Horsley v Cascade Insulation Services Ltd & Others
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE EADY,Mr Justice Eady |
| Judgment Date | 18 November 2009 |
| Neutral Citation | [2009] EWHC 2945 (QB) |
| Court | Queen's Bench Division |
| Date | 18 November 2009 |
| Docket Number | Case No: HQ08X03740 |
[2009] EWHC 2945 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Eady
Case No: HQ08X03740
Frank Burton QC (instructed by Field Fisher Waterhouse LLP) for the Claimant
Wendy Outhwaite QC (instructed by Geldards LLP) for the First Defendant
Alexander Macpherson (instructed by Beachcroft LLP) for the Second Defendant
Hearing dates: 21–22 October 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The Claimant in these proceedings, Mr Trevor Horsley, is seeking an award of damages in respect of his having contracted asbestosis through exposure in the course of his employment with the First and Second Defendants. The First Defendant is said to be without funds and has been restored to the register purely for the purpose of this litigation. The Claimant's exposure during the course of his employment with that Defendant took place during the period 1976–1977. The exposure, so far as the Second Defendant is concerned, took place over a period of approximately eight months between 1976 and 1982. The Claimant worked as a lagger in the stripping out of asbestos-based insulation in chemical works and power stations.
Judgment was entered against the First and Second Defendants on 12 December 2008. Shortly afterwards, proceedings against the Third Defendant were discontinued.
The issues before me related to causation, contributory negligence and quantification of final damages. At one time the Claimant was seeking provisional damages, but he has now confirmed that he wishes to claim final damages: see Cowan v Kitson Insulations Ltd [1992] PIQR Q19. Because there are a number of imponderables, however, the exercise is not an easy one. It is especially unfortunate that the court has had to proceed without the benefit of expert accountancy evidence. I propose to set out my conclusions on the areas of dispute, but a final resolution cannot be reached until further calculations are carried out and the parties have had the opportunity of making any further submissions (orally or in writing) which they consider necessary in consequence.
As to apportionment, the parties have proceeded on an agreed basis, to the effect that the First Defendant should take responsibility for 23.26% and the Second Defendant 31.01% of liability. It is recognised, because asbestosis is a cumulative and divisible injury, that each tortfeasor should be responsible only for the proportion which its exposure contributed to the damage: see e.g. Holtby v Brigham & Cowan (Hull) Ltd [2003] 3 All ER 42. The agreed apportionment was arrived at in the light of expert evidence from engineers. The joint statement assessed the total contribution to the Claimant's exposure from these Defendants as being approximately 54.27%.
The Claimant was born on 21 October 1955 and is currently resident, for tax purposes, in Dubai (although he retains homes in Stroud and in London). He is the managing director of an English company called Western Thermal Ltd and also of a company in Dubai called HKBH Electro-Mechanical LLC. The English company specialises in thermal insulation and sheet metal fabricating. It is well established and was set up by Mr Horsley in 1985. It now employs approximately 120 people and, I understand, is the largest independent company in the business. The Dubai company, however, is of more recent origin. It was set up in January 2006 by Mr Horsley and a co-director called Mr Joseph Kemm. It provides electrical, mechanical and plumbing services to the construction industry.
The medical evidence is contained in reports from Dr Rudd which have not proved to be controversial. It is accepted that Mr Horsley suffers from asbestosis and also has pleural thickening and pleural plaques. Matters are complicated by the fact that he also suffers from diabetes and obesity. Moreover, he has been a heavy smoker for 35 years (with a brief respite when he gave up for a period of approximately two years between 2002 and 2004).
It has been assessed that he has a respiratory disability of 20%. He has been suffering from shortness of breath for a period of some five to six years. It has recently improved to an extent, probably as a result of Mr Horsley losing four stone in weight. 15% of the disability is attributable to asbestosis and 5% to obesity.
