ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE GORE QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE GROSS
LORD JUSTICE CHRISTOPHER CLARKE
| ALBERT VICTOR CARDER
- and –
|THE UNIVERSITY OF EXETER
Harry Steinberg QC and Aliyah Akram (instructed by Moore Blatch) for the Respondent
Hearing date: 18/07/2016
Crown Copyright ©
Master of the Rolls:
"Without the presence of asbestos fibre burden caused by:-
i. Colston Electrical Company Limited and each Defendant (when considered singly and in turn); and then
ii. Colston Electrical Company Limited and the Defendant in total would:-
a. The objective to (sic) condition and appearance of the Claimant's lungs but (sic) notably different to the trained observer?
b. Would the Claimant respond to lung function testing materially differently?
c. Would the subjective perception of symptomology be noticeably different to the Claimant and
d. Would the Claimant's ability to cope with daily tasks (when taking into account his age and general health) be measurably or demonstrably different?"
"I find the wording of the questions confusing. I suspect that the questioner wants to know whether, without the exposure with either or both of the Defendants, would any of items A to D inclusive be any different. The answer is that they would not."
"Please provide your estimate in percentage terms of the minimum proportion of the Claimant's exposure to asbestos with any one tortfeasor which could cause a material difference in respect of the questions set out at a.-d of the letter of the Second Defendant's solicitors (Simpson & Marwick) to you dated 1 April 2015."
"There is no scientific basis upon which to provide an estimate of the minimum percentage of his total asbestos exposure which would cause a material difference to the answers of questions A-D in the letter from Simpson & Marwick dated 1 April 2015. It is quite possible, although not demonstrably the case, that a reduction in total dose of 10% or even 20% would not have made any material difference to the answers to questions A-D. There is a relation between the severity of lung fibrosis of asbestosis and the dose of asbestos received but the dose response curve is variable between individuals. There is also a variable relation between severity of lung function impairment, symptoms and disability. Some individuals are sensitive to relatively small changes in lung functions while others are relatively insensitive to large changes."
"First, 2.3%, though very small, was, in the opinion of Dr. Rudd from a medical perspective, material and beyond de minimis.
Secondly, both the risk of development and the extent of asbestos increase in relation to dose, which is an indicator that the claimant has become worse off physically as a result of the 2.3% contribution, whether that is objectively or subjectively noticeable or measurable.
Thirdly, because each source of asbestos will have contributed to the development of asbestosis in proportion to the dose, the 2.3% contribution has made a contribution to the overall condition, albeit one that does not sound in the appearance of the lungs, the lung function test results, perception of symptoms, or ability to cope with tasks of daily living.
Fourthly, persons with asbestosis are at an increased risk of lung cancer compared with persons with a similar history of exposure who have not developed asbestos. This is not the reductionist fallacy that it was in [Rothwell] because in that case the risk did not derive from the condition that was sued for (pleural plaques do not cause mesothelioma or lung cancer), whereas in this case it does (asbestosis does cause lung cancer).
Fifthly, the condition will progress, and there is a 50% risk that it progresses so seriously as to leave the claimant bed and chair ridden and totally dependent. Sixthly, whereas Dr. Plumb did assert that the even smaller contribution of exposure by one of the other small exposures was "probably not significant" at 0.1 fibre ml years (see paragraph 4.4 of his report at trial bundle 102) he expressed not such qualification in respect of the defendant's exposure, perhaps because it was estimated at eleven times greater, at 1.2 fibre ml years.
Seventhly, the fact that the likely progression of asbestosis, together with the risk of it progressing to the point that the claimant is virtually confined to bed and chair and dependent upon others, are to be taken into account in the immediate award of damages, represents, in my judgment, being worse off.
Eighthly, even if asbestosis in this case is asymptomatic in the way that pleural plaques in Johnston were, on no view can this condition be described as benign."
"For all those reasons, I find that the Claimant did suffer damage and injury that was actionable, and that he has so proved as against this Defendant even though its contribution was very small. He is therefore entitled to damages."
"I test the correctness of that determination by the following observation. If you take two laggers who demonstrated exposure to exactly equal doses of asbestos fibre during their working lives, each in excess of the minimum threshold associated with the cause of asbestosis, and each of whom developed asbestosis, then, in my judgment, it cannot be correct that the man who had 40 different and equal exposures contributing 2.5% each gets no compensation but the man who had, say, 10 equal exposures contributing 10% each recovers from all of them simply because, if that be the case, whereas 2.5% could not cause detectable symptoms 10% would. That is not what, in my judgment, either Cartledge or [Rothwell] say, but that is the result that Mr. Kent's submission would produce."
The grounds of appeal
What is damage?
"What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material."
"Although those words were spoken with reference to the emission of harmful dust, they are equally applicable to the injuries caused by it. It is a question of fact in each case whether a man has suffered material damage by any physical changes in his body."
The present case
"The risk of the development and the extent of asbestosis increase in relation to the dose of asbestos received, i.e. it is a cumulative condition. Each source of asbestos exposure will have contributed to development of asbestosis in approximate proportion to the dose of asbestos received in each. According to Mr Chambers' estimate, a very large majority of [Mr Carder's] exposure occurred during his employment with Colstons."(emphasis added).
"It is trite law that, where possible, defendants should only be held liable for that part of the claimant's ultimate damage to which they can be causally linked… It is equally trite that, where a defendant has been found to have caused or contributed to an indivisible injury, she will be held fully liable for it, even though there may well have been other contributing causes…"
Lord Justice Gross:
Lord Justice Christopher Clarke: