Durham v Thorpe Campbell Holdings Ltd and another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rix |
| Judgment Date | 08 October 2010 |
| Neutral Citation | [2010] EWCA Civ 1096 |
| Docket Number | Case No: A2/2009/0005 A2/2009/0007 A2/2009/0008 A2/2009/0009 A2/2009/0014 HQ06X02919, HQ07X01388, HQ07X03187 HQ07X00744, HQ07X010800, HQ07X02055 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 October 2010 |
[2010] EWCA Civ 1096
Mr Justice Burton
Before: Lord Justice Rix
Lady Justice Smith
and
Lord Justice Stanley Burnton
Case No: A2/2009/0005
A2/2009/0006
A2/2009/0007
A2/2009/0008
A2/2009/0009
A2/2009/0014
HQ06X02919, HQ07X01388, HQ07X03187
HQ07X00744, HQ07X010800, HQ07X02055
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE QUEEN'S BENCH DIVISION
Mr Colin Wynter QC & Ms Alison McCormick (instructed by Irwin Mitchell Solicitors) for the Claimant in Lead Case 1
Mr Colin Wynter QC & Mr Timothy Smith (instructed by John Pickering & Partners Solicitors) for the Claimants in Lead Case 2
Mr Colin Wynter QC & Mr Andrew Burns (instructed by Thompsons Solicitors) for the Claimant in Lead Case 3
Mr Edward Bartley Jones QC & Dr Digby Jess (instructed by Burd Ward Solicitors) for the Claimant in Lead Case 4
Mr Roger Stewart QC & Mr Stephen Robins (instructed by DLA Piper UK LLP) for the Defendant in Lead Cases 1,2 & 4
Mr Colin Wynter QC & Mr Richard Harrison (instructed by Berrymans Lace Mawer Solicitors) for the Co-Claimants in Lead Case 5
Mr Colin Edelman QC & Mr David Platt & Mr Peter Houghton (instructed by Plexus Law) for the Defendant in Lead Cases 3 & 5
Mr Howard Palmer QC & Mr Andrew Miller & Ms Sonia Nolten (instructed by Watmores Solicitors) for the Claimant in Lead Case 6
Mr Jeremy Stuart-Smith QC & Ms Leigh-Ann Mulcahy QC & Ms Clare Dixon (instructed by Buller Jeffries Solicitors) for the First Defendant in Lead Case 6
Mr Lawrence West QC & Mr John Williams (instructed by Plexus Law) for the Second Defendant (instructed by Kennedys) for the Third Defendant (instructed by Barlow Lyde Gilbert) for the Fourth Defendant (instructed by Kennedys) for the Fifth Defendant (instructed by Milton Keynes City Council) for the Sixth Defendant (instructed by Sparling Benham & Brough) for the Seventh Defendant (instructed by Berrymans Lace Mawer) for the Eighth and Eleventh Defendants (instructed by Morgan Cole) for the Ninth Defendant (instructed by DWF) for the Tenth Defendant in Lead Case 6
Mr Jeremy Johnson (instructed by The Solicitor for the Department for Work and Pensions) for The Secretary of State for Work and Pensions
Hearing dates: Wednesday 11 th November, Thursday 12 th November, Friday 13 th November, Monday 16 th November, Tuesday 17 th November, Wednesday 18 th November, Thursday 19 th November, Friday 20 th November, Monday 23 rd November & Tuesday 24 th November 2009
Lord Justice Rix:
| Index | |
| PARAGRAPHS | |
| •Introduction | 1 – 9 |
| •The critical issue of construction | 10 – 18 |
| •The question of injury | 19 – 22 |
| •The insurers' practice | 23 – 26 |
| •The parties and the proceedings | 27 – 41 |
| • Bolton | 42 – 49 |
| •The pathogenesis of mesothelioma updated by the Judge's 5 Year Rule | 50 – 57 |
| •The policy wordings | 58 – 90 |
| •Some landmarks in the tort of negligence causing personal injury | 91 – 125 |
| •The Workmen's Compensation Acts | 126 – 165 |
| 166 – 186 | |
| •The judgment | 187 – 204 |
| •The parties submissions | 205 – 208 |
| •The jurisprudence of construction 209 – 218 | |
| •Factual matrix and commercial purpose | 219 – 227 |
| •Binding custom | 228 |
| •“Sustain injury” | 229 – 235 |
| •“Disease contracted” | 236 – 245 |
| •The “employee” or” ex-employee” point | 246 – 276 |
| •“Injury” | 277 – 289 |
| •Individual wordings | 290 – 301 |
| •Conclusion | 302 |
| •Postscript | 303 – 309 |
Introduction
Mesothelioma is a tragic and fatal disease, so far as is known (but the unknown is never far away in this context) always caused by exposure to asbestos. It manifests itself as a cancer of the mesothelium, a protective lining that covers most of the body's internal organs, but most commonly as a cancer of the pleura, that is to say the linings of the lung. It is unusual in having an extremely long period of gestation, which can be in excess of forty years between exposure to asbestos and manifestation. By the time it has become symptomatic, generally through shortness of breath, the patient does not have long to live, an average of some fourteen months.
