Disease Brief: latest decisions September 2018

A round up of recent court decisions raising issues relating to disclosure of documents from a non-party, causation in an asthma case, acoustic shock from live music, the scope of an actionable personal injury, low level mesothelioma exposure and limitation in a hearing loss claim dating back 32 years.

Disclosure from a non-party: mining for material vs. principles of open justice

Cape Intermediate Holdings Ltd v Dring [31.07.2018]

The Court of Appeal has narrowed the scope of inspection of documents by claimants seeking disclosure from a non-party which they consider may assist their case.

Dring, on behalf of the Asbestos Victims Support Groups Forum, sought documents which arose out of separate litigation concerning asbestos product liability and contribution claims against Cape. The stated purpose of the documents was to use them to promote academic consideration of the history of asbestos safety, regulation and knowledge.

The Court of Appeal agreed that the Groups’ interest was a legitimate one and that it was entitled to any document which it is necessary for a non-party to inspect in order to meet the principle of open justice. The court held that the group was entitled to certain categories of documents including the statements of case, witness statements, expert reports plus written submissions and skeleton arguments read by the court. However, categories relating to the trial – including trial bundles, trial witness statements and court transcripts – were not “records of the court”. While the court confirmed that disclosure of such documents may fall within the remit of the court’s powers, the filing documents with the court does not mean the document automatically becomes a court record.

Contact: Tracey Hulme

Occupational asthma: causation is not a foregone conclusion

Ford v Northern Rail Ltd [25.04.2018]

A Judge failed to engage with the issue of causation when giving judgment in favour of the claimant in relation to his personal injury claim, which involved alleged exposure to harmful substances in his workplace.

The claimant had sought damages for personal injury, alleging that he had developed occupational asthma due to exposure to paint fumes in the course of his employment. The defendants admitted breach of duty but not causation. The Judge found for the claimant and awarded him damages of £157,000. The defendants appealed.

The court agreed that the trial Judge had appeared to have approached causation as a foregone conclusion. His conclusion that the claimant had suffered occupational asthma as a result of exposure to isocyanate (hazardous substances found in paint) was unreasoned and unsubstantiated. Instead, causation was a live issue, dependent on a finding that the claimant had been subject to meaningful exposure to isocyanates. Having regard to the evidence, the claimant was not able to prove his case on causation on a balance of probabilities. The most that could be said was that his asthma might have been caused by isocyanate exposure, which was not sufficient. Accordingly, the decision was overturned and the claim dismissed.

Contact: David Bywater

Acoustic shock - no distinction between an opera house and a factory

Goldscheider v Royal Opera House Covent Garden Foundation [28.03.2018]

An opera house was liable to a viola player in its orchestra after he sustained acoustic shock leading to hearing loss, due to noise levels during a rehearsal. It was held that the opera house had breached its duties under the Control of Noise at Work Regulations 2005 and was told that it could not compromise its standard of care for artistic considerations.

The Judge was not satisfied that the defendant had done everything reasonably practicable to reduce the risk of noise at the index time. The Judge made clear that an orchestra cannot be distinguished, as a work environment, from a factory when considering obligations to protect employees from noise risk, notwithstanding the fact that noise is ‘not a by-product of its activities, it is the product’.

Contact: Cameron Clark

Related item: A second bite of the cherry - claims for noise exposure below 85dB

Actionable personal injury: latent damage included

Dryden and others v Johnson Matthey Plc [21.03.18]

The Supreme Court confirms that actionable personal injury includes an asymptomatic physiological change that causes the claimant a real loss of amenity.

The claimants were exposed to platinum salts whilst working in factories making catalytic converters, which led them to develop platinum salt sensitisation. When the sensitisation was discovered, their employers removed the workers from the areas in the factory in which they would come into contact with platinum salts to avoid developing allergic reactions. The workers claimed to have suffered financially as they had to take up different roles at a reduced pay or because their employment had been terminated.

The Supreme Court held that the sensitisation qualified as an actionable personal injury, even though the condition was asymptomatic. This was because it caused a physiological change to the claimants’ bodies which impaired their ability to continue with their previous jobs.

The Supreme Court did not need therefore to consider the claimant’s alternative argument that they should be able to recover for pure financial loss.

Contact: John Mackenzie

Mesothelioma – no ‘safe’ levels of exposure

Bussey v Anglia Heating Ltd [22.02.2018]

This case changes the approach to low dose mesothelioma claims by placing a harder burden on the defendants that will be tough to discharge.

The deceased had worked for the respondent employer between 1965 and 1968. During this time, his widow claimed he had been exposed to asbestos causing mesothelioma.

The original judgment dismissed the claim, in accordance with Williams v University of Birmingham [2011] that there was a minimum level of exposure to asbestos below which presented an ‘acceptable’ risk. The claimant appealed.

The Court of Appeal unanimously allowed the claimant’s appeal. They noted that from the mid-1960s it was widely recognised that low levels of exposure to asbestos could cause mesothelioma. The defendant had known that the deceased was exposed to asbestos and that risk could have been reduced or avoided.

Contact: Lucy Sales

Related items: Mesothelioma contribution claims – amendments to the Companies Act 2006

Limitation in NIHL reaffirmed

Carr v Panel Products (Kimpton) Ltd [14.02.2018]

A claim for hearing loss brought 32 years after the occurrence of the event was statute barred. The Court of Appeal agreed that the case was not one to allow an extension of time under s33 of the Limitation Act 1980.

Between 1974 and 1981 Mr. Carr had been employed to operate woodworking machinery. It was common ground that working in such a noisy environment for as long as he had and without ear protection would likely result in noise-induced hearing loss.

Mr. Carr had been aware of his hearing loss but took no action or medical advice until after receiving a marketing flyer from a solicitor. He made his claim in August 2013 - some 32 years after the end of the relevant employment.

The Judge found that Mr. Carr should be fixed with “constructive date of knowledge” of 2008/2009. This date was determined as at least one year after the time at which Mr. Carr was aware of his hearing loss and knew that noise could cause hearing loss. He therefore should have issued his claim by 2012. As he did not, he was statute barred and the Judge did not exercise discretion under the Limitations Act as there was no reasonable explanation for the delay.

Contact: Philippa Craven

Read other items in the Occupational Disease Brief - September 2018