Neutral Citation Number: [2016] EWCA Civ 790
Case No: B3/2015/2750
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
HIS HONOUR JUDGE GORE QC
HQ14A2090
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2016
Before:

THE MASTER OF THE ROLLS
LORD JUSTICE GROSS
and
LORD JUSTICE CHRISTOPHER CLARKE
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Between:

	ALBERT VICTOR CARDER
	Claimant/Respondent	
	
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	THE UNIVERSITY OF EXETER	Second Defendant/Appellant	

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Michael Kent QC and Richard Sage (instructed by Clyde & Co) for the Appellant
Harry Steinberg QC and Aliyah Akram (instructed by Moore Blatch) for the Respondent

Hearing date: 18/07/2016
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Judgment Approved
Master of the Rolls:  
1.	Mr Carder is 87 years of age.   He suffers from asbestosis.  He was exposed to asbestos dust during four employments as an electrician and this exposure gave him a lifetime “dose” of 51.26 fibre/ml-yr.  Of this total dose, 49.2 fibre/ml-yr (97%) was attributable to his employment in the 1950s by a firm called Colston Electrical Co Ltd which no longer exists.  Only 1.25 fibre/ml-yr (2.3%) was attributable to his employment with the appellant in the 1980s.  The first defendant represented a Hospital Board for whom Mr Carder had worked in the 1960s.  It had contributed 0.165 fibre/ml-yr (0.3%).  There had also been an exposure of 0.1 fibre/ml-yr (0.2%) in the 1950s during his employment with another firm which was not sued.
2.	Asbestosis is fibrosis of the lung tissue.  It is a dose related disease.  The asbestos fibres ingested operate cumulatively to cause the disease and then to progress it.  The extent and severity of the disease is related to the quantity of fibres ingested.  In general, the more fibres ingested, the worse the disease becomes.  For that reason, asbestosis is sometimes described as a “divisible” disease.  It can be “divided” into the proportions attributable to different dose exposures.  This is to be contrasted with “indivisible” diseases such as lung cancer caused, for example, by smoking which once initiated is not related to the degree of exposure to cigarette smoke: see the helpful summary by Lord Phillips at para 14 of Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229.  
3.	It was conceded by the appellant that Mr Carder’s lung fibrosis was caused by asbestos exposure (as opposed to being an idiopathic condition).
4.	Mr Carder discontinued these proceedings against the first defendant after obtaining an expert opinion from Dr Rudd (a consultant physician) that its contribution to the total exposure to asbestos would be considered to be de minimis.  Dr Rudd, however, said that the contribution to the asbestosis made by the asbestos dust attributable to the appellant was material, “although very small”.  
5.	In these proceedings, Mr Carder claims that his exposure to the asbestos dust for which the appellant was responsible was in breach of the statutory and common law duties that it owed to him.  He claims damages for what he says has been the consequence of that exposure.  All the evidence is agreed, although, as will become apparent, I have not found some of it easy to interpret.    
6.	The facts are set out in more detail by the judge at para 14 of his judgment, to which reference should be made: [2015] EWHC 2399 (QB).  The following summary will suffice.  Mr Carder suffers from breathlessness, cough, poor oxygenation, epigastric discomfort and wheeze.  All of these symptoms result from diffuse interstitial fibrosis of both lungs, more severe on the right than on the left.  But there were also other unrelated causes of his respiratory symptoms, including asthma, gastro oesophageal reflux and obesity.  In a report dated 2 January 2015, Dr Rudd described the subjective worsening of Mr Carder’s condition.  He assessed his overall respiratory disability as 60% of which 40% was attributable to asbestosis and the remaining 20% as equally split between the other conditions. 
7.	On 1 April 2015, the appellant’s solicitors asked Dr Rudd the following questions under CPR 35: 
“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?”
8.	Dr Rudd answered these questions in a letter dated 14 April 2015 as follows: 
“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.”
9.	Subsequently, Dr Rudd was asked: 
“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.”
10.	He answered: 
“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.”
11.	Founding himself principally on the answers given by Dr Rudd to the four questions, Mr Kent QC (representing the appellant in the court below as before this court) submitted to the judge that the breach of duty involving exposure by the appellant of Mr Carder to 2.3% of the total lifetime dose of asbestos had made and would make no difference to his symptoms, disability or prognosis. It followed that the exposure attributable to the appellant had not caused any actionable damage.
