John Patrick Dowdall v William Kenyon & Sons Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Andrew Edis |
| Judgment Date | 12 August 2014 |
| Neutral Citation | [2014] EWHC 2822 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ14X01681 |
| Date | 12 August 2014 |
[2014] EWHC 2822 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Andrew Edis, Q.C., sitting as a Deputy High Court Judge
Case No: HQ14X01681
David Allan, Q.C. (instructed by Slater & Gordon) for the Claimant
Muhammed Haque (instructed by Clyde & Co) for the First Defendant
Steven Snowden (instructed by Weightmans) for the Second Defendant
Peter Morton (instructed by BLM Solicitors) for the Third Defendant
Hearing dates:
Andrew Edis QC sitting as a Deputy High Court Judge:
The Claimant claims damages for his contraction of pleural mesothelioma. The case raises a novel point, which may be addressed in a number of ways, and which will presumably arise again. Simply stated, the issue is whether the Claimant can maintain an action against three of the companies which employed him during a long career when he was exposed to asbestos by many employers, having already brought proceedings against 8 of the other employers which were settled in 2003, the "First Action." These Defendants say that they would have joined in that settlement had they been sued at the time, and would therefore have had a complete defence to these proceedings, namely compromise. They also advance other claims to have been prejudiced by delay of a more familiar kind.
Each Defendant relies on a limitation defence. In addition, the First Defendant has pleaded an estoppel and the Third Defendant has pleaded estoppel and abuse of process. The Second Defendant has only pleaded a limitation defence. It is accepted that despite these differences of pleading, the issues which I have to determine are the same in each case. They were defined and ordered to be tried as preliminary issues by an Order made by Master McCloud on 9 June 2014. The issues to be tried under that Order are:
(i) whether the present proceedings are an abuse of the process of the Court;
(ii) whether the Claimant is estopped from bringing the present proceedings;
(iii) whether the present proceedings are barred by the provisions of the Limitation Act 1980.
The Claimant has served a witness statement by him, and another by his present solicitor, Mr. Johnson. I have also considered the statement which he made in the First Action. I did not hear oral evidence. In the case of the Claimant, that was because he is not well, and no-one wished to cross-examine him. His evidence is of limited relevance to the issues which I have to resolve. Mr. Johnson was not cross-examined but I heard submissions about the sufficiency of his evidence on certain significant matters. The court was supplied with 5 bundles of documents. I indicated that pre-reading of all that material had been impossible and that I was going to decide the case on the basis of the written material which was drawn to my attention during the hearing or in the Skeleton Arguments. Documents which were not drawn to my attention by these means are not, so far as I am concerned, part of the evidence merely because they appear in a Bundle but have not been mentioned by anyone. Counsel accepted this approach and I heard conspicuously careful and helpful submissions on behalf of all 4 parties.
Records show that the Claimant was employed by the First Defendant as a labourer in the tax year 1963/64. He was working at the Shell Stanlow Oil Refinery. The records show that he was employed by the Second Defendant as a labourer in the years 1965/66, 1966/67, 1967/68, 1968/69 and 1972/73. During these periods of employment he was working at the Stanlow Oil Refinery and the Burmah Oil Refinery in Ellesmere Port. Finally, according to the records, he was employed by the Third Defendant. He worked for them as a rigger at the Shell Star in Ellesmere Port. During each of these periods of employment the Claimant alleges that he had heavy exposure to asbestos dust particularly during the removal of lagging, and from processes involving the application of lagging. The records also show that the Claimant was employed by a number of other employers at different times, including seven of the eight Defendants whom he joined in the First Action. The eighth, Platt and Company, which was the Third Defendant in the First Action, was wrongly joined and therefore the compromise was reached in 2003 between the Claimant and seven of his former employers. These were Prescott (No 1) Limited, VSEL Birkenhead Limited, Reppac Pipes Limited, Cape Darlington Insulation, Sulzer (UK) Limited, Spousal (Midlands) Limited and Amec PLC. He did not join the three Defendants to the present proceedings in the First Action for reasons which I will deal with below.
THE FIRST ACTION
It is common ground that in June 1998 the Claimant was diagnosed as suffering from asbestosis and pleural plaques. In December 1998 he instructed John Pickering & Partners (now part of Slater & Gordon who represent him in these proceedings) to bring a claim for damages in respect of his asbestos induced injury. At the time of the First Action, the only symptomatic injury from which he suffered was asbestosis. The Particulars of Claim in the First Action contained these paragraphs:-
"5 By reason of the matters aforesaid, the Claimant has suffered pain and injury, loss and damage.
