Ballantine v Newalls Insulation Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 15 June 2000 |
| Judgment citation (vLex) | [2000] EWCA Civ J0615-7 |
| Date | 15 June 2000 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A2/1999/1165 |
[2000] EWCA Civ J0615-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(Mr S Brown QC (sitting as a deputy High Court judge))
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand
London WC2
Lord Justice Aldous
Lord Justice Robert Walker
Lord Justice Buxton
A2/1999/1165
MR R WALKER QC and MR J FREEDMAN (Instructed by Messrs Jacksons, Stockton in Tees, TS18 3TN) appeared on behalf of the Appellant
MR D ALLAN QC (Instructed by Messrs John Pickering & Partners, Oldham OL1 3AN) appeared on behalf of the Respondent
LORD JUSTICE ALDOUS: Lord Justice Buxton will give the first judgment.
LORD JUSTICE BUXTON: This is an appeal from a decision of Mr Stuart Brown QC sitting as a judge of the Queen's Bench Division. It concerns the impact and application to a claim for damages for industrial injury and illness of the Pneumoconiosis, etc (Workers' Compensation) Act 1979 ("the 1979 Act"). This Act is a striking piece of legislation and one that has not been the subject previously of much commentary, nor, save in respect of one decision in the County Court, of any judicial decision. We were told that a number of cases rest upon our decision in the present case.
The short question is whether and to what extent statutory payments made under that Act fall to be deducted from a common law award of damages in an action in tort. Because of the importance of the 1979 Act to this appeal, it is necessary to describe it in some detail. Its long title is "an Act to make provision for lump sum payments to or in respect of certain persons who are, or were immediately before they died, disabled by pneumoconiosis, byssinosis or diffuse mesothelioma". It provides that lump sum payments shall be made by the Secretary of State to persons who are disabled by one of the diseases so listed, if the Secretary of State is satisfied that the conditions of entitlement laid down by the Act apply to his case. The amount of the payment shall be such as is prescribed by regulations, and I shall shortly have to turn to these amounts.
So far as the conditions of entitlement are concerned, it is I think not necessary to deal with more than the conditions laid down in section 2(1) of the Act, that is to say those that apply in the case of a claimant who is still alive. The claimant in this case, as I shall in due course describe, unfortunately died before the payment was made. But that does not affect, and is agreed not to affect, the application of the Act, which has supplementary provisions to deal with that case.
Section 2(1) reads as follows:
"In the case of a person who is disabled by a disease to which this Act applies, the conditions of entitlement are-
(a) that disablement benefit is payable to him in respect of the disease;
(b) that every relevant employer of his has ceased to carry on business; and
(c) that he has not brought any action, or compromised any claim, for damages in respect of the disablement."
The relevant employer referred to in section 2(1)(b) is defined in section 2(3) as follows:
"… any person by whom he was employed at any time during the period during which he was developing the disease and against whom he might have or might have had a claim for damages in respect of the disablement."
There are provisions for reconsideration of determinations in section 5 of the Act. The Secretary of State may reconsider a determination that a payment should be made if, section 5(1)(b):
"… the determination was made in ignorance of, or was based on a mistake as to, some material fact."
It will therefore be seen from these provisions that they do not apply unless the claimant had at some stage been employed by an employer against whom he might have or might have had a claim for damages and do not apply unless he is suffering from, in the case of mesothelioma, an asbestos-related injury. It is clear, therefore, that a precondition of the application of the Act is the existence of an at least potentially culpable injury suffered by the claimant.
The amount of the payment is dealt with by regulations. Those can be summarised as follows. Payments are determined by reference to the age and the degree of disablement of the applicant. The scheme understandably awards a larger amount of payment in respect of the percentage disablement from which the claimant suffers and it also, perhaps less immediately understandably in the case of mesothelioma, though perhaps not in the case of pneumoconiosis, awards larger amounts to younger persons, the rates of payment tapering down according to the age of the applicant.
