Lloyd v Humphreys & Glasgow Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing DBE |
| Judgment Date | 20 March 2015 |
| Neutral Citation | [2015] EWHC 525 (QB) |
| Court | Queen's Bench Division |
| Date | 20 March 2015 |
| Docket Number | Case No: HQ14X00416 |
[2015] EWHC 525 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Honourable Mrs Justice Elisabeth Laing DBE
Case No: HQ14X00416
Mr Simon Kilvington (instructed by Withy King Solicitors) for the Claimant
Mr David Platt QC (instructed by Plexus Law) for the Defendant
Hearing dates: 23 – 25 February 2015
Judgment Approved by the court for handing down (subject to editorial corrections)
Introduction
Mr Lloyd worked for various different employers during the 1950s, 1960s and 1970s, mostly as a welder, and was exposed to asbestos by at least some of those employers. Before he died, he issued a claim for damages for asbestosis against two of those former employers or their successors ("the first claim"). The defendants to the first claim were Ruthner Continuous Crops Systems Limited ("Ruthner") and Babcock Woodhall Duckham Limited ("BWD"). Ruthner was the successor of Unit Superheater and Pipe Co Limited and BWD was the successor of Woodhall Duckham Construction Limited. The first claim was settled, with a contribution from a third employer, Bewley and John Limited ("BJ") in 2011, for a relatively small amount. In 2012, a doctor diagnosed mesothelioma, and Mr Lloyd died soon afterwards, on 7 May 2012. After his death, his widow ("the Claimant") brought this claim for damages for mesothelioma against the Defendant ("the second claim"). The Defendant is a fourth former employer of Mr Lloyd. It was not joined in the first claim and did not contribute to its settlement.
The issues in this case are, first, whether, the second claim is an abuse of process, and if not (it being conceded that the limitation period for bringing it has expired), the court should exclude the limitation period which would otherwise apply, so as to permit the Claimant to bring the second claim.
In Durham v BAI (Run Off) Limited [2012] UKSC 14; [2012] 1 WLR 867, paragraphs 5 and 6, Lord Mance JSC described mesothelioma. It is a "hideous disease that is inevitably fatal. In most, if not all, cases, it is caused by inhaling asbestos fibres. It is a cancer of the pleura. It cannot usually be detected until shortly before death. No-one knows exactly how it is caused or how it develops. It is impossible to know what part any particular inhalation of asbestos played in its development….. A significant number of those who get mesothelioma have no occupational record of exposure to asbestos. The likelihood is that, discounting mesothelioma which develops from no known cause, that their mesothelioma is a result of breathing in dust in the environment. The more fibres that are inhaled, the greater the risk. There is usually a long period between exposure to asbestos and the development of mesothelioma. This can be about 35 years. About 3000 people a year die in the United Kingdom from mesothelioma, reflecting the common use of asbestos during the 1960s and 1970s."
I heard live evidence from the Claimant's solicitor, Ms Child, and from Mr Phillips, the solicitor to the Defendant's insurer. Their evidence was limited, in effect, to commenting on the documents. I have also read their witness statements, the witness statements from Mr Lloyd, and witness statements from Messrs Morgan, Miller and Woods who worked with him at various sites over the years and the medical evidence, and documents from the files of Mr Lloyd's former solicitors, Corries. Where it is has been necessary for me to find facts on the documents, those findings have been based on my assessment of the balance of that evidence, and what that balance most probably shows.
The facts
Mr Lloyd's employment history
Mr Lloyd was employed by various employers in the 1960s and 1970s. Those employers included the Defendant. On the Claimant's case, that employment was for a period of about 17 months in total. That is based on a letter dated 13 March 1997, from Jacobs Engineering, who took over part of the Defendant's business, to Johnson & Higgins UK Limited. That letter was sent in connection with a claim for industrial deafness. That letter says that Mr Lloyd was employed as a welder on four different sites, Clydach (for two different periods), Killingholme, Landarcy and Pembroke. The dates given for the Llandarcy employment are 7 August 1970 to 15 September 1970. The Clydach employment is a reference to employment at the Mond Nickel works, I am told.
In the most recent medical report, dated 15 November 2012, and prepared by Dr Davies for this claim, he said that, in his opinion, Mr Lloyd was suffering from asbestosis from 1993. Asbestosis is fibrous matter in the tissue of the lungs. Dr Davies based that opinion on his review of the X-rays. It is striking that Mr Lloyd did not get a contemporaneous diagnosis of asbestosis until much later, that is, 6 October 2008, when it was diagnosed on a CT scan.