12.	The judge said that it was a question of fact and degree whether the appellant’s exposure made Mr Carder “worse off” (the phrase used by Lord Hoffmann in Rothwell v Chemical and Insulating Company Limited [2007] UKHL 39, [2008] 1 AC 281 at para 7) so as to cause actionable damage.  He then considered the evidence in order to determine the answer to this question.  At para 32, the judge identified the two pieces of evidence which pointed against actionability.  These were that Dr Rudd accepted that the exposure by the appellant “would not have made any of the items (a) to (d) inclusive raised by the Defendant’s questions any different as regards the Claimant”.  The second was that 2.3% was “very small”.  
13.	As against that, at para 33 he identified eight countervailing factors.  These were: 
“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.”
14.	At para 34, he said:
“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.”
15.	At para 35 he tested the correctness of his decision as follows:
“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.”
16.	The consequence that flowed from these conclusions was agreed by the parties in the light of the decision of this court in Holtby v Brigham & Cowan (Hull) Ltd [2000] ICR 1086.  The agreed fact of a 2.3% contribution to the asbestosis was that Mr Carder was entitled to an award of damages of 2.3% of what would be the full liability value of his claim.  The judge assessed the full liability value of the claim at £67,500 and, on the basis of 2.3%, awarded damages of £1,552.50. 
The grounds of appeal
17.	Mr Kent submits that the judge (i) should have concluded that, while the appellant had made a “material though very small” contribution to the asbestosis, this had made no addition to Mr Carder’s disability and had not caused him to be worse off physically or economically; (ii) wrongly treated contribution to a disease process as sufficient to found a claim for damages; and (iii) in listing factors which justified treating Mr Carder’s condition as actionable wrongly considered the effects of the condition of asbestosis as a whole (including the risks of malignancy associated with it and its current symptoms) when these were all factors which would have existed but for the appellant’s breach of duty and were not increased by it.
What is damage?
18.	It is trite law that the tort in question in this case is not actionable per se.  It requires proof of actionable damage.  The question of what constitutes actionable damage in disease cases should be straightforward, but it has not proved to be so.  In Rothwell, the claimants had been exposed to asbestos dust and as a result developed pleural plaques.  It was held that, since pleural plaques had caused no symptoms and did not increase susceptibility to other asbestos-related diseases or shorten life expectancy, their mere presence in the claimants’ lungs did not constitute damage capable of giving rise to a claim for damages in tort.  At para 7, Lord Hoffmann said that “damage” in this sense is “an abstract concept of being worse off, physically or economically”.  It does not mean simply a physical change.  At para 20 he said that the relevant question was not whether the plaque is in some sense “injury” or a “disease”.  The question was whether the claimant has suffered damage: is he appreciably worse off on account of having plaques?  
19.	Lord Hope said at para 38 that the pathological process that gives rise to plaques “may be described as a disease or injury”.  But their physical effects “cannot, in any normal sense, be described as harmful”.  At para 39, he said that he did not think it was an abuse of language to describe pleural plaques as an “injury”.   But where there is no “real damage” and the damage which is “purely minimal” (as is the case with pleural plaques), the physical change which they represent is not by itself actionable.  At para 49, he repeated that “while the pleural plaques can be said to amount to an injury or a disease, neither the injury nor the disease was in itself harmful”.  They are “a form of injury”, but they are not harmful.  They do not give rise to any symptoms, nor do they lead to anything else which constitutes damage. Lord Scott at paras 62 and 68 said that none of the appellants had contracted a disease or an impairment of physical condition.  
20.	Lord Rodger said at para 88 that, even assuming that the plaques could constitute a relevant “injury” to the claimants’ bodies, they did not cause them any material damage and so did not give rise to a cause of action.
21.	In Holtby (an asbestosis case), this court said that the question was whether the defendant’s tortious conduct had made a material contribution to the claimant’s “disability” (paras 20 to 23).  
22.	It can be seen that, in the context of asbestosis, the words “disease”, “impairment”, “injury”, “disability” are used interchangeably.  I do not find this helpful.  With respect to the House of Lords in Rothwell, it is unprofitable to consider whether a particular medical condition should be characterised as a “disease” or an “injury”.  Instead, the focus should be on whether, to use the language of Lord Hoffmann, the medical condition has made the claimant worse off.  Most diseases or injuries do make a person worse off, but that is not always the case as Rothwell demonstrates.  The use of the word “disability” is perhaps more apposite in that a person suffering from a disability is likely to be worse off as a result of it.  But a disability may not be an apt word to describe a condition of which a person is unaware but which has caused/is continuing to cause him some harm.   In my view, the use of labels to describe a medical condition may be convenient; but it must not distract attention from the only relevant question, namely whether the claimant is materially worse off as a result of the alleged tort, i.e. whether he has suffered damage.   
