Wilkinson v Ancliff (B.L.T.) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SLADE,LORD JUSTICE CROOM-JOHNSON |
| Judgment Date | 23 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0523-4 |
| Docket Number | 86/0567 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 1986 |
[1986] EWCA Civ J0523-4
Lord Justice Slade
Lord Justice Croom-Johnson
86/0567
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN ORDER OF MR JUSTICE CAULFIELD
Royal Courts of Justice
MR G.W. WINGATE-SAUL Q.C. and MR P.A. BUTLER, instructed by Messrs Keogh, Ritson & Co. (Bolton), appeared for the Appellants (Defendants).
MR M.S.E. GRIME, instructed by Messrs Livingstone & Co. (Manchester), appeared for the Respondent (Plaintiff).
This is an appeal by Ancliff (B.L.T.) Ltd., the defendants in an action, from an order of Mr Justice Caulfield made on 1st November 1985. By that order he allowed an appeal of the plaintiff in the action, Mr Robert James Wilkinson, against an order made on 24th May 1985 by Mr Deputy District Registrar Stephenson, who had set aside the service of the writ in the action, dismissed the action and refused to renew or extend the validity of the writ.
The chronology of the case is of some importance. I derive most of the facts in the summary of the history which follows from the affidavit evidence sworn on behalf of the respective parties. Neither side has yet had the opportunity to test its accuracy by cross-examination, but I know of no reason to doubt it.
The plaintiff was formerly employed by the defendants as a road tanker driver based at their premises at Felixtowe in Suffolk. The tankers in question contained a substance known as Toluene Diisocyanate (which I will call "TDI"). As he subsequently told his medical advisers, in April 1981 he experienced symptoms of wheezing, cough and shortness of breath. In August 1981 he stopped work due to ill health. In October 1981 the Department of Health and Social Security wrote to the defendants, referring to a claim for benefit which had been received from the plaintiff, the cause of incapacity being shown as "chest congestion", which he had told them was "due to inhalation of chemicals due to spillage". On 2nd November 1981 he was admitted to St. Bartholomews Hospital in London for investigation of symptoms of "cough, breathlessness and wheeze". What occurred on that occasion appears from a report by the Senior Registrar of that hospital, Dr. Blainey, subsequently written on 20th May 1982, from which I will quote certain extracts. Dr Blainey said:
"He first developed these symptoms in April 1981 when he noticed nocturnal wheezing. Since then wheezing, cough and shortness of breath had been present during the day in addition. At that time he noticed that his symptoms were worse during the working week but improved when away from work. When he went on holiday in June 1981 his symptoms improved but recurred within three weeks of his return to work.
"At the time of admission he was employed as a tanker driver and in the course of his employment had encountered a number of chemicals. He told us that on several occasions during the three years of his employment he had been exposed to [TDI] at concentrations sufficiently high for him to smell the fumes during the process of loading and unloading a tanker carrying [TDI]. Since April 1981 there were occasions when he had been exposed to [TDI] at concentrations at which he was unable to detect the fumes. Nevertheless on at least two occasions he had developed wheezing, cough and shortness of breath within 20 minutes of such exposure. Since the last of these attacks, in August 1981 he had not returned to work and had as a result had no further attacks. He had no history of respiratory symptoms prior to his present employment, he had worked as an ambulance driver in Belfast before coming to England to take up his present employment. He had not smoked cigarettes since 1966. He complained of no other symptoms."
Dr Blainey then referred to a physical examination of the plaintiff which included a chest X-ray and lung function tests and proved to be normal. He also referred to what was described in argument before us as a "challenge test" and involved the plaintiff being exposed to TDI at a steady state concentration. Dr Blainey gave some details of the plaintiff's reaction to this challenge test and concluded:
"This reaction is conventionally regarded as a positive response to [TDI] and confirms the expression quoted from the history that this patient had developed bronchial asthma due to sensitization to [TDI]."
Following this examination, the plaintiff must in my opinion at least have been well aware that in all probability his bronchial asthma had resulted from his employment with the defendants. On or about 11th November 1981 he was advised by a social worker attached to the hospital to seek advice about compensation. On or about 13th November 1981 he contacted his trade union (the Transport and General Workers Union), who in turn put him in touch with their retained solicitors in Ipswich, Messrs Bates, Wells & Braithwaite. It appears that he went to see these solicitors on 16th December 1981 and that they then sought the report from St. Bartholomews Hospital which was eventually produced on 20th May 1982.
Following the receipt of this report, Messrs Bates, Wells & Braithwaite wrote to the defendants on 7th June 1982 saying that they had been consulted by the plaintiff in connection with a respiratory condition suffered by him in or about April 1981. They continued:
"According to our instructions our client who is employed by you as a Tanker Driver was exposed to [TDI] during the course of his employment. We understand that no tests were ever carried out on our client to determine his susceptibility or otherwise to the various chemicals which he was responsible for transporting. Furthermore, we are instructed that no protective clothing was supplied such as respiratory apparatus." They ended by saying that the plaintiff held the defendants responsible for the injury and loss which he had suffered and asked the defendants to forward the letter to their insurers. Some further correspondence followed between Messrs Bates, Wells & Braithwaite and the defendants or their insurers in June and July 1982. But it seems that eventually, in or about October 1982, that firm, for reasons which are not apparent, advised the plaintiff that he had a poor chance of succeeding in any claim against the defendants. At that point the plaintiff, whose home is in Northern Ireland, instructed a firm of solicitors in Northern Ireland, Messrs Austin Mallon. They appear to have taken a different view as to his prospects of success in proceedings. At the end of August 1983 they requested his present English solicitors, Messrs Livingstone & Company, to act for him in seeking to obtain legal aid and proceeding with the matter thereafter. On 29th November 1983 the plaintiff obtained legal aid.
On 7th March 1984 he issued a writ against the defendants. On the writ the plaintiff's claim was stated to be "for damages for personal injury and loss arising out of an industrial asthma disease contracted during the course of the Plaintiff's employment with the Defendants, which said disease the Plaintiff first discovered was attributable to the Defendants in November 1981 and which was contracted due to the negligence and/or breach of duty of the Defendants, their servants or agents."
In May 1984 counsel was asked to advise on liability. When he did so, in June 1984, he advised that it was necessary to obtain an expert's report. On 28th June 1984 Messrs Livingstone & Company instructed a firm of analytical consulting and research chemists for this purpose, their principal consultant being Mr M. Leitner. On 10th December 1984 Mr Leitner wrote his report. He began by referring to the plaintiff's assertion that he suffered from bronchial asthma, to the suspicion that this might be primarily, if not entirely, due to the fact that the plaintiff had come into contact with TDI whilst employed as a tanker driver at the defendants' premises. He referred to a written statement made by the plaintiff to his solicitors stating in precise terms the relevant circumstances during his employment with the defendants together with a number of other supporting documents. He continued:
"I have been asked to comment from a chemist's viewpoint on whether the circumstances, as outlined by Mr. Wilkinson, are sufficient to lead to exposure to dangerous levels of TDI, which might in turn lead to bronchial asthma; and to further comment on the adequacy of the protective equipment used and the safety procedures generally of Mr. Wilkinson's employers."
Mr Leitner then proceeded, very carefully and in great detail, to set out the information which had been given to him by the plaintiff as to the relevant circumstances during his employment with the defendants. He summarised, from a chemist's point of view the hazards associated with exposure to TDI and expressed his "Conclusions" thus:
"On the basis of all the facts placed before me it is my considered opinion that:
1. Ancliffs (BLT) Ltd., took a casual and irresponsible attitude towards their employee by virtue of not providing adequate warning and the hazards associated with inhalation and handling of TDI; by not providing adequate training on the safe handling of TDI; by not providing adequate warning on the importance of using breathing apparatus when handling TDI.
2. Ancliffs Ltd., did not provide breathing apparatus and adequate training particularly where Mr. Wilkinson was expected to discharge a load of TDI at a customer.
3. It is my considered opinion that Felixtowe Tank Developments Limited [that was the name of the tank firm at Felixtowe Docks] should be partly responsible for Mr. Wilkinson's condition...
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