This appeal concerns the liability, under contract, of insurers who have promised to indemnify employers against their liability to their employees. The specific context is the employer's liability for mesothelioma. In other words this appeal is about the nature and extent of the cover granted by employers' liability insurance so far as the employer insured is responsible for his employee's mesothelioma. In particular, this appeal asks the question as to what has to happen in any particular policy year to make the insurer on risk during that year liable to respond and so to indemnify the employer insured. Is it the tortious exposure to asbestos which has caused the mesothelioma that must occur in that policy year? Or is it the onset of mesothelioma itself which must occur in that policy year? Thus this appeal is principally about issues of construction of insurance policies, but, as will be seen, it requires an understanding of the employer's liability in tort for injury caused to his employee.
It is important to emphasise that on the current understanding of the disease, it is not present during most of that period of up to four decades. The body's defence mechanisms are extremely efficient in protecting us, and even those who have been most exposed by reason of their occupations, from the potentially harmful effects of the inhalation of asbestos fibres. Only when all those defences have failed may a mutated cell become and remain cancerous and then proceed by exponential growth into the disease called mesothelioma. Even a cancerous mutation may remain dormant for years before it develops into the disease. Or the mutation may actually be reversed by the body's defences, so that the disease never develops. Only a few years ago, the court's view of the expert medical evidence about the onset of mesothelioma was that the disease probably did not occur until approximately ten years before diagnosability (no practical distinction being drawn between diagnosability and manifestation): see Bolton Metropolitan Borough Council v. Municipal Mutual Insurance Ltd [2006] EWCA Civ 50, [2006] 1 WLR 1492 (“ Bolton”). In the present case, the judge's view of the more developed expert evidence before him was that that period was closer to only five years before diagnosability. If that is right, then a person exposed to asbestos may live for thirty-five years or thereabouts without passing to a stage at which the court would say that mesothelioma had begun.
Moreover, despite a clear causal connection between the occupational exposure to asbestos and the onset of mesothelioma, it is not possible to say that all those who have been so exposed to asbestos will develop mesothelioma. The overall figure is that only some 3% of such people will go on to develop the disease. That is the figure which the judge below repeatedly cited. To some extent it may mask higher percentages among those most seriously exposed, and it may also fail to take into account the fact that among the cohort of such workers who have been occupationally exposed to asbestos, many who might have gone on to develop mesothelioma died at an earlier time from the effects of the more common disease of asbestosis, that is a fibrosis of the lungs. Nevertheless, it remains the fact that only a small percentage of exposed workmen go on to suffer from mesothelioma.
Unlike asbestosis, mesothelioma is not a dose-related disease. Increased exposure to asbestos does not make the disease worse, it only increases the risk of developing it. However, asbestosis shares with mesothelioma a latency period during which the disease's onset is delayed, and thereafter remains latent.
The danger of inhaling dust at work has been known about for a considerable time. The classic work on asbestosis in this country lies in the 1930 Report on Effects of Asbestos Dust on the Lungs by Merewether and Price, respectively a medical and engineering inspector of factories. The almost immediate results were the Workmen's Compensation (Silicosis and Asbestosis) Act 1930 and the Asbestos Industry (Asbestosis) Scheme 1931. Mesothelioma was not then known about, but in 1965 came the leading publication by Newhouse and Thompson entitled Mesothelioma of pleura and peritoneum following exposure to asbestos in the London area, shortly followed by an exposé in the Sunday Times entitled “Scientists track down killer dust disease”. In the following year, 1966, mesothelioma became a prescribed disease (see the National Insurance (Industrial Injuries) (Prescribed Diseases) Amendment Regulations 1966). However, cases of mesothelioma were then exceptional. The earliest claim known about made on any insurer before the court was in 1967 (that was in respect of a man who had died of mesothelioma in 1966 after working for the insured employer...
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