Michael Holmes v Poeton Holdings Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Stuart-Smith,Lord Justice Phillips,Lord Justice Underhill |
| Judgment Date | 22 November 2023 |
| Neutral Citation | [2023] EWCA Civ 1377 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2022-002508 |
[2023] EWCA Civ 1377
Lord Justice Underhill
(Vice-President of the Court of Appeal Civil Division)
Lord Justice Phillips
and
Lord Justice Stuart-Smith
Case No: CA-2022-002508
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON TRANSFER FROM THE HIGH COURT OF JUSTICE
HIGH COURT APPEAL CENTRE CARDIFF
ON APPEAL FROM THE COUNTY COURT AT CARDIFF
HIS HONOUR JUDGE HARRISON
G14YJ691
Cardiff Civil Justice Centre
2 Park Street, Cardiff CF10 1ET
Michael Kent KC and Jamie Clarke (instructed by DAC Beachcroft) for the Appellant
Patrick Limb KC and Thomas Herbert (instructed by Howells Solicitors) for the Respondent
Hearing dates: 25–26 July 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 22 November 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Between 1982 and 2020, when he was forced by ill-health to retire prematurely, Mr Holmes was a valued employee of the appellant, Poeton Holdings Ltd [“Poeton”]. In 2014 he was diagnosed as suffering from Parkinson's disease. By this action Mr Holmes claims damages from Poeton because it acted in breach of its common law and statutory duty in the period from 1982 to 1997 by exposing him to unsafe levels of Trichloroethylene [“TCE”] in the course of his employment. After a trial of the issues of breach of duty and causation, HHJ Harrison found in favour of Mr Holmes on both issues, leading him to conclude that Poeton was liable to Mr Holmes for all the consequences of his having contracted Parkinson's disease. I shall describe his claim for all the consequences as a claim for 100% damages.
There is no appeal against the Judge's findings of breach of duty. Poeton has, however, mounted a wide-ranging appeal against the Judge's legal analysis, factual findings and overall conclusions on the issue of causation. In briefest outline, Poeton submits that the Judge adopted the wrong legal test for establishing causation of what is acknowledged on all sides to be an “indivisible disease”. Specifically, it submits that the Judge erred in failing to address the question whether Mr Holmes' development of Parkinson's disease would have happened in any event, so that the exposure to TCE made no difference. It goes on to submit that the evidence available to the Judge showed no more than that TCE may have caused an elevation of the risk of contracting Parkinson's disease: it did not demonstrate that exposure to TCE was capable of causing Parkinson's disease or that Mr Holmes' exposure had caused his contraction of the disease.
The breadth of Poeton's attack on the Judge's findings requires this Court to review the development of the law relating to causation of indivisible diseases in and since Bonnington Castings v Wardlaw [1956] 1 AC 613. I shall attempt that review later in this judgment. It may, however, be helpful to make clear at the outset that Mr Holmes has not advanced his case on the basis that he falls within what has been called “the Fairchild exception”. As before the Judge below, he does not argue before this Court that he is entitled to damages because his exposure to TCE increased the risk of him developing Parkinson's disease. That might, if proved, entitle him to a measure of damages proportional to the increase in risk attributable to Poeton's tortious exposure. Perhaps optimistically, he seeks to reserve the right to advance a Fairchild claim at some future date if his claim to 100% damages fails. Whether or not he should or would be allowed to do so is not for this judgment to decide.
For the reasons I set out below I would allow the appeal.
The Factual Background
What follows is taken from the judgment and is largely uncontroversial. Mr Holmes was born in 1966 and spent his entire working life with Poeton. He joined as an apprentice in 1982 and was taken on as a process operator the following year. In 1990 he was promoted to foreman/supervisor but remained working on the shop floor. In 1997 he was further promoted to a managerial role and his work on the shop floor became more limited. Having been diagnosed in 2014 he continued to work for Poeton until 2020. These proceedings were issued in February 2020.
