England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		The Courts of Justice Crown Square Manchester 3 3FL
		15/02/2005

The Honourable Mr. Justice Holland:

Introduction

1. Since about 1985 damages have been awarded or agreed with respect to Claimants who sue former employers for negligent exposure to asbestos essentially on the basis of the appearance of pleural plaques upon x-ray. It was decided to mount a challenge to such awards on two essential grounds: first, that no such Claimant had suffered an injury sufficient to found a claim in negligence; and second, that in so far as there was any such injury, the present level of quantum was far too high. To that end, I have been asked to try ten cases and through them to make the required rulings. In nine such cases the issues are those set out above; in the tenth case (that of Mr. Hindson) the issue is as to quantum. By way of gloss upon the respective individual merits I have had the benefit of much careful research into the history of this type of litigation and the relevant law.
2. My approach to the issues is as follows. I will first deploy the medical evidence as to the cause and significance of pleural plaques and as to the place of such amongst the potential consequences of exposure to asbestos. I will then turn to the ten cases, providing for each a chronology serving to show the circumstances giving rise to the claim and its nature. I will then be in a position to review and rule upon the respective submissions.

Asbestos Related Conditions

3. This litigation has been greatly assisted by the respective contributions of two consultant physicians, pre-eminent in this field, Dr. Robin Rudd and Dr. John Moore-Gillon. Leave aside contributions to individual cases, they have provided respective generic reports, they have agreed upon a joint report and they have each given oral evidence. Between them there has been provision of an invaluable, uncontroversial résumé of the relevant medicine wholly adequate for the debate before me and for this judgment. The following is founded upon their advice.
4. Asbestos. Asbestos fibres are of two main types: serpentine and amphibole. The former are curly and flexible, typically the product of white asbestos (chrysotile); the latter are straight and stiff, typically the product of blue asbestos (crocidolite) or brown (or grey) asbestos (amosite). The body has mechanisms for the clearance, alternatively for the neutralising of inhaled asbestos fibres but a proportion of inhaled asbestos will remain in the body for the balance of the lifetime. Per Dr. Moore-Gillon: "It is this characteristic of persistence in the body which gives rise to the long term risks associated with asbestos exposure." Adverting to clearance, this occurs much more rapidly with respect to chrysotile than with amphibole hence the greater the risk of disease from the latter. It is helpful to cite from Dr. Rudd's report of the 11^th June 2004:

"Following deposition in the alveolar regions 'scavenger cells' known as macrophages try to engulf the fibres. They succeed with shorter fibres but fail with larger fibres. The cells which fail in their attempts to engulf fibres die and release chemical mediators. These and chemicals generated at the surface of the asbestos fibres are responsible for producing inflammation. If this is sufficiently severe and long lasting fibrosis, i.e. the laying down of complex protein called collagen, may develop. Removal by macrophages and dissolution in situ succeeds in clearing some of the asbestos fibres from the lungs. Clearance occurs much more rapidly for chrysotile than for the amphiboles, probably at least partly accounting for the greater propensity of the latter to cause disease. Fibres which remain in the lungs commonly become coated with ferroprotein to form ferruginous bodies, also termed asbestos bodies."

5. The Pleura. The movement of the lung in the course of respiration is facilitated by a slippery membrane covering, that is, the pleura. There are two layers to the pleura: the parietal pleura which lines the inside of the rib cage, and the visceral pleura which covers the lungs. Normally there is no gap between these layers which are lubricated with pleural fluid. It is to be emphasised that the pleura is separate from, and not part of the lung. Per Dr. Rudd, op cit "The route by which asbestos fibres reach the parietal pleura has not been fully elucidated". He lists alternative suggestions – none such presently assist.
6. Pleural Plaques. These are localised areas of pleural thickening with well demarcated edges. They usually develop on the parietal pleura but occasionally develop on the visceral pleura. They consist of bland fibrous tissue. The pathogenesis remains uncertain but it is believed that the presence of asbestos fibres leads to a prolonged low-grade inflammatory response resulting in the release of chemical mediators, in turn leading to the laying down of fibrous tissue. The following propositions can be ventured:

a. Pleural plaques are by far the most common respiratory effect of asbestos inhalation.

b. They may occur after occupational exposure at a lower level than is needed to cause asbestosis.

c. The frequency of occurrence and the extent have a relationship with the amount inhaled and the duration of exposure.

d. The presence of pleural plaques does not normally occasion any symptoms. Very occasionally the patient may be aware of an uncomfortable grating sensation on respiration.

e. Given an absence of symptoms, the presence of pleural plaques is only established by way of chest x-ray or C.T. scan – alternatively on post-mortem autopsy – often incidental to some other investigation. When reading an x-ray it may not be easy to distinguish between pleural plaques and pleural thickening.

f. Pleural Plaques are rarely detected during the first 20 years following exposure to asbestos. However, exposure to asbestos does not necessarily result in the development of plaques notwithstanding the subsequent passage of 20 or more years.

g. With time plaques may become more extensive.

h. Plaques do not in themselves threaten or lead to the other asbestos induced conditions nor indeed are they a necessary pre-condition for such; they do not increase the risk of lung cancer; they differ from diffuse pleural thickening; and their pathology is entirely distinct from that of mesothelioma. It is the exposure to asbestos that they evidence, taken in conjunction with the probable life expectancy, which accounts for the risks of further asbestos induced conditions as deployed with respect to each of the Claimants – see below.

7. With a view to assisting the elucidation of one of the legal issues, the Doctors were asked to express views as to whether pleural plaques signified an 'injury' or a 'disease'. They emphasise that such choice of categorisation does not normally concern the clinician but advise that in some (but not all) medical textbooks pleural plaques are categorised as a benign disease.
8. Finally, it is of some value to cite from a contribution of Dr. Rudd to Occupational Disorders of the Lung, 2002:

"Pleural plaques are not thought to lead directly to any of the other benign varieties of asbestos-induced pleural disease, nor to pose any risk of malignant change leading to mesothelioma. Their presence may indicate, nevertheless, a cumulative level of asbestos exposure at which there is an increased risk of mesothelioma or other asbestos-related disorders. On average, in the absence of any other evidence about exposure it is reasonable to assume that subjects with plaques will have had higher exposure to asbestos than subjects without plaques. The frequency of development of other complications of asbestos exposure in persons with plaques is not a function of the presence of the plaques, but of the asbestos exposure that caused plaques. Since plaques may occur after a wide range of different exposures, the risks of other asbestos-related conditions may differ widely between different populations and individuals with plaques."

