Hill Dickinson LLP represented the first defendant in this asbestosis claim. The claimant discontinued against the first defendant on the basis of our argument that if the claimant had a 0.16 fibre/ml-yr dose it would equate to 0.3% of the overall exposure throughout his working history. Therefore, the claim against the secretary of state for health must fail.

The claim proceeded against the second defendant.

The second defendant pleaded that no injury could be proved to have been caused by any breach of duty, on the basis of medical evidence that the claimant’s state of health and disability would not have been noticeably different in the absence of the exposure.

Judge Gore QC held that the question was one of fact and degree of the totality of the evidence. He considered whether the claimant had suffered a real damage and whether he was worse off that was not so trivial that a claim in damages was not justified. The apportioned exposure with the second defendant was 2.3%; Judge Gore QC accepted that the disease increased with exposure and the claimant was worse off physically even if that was not noticeable or measurable.

The asbestosis increased the claimant’s risk of lung cancer and was progressive; even if asbestosis was asymptomatic it could not be described as benign.

Held

The claimant had suffered actionable damage and injury. The claimant was awarded £60,000 PSLA and £7,500 for future care of which the second defendant was liable for 2.3%.

The second defendant appealed.

Facts of the case against the second defendant

The claimant had worked as an electrician and had been negligently exposed to asbestos by a number of his former employers. He developed asbestosis which affected his lung function. He alleged that his condition was attributable to his exposure to the asbestos dust whilst employed at the University.

The second defendant conceded that the 2.3% exposure and contribution to the asbestosis, although very small, was material. However, it was argued that since that contribution had made no addition to the claimant’s disability he had not caused him to be worse off physically or economically. The judge should have held that it did not make him worse off and therefore made no material contribution to the damage suffered.

The appeal was dismissed. It was held by the three Lord Justices’ Gross, Clarke and Lord Dyson, that:

In the context of a claim for asbestosis, the words ‘disease’, ‘impairment’, ‘injury’ and ‘disability’ were used interchangeably which was not considered helpful by the Lords Justices. It was not considered ‘beneficial’ to consider whether a particular medical condition should be characterised as a ‘disease’ or an ‘injury’. Instead, the focus should be on whether the medical condition had made the claimant worse off.

The Court of Appeal considered what constitutes an ‘actionable damage’ considering the case of Rothwell and exposure to asbestos causing pleural plaques. Lord Hoffman described the concept of the claimant being worse off physically or economically did not imply a physical change therefore, the claimants could not recover damages.

It was not in dispute that asbestosis was a condition which, if more than negligible in severity or extent, caused an individual to be worse off or to suffer damage.

The relevant question was whether the claimant was ‘materially’ worse off as a result of the alleged breach. The severity of the disease had been increased to a small, albeit not measureable, extent. It was conceded that the increase was material. That concession was critical.

The Court of Appeal decision

In these circumstances, it was held that the trial judge was right to find that the claimant was slightly worse off as a result of the 2.3% exposure for which the second defendant was responsible. Interestingly Dr Rudd, the claimant’s medical expert opined that a 0.3% contribution was de minimis hence us obtaining a successful discontinuance and costs.

It should be noted that Lord Dyson stated in his judgment: ‘I recognise the sum is small when compared with the costs of litigation.’ And he described this as ‘regrettable’ and added that ‘defendants should try to settle cases early where costs are likely to be out of proportion’.