TCE is an organic solvent whose properties make it particularly useful in the cleaning or degreasing of engineering components. It could be used “cold” on rags, but was more extensively used “hot” in a degreasing tank. When it was being used “hot” it would be poured into the tank and heated to produce vapour. Components would either sit or be suspended in the vapour produced in the tank. A degreasing tank would usually have a form of cooling coil near to the top of the tank above the area in which the components would sit. This would serve to condense the vapour and limit its escape. In addition, such tanks often had ventilation in the form of lip extraction near the top, which limited vapour escape further. Poeton's tank was essentially normal in these respects during Mr Holmes' relevant employment, with an additional centrifugal fan extraction unit being added in March 1991.
TCE is a carcinogen that is readily absorbed by the body following inhalation. Poeton was a significant user of TCE, using some 7 to 8 tonnes per annum. It was known to be potentially harmful even before it was known to be a carcinogen. By 1973 the Factories Inspectorate identified the need for breathing apparatus to be used if working with TCE in confined spaces. In and from 1976 the HSE recommended an 8 hour time weighted average day exposure limit of 100 ppm and in and from 1984 a recommended short-term limit of 150 ppm was added. These are still the recommended safe limits. In 1985 a level of 5000 ppm was identified as being immediately dangerous to life. The Judge found it to be established that TCE is neurotoxic and can act upon the dopaminergic neurons. It is also established that damage to those neurons is the mechanism by which Parkinson's disease arises, though the precise aetiology and pathogenesis of the condition is only partially understood and remains the subject of ongoing research.
The Judge largely accepted Mr Holmes' case on the extent of his exposure to TCE while at work. He divided his employment into three periods: first, from 1983 to about 1990 when he was a general worker; second, from 1990 to 1997 when he was general foreman; and, third, from 1997 when he was a manager. His case was that his exposure was heaviest during the first two periods. Mr Holmes did not advance a claim in respect of his employment after 1997 and the Judge made no findings about whether he was exposed at all to TCE during that third period. If he was, it was evidently taken to be at levels that were not in breach of duty and, by implication, within the then recognised safe levels.
The Judge held that, at all material times, the degreasing tank would be filled by operators using buckets. When the unit was in extensive operation it would need to be topped up frequently. If it was very busy, he considered it to be highly unlikely that the operatives would wait until the tank was stone cold. Equally, he considered it unlikely that new liquid would be added if the existing TCE in the tank was at its boiling temperature.
The method of operating the tank was that, having been filled, it would be heated and components placed in baskets below the cooling coil and in the vapour zone. When they had been there for long enough they would be removed manually using a hook or some similar implement. Ideally the components would be held in the “freeboard zone” above the cooling coil level and below the lip extraction level to allow any condensed liquid on the components to drip off or evaporate away. This would be consistent with HSE Guidance issued in 1976 and 1985. Holding the components in this area would reduce operatives' exposure to TCE vapour. One way of holding components would be to use a mechanical hoist but, on the Judge's findings, although there may have been a hoist on the premises, it was not provided for use in the tank. There was evidence, which the Judge accepted, that operatives would therefore regularly “hoik” components (other than the most modestly sized items) out relatively quickly and rest them on the side of the tank or leave them beside the tank rather than keeping them longer in the freeboard zone, which would lead to “high levels of exposure”. This practice would circumvent the effectiveness of the lip extraction. The Judge was satisfied that the general working practices described by the Claimant and those witnesses called on his behalf were allowed to persist and the TCE was not treated with sufficient caution.
Cold cleaning with TCE on a rag involved degreasing components outside the tank. The Claimant's case, which the Judge accepted, was that larger items such as missile tubes were a regular part of an aerospace contract enjoyed by Poeton and that they could not be dealt with in the degreasing tank. Cold cleaning, using TCE from a bucket, was the only effective means of preparing such components and the Judge found that cold TCE was frequently used as a method of degreasing during the time that Mr Holmes was a general operative and foreman.
The third main source of exposure of which Mr Holmes complained was while cleaning the inside of the TCE tank. Mr Holmes' case was that this was undertaken every three or four weeks by an operative getting inside it. The Defendant's evidence was that this operation would take place about monthly and would take about 2 hours on each occasion. The evidence established that, although the work was undertaken in a confined space, no breathing apparatus was provided and that the operation potentially exposed operatives...
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