Holtby v Brigham and Cowan (Hull) Ltd

JurisdictionEngland & Wales
JudgeLORD JUSTICE STUART-SMITH,LORD JUSTICE MUMMERY,Lord Justice Stuart-Smith,LORD JUSTICE CLARKE
Judgment Date06 April 2000
Judgment citation (vLex)[2000] EWCA Civ J0406-11
Docket NumberCase No: QBENF 1999/1045/A2
CourtCourt of Appeal (Civil Division)
Date06 April 2000
Holtby
Appellant
and
Brigham & Cowan (Hull) Ltd
Respondent

[2000] EWCA Civ J0406-11

Before:

Lord Justice Stuart-smith

Lord Justice Mummery and

Lord Justice Clarke

Case No: QBENF 1999/1045/A2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QBD (HH Judge Altman

sitting as a High Court Judge)

Kieron May (instructed by Messrs Philip Hamer for the Appellant)

Anthony Goldstaub QC & Richard Seabrook (instructed by Messrs Whitfield Hallam Goodallfor the Respondent)

LORD JUSTICE STUART-SMITH

The question in issue

1

This case raises a point of general importance which, surprisingly, does not appear to have been considered previously by this court. The question is this: where a claimant suffers injury, in this case asbestosis, as a result of exposure to a noxious substance by two or more persons, is the defendant who is one of those persons whose tortious act has made a material contribution to the injury, liable in respect of the whole resulting disability, subject only to such rights as he only has against other tortfeasors? Or, is he liable only to the extent that he has contributed toward the disability? HH Judge Altman, sitting as a High Court Judge, in a conspicuously careful and succinct judgment, which dealt with many other aspects of the case including liability, limitation and the effect on the overall disability of such matters as smoking, obesity and arthritis unconnected with the tortious conduct, held that the latter was the correct answer. The claimant now appeals.

The facts

2

Mt Holtby, the claimant, was born on 7 July 1927. For much of his working life he worked from 1942 to 1981 as a marine fitter. In this work he was exposed to asbestos dust. For about half this time, namely some 12 years, he was employed by the defendants; for the remainder he was employed by other employers doing similar work in similar conditions; in some cases for quite long periods, such as 5, 4, 2 and 1 1/2 years overall; in other cases for periods measured in months.

The Judge's conclusion

3

The judge held that the defendants were negligent and in breach of statutory duty and the claim was not statute barred. On the question of the extent of the defendant's responsibility he said:

"The evidence is clear, namely that the degree of exposure to asbestos dust makes a difference to the degree to which a particular patient will suffer the disease. Quantification is, however, difficult. Different people respond differently to the inhalation of asbestos, and they respond at different rates at different points of time. Whilst there is a cumulative effect recognised by both specialists, the mere fact that half his working life was with the Defendants cannot do anything other than produce a reason for taking that factor into account. Any mathematical approach is clearly unsupportable on the evidence. In the end my assessment is based on the way this matter was put by Dr Page:

"It is cumulative exposure which causes the asbestos and aggravates it……if the Plaintiff had sustained exposure to asbestos dust only whilst working for the Defendants his condition would probably be less."

The Defendants are liable only for that damage which they have caused, but the quantification of that factor is difficult. Whilst there is no mathematical division to be made in medical terms, for the purpose of assessment I have felt bound to apply a discount factor and I have done so in the amount of 25%."

4

He assessed the general damages in respect of the disability caused by the asbestosis at £32,000, which he reduced by 25% to £24,000. He then considered several items of special damage and future loss such as inability to do DIY jobs, additional transport costs, care and attendance and extra heating which he assessed globally at £15,000 and reduced by 25% to £11,250. In respect of loss of pension, he held that the claimant's expectation of life was shortened by two years and he assessed the loss at £800. He made no deduction in respect of this. Mr Goldstaub QC, who appeared on behalf of the respondents, submitted that as a matter of strict logic the judge should have made a similar deduction; but there is no cross-appeal on this point.

The appellant's submissions

5

Mr May, who appeared on behalf of the appellant, made two main submissions:

(1) That as a matter of procedure the judge ought not to have made any deduction; and

(2) That as a matter of principle on the evidence available, the judge should not have made a deduction.