PARTICULARS OF INJURY
The Claimant, who was born on 9 th January 1935, has bilateral calcified pleural plaques. He has developed asbestos-related pulmonary fibrosis (asbestosis). He is 15 to 20% disabled. His condition is deteriorating and his life expectancy reduced. Further, worry arising from the diagnosis of asbestosis and from the deaths of friends from that condition has caused him to develop depressions and to abuse alcohol. The prognosis is guarded.
6 Further the Claimant claims provisional damages pursuant to Section 51 of the County Courts Act 1984, there being a chance that at some future time in his life he will develop a serious disease or condition, namely a 10% risk of malignant mesothelioma of the pleura; a 5% risk of cancer of the lung; and a 1% risk of diffuse pleural thickening."
The First Action commenced in March 2001. A report was obtained on behalf of the Claimant from Mr Peter Deary, a Consulting Engineer with great experience of asbestos disease litigation. The seven defendants against whom the First Action was pursued were responsible, on Mr Deary's assessment, for about 60% of the total asbestos exposure. This contains details of the Claimant's allegations against the companies he called "Charles Kenyon", "BECA", and "Greenfield & Payne", among others, and assessment of the dosage of asbestos to which the Claimant was exposed in each relevant employment. He advised that the First Defendant in these proceedings was responsible for 4% of the total dose, the Second Defendant for 17%, and the Third Defendant for 4%. On this evidence, liability against each of these three companies was established, subject to an argument about the date of culpable knowledge of the First Defendant, whose exposure pre-dated 1965 when an important report was published. None of them was, however, sued.
In the First Action medical evidence was obtained on behalf of the Claimant from Dr Warburton, a Consultant Chest Physician and the defendants obtained medical evidence from Dr Hind, who is also a Consultant Chest Physician. They produced a Joint Statement and agreed that the Claimant was suffering from asbestosis causing a disability of 10 to 15% (Dr Warburton) or 10% (Dr Hind). They further agreed there was a risk of the Claimant developing other types of asbestos related injury including mesothelioma. The Claimant had also suffered a depressive illness and evidence was obtained from Consultant Psychiatrists whose Joint Statement is at B5/2628.
On 28 April 2003 the Claimant obtained a Judgment against the seven defendants in the sum of £26,000. It is accepted that this was in full and final settlement of his claim against those defendants. The settlement appears to have been reached at court because the order was made by Mr. Recorder Berkley QC sitting at Birkenhead. The Order of the Liverpool County Court says (I have set it out as it appears).
"Upon hearing Counsel for both parties.
IT IS ORDERED THAT
1. Judgment for Claimant against Defendants in the sum of £26,000 inclusive of interest and net of CRU benefits.
2. Defendants shall pay Claimants costs to be the subject of detailed assessment and standard basis of not agreed."
This is actually therefore a judgment, and not only a compromise. It is not possible to say definitively how the lump sum award was agreed, but it is clear that the claim for provisional damages was not pursued. Had it been, these proceedings would have been unnecessary. No doubt some element of the £26,000 was intended to compensate the Claimant for the low risk of developing the very serious condition which has, sadly, now occurred. The element designed to compensate for asbestosis will have been intended to be 60% of the total value of the claim for that element, because that was the extent of the exposure by the seven Defendants who were contributing to the settlement. The 6 th Edition of the Judicial Studies Board Guidelines for the Assessment of General Damages published in 2002 at page 21 offers a bracket of £25,000 to £55,000 for asbestosis, and says
"Respiratory disability of between 10 and 20% will probably attract an award in the region of £40,000".
60% of £40,000 is £24,000. 4% is £1,600 and 17% is £6,800. On this very rough and ready basis, it may be that if the present Defendants had been sued in the First Action, the Claimant would have gained an additional £10,000. By way of comparison, the contribution of the seven defendants to the First Action...
To continue reading
Request your trial
-
Atkinson v Corbin and Armstrong
...al [2010] EWCA Cw 1170; Roberts v. Commissioner of Police of the Metropolis [2012] EWCA Cw 799; Dowdall v. William Kenyan & Sons Ltd. [2014] EWHC 2822 QB. 57 The question therefore arises as to whether Walkeley is the law in Barbados or Horton v. Saddler since by 2006 decisions of the House......
-
Lloyd v Humphreys & Glasgow Ltd
...of Process 72 I have found the judgment of Andrew Edis QC sitting as Deputy Judge of the High Court (as he then was) in Dowdall v William Kenyon & Sons Limited [2014] EWHC 2822 (QB) helpful. He considered some of the issues which arise in this case. The first issue was abuse of process. He......