It is appears from Dr Catterall's report of 21 November 2006 that pleural plaques were first seen on an X-ray on 18 March 1986 and all subsequent chest X-rays were reported as showing pleural plaques or thickening (report, section 5).
On 10 November 2004, Mr Lloyd was diagnosed by a Department of Social Security ("DSS") doctor as having localised pleural thickening and calcified plaques. Pleural plaques are caused by the body's reaction to the presence of asbestos and they are found, as their name suggests, not in lung tissue, but in the pleura, the linings of the lungs. "Pleural thickening", according to Ms Child, who is experienced in these cases, is often used interchangeably with "pleural plaques". Mr Lloyd was reported by this doctor to be describing symptoms of shortness of breath. This doctor did not consider that Mr Lloyd had either D1 or D9 (I was told that these are the labels which were given by the DSS to two industrial diseases, diffuse pleural thickening, and asbestosis, respectively, although the two decisions in the bundle and the appeal letter dated 7 December 2004 concern diffuse pleural thickening and pneumoconiosis). The DSS doctor did not comment on whether there was a causal link between Mr Lloyd's reported symptom and his observations.
On 13 May 2005, Mr Lloyd saw Dr Foley. She noted his history of asbestos exposure and of a fall. A chest X-ray had reported thickening pleura on the left and some calcification. Mr Lloyd was generally fit and well, except when he had bronchitis, and his lung capacity was less than would be expected of a man of his age. She referred him for a CT scan. She was not sure about the cause of his symptoms, and she was concerned about possible mesothelioma. The CT scan was done on 26 May 2005.
Mr Lloyd was reviewed by Dr Malin on 9 June 2005. The CT scan report had noted widespread pleural plaques, mostly calcified. Gross thickening was not present. No active pulmonary disease was suggested. The conclusion of that report was that the evidence was consistent with previous asbestos exposure but that there were no radiological signs which "were particularly suggestive of mesothelioma". Dr Malin's view was that there was no significant evidence of fibrosis. He explained to Mr Lloyd that the pleural plaques were benign, but did show significant exposure to asbestos. He explained that he was at an increased risk of developing mesothelioma, but was not certain to do so. He was discharged from the clinic, but told that he would be reviewed if he had new unexplained chest pain, weight loss or breathlessness. Mr Lloyd mentioned that he was considering a civil action and was given a leaflet about plaques.
Later, in a report dated 21 November 2006, Dr Catterall described extensive pleural plaques which probably accounted for the mild restriction on lung expansion, but that (in November 2006) the respiratory impairment was mild and there was no evidence of other asbestos-related disease. That diagnosis was based on the X-rays. He did not consider that the left-sided pleural shadowing was caused by Mr Lloyd's injury in 2007.
I should explain that Dr Catterall had noted that Mr Lloyd had a history of trauma to the left chest, and a possibility of localised pleural thickening at the site of the trauma (report section 1). Dr Catterall said in section 3.1 of this report that Mr Lloyd had had two injuries to his chest. These (in 1984 and in 1997) are further described in that section of the report. Dr Catterall also said that in 2003, Mr Lloyd's GP had suggested that Mr Lloyd might be suffering from mild chronic obstructive lung disease caused by the fact that he had smoked in the past.
Dr Catterall could find no other explanation for the restriction on lung function. The level of restriction might account for breathlessness during vigorous exercise but would have no noticeable effect on normal activities; it would not account for mild breathlessness on climbing stairs, which was more likely to be the result of mild weight gain and increasing age. The pleural plaques had been present before Mr Lloyd reported being breathless. The prognosis was good: it was unlikely that the degree of lung restriction would increase, or that Mr Lloyd would develop asbestosis. There was a small increased risk of mesothelioma and of lung cancer (2% in the case of each). Dr Catterall did not see Mr Lloyd before preparing his report.
On 14 February 2008, he clarified his report by saying that "mild restrictive defect" was accurate, and that it was possible that it was caused by a combination of excess weight and the pleural plaques. It appeared that Mr Lloyd's residual lung capacity was lower than average. The pleural plaques were unlikely to account for Mr Lloyd's breathlessness to date and there was no reason to think that they would account for more breathlessness in the future.
On 6 October 2008,...
To continue reading
Request your trial