Mark Mather v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | Mr Justice Freedman |
| Judgment Date | 31 March 2021 |
| Neutral Citation | [2021] EWHC 811 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2017-001539 |
| Date | 31 March 2021 |
[2021] EWHC 811 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Freedman
Case No: QB-2017-001539
Michael Rawlinson QC and Kate Boakes (instructed by Irwin Mitchell LLP) for the Claimant
Caroline Harrison QC and Niazi Fetto (instructed by Government Legal Dept) for the Defendant
Hearing date: 10 March 2021
Approved Judgment
I Introduction
This is an action brought by the Claimant as a former employee of the Defendant for personal injuries in the nature of multiple sclerosis (“MS”) and psychiatric injury which he alleges has been suffered as a result of his use of organic solvents in the course of his work as a painter and finisher with the RAF between 1989 and 2003. His claim is that his injuries have been caused by the Defendant's breach of duty, negligence and breach of statutory duty (the Control of Substances Hazardous to Health Regulations “COSHH”). The Defendant denies breach of duty of care and negligence and/or breach of statutory duty, causation or damage for which it is responsible. The Defendant also says that the claim is statute barred.
Very central to the issues in the case is the question of whether the Claimant can show that his MS was caused by his work for the Defendant. This includes two issues, namely first whether exposure to the organic solvents to which the Claimant was exposed can cause MS, and, if so, (b) whether it did cause his MS. The Defendant expresses confidence about its defence to the claim and believes that it will succeed on causation which would render the trial of the other issues otiose. To that end, it seeks to have tried causation as a preliminary issue in one of two ways, that is either by
(a) defining a preliminary issue on causation with the Claimant's best case on exposure being the assumed facts, and limiting oral evidence to medical causation; or
(b) formally opening the trial, limiting oral evidence to that relevant to medical causation, and then making a ruling on causation, with other issues to follow if necessary.
The Claimant, whilst willing to hive off quantum, views the case as much more nuanced than the Defendant. The Claimant says (though not in these words) that a preliminary issue is an intended short cut which is liable to increase rather than decrease complexity and expense.
The matter comes before the Court in the following circumstances. On 20 July 2020, the Defendant issued an application to have causation tried as a preliminary issue. On 20 November 2020, Master Thornett released that application to be heard by the trial judge “drawing upon their wider case management powers as if a trial judge hearing the case on a pre-trial review”. Since the case is unlikely to be tried until 2022, he did not mean that the application would necessarily be heard by the trial judge, but that it should be heard by a Judge of the Queen's Bench Division who would be used to dealing with long or complex trials.
There is also before the Court an application of the Claimant for permission to rely upon an addendum report from Professor Cherrie, the Claimant's occupational hygiene expert, about possible carcinogenesis of organic solvents. In view of the way that application went, I shall simply make some brief reference to it at the end of this judgment.
The Court has been assisted by full skeleton arguments from the Claimant and the Defendant supplemented by the high-quality oral submissions of Ms Harrison QC for the Defendant applicant and Mr Rawlinson QC for the Claimant respondent both with the assistance of junior Counsel. I heard oral argument on 10 March 2021 for most of a court day, and this is the reserved judgment.
II Causation
This Judgment shall consider causation by separating factual background, medical causation and applicable law.
(a) Factual background
(i) The Defendant's case
The Defendant says that there is considerable oral evidence regarding the solvents used and the level of exposure. In connection with breach of duty, there will be issues regarding how the chemicals were regulated and any permitted levels of exposure. The Defendant submits that the best possible case of the Claimant comes from its occupational hygiene expert, Professor Cherrie. The Claimant's first statement identifies the chemicals used and the conditions in which he worked: see paras. 4–10, 45–85. The working period of the Claimant with the Defendant was between 1989 and 2003, but the Defendant says that one can ignore the period from 1994 because the occupational hygiene experts agree that from 1994, the exposure to solvents “…would most likely have complied with the standards in place at that time”: see joint statement at paras. 7–8. It also says in any event that as regards the period from 2000, the evidence is irrelevant. This is because it appears that the Claimant contracted MS from 2000, and thus no further exposure after 2000 could be taken to be causative or contributory. The Defendant says there is no evidence to the effect that once a person has MS that continued exposure to solvents could affect the progress of the disease.
The Defendant says that the case does not depend as regards causation on hearing from 25 lay witnesses and two occupational hygiene experts. That is relevant to duty of care, but not to the question whether the exposure to solvents may have caused the injuries and, if so, whether it did cause them. The need for that evidence could be avoided by taking the case of the Claimant at its highest. The Defendant has sought to do this by reducing the evidence of Professor Cherrie on exposure in a table so that this may form the basis for a set of assumed facts either for the trial of a preliminary issue or the determination of causation as a separate first tranche of a trial. It seeks to replicate the relevant parts of Professor Cherrie's tables 3–5.
(ii) The Claimant's case
The Claimant says that it is not accepted that no further exposure after 2000 could be relevant to the progress of the MS. The case on both sides may be based on assumptions or burden of proof. The Claimant relies on the absence of evidence that continued exposure could cause the progression or accelerated progression of symptoms of MS, which is premised on the Defendant bearing the onus of proof in this regard. The Defendant says that it is for the Claimant to prove this. Whichever is the case, it can be expected that this is an issue which might be addressed before trial by the clinical and epidemiological experts. In the meantime, the Claimant objects to an assumed fact that exposure post-2000 can be taken out of the equation in a causation trial.
Further, the Claimant also objects to an assumed fact that exposure after 1994 is irrelevant because of the evidence that this might have been below certain workplace threshold limits. For the purpose of medical causation, the Claimant says that the Court has to consider the total amount of exposure. There will be an argument on duty of care that the threshold limits are not determinative: if it were reasonably practicable for an employer to expose an employee to a level of exposure below the standard levels, then the Claimant submits that it would be a breach of the duty of care to expose the employee above the lowest level reasonably practicable. There is therefore a question of law as to whether any duty (as per the Defendant) was no higher than to keep the exposure below certain recognised standards, or (as per the Claimant) the duty was to keep exposure to the lowest level reasonably practicable (and even below the recognised standards). Thus, the degree of exposure will require consideration not only in respect of breach of duty, but also in respect of causation. The Claimant submits that this determination will require consideration of lay evidence and occupational hygiene expert evidence.
(b) Medical causation
(i) The Defendant's case
In any event, the Defendant submits that the precise details about exposure levels are not critical because the expert medical evidence is incapable of proving causation as a matter of principle. In that regard, the Defendant's case is summarised at para. 13 of Counsel's skeleton argument that:
“(a) MS is a disease which is generally regarded as of unknown aetiology; and (b) when asking the question of whether an exogenous environmental factor has caused a naturally occurring disease (such as MS or cancer), the first step is to prove that the exogenous factor in question is capable of causing the disease. That requires proof that the exogenous factor more than doubles the risk of the index condition…. If it were otherwise, endogenous factors could provide a complete explanation for the manifestation of the disease. The Defendant's position is that there is no probable let alone provable, link between organic solvents and the Claimant's MS [see e.g. Professor Silman's evidence in the Joint Statement, at page 2, 3rd and 5th bullet points].”
The Defendant draws attention to most of the Claimant's evidence falling short of showing doubling of the risk: see point 4 of the joint statement of Professor Seaton for the Claimant and Professor Silman for the Defendant. Dr Schmierer does opine that organic solvents more than doubled the Claimant's risk of MS, but he is relied upon as a clinical rather than an epidemiological expert and he defers to the experts on epidemiology with whom his opinion conflicts. The Defendant says that the causative nexus cannot be proven by clinical experience....
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