9. Pleural Thickening. This is a pleural fibrosis arising from inhalation of asbestos that extends continuously over a variable proportion of the thoracic cavity but without well circumscribed margins – it is diffuse and not demarcated. It usually involves the visceral pleura. If sufficiently extensive it may cause restrictive lung function impairment and breathlessness; occasionally it is the cause of persistent chest pain. In itself the condition is benign.
10. Asbestosis. This is a fibrosis of the lungs caused by exposure to asbestos. A minimum dose of the latter is necessary to bring about the condition; the severity increases with the amount that is inhaled. It does not usually develop within the first 20 years following exposure.
11. Mesothelioma. This is a malignant terminal tumour found in various parts of the body, most commonly in the pleura. In the main such tumours are caused by exposure to asbestos. The mean latent period between first exposure to asbestos and death from mesothelioma is of the order of 40 years. The incidence of mesothelioma in Western Europe has been increasing: in the United Kingdom it is expected to peak between 2010 and 2020 at some 2,500 – 3,000 cases per annum. There is no cure and death commonly results within 12 to 18 months of the onset of symptoms.
12. Lung Cancer. This, as the title implies, is a cancer arising in the lung which can be caused or contributed to by asbestos. As with asbestosis, the risk of such cancer is related to the dose of asbestos – the greater the dose, the greater the risk, particularly if the asbestos is amphibole. In this context there is interaction between the exposure to asbestos and smoking so as to compound the risk.

The Claimants

13. Introduction. The ten cases put before me reflect selection by the respective Defendants. In reality the latter are three in number. Thus, the claims of Messrs Storey and Quinn are in effect against the public funds of British Shipbuilders (represented by Antonio Bueno QC and Patrick Limb); the claims of Messrs Grieves, Mears, Jackson, Downey, Topping, Johnston and Rothwell are against insurers' funds (represented by Michael Kent QC and Michael Rawlinson); whilst Mr. Hindson's claim is against a separate insurance fund (represented by Charles Feeny). I will note the Claimants' representation as and when I come to individual cases.
14. All the Claimants provided witness statements and each gave evidence before me. It is understandably common ground that each presented as a person of moderation and integrity: no challenge arises to any such as requires a finding of fact.
15. With respect to each Claimant, it is admitted on behalf of the Defendants that he was negligently exposed to asbestos in the course of an employment so that there could be liability to him – limitation is either not raised or no longer pursued. However, with respect to each of the Claimants save Mr. Hindson, it is denied that such negligent exposure occasioned any injury such as could complete the necessary foundation for a claim in damages. This point is not taken against Mr. Hindson. However in his case as with all the others quantum is in any event strongly in issue.
16. Of these ten Claimants, three (Messrs Storey, Grieves and Hindson) seek conventional final awards; the remainder claim provisional awards invoking C.P.R. 41 in its turn based upon S. 32A Supreme Court Act 1981:

"(1) This section applies to an action for damages for personal injuries in which there is proved or admitted to be a chance that at some definite or indefinite time in the future the injured person will as a result of the act or omission which gave rise to the cause of action, develop some serious disease or suffer some serious deterioration in his physical or mental condition.

(2) ….. as regards any action for damages to which this section applies in which a judgment is given in the High Court, provision may be made by rules of court for enabling the court, in such circumstances as may be prescribed, to award the injured person-

Damages assessed on the assumption that the injured person will not develop the disease or suffer the deterioration in his condition; and

Further damages at a future date if he develops the disease or suffers the deterioration."

In each instance an award is sought on the assumption that the respective Claimant will not suffer deterioration in his physical condition arising from the tortious exposure to asbestos – with the corollary that in the event of such deterioration a fresh further award can be made.

17. Given the unreality inherent in the assessment of damages for a final award in the circumstances giving rise to these claims, I raised a query in the course of the hearing as to whether the Court could of its own motion make a provisional award in place of the final award that is sought. It was submitted that the answer was as a matter of law 'no'. I think that that submission is well founded (see C.P.R. 41.2(1)); in any event I respect the reasons advanced by those seeking final awards for their choice of option.
18. Gordon Jackson Storey. This British Shipbuilders Claimant was represented by Allan Gore QC. He seeks a final award. The material chronology is as follows:

22^nd January 1940: Date of birth. He is now aged 64.

May 1957 – September 1962. In the course of his then employment as an apprentice engineering draughtsman he was regularly exposed to asbestos. Thereafter as the perils associated with asbestos exposure became widely known he had a concern at the back of his mind as to his own potential for an asbestos related condition.

1974 onwards. He was investigated for a persistent cough. Clear chest x-rays served to relieve his mind as to the impact of asbestos exposure.

1988: He gave up smoking.

October 2000. Continuing like investigations included another chest x-ray. This disclosed the presence of pleural plaques.

November 2000. By this month he had been advised that the plaques were benign indicators of an exposure to asbestos, which exposure could lead to something serious; that the cough was unconnected and 'idiopathic'; and that compensation could be available so that he should see a solicitor.

5^th April 2003. He was seen for the purpose of these proceedings by Dr. M.A. Beckles. Chest x-rays taken for this examination showed "calcified left chest wall and left diaphragmatic pleural plaques ….. there is no evidence of asbestosis of the lungs". Risks were assessed:

a. there is a 1% chance of the future development of diffuse pleural thickening sufficient to cause shortness of breath and disablement;

b. there is a like chance of future development of asbestosis;

c. there is a 3% chance of the future development of a mesothelioma; and

d. there is an enhanced chance, now put at 1%, of the future development of lung cancer.

19. An articulate, engaging person, Mr. Storey told me "I do not regard the plaques as any concern save as a pointer that I have been exposed to asbestos and it has had an effect on my lungs (sic)". He drew attention to the litigation process and to the potential size of award as advised by his lawyers, all such tending to play up in his mind a condition that was being played down by the doctors. He wanted a final award so that he could enjoy it whilst he was fit.
20. The claim advanced on his behalf is for general damages and for prospective final loss in the event of malignancy. The computation of the latter is based upon the following propositions:

a. It is fair to the Claimant and to Defendants to postulate any malignancy as arising at about the midpoint of residual life expectancy, viz in 9½ years time.

b. On that premise the discount factor by reference to Ogden Table 37 at 2.5% is 0.7910.

c. A reasonable figure for terminal nursing costs is £12,500.

d. A lost years claim can arguably be based upon a notional loss of £7,207.97 (50% of computed income from current pensions) as multiplied by 8. 47 (Ogden Table 38).

e. In the overall result the claim becomes

Terminal nursing costs
£12,500 x 4% x 0.7910	£395.50
Lost years
£7,207.97 x 8.47 x 4% x 0.7910	£1,931.67
	£2,327.17

21. Joseph Quinn. This British Shipbuilders Claimant was represented by David Allan QC. He seeks a provisional award. The relevant chronology is as follows:

15^th May 1936. Date of Birth – aged 68.

1952 to 1957 and 1959 to 1964. He was exposed to asbestos when working as a fitter and turner alongside laggers.

October 2002. He consulted his G.P. about weight loss and was sent for a chest x-ray.

21^st October 2002. The radiologist reported: "There are pleural plaques overlying both diaphragms and the left mid zone. The appearance would be consistent with asbestos exposure". Subsequently this finding was communicated to him by the G.P. together with advice 'not to worry too much'. In the short term he took this advice but concerns were raised by a magazine article which promoted continuing worry. Solicitors were instructed through his Union.