The scheme of the Act, as I have said, not only assumes but requires that the claimant shall have been employed by somebody who is at least potentially liable for his injury and illness. It was, however, agreed that there is a lacuna in the operation of the Act in this sense. It is possible, as this very case demonstrates, to contract at least mesothelioma (again, possibly not the other diseases to which the Act refers) by environmental contact, necessarily of a fairly extreme sort, with certain forms of asbestos, without being employed at all in work that concerns asbestos. The lacuna appears to be this. Somebody may fall under the provisions of this Act if he has contracted mesothelioma, but has contracted it from environmental sources. It is in that regard that section 2(1)(c) appears to have been formulated, that the applicant must demonstrate at the time of his claim that he has not brought any action in respect of the disablement. However, it is plain that the principal motivation behind the Act is to deal with cases where persons suffer from these diseases, possibly contracted very many years ago, and there is nobody available to be sued in respect of the disease because former employers have gone out of business. Although the drafting of the Act does not immediately make that plain, that it would seem must clearly be the motivation of it.
That aspect of the Act is underlined by the facts of this case. The late Mr Ballantine (whose widow and executrix carries on this claim on his behalf) was born in 1946. The exposure to asbestos of which he complains in the Statement of Claim was not in the course of employment, but was caused by the fact that when he was a schoolboy and a young adult he lived in an area very close to a factory operated by the defendants. He there inhaled asbestos dust that allegedly escaped not only from the factory, but also from heaps of asbestos waste that the defendants caused to be left near and around their factory.
He was diagnosed as having malignant mesothelioma in December 1997. He made an application for a payment under the 1979 Act in March 1998. He filled in a standard form in respect of that claim which required him to give details not of the actual environmental exposure of which he complained, but of his employment history —bearing in mind that the 1979 Act appears to be directed to the case of the absent or disappeared employer. He was required to set out each employment and "brief details of the type of work you did, including dust to which exposed". In his first employment, which terminated in 1968 and had lasted for only one year, he said that he had been exposed to asbestos insulation.
I hesitate to say that that had no connection with his eventual illness. It is not mentioned in the Statement of Claim but, as Mr Walker QC told us, the current medical view is that although mesothelioma may be caused by the inhalation or ingestion of merely one asbestos fibre, prolonged exposure may in some way (which as I understand it is not properly understood even yet) either attack the body's immune system or otherwise weaken the cell structure, thereby making it vulnerable to one particular exposure. However that may be, it is I think clear that there was a lack of cohesion between the claim made under the 1979 Act and the claim in the Statement of Claim.
Having made that application for payment under the 1979 Act in March 1998, the present action was commenced in May 1998 by the writ of which I have already spoken. That did not entail in itself any disqualification on the part of the claimant from claiming under the 1979 Act, because the only condition under that Act is that the action or compromise in respect of damages for the disablement should not have been brought before the claim is made (section 2(1)(c)): and that was this case.
I should also make it entirely plain that Mr Ballantine and those advising him were entirely open with the Department in respect of the claim by writ. They informed the Department that that was the step that they were taking, and they were told that it was the view of the Department that such an action would only impinge upon a claim if it was an action against an employer: which of course this action was not. I say that, not because it affects this appeal, but because, like the judge below, I would not want it to be thought that this apparently surprising concurrent existence of the 1979 Act claim and the writ reflected in any way upon the claimant.
The 1979 Act claim has to be determined by a body called the Pneumoconiosis Medical Board, which has to assess whether the injury falls under the 1979 Act at all and the level and percentage of disability. It eventually determined, in May 1999, that the injury had caused 100 per cent disability and a payment was made in the sum of some £39,000. Unhappily, that payment was by then made to Mr Ballantine's widow on his behalf and not to him, since he...
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...effect provided a form of compensation for the same head of loss: Hodgson v Trapp [1989] AC 807; Ballantine v Newalls Insulation Co Ltd [2001] I.C.R. 25. Such State benefits fell outside the rule that the proceeds of insurance or third party benevolence should be ignored. No credit had to b......
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...seeks compensation from the police he will be bound to give appropriate credit (see, by analogy, Ballantine v Newalls Insulation Co Ltd [2001] ICR 25). 84. He contended, however, that the only aspects of this award that relate to losses claimed in these proceedings are the sums of £125,000 ......