Albert Victor Carder v The University of Exeter (Second Defendant/Appellant)
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Gross,Lord Justice Christopher Clarke |
| Judgment Date | 29 July 2016 |
| Neutral Citation | [2016] EWCA Civ 790 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 July 2016 |
| Docket Number | Case No: B3/2015/2750 |
[2016] EWCA Civ 790
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE GORE QC
HQ14A2090
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master of the Rolls
Lord Justice Gross
and
Lord Justice Christopher Clarke
Case No: B3/2015/2750
Michael Kent QC and Richard Sage (instructed by Clyde & Co) for the Appellant
Harry Steinberg QC and Aliyah Akram (instructed by Moore Blatch) for the Respondent
Hearing date: 18/07/2016
Approved Judgment
Mr Carder is 87 years of age. He suffers from asbestosis. He was exposed to asbestos dust during four employments as an electrician and this exposure gave him a lifetime "dose" of 51.26 fibre/ml-yr. Of this total dose, 49.2 fibre/ml-yr (97%) was attributable to his employment in the 1950s by a firm called Colston Electrical Co Ltd which no longer exists. Only 1.25 fibre/ml-yr (2.3%) was attributable to his employment with the appellant in the 1980s. The first defendant represented a Hospital Board for whom Mr Carder had worked in the 1960s. It had contributed 0.165 fibre/ml-yr (0.3%). There had also been an exposure of 0.1 fibre/ml-yr (0.2%) in the 1950s during his employment with another firm which was not sued.
Asbestosis is fibrosis of the lung tissue. It is a dose related disease. The asbestos fibres ingested operate cumulatively to cause the disease and then to progress it. The extent and severity of the disease is related to the quantity of fibres ingested. In general, the more fibres ingested, the worse the disease becomes. For that reason, asbestosis is sometimes described as a "divisible" disease. It can be "divided" into the proportions attributable to different dose exposures. This is to be contrasted with "indivisible" diseases such as lung cancer caused, for example, by smoking which once initiated is not related to the degree of exposure to cigarette smoke: see the helpful summary by Lord Phillips at para 14 of Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229.
It was conceded by the appellant that Mr Carder's lung fibrosis was caused by asbestos exposure (as opposed to being an idiopathic condition).
Mr Carder discontinued these proceedings against the first defendant after obtaining an expert opinion from Dr Rudd (a consultant physician) that its contribution to the total exposure to asbestos would be considered to be de minimis. Dr Rudd, however, said that the contribution to the asbestosis made by the asbestos dust attributable to the appellant was material, "although very small".
In these proceedings, Mr Carder claims that his exposure to the asbestos dust for which the appellant was responsible was in breach of the statutory and common law duties that it owed to him. He claims damages for what he says has been the consequence of that exposure. All the evidence is agreed, although, as will become apparent, I have not found some of it easy to interpret.
The facts are set out in more detail by the judge at para 14 of his judgment, to which reference should be made: [2015] EWHC 2399 (QB). The following summary will suffice. Mr Carder suffers from breathlessness, cough, poor oxygenation, epigastric discomfort and wheeze. All of these symptoms result from diffuse interstitial fibrosis of both lungs, more severe on the right than on the left. But there were also other unrelated causes of his respiratory symptoms, including asthma, gastro oesophageal reflux and obesity. In a report dated 2 January 2015, Dr Rudd described the subjective worsening of Mr Carder's condition. He assessed his overall respiratory disability as 60% of which 40% was attributable to asbestosis and the remaining 20% as equally split between the other conditions.
On 1 April 2015, the appellant's solicitors asked Dr Rudd the following questions under CPR 35:
"Without the presence of asbestos fibre burden caused by:-
i. Colston Electrical Company Limited and each Defendant (when considered singly and in turn); and then
ii. Colston Electrical Company Limited and the Defendant in total would:-
a. The objective to (sic) condition and appearance of the Claimant's lungs but (sic) notably different to the trained observer?
b. Would the Claimant respond to lung function testing materially differently?
c. Would the subjective perception of symptomology be noticeably different to the Claimant and
d. Would the Claimant's ability to cope with daily tasks (when taking into account his age and general health) be measurably or demonstrably different?"