The procedural point

6

Mr May submits that the defendants should have pleaded the point that they were not responsible for all the claimant's disability but only a proportion of it having regard to similar exposure elsewhere. He submits that the onus of proving this rests on the defendants; further, that even if it did not, the defendants should have pleaded it because it was a 'fact on which the defendants relied in mitigation of, or otherwise in relation to, the amount of damages' within RSC Order 18 r.12. The defendant's pleading merely stated that 'causation is denied'. And further and better particulars were no more illuminating.

7

The question was apparently raised on the first day of the trial. It seems that there was a misunderstanding between the judge, and Mr May says himself, on the one hand, and Mr Seabrook on the other, as to whether this was going to be an issue in the case. Mr Seabrook intended that it should be; the judge understood that it was not. The matter was not put in cross-examination specifically by Dr Howard, the claimant's expert; but the matter was raised again in the course of the evidence by Dr Page, the defendant's expert. At Transcript p2C:

" Q. No, and it may follow already from the answer that you have given, but the longer one is in an environment with asbestos dust. How does that impinge on……

A. Oh, yes. I mean, all exposures to asbestos contribute to the development of asbestosis. It is cumulative exposure that causes it and they are all relevant.

Q. Yes. Putting it another way……

Q. Judge Altman: It causes it but it also aggravates it as well?

A. Yes, yes, ….."

Dr Page then points out that only about half the exposure lies with the defendant. At G he is asked:

" Q. However, if we were dealing simply with the period of exposure at Brigham and Cowan and there had not been that other exposure, what would you have expected in terms of the level of asbestosis that this individual was suffering from?

A. Well, I think it would be less than it is now but, I mean, I would not suggest that 12 years exposure to asbestos is unlikely to have caused asbestosis. I think that…

Q. No.

A. …..He would still have it, but probably less."

At this point Mr May intervened and there was discussion as to the significance of the evidence, in particular whether it amounted to a defence or was relevant to the issue of causation. There was also discussion of what Dr Howard had said on the subject. This exchange followed at p6B:

" Judge Altman: But he [Dr Howard] did say it was cumulative.

Mr Seabrook: My Lord, that is certainly my recollection, which was sufficient….

Judge Altman: The exposure, he said, would contribute to asbestosis even though there were the same exposure elsewhere.

Mr Seabrook: Yes.

Judge Altman: That is my note of his evidence, which I think is basically what Dr Page has just said."

8

Mr May did not insist that the matter should be pleaded and as appears from his judgment the judge did not think that strictly speaking it needed to be. Mr May did not seek an adjournment or ask to recall Dr Howard. Moreover, it was the judge's view, with which I concur, that to anyone experienced in this type of case, and there are few who were more so than Mr May and his solicitors, that it was apparent from Dr Page's report and covering letter (a copy of which was sent to the claimant's solicitors) that this was an issue. The last paragraph of the letter was in these terms:

"It is also clear that Mr Holtby had significant exposure to asbestos with employers other than Brigham and Cowan (Hull) Ltd and I have made reference to this in the body of my report."

9

Dr Page took a careful history from the appellant and set out details of his employments. At p57 of the Core Bundle he said:

"All periods in which Mr Holtby was exposed to asbestos should be considered relevant in causing the pleural disease and mild asbestosis."

10

The point was fully argued in final submissions. In my judgment the judge was in the best position to decide whether the issue had been properly raised and considered. I am not impressed with Mr May's argument that he would have wanted to ask Dr Howard further matters about it. I shall have to refer to some of Mr May's own cross-examination of Dr Page when I consider whether the evidence supported the judge's conclusion. In any event I do not think this court should interfere with the judge's decision on the procedural aspect of the case.

The point of principle

11

Mr May submits that all the claimant has to prove is that if the defendant's conduct made a material contribution to his disease he is entitled to recover all his loss from that defendant, notwithstanding that others may have contributed as well. The defendant is then left to his remedy against other tortfeasors. Alternatively, he submits that once the claimant has proved that the defendant's conduct made a material contribution to his disease, the onus is upon the defendant to plead and prove that others were responsible for some and, if so, what part of the injury.

12

In support of his first proposition Mr May relies on the case of Bonnington Castings & Wardlow [1956] AC 613....

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