Cox v Rolls Royce Industrial Power (India Ltd)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Hooper,Lord Justice Tuckey |
| Judgment Date | 22 November 2007 |
| Neutral Citation | [2007] EWCA Civ 1189 |
| Docket Number | Case No: B3/2007/0419 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 November 2007 |
[2007] EWCA Civ 1189
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANSFIELD COUNTY COURT
RECORDER T CLARK
LOWER COURT NO: 5SE01748
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Tuckey
Lord Justice Maurice Kay and
Lord Justice Hooper
Case No: B3/2007/0419
Mr Patrick Limb QC (instructed by Messrs Everatt & Co) for the Appellant
Mr Christopher Melton QC and Mr Peter Hodson (instructed by Messrs Ashton Morton Slack) for the Respondent
Hearing date: 12 November 2007
Judgement
Derek Cox (the Deceased) was a welder. During his working life he was employed by a number of companies which contracted to do maintenance work at power stations then operated by the Central Electricity Generating Board. In the tax year 1996/1997, an Inland Revenue document establishes that he was employed by three companies, Kilard & Co, International Combustion Ltd and Warren Bros (Newhall) Ltd. The same document establishes employment by a number of companies, several of which were engaged on power station maintenance work between 1961 and 1985, when the Deceased ceased employment by reason of an injury. In 2001 the Deceased began to complain of chest problems. On 25 September 2001 a diagnosis of mesothelioma was confirmed. The Deceased died on 13 February 2002. Following a post mortem examination, the cause of death was certified as malignant mesothelioma of the pleura.
On 8 February 2005, Mrs Angela Cox, the widow and personal representative of the estate of the Deceased, issued proceedings against Rolls Royce Industrial Power (India) Ltd pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. That company is the corporate successor to International Combustion Ltd. Although the proceedings were issued in the High Court, they were later transferred to the County Court and, on 5 February 2007, a Recorder sitting in the Mansfield County Court gave judgment for the claimant. Quantum was agreed in the sum of £100,000. There is now before this court an appeal against the finding of liability, permission having been granted by the Rt Hon Sir Henry Brooke on 5 April 2007.
There is no doubt that the Deceased was exposed to asbestos fibres in the course of his employment by several employers between 1961 and 1985. Equally, there is no doubt that he worked for some of those employers on more occasions and probably for longer periods than he worked for International Combustion, the only reference to which in the Inland Revenue document is as one of three employers in the year 1966 to 1967. However, it seems that the other employers who exposed the Deceased to asbestos fibres no longer exist or have become unidentifiable. As a matter of causation, it is not possible for Mrs Cox to prove that the malignant mesothelioma was caused during the period of employment with International Combustion in 1966/67. However, relying on Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, she succeeded in fixing International Combustion with liability. The ultimate issue was whether the Deceased had been exposed to asbestos fibres in the course of his employment by International Combustion to the extent that the company had been in breach of its duty of care and that, as a result of that exposure, there had been a material increase in the likelihood of the Deceased contracting mesothelioma. Although Fairchild assists claimants in relation to causation, it does not relieve them of the requirement to prove a breach of the duty of care on the part of a defendant: see Brett v University of Reading [2007] EWCA Civ 88.
In this, as in other similar cases, there are obvious evidential difficulties arising from the fact that the events to be investigated occurred decades ago and the person who would have been in the best position to describe them is no longer alive. The central submission of Mr Patrick Limb QC, on behalf of the appellant company, is that the Recorder was wrong to conclude that the evidence before him was sufficient to prove the case.
The evidence
The starting point in the evidence is the Inland Revenue document which establishes employment by International Combustion in part of 1966 to 1967. In the years between 1961 and 1985, it also establishes intermittent employment by at least four other companies known to have been involved in contract maintenance work at power stations. The report of an expert witness, Mr Robert Clark, who has long experience of asbestos-related cases, stated that International Combustion was one of the UK's major boiler makers and had
“… expertise and experience to design, fabricate, erect and commission steam boilers at customers' sites and … they employed a large number of various tradesmen who erected, commissioned and repaired such boilers.”
Basing himself on the Inland Revenue document, Mr Clark considered it probable that the Deceased had been employed by International Combustion on a short-term basis to undertake maintenance and/or repair work at one or more operational power stations during the summer shutdown period during 1966 rather than on the erection of boilers at a new power station under construction. Although some of the power stations at which the Deceased is known to have worked did not become operational until after 1968, Mr Clark identified some four power stations at which the Deceased could have worked in 1966.
The Inland Revenue document did not come to hand until after the Deceased had died. However, he had begun to take steps with a view to litigation after diagnosis. He had also made a claim for Industrial Injuries Disablement Benefit. In support of the latter he had written on 19 October 2001:
“From 1964 until 1985 I worked for numerous contracting firms on power station maintenance all over the country. This included working around the boilers and at all times I would be exposed to asbestos. I worked for some firms more than once or twice but all times doing the same job as a welder. Here is a list of some of the firms that I can remember. Warren Bros, Kilard Engineering, CLS, Flexhill Engineering. I can't remember the dates I worked for these firms and I can't get in touch with them as they have all finished trading.”
So far as a claim for damages was concerned, his wife had provided solicitors with a list of employers which included the ones to which I have just referred but did not include International Combustion. At the same time she provided a short statement at his behest which said:
“I first started working on power stations in 1961 as a welder with Warren Bros … I must have worked about 15 times each time on power stations. All the times that I worked there I was not told about asbestos. When the boiler came off for repairs we did what we called a strip down. All the time we were doing this we were exposed to asbestos. We would be walking about in it and people working above us would be kicking it down on us as they walked about. I have even laid down on it to get to some difficult parts of the boiler.”
In her witness statement in these proceedings, Mrs Cox described first meeting the Deceased when he was working for Kilard & Co. In her oral evidence she said that she had met the Deceased in 1966 and “I know he was working on the power stations then”. Her witness statement contains a list of eight employers, including International Combustion, for whom the Deceased worked on power stations. When not working on power...
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