief the court accepted that the claimant, a professional musician, was exposed to excessive noise during the course of rehearsals and that the exposure was in breach of the Control of Noise at Work Regulations 2005. The levels of noise were of such a level as to pose a risk of causing acoustic shock.

Whether the case will be subject to appeal is yet to be seen and we shall provide further updates as the matter progresses.

Mesothelioma: Asbestos Court Users Meeting: Immunotherapy

Will Potts attended an RCJ Asbestos Court Users Meeting on 13 June 2018. The meeting had been called to consider the court's likely approach to immunotherapy treatment. Master Eastman had reportedly expressed surprise that there had been no contested hearings in relation to the reasonableness of immunotherapy treatment & the best way of ordering how it should be funded.

The meeting included Senior Master Fontaine, Masters Eastman, Gidden, Thornett & Davison. Various claimant lawyers were in attendance as were Mike Rawlinson QC, Harry Steinberg QC & Theo Huckle QC. The following was discussed:
  • The show cause procedure was there for all asbestos cases. The Practice Direction would be updated to make this absolutely clear.
  • Costs budgeting would not be considered on asbestos cases due to time constraints – Other RCJ cases where costs budgeting was required were not taking place until October /November this year.
  • There was a request that parties do not sent documents to the Masters at the last minute particularly if they were bulky.
  • Papers could be lodged directly with the Masters
  • Applications should be sent to QBMastersListing <QBMastersListing@hmcts.gsi.gov.uk> address unless it was a minor amendment to an existing order. Master Eastman indicated that he was prepared to be more flexible about this.
  • There was a discussion around the difficulties in disputed show cause hearings in multi defendant cases and that Claimants may wish to focus on 1 or 2 defendants who in a weaker position at a hearing.
  • Master Eastman indicated that they would not contemplate repeat attempts to show cause. He gave examples of claimants failing to get judgment at a show cause hearing and the obtaining further evidence and making a summary judgment application. The Masters' position was once there a party had shown cause, a further application was not appropriate and the case ought to be decided at trial
Senior Master Fontaine said that they had no authority to provide any guidance on immunotherapy and how individual cases would be managed and that each case needed to be dealt with on its own facts.

Jurisdiction Scotland/Asbestos: George Docherty and Others v Secretary of State for Business, Innovation and Skills [2018] CSOH 25

Facts and Background

The pursuer was a former employer of the defender and was exposed to asbestos dust in a shipyard in Scotland and while in the employment of a Scottish company. However, by the time the pursuer developed a condition related to this exposure for which compensation could be claimed (pleural plaques and asbestosis), he was a resident of England.

The pursuer's estate and various dependents raised an action in Scotland so as to benefit from the Damages (Scotland) Act 2011 which allows for claims to be made by the relatives of the deceased, in this case there were 24 pursuers including the widow of the deceased.

As detailed above Lord Tyre held in this case that the claim against the Scottish employer should be governed by English law, as it was not until the pursuer was a resident of England that the resultant injury occurred and the pursuer had a right of damages.

Under English law the executors claim for non-pecuniary loss prior to death including loss of expectation of life, executors claim for care provided by relatives and funeral expenses.

The claim came before Lord Tyre in the Outer House of the Court of Session. In this judgment, Lord Tyre held that in an asbestos-related claim, the applicable law to be applied to a claim is the law of the country in which the "injury occurred", rather than the country in which the wrongful or negligent act (the negligent exposure to asbestos) occurred.

Up until now, it was widely accepted that the appropriate law is that of the country in which the alleged exposure occurred. We understand that the decision is being appealed to the Inner House of the Court of Session and that the appeal is due to be heard in July 2018.