Dr Rudd answered these questions in a letter dated 14 April 2015 as follows:
"I find the wording of the questions confusing. I suspect that the questioner wants to know whether, without the exposure with either or both of the Defendants, would any of items A to D inclusive be any different. The answer is that they would not."
Subsequently, Dr Rudd was asked:
"Please provide your estimate in percentage terms of the minimum proportion of the Claimant's exposure to asbestos with any one tortfeasor which could cause a material difference in respect of the questions set out at a.-d of the letter of the Second Defendant's solicitors (Simpson & Marwick) to you dated 1 April 2015."
He answered:
"There is no scientific basis upon which to provide an estimate of the minimum percentage of his total asbestos exposure which would cause a material difference to the answers of questions A-D in the letter from Simpson & Marwick dated 1 April 2015. It is quite possible, although not demonstrably the case, that a reduction in total dose of 10% or even 20% would not have made any material difference to the answers to questions A-D. There is a relation between the severity of lung fibrosis of asbestosis and the dose of asbestos received but the dose response curve is variable between individuals. There is also a variable relation between severity of lung function impairment, symptoms and disability. Some individuals are sensitive to relatively small changes in lung functions while others are relatively insensitive to large changes."
Founding himself principally on the answers given by Dr Rudd to the four questions, Mr Kent QC (representing the appellant in the court below as before this court) submitted to the judge that the breach of duty involving exposure by the appellant of Mr Carder to 2.3% of the total lifetime dose of asbestos had made and would make no difference to his symptoms, disability or prognosis. It followed that the exposure attributable to the appellant had not caused any actionable damage.
The judge said that it was a question of fact and degree whether the appellant's exposure made Mr Carder "worse off" (the phrase used by Lord Hoffmann in Rothwell v Chemical and Insulating Company Limited [2007] UKHL 39, [2008] 1 AC 281 at para 7) so as to cause actionable damage. He then considered the evidence in order to determine the answer to this question. At para 32, the judge identified the two pieces of evidence which pointed against actionability. These were that Dr Rudd accepted that the exposure by the appellant "would not have made any of the items (a) to (d) inclusive raised by the Defendant's questions any different as regards the Claimant". The second was that 2.3% was "very small".
As against that, at para 33 he identified eight countervailing factors. These were:
"First, 2.3%, though very small, was, in the opinion of Dr. Rudd from a medical perspective, material and beyond de minimis.
Secondly, both the risk of development and the extent of asbestos increase in relation to dose, which is an indicator that the claimant has become worse off physically as a result of the 2.3% contribution, whether that is objectively or subjectively noticeable or measurable.
Thirdly, because each source of asbestos will have contributed to the development of asbestosis in proportion to the dose, the 2.3% contribution has made a contribution to the overall condition, albeit one that does not sound in the appearance of the lungs, the lung function test results, perception of symptoms, or ability to cope with tasks of daily living.
Fourthly, persons with asbestosis are at an increased risk of lung cancer compared with persons with a similar history of exposure who have not developed asbestos. This is not the reductionist fallacy that it was in [ Rothwell] because in that case the risk did not derive from the condition that was sued for (pleural plaques do not cause mesothelioma or lung cancer), whereas in this case it does (asbestosis does cause lung cancer).
Fifthly, the condition will progress, and there is a 50% risk that it progresses so seriously as to leave the claimant bed and chair ridden and totally dependent. Sixthly, whereas Dr. Plumb did assert that the even smaller contribution of exposure by one of the other small exposures was "probably not significant" at 0.1 fibre ml years (see paragraph 4.4 of his report at trial bundle 102) he expressed not such qualification in respect of the defendant's exposure, perhaps because it was estimated at eleven times greater, at 1.2 fibre ml years.
Seventhly, the fact that the likely progression of asbestosis, together with the risk of it progressing to the point that the claimant is virtually confined to bed and chair and dependent upon others, are to be taken into account in the immediate award of damages, represents, in my judgment, being worse off.
Eighthly, even if asbestosis in this case is asymptomatic in the way that pleural plaques in Johnston were, on no view can this condition be described as benign."
At para 34, he said:
"For all those reasons, I find that the Claimant did suffer damage and injury that was actionable, and that he has so proved as against this...
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