Material contribution 
23.	In Cartledge v Jopling [1963] AC 758, the plaintiffs had contracted pneumoconiosis.  The issue was whether they had suffered damage (in the form of injury to their lungs) as a result of their employers’ breach of duty before the injury could be detected on X-ray examination.  At p 779, Lord Pearce quoted the words of Lord Reid in Bonnington Castings Ltd v Wardlaw [1956] AC 613, 621: 
“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.”
24.	Lord Pearce said:
“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.”
25.	Holtby is helpful because it is an asbestosis case in which the claimant (as in the present case) had been exposed to asbestos dust in various employments.  Drawing on cases such as Bonnington Castings, Stuart-Smith LJ said that the claimant was entitled to succeed if he proved that “the defendant’s tortious conduct made a material contribution to his disability” (para 20).  The question was whether, on a consideration of all the evidence, the claimant had proved that the defendant “was responsible for the whole or a quantifiable part of his disability”. The disability to which he was referring was, of course, the asbestosis.  It followed that the question was whether the defendant’s tortious exposure of the claimant to asbestos dust made a material contribution to his asbestosis.  This was a question of fact.  Since the progression of asbestosis is linear and all dust contributes to the final disability, the question was easily answered on the facts of that case.
26.	To summarise, the question whether a claimant has suffered material (i.e. more than negligible) damage in an asbestosis case where he has been exposed to more than one source of asbestos dust raises no difficulties of principle.   It depends on the facts of the particular case. In the court below, it was said that the appellant’s point (viz that the breach of duty caused no actionable injury in this case) was “novel” in an asbestosis case.  I do not consider that this case raises a novel point of law or principle.  That is not to say that resolving the question of fact on the evidence in this case is straightforward.  It is to that question that I now turn.
The present case
27.	I have referred at paras 12 to 16 above to what the judge said in this case.  Mr Kent challenges the judge’s conclusion.  He says that the judge elided two distinct questions, namely (i) whether the appellant made a material contribution to what he calls the “disease process” (which I understand to be the asbestosis) with (ii) whether the appellant made a material contribution to his worsening symptoms and disability.  The judge considered (i).  But the disease process did not of itself cause Mr Carder to be worse off.  The judge should also have considered (ii).  Had he done so, he would have been bound to conclude on the evidence that the appellant did not make a material contribution to the claimant’s worsening symptoms and disability.      
28.	Mr Kent concedes that the appellant’s 2.3% exposure and contribution to the asbestosis, although very small, was material.  But since this contribution has made no difference to Mr Carder’s symptoms and condition, the judge should have held that it did not make him worse off and therefore made no material contribution to his damage. 
29.	As we have seen, Dr Rudd gave some important evidence in relation to the issue of whether the 2.3% exposure caused Mr Carder damage.  Mr Kent submits that his uncontested answers to the four questions are determinative of the issue.  Mr Steinberg QC submits that Dr Rudd’s four answers do not bear the weight that Mr Kent seeks to place on them.  He says that the four questions that Dr Rudd was asked to answer focused on appearance, what was measurable and Mr Carder’s subjective responses rather than on whether he was worse off as a result of the 2.3% exposure. Thus the first question asked whether the “appearance of the claimant’s lungs [would be] notably different to the trained observer”. The second question asked whether Mr Carder would “respond to lung function testing materially differently”.  The third question asked whether the “subjective perception of symptomatology” would be “noticeably different” to Mr Carder.  The fourth question asked whether Mr Carder’s ability to cope with daily tasks would be “measurably or demonstrably different”.
30.	I accept Mr Steinberg’s analysis of the four questions.  The fact that the ingestion of a quantity of asbestos dust makes no measurable or observable difference to a person’s lungs does not necessarily mean that it makes no difference to them as a matter of objective fact.  In assessing the weight to be given to Dr Rudd’s answers to the four questions, it is also necessary to have regard to two other statements that he made.  The first is in his report of 13 February 2014:   
“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).
31.	It will be noticed that this is reflected in the second of the eight countervailing “indicators” identified by the judge: see para 13 above.  It is consistent with what I understand to be orthodox thinking about asbestosis: see para 2 above.  
32.	The second is contained in the answer he gave to the question which I have set out at para 9 above.  As I understand this answer, Dr Rudd was saying that the subjective response to the same amount of asbestos exposure varies from individual to individual.  It seems to me that this supports or is at least consistent with Mr Steinberg’s submission that the four questions were directed to measurable and subjective responses.  This is not surprising, since the answer related to Dr Rudd’s earlier answers to the four questions.  
33.	I should add that the four questions on which Mr Kent places such weight should not be construed like a statute.  Dr Rudd himself found the wording of the questions “confusing”. 
34.	Mr Kent submits that the judge was wrong to hold that the eight indicators which he set out at para 33 of his judgment outweighed the only two pieces of evidence which pointed against actionability.  I agree that most of the indicators were of little weight.  In relation to the first, as Dr Rudd recognised, the question whether an agent has made a material contribution to a medical condition is a question of law.  
35.	The third indicator adds nothing to the others.  As regards the fourth indicator, Dr Rudd said in his first report that he estimated that the total asbestos exposure to which Mr Carder has been subjected has increased his risk of contracting lung cancer from 1% to 2.5%.   Accordingly, on a pro rata basis (and no other has been suggested), the increased risk of Mr Carder contracting lung cancer as a result of his exposure to asbestos dust attributable to the appellant is 2.3% of 1.5%.  In my view, that is plainly de minimis.  
36.	The fifth indicator looks at the risk of what may happen to Mr Carder as a result of his asbestosis.  It does not engage with what would be likely to happen to him if he had only been exposed to 2.3% of the entire asbestos to which he has been exposed.  
37.	The sixth indicator is a reference to what Mr Plumb said in his report about the amount of asbestos dust to which Mr Carder was exposed during his employment with the appellant.  He is not a medical expert.  I do not consider that his evidence assists in determining whether the asbestos dust to which Mr Carder was exposed by the appellant made a material contribution to his asbestosis. 
38.	The seventh indicator is again looking at the effect of the entire dose of asbestos dust on Mr Carder’s health.  This does not help.  Nor does the eighth indicator help.  The fact that asbestosis is not “benign” tells us nothing about whether the asbestos dust to which Mr Carder was exposed by the appellant made a material contribution to the admittedly harmful condition.
39.	Having referred to the relevant evidence, I can now state my conclusions quite shortly.  It seems to me that there is a fundamental contradiction in the appellant’s case.  On the one hand, Mr Kent submits that Dr Rudd’s answers to the four questions show that the asbestos dust attributable to the appellant made no material contribution to Mr Carder’s asbestosis: the 2.3% has made, and will make, no difference to Mr Carder’s symptoms, disability or prognosis.  On the other hand, he accepts that (i) 2.3% is a material contribution to the entire dose of asbestos dust; (ii) each source of asbestos exposure will have contributed to the development of Mr Carder’s asbestosis (including the risk of his developing it) in approximate proportion to the dose of exposure received in each (Dr Rudd’s report); and therefore (iii) the 2.3% made a material contribution to Mr Carder’s asbestosis.   It is not in dispute that asbestosis is a condition which, if more than negligible in severity or extent, causes an individual to be worse off or to suffer damage.  It is to be distinguished from benign conditions such as pleural plaques.
40.	Mr Kent emphasises the fact that, as shown by the answers to the four questions, the 2.3% caused Mr Carder to suffer no symptoms and the extent of the disease was not measurable.  But the severity of the disease had been increased to a small, albeit not measurable, extent.  It is conceded that the increase was material i.e. not de minimis.   In my view, this concession is critical.  In these circumstances, the judge was right to hold that Mr Carder was slightly worse off as a result of the 2.3% exposure for which the appellant was responsible.  It seems to me that this conclusion (which is one of fact) naturally followed from the appellant’s acceptance of the fact that it was responsible for the 2.3% and that this was material.
Conclusion
41.	Although the evidence is not entirely easy to interpret, I do not consider that this case raises any difficult issues of law. Questions of causation in divisible disease cases may raise difficult evidential issues. But in principle they are straightforward.  I refer to what Professor Sarah Green has said (quoted by Lord Toulson in Williams v Bermuda Hospitals Board [2016] 2 WLR 774 at para 31):
“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…”
42.	For the reasons I have given, I would dismiss this appeal.
43.	As a postscript, I should add that I recognise that Mr Carder has been awarded a sum which is small when compared with the costs of this litigation.  That is regrettable.  But litigation of this kind is often necessarily factually complex.  Defendants faced with claims whose costs are likely to be out of proportion to the damages likely to be awarded after a trial should try to settle them early.  
Lord Justice Gross:
44.	I agree.
Lord Justice Christopher Clarke:
45.	I also agree.