Peter Frank Brown v G & K Manson Ltd
| Jurisdiction | England & Wales |
| Judge | Blair |
| Judgment Date | 24 November 2022 |
| Neutral Citation | [2022] EWHC 3004 (KB) |
| Docket Number | Case No: KB-2022-000950 |
| Court | King's Bench Division |
[2022] EWHC 3004 (KB)
HIS HONOUR JUDGE Blair KC
(SITTING AS A JUDGE OF THE HIGH COURT)
Case No: KB-2022-000950
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Daniel Bennett (instructed by Slater & Gordon Solicitors) for the Claimant
Damian Powell (instructed by Plexus Law) for the Defendant
Hearing date: 10 November 2022
Approved Judgment
His Honour Judge Blair KC:
Background
This judgment concerns the assessment of damages in respect of a claim brought by Mr Peter Brown against his former employers — a limited company which I am informed still exists and is active. Mr Bennett of counsel (instructed by Slater & Gordon Solicitors) appears on his behalf. The defendant company has been represented during the litigation by Plexus Law Solicitors.
Shortly before the hearing commenced I was handed a defendant's Skeleton Argument dated 9 November 2022 (thus not complying with paragraph 8 of the Case Management Directions of Master Eastman at the CMC on 28 June 2022, which required it to be filed not less than 4 days before the hearing). It was drafted by Mr Powell of counsel, who attended the hearing. Mr Powell explained that he was not instructed until after the deadline for the filing of skeletons expired.
Paragraph 1 of his Skeleton states that Plexus Law has been acting as the Solicitors of an insurance company which acquired the liabilities of an employer's liability insurer who provided the defendant with cover between 28/05/65 and 31/12/68. I was informed that the defendant company has not been co-operating with addressing this litigation and it is not known who, if anyone, insured them for liabilities before that time. Mr Powell has thus been recently instructed on behalf of Catalina Holdings (Bermuda) Limited under their contractual rights of subrogation to step into the shoes of the defendant and challenge the quantum of the claim insofar as it may affect the sums for which they will be liable to indemnify the defendant.
The claimant is now aged 74, having been born on 23 August 1948. He worked for the defendant between August 1963 and 1968 on the maintenance of heating systems in the County of Dorsetshire. During the course of his employment he was exposed to asbestos which was used to lag and insulate boilers. As a consequence of that exposure he developed asbestosis and he has brought this claim for damages to compensate him for pain, suffering and his other losses. Judgment on liability was entered against the defendant on 28 June 2022.
The evidence
In quantifying the value of this claim I have had the benefit of reading Mr Brown's witness statements dated 3/9/21, 24/6/22 and 12/8/22 (which stood as his evidence-in-chief) and of hearing him under cross-examination. I have also read a statement from his wife — Linda Brown, dated 12/8/22 (which also stood as her evidence-in-chief) and have considered her answers under cross-examination. As to expert evidence, I have read the report of Professor Maskell, a consultant chest physician, dated 10/2/22, and Dr Edey, a consultant thoracic radiologist, dated 31/1/22. Their evidence has not been challenged.
An updated Schedule of Loss, dated 28/9/22, was submitted on behalf of the claimant. It has been calculated to include matters up to the day of hearing. It goes somewhat further than the required Schedule of Special Damage ordered by Master Eastman by including a submission as to the appropriate quantum of damages for pain suffering and loss of amenity, but there is no harm in that — it is valuable for the defence to have such a document so as to understand how the claim is to be pitched in all its different aspects.
The only other document served by the defence (apart from the skeleton argument) is a Counter Schedule of Loss dated 26/10/22.
Mr Brown was diagnosed with asbestosis disease in October 2019, but he had been beginning to experience the associated symptoms of increasing breathlessness in late 2018 or early 2019. He had unfortunately already suffered from a number of health issues over the preceding years.
In the 1980s he was crushed by a bull when working on a farm as head stockman and relief-milker for Lord and Lady Vestey. That accident led to a 14 week period of hospitalisation and the need to wear a corset for 3 years. It left him with problems to his back and his left leg which gave constant pain and flared up from time to time. Treatment for that has been with 6 monthly spinal injections, which he told me gave him some relief for about 3 or 4 months, enabled him to “get about” with the use of a stick and to “tinker about”.
It is clear that Mr Brown is a man who strongly values his independence and personal dignity. He did all he could to stay in gainful employment; making a living; caring for his family; and looking after himself.
After finishing farm work in the late 1980s he became a lorry driver until the mid-1990s and then undertook general maintenance work, painting and decorating. However, it became increasingly difficult for him to carry out the tasks of being a painter and decorator because of his injuries and he stopped working in 2000/2001 when he was aged about 52.
About 10 years ago (2012) Mr Brown was diagnosed with COPD for which he has used a Ventolin inhaler twice a day. Then in 2015 he was found to be suffering from bowel cancer. He explained in his evidence how the doctors found that his lungs were decidedly worse than simply from COPD but they decided to deal with things one at a time, starting with 3 years of treatment for cancer.
He was pressed in cross-examination with the proposition that it was his history of other health issues (summarised above) which was the cause of his need for such things as additional care from his wife, assistance with DIY, gardening, cleaning windows, breathing aids and extra heating. His wife was cross-examined to the same effect. Both of them found difficulty in understanding the nuances of some of the questions and did not always answer them directly. However, I am completely satisfied that this was not as a result of any dishonesty, exaggeration or deliberate avoidance on their parts. They were being asked to remember back to phases of the claimant's state of health over the past two decades (and before) with an unrealistic level of expected precision in their recall of what help was needed, when, and to what extent. Attempts to contrast subtle changes of wording between Mr Brown's three statements, and between them and that of his wife, were lost on them; not because they had been caught-out with material inconsistencies, but because they were honest witnesses who could not see that the forensic differences being suggested to them were in the slightest part significant.
I found them to be a couple who were doing their best to describe how their lives had been additionally affected by the onset of Mr Brown's much more acute and debilitating breathlessness. They appropriately conceded that Mr Brown had indeed had flare-ups of his back and leg injuries from time to time which made him temporarily dependent on his wife and others for various tasks while it lasted, but the onset of his symptoms of this disease had made those dependencies constant and permanent. As for the effects of his COPD, I accept his evidence that he had previously been able to carry on doing what he was wanting to do with the use of a Ventolin inhaler and taking a rest to catch his breath.
Professor Maskell quantified the claimant's respiratory disability in 2019 at 45%, of which 20% was due to the asbestosis. This had increased to a disability of 55% by February 2022, of which 25% was due to the asbestosis. He predicts the disability caused by the asbestosis related diseases are likely to progress by a further 5% during Mr Brown's lifetime, to 30%. He...
To continue reading
Request your trial