It is necessary to take account of a number of uncertainties and risks. First, the asbestosis has a 50% chance of progressing. Any such progress would be likely to increase the respiratory disability to the extent of 5–10% per annum. The slow progression of the disease would suggest that the Claimant's condition is rather less serious than average. There is a very small chance (assessed at approximately 2%) that Mr Horsley will not be able to continue working due to asbestosis, but this plays no part in the claim for future loss of earnings.
Secondly, there is the possibility that pleural thickening will develop so as adversely to affect Mr Horsley's breathing. This risk is also assessed at approximately 2%. If this takes place, the deterioration in the respiratory disability would again be of the order of 5–10% per annum. This small risk has again been discounted for the purposes of the claim for loss of earnings.
Thirdly, there is a 5% risk that the Claimant may contract mesothelioma. This would normally lead to death within a period of 12–18 months following diagnosis.
Fourthly, there is a risk of lung cancer. The risk of Mr Horsley developing lung cancer because of smoking has been assessed as being of the order of 12%. When combined with the factors of asbestos exposure and asbestosis, the risk increases to 36%. The combination has a synergistic or multiplicative effect. That is why the increase over the risk attributable to smoking is as high as 24%. In the event of developing lung cancer, Mr Horsley would also be likely to die within a period of 12–18 months.
The claim for loss of future earnings, which is the major element for debate before me, is based upon the risks of mesothelioma and lung cancer.
As to general damages, there was a range between £40,000 and £55,000. Mr Burton QC for the Claimant suggests that £55,000 would be a reasonable sum, whereas Mr Macpherson for the Second Defendant suggests that £40,000 would be appropriate and Ms Outhwaite QC for the First Defendant £45,000.
My attention was drawn in this context to a number of decided cases for assistance, but significant adjustments are required to take account either of inflation or factual differences. It is not helpful to focus on them in great detail. It is better to concentrate on the particular, and possibly unique, combination of circumstances I have described.
The JSB guidelines suggest that for asbestosis giving rise to respiratory disability at between 10% and 20% an award of £45,000 would be appropriate. (I take that to refer to a final award rather than provisional damages.) Yet, argues Mr Burton, it is by no means apparent to what extent such a figure would reflect increased risk of mesothelioma and lung cancer when the court is awarding final damages. Counsel for the Defendants suggest that such risks must to some extent be factored in, since they are a common feature in asbestosis cases (although the level of risk is likely to vary considerably). That must be right. Again, however, it is probably right to focus on the specific evidence relating to this claimant and the established level of risk for him.
Here, the additional element attributable to lung cancer risk is about 24% and to mesothelioma risk 5%. Mr Burton seeks simply to add the risks together and thus arrives at 29%. Mr Macpherson submits that a simple aggregation of this kind is wrong in principle. Mr Burton then draws attention to the current level of awards where lung cancer or mesothelioma is actually incurred (i.e. of the order of £70,000). He takes 29% of this as representing appropriate compensation for the risk (£20,300). He suggests in the light of these calculations that the figure appearing in the Claimant's schedule is reasonable at £55,000. There are aspects of his methodology that are questionable, for example as to (i) merely adding the lung cancer and mesothelioma risks together and (ii) assessing compensation for the risk by reference to a percentage of the award that would be given for incurring the relevant disease. These have led Mr Burton in my view to a final calculation which is over-generous in the circumstances of the case.
When one is at the stage of assessing risk and including an increase attributable to smoking, it is right to apply the principle that a defendant must take his "victim" as he finds him and, therefore, to exclude any question of disallowance because the particular claimant happens to have voluntarily undertaken the risks associated with smoking. As illustrated in the case of Badger v Ministry of Defence [2005] EWHC 2941 (QB), this factor becomes relevant later when addressing contributory negligence.
I have come to the conclusion that I can do no better on the facts before me than to take a round figure in the middle of the JSB guideline range (at £45,000). Appropriate interest will naturally also be recoverable.
I must turn now to the vexed question of future losses. The Defendants argue that the objective is to find what is the appropriate sum (if any) to compensate the Claimant in respect of income which probably would...
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