8^th May 2004. He was examined by Dr. Rudd. X-rays taken for the occasion confirmed the October 2002 findings and showed no deterioration. Risks were assessed:

a. a 1% risk of the development of diffuse pleural thickening sufficient to cause shortness of breath and disablement;

b. a 1% risk of development of asbestosis;

a. a 3% risk of developing malignant mesothelioma;

b. An enhancement of a pre-existing minimal risk of developing lung cancer to the level of a 1% risk; and

c. A one-year's loss of life expectancy.

22. In evidence Mr. Quinn admitted to being a 'worrier'. He accepted that the doctors had given reassuring advice, but pointed out that such conflicted with what he had read in the magazine and with what he had seen on the Internet. The fact that acquaintances had been diagnosed with serious asbestos related conditions contributed to his anxiety – as did the potential for an award in damages at a level which in itself suggested an "obviously serious problem."
23. John Grieves. This Insurer Claimant was represented by David Allan QC. He seeks a final award. The relevant chronology is as follows:

23^rd February 1940. Date of birth – he is now aged 64.

1961 to 1969. In the course of two employments he was exposed to asbestos. In time this exposure became a worry to him. Would he contract a serious condition? Would his wife or daughter similarly suffer because he had brought home his asbestos contaminated overalls?

1979, 1982, and 1994. Successive chest x-rays, each with reported normal appearances, served temporarily to alleviate his anxiety.

29^th August 2000. A further chest x-ray was reported upon: "There is slight pleural thickening along the right chest wall and possibly slight mucosal thickening along the upper part of the left chest wall in keeping with previous asbestos exposure". This news impacted badly upon Mr. Grieves. Essentially, his worst fears were apparently being realised. He sought advice as to whether comparison between the 1994 and the 2000 x-rays evidenced deterioration – reassurance was forthcoming but only after a long and seemingly sinister delay. In early course he developed irritable bowel syndrome, a condition that worsened and persisted.

13^th November 2001. He applied for Industrial Injury Disablement Benefit. In due course this was refused: he had an asbestos related industrial disease but there was insufficient resultant disability to qualify.

November 2002. He stopped work by reason of irritable bowel syndrome.

28^th November 2002. He was examined for the purpose of these proceedings by Dr. Robin Rudd. Fresh chest x-rays did not reveal pleural thickening but "possible minimal pleural plaques formation". There was no evidence of asbestosis. Dr. Rudd arranged for a C.T. scan. Unhappily there was more anxiety inducing delay before this could be done.

21^st July 2003. The results of a C.T. scan were: "very small bilateral pleural plaques formation".

23^rd July 2003. Dr. Rudd advised:

a. there is a 2% risk that he will develop diffuse pleural thickening sufficient to cause disablement due to breathlessness;

b. there is a like risk of the future development of asbestosis;

c. there is a 5% risk of the future development of a mesothelioma; and

d. a risk of lung cancer reflecting early smoking was enhanced to 5%.

1^st December 2003. Having regard to his continuing mental state Mr. Grieves was referred to and was seen by Dr. Rajiv Menon, a consultant psychiatrist with a special interest in mental health problems arising out of asbestos exposure. By way of the consequent report (of the 16^th February 2004) Dr. Menon advises: "Mr. Grieves appeared to have suffered from a depressive illness following the diagnosis of asbestos related disease. A protracted period of uncertainty before the diagnosis also perhaps contributed to the distress that led to the depression. This depressive illness appeared to have continued to date and at the time of my assessment Mr. Grieve's presentation conformed to a diagnosis of moderate depressive episode with somatic syndrome ….. To support this diagnosis Mr. Grieves had depressed mood with diurnal variation; significant biological symptoms and prominent depressive cognitions. Those symptoms were associated with upsetting thoughts and mental images related to his diagnosis of asbestos-related disease and also episodic anxiety". Dr. Menon thought it possible that Mr. Grieves was psychologically vulnerable – and probable that there was a relationship between his depression and the irritable bowel syndrome. He added: "So when people like Mr. Grieves were diagnosed with asbestos disease both reality and folklore fuelled ….. fears and the psychological distress evoked by the diagnosis often outweighed the actual material risk of serious complications". He suggested that Mr. Grieves would benefit from an anti-depressant medication and cognitive behaviour therapy.

24. In the event Mr. Grieves received neither form of assistance but by the time he came to give evidence to me in November 2004 his psychological condition had much improved, in part it seemed (ironically) because he had had the opportunity to reflect upon Dr. Rudd's diagnosis and prognosis and the relative optimism associated with such. The irritable bowel syndrome was still with him but with markedly less adverse effect. Dr. Menon in evidence said that he was surprised that there had been this improvement without any treatment. It is to be noted that in 2001 Mr. Grieves had volunteered to be a witness in support of a claim by a former fellow workmate who had contracted mesothelioma – it was this that led him to instruct the relevant solicitor.
25. The claim is for general damages, special damage and prospective financial loss. The latter two heads are fully particularised at page 480 in the relevant bundle. Suffice it simply to reiterate the respective heads as follows;

Special Damage
	Out of pocket expenses	£200.00
	Cognitive Behavioural therapy	£440.00
	Loss of earnings	£16,380.00
		£17,020.00
Prospective Financial Loss
	Loss of earnings to retirement	£6,712.00
	Loss of pension	£2,473.04
	Terminal nursing care	£981.25
		£10,166.29

26. David Mears. Another Insurer Claimant – he was represented by Frank Burton QC and Harry Steinberg. In the course of the hearing he was given unopposed leave to claim a provisional award. The relevant chronology is:

14^th March 1943. Date of birth – he is now aged 61.

1970 to 1971 and 1973 to 1976. In the course of employments as a joiner he was exposed to asbestos – particularly so during the latter period when he was employed by the Defendants.

8^th October 2001. Having suffered from some non-specific (and now resolved) chest pains he was seen by a Consultant physician, Dr. Arnold. The latter wrote to the G.P.: "Physical examination today was unremarkable. Chest x-ray shows quite clear-cut bilateral calcified pleural plaques. It is difficult to be certain whether there may be further underlying pathologies, such as asbestosis and diffuse pleural thickening and that is why I have requested a C.T. scan of the thorax. I will also arrange for detailed lung function tests ….. I spent some time explaining to him the various complications of asbestos exposure and also provided him with a leaflet. This will enable him to pursue a claim via his old trade union if he wishes".

27^th March 2002. The C.T. scan confirmed the presence of pleural plaques but found no evidence of other conditions.

27^th June 2003. Mr. Mears was examined by Dr. R.L. Page for these proceedings. He confirmed the earlier findings and made assessments of risk:

a. there is a 10% risk of the future development of pleural thickening; and

b. there is a 2 to 3% risk of the future development of a mesothelioma; but

c. there is no risk of the future development of asbestosis nor of asbestos attributable lung cancer.

27. The foregoing had made an impact upon his employment. As at October 2001 he had been working as a service engineer for Willerby Holiday Homes. This involved nights away from home on his own with the thoughts of an asbestos related disease preying on his mind. At his request he was transferred to home based posts only to find them boring and unsatisfying. In November 2003 he gave up work but by the time of trial he was anticipating a return to part time working: repairing caravans for 3 days each week. There is a special damage claim reflecting loss of earnings to date.
28. Finally, in evidence he told me that he was coming to terms with his condition, at least to some extent. He could not fully reconcile himself to it so as to stop worrying but he felt that he was "getting life back on track", hence the proposed resumption of some employment. That said, "nobody can fully convince me that it will not go further".
29. Brian Jackson. Another Insurer Claimant, he was represented by Frank Burton QC and Harry Steinberg. He claims provisional damages. The relevant chronology is:

16^th May 1948. Date of birth – he is now aged 56.

c.1980 to c.1990. He was regularly exposed to asbestos whilst working for the Defendants at a landfill site.

c.2000. A heavy smoker, he suffered increasing breathlessness such as eventually necessitated a period as an in-patient and occasioned a chest x-ray.

4^th February 2000. The radiologist reported "On the lateral view there may be a small calcified pleural plaque over the right hemi-diaphragm. Is there a history of previous asbestos exposure?"

November 2001. He finally retired from work by reason of his general ill health.

8^th May 2002. He was seen for the purpose of these proceedings by Dr. Hind. He advised that Mr. Jackson was suffering from chronic simple bronchitis, chronic obstructive airways disease and emphysema, all arising from his past history of cigarette smoking. The medical history also included hypertension and osteoporosis. In the overall result he was severely disabled and probably had a significantly reduced life expectancy. Adverting to the consequences of exposure to asbestos, Dr. Hind accepted the radiologist's finding but noted an absence of anything indicative of other asbestos related conditions. He assessed asbestos related risks:

a. a 2% risk of the future development of mesothelioma; and

b. a consequent asbestos related reduction in life expectancy of 3 months.

30. In evidence, Mr. Jackson told me that whereas the news that a pleural plaque had been seen rendered him at first "a bit shattered" in time it had, as it were, taken its place along with but well behind his other more pressing conditions. As to his current health, he presented as a noticeably florid, slow moving large man – and notwithstanding consistent strong advice as evidenced by many entries in his voluminous medical records, he is still smoking 20 cigarettes a day.
31. Alan Rothwell. Another Insurer Claimant, he was represented by Frank Burton QC and Harry Steinberg. He claims a provisional award. The relevant chronology is:

22^nd March 1938. Date of birth – he is now aged 66.

1958 to 1965. He was regularly exposed to asbestos in the course of his employment as a laboratory assistant.

1972. He gave up a heavy smoking habit.

1983, 1992, 1996 and 2000. His chest was respectively and repetitively x-rayed in response to other immaterial complaints. All the x-rays revealed the presence of pleural plaques but his advisers adopted a policy of not informing him so as to obviate needless anxiety.

1995. For reasons unconnected with asbestos exposure he gave up his then employment as a civil servant.

November 2001. He saw an advertisement in a local newspaper placed by an organisation, I.D.C. The headline read "Have you been exposed to asbestos in the following industries?" A wide range of industries are then listed and the advertisement continues: " ….. it can cause a condition called pleural plaques (scarring of the outside of the lung) which produces no disability but results in a perfectly valid claim against your former employers". Interested readers were solicited to use the services of I.D.C. to make a claim. Mr. Rothwell showed the advertisement to his G.P. and he was told for the first time of the presence of pleural plaques. He then engaged the services of I.D.C.

April 2003. Concerns over a heart condition led to a further chest x-ray and a C.T. scan. As read for the purpose of these proceedings by Dr. Rudd: "There are bilateral chest wall and diaphragmatic pleural plaques with calcification in places. At the extreme right base there are a few small posterior opacities contiguous with the pleura which probably represent small areas of folded lung secondary to localised pleural thickening. There is no evidence of ….. asbestosis".

20^th November 2004. Dr. Rudd confirmed an earlier assessment of the risks:

a. there is a 1% chance that he will develop diffuse pleural thickening sufficient to cause breathlessness;

b. there is a similar chance of the future development of asbestosis;

a. there is a 3% chance of the future development of mesothelioma;

b. a 2% risk of lung cancer arising from smoking is enhanced by asbestos exposure to 3%; and

c. asbestos exposure has reduced his life expectancy by 1 year.

32. As to the impact of the new found knowledge of pleural plaques he said by way of his witness statement:

"When I saw someone from IDC at South Moor Social Club it was explained to me that having pleural plaques was a marker of having worked with asbestos and that, having worked with asbestos I now had a risk of going on to get a more serious disease.

After being advised of this I have made it my business to try and get as much information as I could about asbestos and its effects by watching any programmes on the television about asbestos, reading newspaper articles and looking at websites.

I recognise there is only a small percentage of people who are exposed to asbestos who go on to develop a more serious condition but realising that I could be one of this small percentage of course make me anxious. The way this effects me most obviously is whenever I get a cough or a particular bout of breathlessness I think to myself 'Is this the start of it'? My father died from mineworkers' pneumoconiosis and my father-in-law died of emphysema. I am, therefore, aware of the terrible effect that serious lung disease can have on an individual and their family. However, I have lived with illness since childhood. I have, therefore, always lived for the day and tried to live as full a life as possible."

33. Patrick Downey. Another Insurer Claimant, he was represented by Allan Gore QC and Andrew McDonald. He claims a provisional award. The relevant chronology:

20^th June 1944. Date of birth – he is now aged 60.

1959 to 1965, 1965 to 1967 and 1973 to 1984. During divers employments, respectively when an apprentice and a shopfitter, he was exposed to asbestos.

27^th March 2000. By now a publican (since 1992) his increasing chest problems, apparently due to asthma, prompted a chest x-ray. The radiologist reported: "A few small calcified pleural plaques are noted bilaterally. Is there a history of previous asbestos exposure? No active lung disease". Seemingly, he was subsequently advised by a consultant chest physician, Dr. Delaney, that there was nothing arising from these findings to worry about. Subsequently some ill informed and alarmist comments by a pub customer caused him to seek renewed reassurance from his G.P. The latter gave this, but advised him to see a solicitor so as to avoid limitation problems. He did so.

26^th October 2001. He was seen for the purpose of these proceedings by Dr. Lawrence. He confirmed the radiologist's interpretation, repeated the reassurances and made an assessment:

a. there is a 5% risk of the future development of a mesothelioma; and

b. there is a 1% risk of the future development of pleural thickening or asbestosis.

34. In evidence Mr. Downey reiterated his undiminished concern, emphasising his self-employed status and his invalid wife's reliance upon him. What would happen were he to contact mesothelioma?
35. Bernard Topping. An Insurer Claimant, he was represented by Allan Gore QC. He claims a provisional award. The relevant chronology is:

7^th May 1943. Date of birth – he is now aged 61.

1967 to c.1980. He was regularly exposed to asbestos in the course of his employments as a boilermaker.

23^rd October 2000. Having attended his G.P. complaining of various pains he was referred for a chest x-ray. The radiologist reported: "Appearances are probably due to the presence of pleural plaques. There are also calcified diaphragmatic plaques seen. The presence of pain is unusual in simple pleural plaques ….. appearances may be secondary to the development of mesothelioma". Not surprisingly, this information caused him considerable anxiety.

13^th December 2000. He underwent a C.T. scan. The subsequent report read: "there are widespread pleural plaques some of which are calcified ….. the appearances are not that of asbestosis". Reassurance was given but not readily accepted.

16^th March 2001. A repeat C.T. scan showed the pleural plaques but indicated no deterioration.

29^th October 2001. He was seen for the purposes of these proceedings by Dr. Philip Barber. Further x-rays were taken which served to confirm the preceding findings. A review of the available medical records exposed a longstanding history of ill health in various manifestations and sustained attempts to persuade Mr. Topping to stop or at least lessen a long-term smoking habit. In the event, those efforts had been to little avail: as at that date he was still smoking 20 cigarettes a day and Dr. Barber noted symptoms compatible with smoking-related bronchitis – along with signs and symptoms of chronic ear infection, degenerative joint disease and probable angina. As for the future:

a. there is a 1% chance of the future development of asbestosis;

b. there is a like chance of the future development of diffuse pleural thickening;

c. there is a 2% chance of the future development of mesothelioma ; but

d. a 10% risk of smoking induced lung cancer is enhanced to 20% by reason of the asbestos exposure.

36. In evidence Mr. Topping told me, first, that he was still fearful for the future implications of the exposure to asbestos as evidenced by the pleural plaques; second, that he had managed to reduce his smoking to 10 cigarettes a day; but that, third, he was currently smoking 30 a day – given the tension induced by the Court proceedings.
37. Kenneth Johnston. Is an Insurer Claimant; he was represented by Frank Burton QC and Harry Steinberg. He claims for a provisional award. The relevant chronology is:

10^th October 1946. Date of birth – he is now aged 58.

1975 to 1979, 1980 to 1985. In the course of his employment as a service engineer with the Defendants (then Cochran Boiler) he was routinely exposed to asbestos.

8^th February 2000. He consulted his G.P., complaining of shortness of breath on strenuous exertion. A chest x-ray was said to reveal "slight bilateral pleural thickening and chronic obstructive pulmonary disease which would be consistent with asbestosis". I interpose: he had been a moderate but regular smoker to about 1991.

17^th November 2001. He was seen for the purpose of these proceedings by Dr. Rudd. The latter had further x-rays taken and similarly thought that such might reveal pleural thickening. However a subsequent C.T. scan obtained at his recommendation served to demonstrate the presence of pleural plaques. As to further risks he advised:

a. there was a 1% chance of the future development of diffuse pleural thickening so as to experience disablement due to breathlessness;

b. there was a 2% chance of the future development of a mesothelioma; and

c. there was an enhanced risk (from 3% to 4.5%) of the future development of lung cancer.

38. In evidence Mr. Johnston emphasised the worry occasioned by the x-ray findings, a worry enhanced by reading about the condition and by an appreciation that with the passage of time he was entering the optimum period following exposure for the onset of a mesothelioma. It seems that his decision to make a claim was fostered not by the initial x-ray finding but by attendance at a meeting relating to asbestos exposure and the resultant risks that had been organised by his trade union.
39. Ellis Hindson. The Insurers involved in this claim have not raised an issue as to whether the Claimant sustained an injury consequent upon tortious exposure to asbestos – they simply challenge quantum. In the event Mr. Hindson (represented by Frank Burton QC and Nigel Lewers) seeks a final award. The relevant chronology is:

11^th March 1948. Date of birth – he is now aged 56.

1965 to 1967, 1969 to 1975. In the course of his employment with the Defendants (then The Thermal Insulating Co. Ltd) as a lagger's mate he was routinely exposed to asbestos to a substantial degree.

5^th March 2003. He was admitted to hospital having had a heart attack and detained for 3 weeks. Whilst there he had a chest x-ray which was said to reveal "old pleural thickening". A long-term heavy smoker, he was advised to stop but to no immediate avail.

9^th September 2003. He was seen by Dr. Rudd for the purpose of these proceedings and chest x-rays were taken. These revealed pleural plaques , not pleural thickening. No symptoms consequent upon asbestos exposure were identified. The risk assessment arising from exposure to asbestos was:

a. there was a 2% chance of the future development of diffuse pleural thickening sufficient to cause disablement through breathlessness;

b. there was a 2% chance of the future onset of asbestosis;

c. there was a 5% chance of the future development of mesothelioma; and

d. that was an enhanced (from 10% to 25%) risk of the future development of lung cancer.

Dr. Rudd further advised: "I estimate his life expectancy is reduced from an average 26.3 years ….. by 10 years as a result of his heart disease and continued smoking …. I estimate that his residual life expectancy of 16.3 years is reduced by 3 years as a result of the asbestos attributable risks of malignant disease".

27^th January 2004. Mr. Hindson underwent a successful angioplasty.

16^th June 2004. Mr. Hindson decided to supplement his then earnings as an insulation contractor by founding a business reconditioning and selling on electrical goods.

29^th June 2004. He was examined, for the purpose of these proceedings by Dr. Charles Hind. The history noted a continuing impact of angina for example, when lifting and walking. Dr. Hind made his own assessment of future risks arising from asbestos exposure.

a. there was a 1% chance of the future development of diffuse pleural thickening sufficient to cause disablement;

b. there was a 1% chance of the future development of asbestosis;

c. there was 2 to 5% chance of the future development of mesothelioma; and

d. if asbestosis did develop then there would be a presumably enhanced risk put at between 15 and 20% of the future development of lung cancer. Absent asbestosis, there was, in his view, no enhanced risk.

Turning to life expectancy he advised that by reason of the heart disease and the smoking the life expectancy was some 15 years – and that the risk of an asbestos related malignancy reduced this figure by no more than 1 year.

40. In evidence before me Mr. Hindson told me that knowledge of asbestos penetration had come as a shock and had been worrying, not least because he had known of its impact on former working colleagues. As of now he had given up insulation contracting to devote himself full time to the business. This now employed two persons and was thriving. By 'full time' this meant working 7 days a week. As for smoking, he said that he had given up for a time in about March 2004 but that he was back to 20 a day in response to the stresses of his life. It was his heart condition that made the current impact, curtailing heavy lifting and quick walking.
41. A carefully calculated computation of prospective final loss as an adjunct to general damages appears at page 762 of the bundle. In summary:

Prospective loss of earnings when disabled
from working	£8,528.24
Lost years	£10,830.86
Pension	£3,834.64
Nursing Care and Equipment	£2,000.00
	£25,193.74

The Early Cases

42. The issues raised by the current Defendants have been previously raised in the High Court; they have not so far been raised in the Court of Appeal. The unreported High Court decisions command early careful attention and it is helpful to accord such before deploying the present respective cases. I take them in chronological order. I do not presently offer any comment.
43. Church v. Ministry of Defence, Peter Pain J., 23^rd February 1984. The Plaintiff was aged 62 and had been exposed to asbestos when working for the Defendants as a dockyard fitter up to 1954. The Judge was advised that, first, pleural plaques were apparent on x-ray; second, that it was possible for those plaques to extend so that the pleura would constrict the lung and induce breathlessness; and, third, that the asbestos must have passed through the lung to reach the pleura so that it was possible that there was some concurrent fibrosis. As to the future, the Judge was advised that it was probable that there would be no future deterioration "but there is undeniably a substantial risk that, the condition having been stable for many years, there will suddenly be a marked progression of lung fibrosis with consequent effect on breathing and on health". There was an extremely small risk of mesothelioma. For his part the Plaintiff had worried 'very considerably'.
44. Counsel for the Ministry had submitted that the evidence disclosed no damage. It was "undeniable that some physiological injury has been done" but it was symptomless and unlikely to lead to future incapacity. The damage to the pleura and any damage to the lung should be regarded as minimal. No damages should be awarded for anxiety: it was not substantial and was not 'attached' to some physical cause. He cited Cartledge v. E. Jopling (1963) AC 658.
45. Peter Pain J. ruled against him. Noting that the pleural plaques were to be taken in conjunction with probable damage to the lungs he could not regard the damage as minimal. Turning to anxiety, he regarded such as the natural consequence of the radiological finding so that it was justifiably 'considerable' for some months. Saying "I do not think I can rate the damages as being very substantial in this case" he made a final award of £1,500 general damages – the law did not then permit a claim for a provisional award.
46. Sykes v. Ministry of Defence, Otton J. (as he then was), 19^th March 1984. The Plaintiff was aged 62. From about 1938 to 1970 he had been exposed to asbestos. Subsequent x-rays revealed pleural plaques. The evidence was to the effect that these plaques were unlikely to give rise to any future disability. That said, there was "a slightly increased risk of developing a lung cancer and a definite increased risk of developing mesothelioma". Additionally the Plaintiff had reasonably suffered genuine anxiety.
47. Counsel for the Defendants made a similar submission to the effect that no injury had been sustained. This was rejected " ….. there has been a definite change in the structure of the pleura due to the presence of the asbestos. In my judgment that amounts to a significant and definite degree of damage which entitled the Plaintiff to compensation as he has established actual damage ….. he is entitled to be compensated not only for the physical damage ….. but also for the aspect of anxiety which seems to me to have a connection with physical damage, to be entirely genuine and thoroughly understandable in a person who has worked in such conditions and has known his workmates to die in the circumstances that he has described. I have also come to the conclusion that he is entitled to be compensated for the risks of lung cancer and mesothelioma."
48. In the event a final award was made: £1,500, specifically to reflect physical damage, anxiety and the risks of further complications.
49. Patterson v. Ministry of Defence, Simon Brown J. (as he then was), 29^th July 1986. The Plaintiff was aged 59 and in the course of his employment from 1942 to 1983 had been exposed to asbestos. X-rays had revealed pleural plaques. The medical evidence identified the following:

a. The plaques which were and would remain asymptomatic;

b. Some pleural thickening – presently asymptomatic and with a 5% risk of becoming significant in terms of breathlessness;

c. No increased risks of asbestosis or lung cancer;

d. A 2 to 3% risk of the future development of mesothelioma; and

e. A significant degree of genuine if misplaced anxiety.

50. Counsel for the Defendants adopted the submissions made to Peter Pain J. and Otton J. These were rejected: "I have no doubt whatever that the Plaintiff ….. has suffered material damage. It consists of the symptom – free pleural changes, the risk of pleural thickening deteriorating with the consequences I have indicated, the risk of mesothelioma developing and the understandable worry attendant upon these matters."
51. By July 1986 a Plaintiff was able to claim a provisional award and one such had been claimed. In making a provisional award Simon Brown J. said:

"I therefore have to value in combination (a) the present symptom-free pleural changes; (b) the 5%-odd risk of further diffuse changes developing so as to aggravate the plaintiff's breathlessness, and (c) the anxiety which the plaintiff entirely understandably, and in my judgment reasonably, has hitherto suffered, in particular over the last two years, and to a far more limited degree, the worry he may still experience in the future, even though, as I have sought to emphasize, these future risks are really very small. Doing my best to arrive at a figure which accords reasonably with the scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case, I assess such damages in the sum of £1,250. There will accordingly be judgment for the plaintiff for damages in that sum assessed on the assumption that the plaintiff will not develop mesothelioma at any future stage."

52. Morrison v. C.E.G.B., Rose J. (as he then was), 15^th March 1984. I mention, rather then cite this decision. It was cited by Simon Brown J. as a decision favouring the Defendants' submission that there was no injury sufficient to found an action in negligence. On my reading of the judgment the point did not really arise: Rose J. found that the pleural plaques in question were not occasioned by exposure in the course of employment with the otherwise negligent First Defendants. In Simon Brown J's. judgment that which purports to be a direct quotation from Rose J's. judgment is not such. That said, Rose J. was plainly unimpressed with the significance of pleural plaques as an injury for the purpose of founding a cause of action.

This Litigation

53. Through nine of these ten cases the Defendants seek to revive the submissions made to Peter Pain J., Otton J. and Simon Brown J. Granted that the resultant respective judgments are persuasive, they are not binding upon me and in the light of the extensive modern material now put before me, medical and legal, I should have the backbone (Mr. Bueno QC's rhetorical flourish) to conclude that the nine Claimants do not have an injury arising from admittedly negligent exposure to asbestos so as to have a cause of action.
54. The alternative generic submissions relate to levels of quantum, with respect to provisional awards and, more particularly, final awards. For this purpose, I was invited by the Defendants to regard the assessments in Church, Sykes and Patterson as persuasive (as adjusted for inflation, currently £3,233, £3,233 and £2,417) and to reject such subsequent 'heresies' as served unaccountably (as they would submit) to inflate awards based upon pleural plaques and their implications so that, for example, the current (7^th Edition) J.S.B. Guidelines gives a range of £5,000 to £25,000. Essentially I am invited to suggest quantum benchmarks.
55. With respect to neither of these issues, is there binding Court of Appeal authority – so much is common ground and my judgment is sought as a springboard for rulings by that Court.
56. Obviously appreciating that some explanation should be forthcoming for a belated revival of 1984 to 1986 issues, the Defendants sought to convey to me the current financial implications for the public (the source of British Shipbuilders funds), and for insurers, of 'pleural plaques' claims, given their number and their cost in terms of damages and costs. In the course of the hearing, I curtailed detailed evidence on this topic, indicating (as remains the position) that I was not going to make specific findings of fact, but that there was in any event such an obvious uncontroversial basis for the Defendants' current concerns that I did not think that a present wish to ventilate the two generic issues needed explanation or justification. What I had in mind was the following:

(a)Although rejected seriatim in 1984 to 1986 the submission that a finding of pleural plaques does not betoken an injury for the purposes of an action in negligence for damages cannot be condemned as frivolous and so far it has not received Court of Appeal consideration.

(b)True, the Ministry of Defence did not see fit to appeal the early decisions but that failure falls to be considered in the light of the then financial implications in terms of numbers of claims and levels of damages (£1,250 to £1,500).

(c) As to numbers of claims, a very substantial recent rise is beyond question. Two features relevant to such emerged in evidence. First, it became apparent that many doctors as part of their advice to patients as to the presence of pleural plaques and the medical implications, routinely draw attention to the potential for compensation and the need to see a solicitor within the limitation period. Second, the Defendants drew doleful (if not scornful) attention to the activities of what they described as 'claims farmers' – I know not what is the appropriate less perjorative description, perhaps 'compensation agents'. The contribution of IDC and its advertisement to the making of a claim by Mr. Rothwell has already been noted. I was further shown an advertisement placed in the Newcastle Evening Chronicle in July 2003 by the solicitors firm, Robinson & Murphy (coincidentally solicitors for Mr. Storey), with the headline 'Legal help for asbestos illness claims. Don't suffer in silence' and with text that notes "many thousands of claims have been processed in recent years" and asserts "Robinson & Murphy solicitors is able to offer a C.T. scanning service and deals with all claims on a no win no fee basis". I have seen a similar if more extensive advertisement as placed in a Newcastle newspaper by Thompsons (coincidently solicitors for Messrs Quinn and Johnston).

(d) As to levels of damages, amongst the data put before me was a statistic that was seemingly outwith the area of strictures as to weight fairly and forcefully advanced with respect to other data by Mr. Burton QC, namely that in the three years 2001 to 2004 British Shipbuilders had met 691 'pleural plaque' claims at an average outlay of £9,352.51 in damages and £3,684.19 in costs, £13,036.70 in total. Granted my general scepticism as to claims experience data, I saw no reason not to be cautiously guided by these figures, not least because of their compatibility with the J.S.B. Guidelines bracket.

57. Given the weight of the foregoing considerations I was, and remain unresponsive to the occasional forensic darts as exchanged between leading counsel by way of denigration of the opposing cases. The issues were forensically difficult – whether or no the opposing case was ill founded or impertinent had no materiality: what I wanted was all the help that the parties could jointly give. I am glad to say that my pleas for non-partisan help were in the event well heeded. The preparation and presentation of the submissions excited my gratitude and admiration.

Liability – The Respective Cases

58. By way of skeleton arguments and oral submissions the respective cases were fully developed and exhaustively supported by authorities. I intend no disrespect or lack of appreciation by presently deploying them quite briefly. As will be apparent I find myself unable fully to accept either case and I cannot make my judgment simply on the basis of reciting and accepting case A, alternatively case B. In these circumstances it is convenient – and conducive to keeping the length of this judgment within bounds – to identify the respective battle-lines and then to expand my own judgment in full and in detail so as, inter alia, to show my appreciation of the full respective submissions as advanced to me.
59. The Claimants' Case. A springboard is section 38(1) Limitation Act 1980, adopting and expanding Section 53(1) Health and Safety At Work Act 1974: "Personal injuries include any disease and any impairment of a person's physical or mental condition and 'injury' and cognate expressions shall be construed accordingly".
60. The resultant essential case becomes:

(a)Pleural plaques constitute a 'personal injury' as so defined. Thus there is a body of medical opinion that would categorise pleural plaques as a 'disease' and in any event they constitute an impairment of a Claimant's physical condition: internal scars situate on the parietal pleura.

(b) That said, considered in isolation, the formation of pleural plaques cannot amount to 'damage' sufficient, along with duty and breach, to found a claim in negligence. This concession was, as I think, made because pleural plaques are, and are likely to remain asymptomatic. Thus, taken in isolation the otherwise identifiable personal injury can be categorised as 'de minimis'.

(c) However, the formation of pleural plaques does not fall to be considered in isolation but in conjunction with concomitant factors, consistently identified (see the facts of the ten cases as set out above), namely the risk of the future development of non-malignant and, more significantly, malignant conditions together with the significant level of past and continuing anxiety engendered by such. It is this trilogy of factors that, as is submitted, correctly sustained the judgments in Church, Sykes and Patterson and that has underpinned the many reported subsequent quantum assessments.

(d) In the overall result Peter Pain, Otton and Simon Brown JJ. correctly found liability – and it was not thought fit to appeal all or any of their respective decisions. Those decisions have stood unchallenged for nearly 20 years and only now are being challenged because of financial implications.

The Defendants' Case.

61. Their essential case is:

(a) Adverting to the Section 38(1) definition, pleural plaques cannot be regarded as a 'disease' for forensic purposes; further and in any event they give rise to no impairment of physical condition – scarring there may be but there is no resultant impact upon bodily function, and nor is there likely to be.

(b) The concession that taken in isolation pleural plaques cannot constitute 'damage' so as to sustain an action, is in any event endorsed as flowing from a. and adopted.

(c) The presence of plaques does not found the identification and assessment of risks of the future onset of symptomatic conditions, malignant and non-malignant. Identification and assessment are based upon the history of earlier exposure in conjunction with the intervening passage of time and life expectation.

(d) Anxiety engendered by the assessed risks of the future onset of symptomatic conditions cannot as a matter of law be compensatable – thus it cannot contribute to 'damage' so as to found an action.

(e) Additionally, and in any event, authority serves to show that the law applies 'control mechanisms' to identify and limit, effectively on grounds of pragmatic policy, the availability of viable causes of action in negligence. No such 'control mechanism' is supplied by using the presence of pleural plaques as a yardstick – the only reliable mechanism is supplied by the onset of asbestos related symptoms of sufficient severity to make for a reasonably worthwhile action in damages.

(f) Church, Sykes and Patterson were wrongly decided as to liability and I should not hesitate from so finding notwithstanding interim reliance upon them as founding a cause of action based on identification of pleural plaques.

62. Before departing from the respective cases, I should acknowledge that both sides drew attention to the potential interaction between a finding as to whether, and if so when a cause of action is established and the running of time for limitation purposes. I think it best presently to put this aspect to one side. Limitation is of necessity a satellite issue and, as I think, must follow rather than guide resolution of the foregoing main issues.

Liability – My Judgment

63. Introduction. Not surprisingly, the parties made the presence of pleural plaques as central to their respective submissions. As outlined above the Claimants submit that pleural plaques, per se, suffice to constitute damage so as to found an action when supplemented by assessed risks and consequent anxiety. It is that case which the Defendants seek to demolish, again with pleural plaques in the centre of the target. For my part, the evidence, lay and expert, invited a different focus. I have already cited the verbatim evidence of the Claimant, Mr. Storey and without apology, I repeat his words: "I do not regard the plaques as any concern save as a pointer that I have been exposed to asbestos and it has had an effect on my lungs". I find that in that sentence he encapsulated the effect of the evidence, that is, to direct the focus not so much at the fact of plaques but at the fact of exposure to asbestos.
64. With the evidence concluded, I sought tentatively to describe the 'damage' or 'injury' as so far identified in terms which I then had circulated for comment. In the result the parties offered a modest response, adverting to wording rather than effect. Having considered those responses I confirm my identification of the factually proven Claimants' perception of 'damage' or 'injury' as:

'The permanent physical penetration of the chest by asbestos fibres to such extent as to give rise to:

a. the actual development of pleural plaques;

b. the possible future onset of symptoms, even of a terminal condition; and

c. consequent, potentially continuing anxiety.'

In so drafting the foregoing, I have had much to mind the expert evidence, as well explained to, and understood by the Claimants, and to its effect namely that (in forensic terms) the identification of pleural plaques has an 'evidential' rather than a 'substantive' significance. Thus, their existence confirms the significant permanent physical penetration by asbestos fibres but does not add in any way to the resultant disabilities, actual or prospective. It is with that confirmation to hand that the physician is able to make risk assessments that are based upon the level of exposure and the history – risk assessments that do not stem from, nor are influenced by the plaques but which flow from the now evidenced initial exposure. Further, it is not the plaques per se that engender anxiety (save to the unforeseeably irrational) it is again the now evidenced internal presence of asbestos and the risk assessments arising from such.

65. The history giving rise to this litigation inevitably encouraged the parties to focus upon pleural plaques and the potential for such as constituting 'damage' or 'injury' so as to found a claim in negligence; in the event the evidence obliged me to focus upon the material features of the whole history: exposure, penetration that is now demonstrably permanent, and events up to and after trial - with the identification of plaques as an evidentially significant feature. Turning from the evidence to the law, I now address these issues:

a. Can that permanent penetration with the implications necessarily flowing from such constitute 'damage' or 'injury' so as to complete the foundation for a claim in negligence?

b. If 'no', then does the position differ as and when the fact of penetration is confirmed by the finding of pleural plaques?

c. If 'no', then is it only with the onset of significant asbestos related symptoms that the foundation is provided?

In addressing issues a. and b., I will deal with 'anxiety' and its potential as contributing to 'injury' for the purpose of founding a claim. It may be objected that the current litigation renders only issue b. relevant – for my part, that issue can only properly be considered in the light of the answer to a. Taken overall, affirmative answers to either a. or b. supply bases for recovery by the present Claimants, per contra, an affirmative answer only to c.

66. The First Issue. By way of this issue I seek to focus on the situation as it persists unless and until there is a radiological finding of pleural plaques. Let it be assumed that the circumstances of the Claimant's employment give rise to an inference on balance of probabilities that there has been such exposure to asbestos fibres as to give rise to permanent penetration of the body, then on that basis (with no further evidential gloss) is there injury sufficient to found a claim in damages for negligence? In response, first, I refer to the Section 38 definition: simple penetration even if outwith the body's defences so as to be permanent self evidently cannot constitute a 'disease' and in itself (that is, without evidence as to the actual consequences of the penetration) does not readily connote 'impairment of physical condition'. In Dhak v. Insurance Company of North America (1996) 1 W.L.R. 936 the Court of Appeal in holding that 'bodily injury' in the context of a personal accident policy was not restricted to exterior injury to the body said " ….. the introduction of some foreign matter into the body or a particular part of it which causes harmful physiological changes in the structure of the body can …. amount to bodily injury", see Neill L.J. at page 944. Here, on what I have postulated for this issue we have the permanent introduction of foreign matter but we have no more than a potential for resultant harmful physiological changes.
67. Cartledge v. E. Jopling (1963) A.C. 758 is in point at this stage. The Plaintiff central to the case (one, Patterson) had been exposed to silica in the course of his employment with the Defendants from 1933 to the trial in 1959. There were findings of fact that the resultant pneumoconiosis " ….. had so developed by 1950 that it would have been visible upon x-ray examination to a sufficiently skilled eye, had such an examination been made ….." In the event there was no x-ray until 1952: it was only then that Patterson discovered that he had the disease. Very reluctantly, the House of Lords held that the damage sufficient to found a cause of action accrued " ….. when it reached a stage, whether known or unknown, at which a judge could properly give damages for the harm that had been done. In these cases that stage, on the findings of the trial judge, was reached before October 1950." In the overall result, actions commenced in October 1956 were statute barred by reference to the provisions of the then material Limitation Act 1939. Whilst it is clear from the case that an affirmative answer to issue a. is not debarred by a Claimant's ignorance of actual physical damage in advance of the finding of pleural plaques, it is equally clear that there must be a capacity to ascertain actual damage (or injury) before the cause of action is founded: the material date was not when the foreign matter entered Patterson's body and started the physiological changes but when the latter could have been apparent on x-ray.
68. Before departing from Cartledge v. E. Jopling a passage from the speech of Lord Pearce at page 779 is of value with respect to issues a. and b.

"It is for the judge or jury to decide whether a man has suffered any actionable harm and in borderline cases it is a question of degree. My noble and learned friend, Lord Reid, observed in a pneumoconiosis case (Bonnington Castings Ltd v. Wardlaw): "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 the 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. Evidence that those changes are not felt by him and may never be felt tells in favour of the damage coming within the principle of de minimis non curat lex. On the other hand, evidence that in unusual exertion or at the onslaught of disease he may suffer from his hidden impairment tells in favour of the damage being substantial. There is no legal principle that lack of knowledge in the plaintiff must reduce the damage to nothing or make it minimal."

69. Two other cases merit present citation. First, Fletcher v. Commissioners of Public Works (2003) 1 IR 465. This is the only case drawn to my attention in which there has been a claim for damages in negligence on the basis of inferred asbestos penetration without a finding of pleural plaques. The Plaintiff (as such is still entitled in Ireland) sued not for the penetration per se but for a psychiatric injury allegedly caused by knowledge of such and its possible implications. Although a case from another jurisdiction, that is, a decision of the Irish Supreme Court, the relevant law included the common law and the relevant statutory definition of 'injury' (Section 2. Civil Liability Act 1961) was in identical terms to Section 38. It follows that the judgments (which reflect much consideration of English authorities) are stimulating and helpful, reaching the conclusion that that Plaintiff could not recover damages. For immediate purposes I note that whereas Keane C.J. at page 472 thought it possible that at common law inferred simple permanent penetration by asbestos fibres so as to occasion the risk of possible future occurrence of mesothelioma could amount to 'injury' so as to found an action, this was not the case then advanced on behalf of the Plaintiff. Geoghegan J. (who gave the other judgment) said at 519: "I have deliberately refrained from expressing any view as to whether the implantation of fibres into the lung (which did occur in this case) or the development of pleural plaques (which did not occur), in neither case involving any immediate symptoms, could be described as a physical injury especially having regard to the definition of injury in the Civil Liability Acts. At the hearing of this appeal it was accepted that the damages were awarded for psychiatric injury only and I am approaching the appeal on that basis."
70. The second such case is Guidera v. N.E.I., unreported, McCullough J., 17^th November 1988. The Plaintiff had been exposed to asbestos in the course of his employment with the Defendants between September 1952 and March 1953. By the 13^th January 1987 he was suffering from asbestosis that had first been suspected in 1976 and on that date a writ was issued claiming damages. A preliminary limitation issue arose requiring a mixed finding of fact and law: did the Plaintiff have his cause of action prior to the 4^th June 1954 for if so it was now statute-barred. In response, McCullough J. directed himself by reference to Cartledge v. E. Jopling, op. cit: "Whether it is so barred depends on whether by that date, 4^th June 1954, he had suffered damage, because without damage a cause of action in either negligence or breach of statutory duty is incomplete. The damage which is required is damage which is real, something more than minimal; something beyond what can be regarded as negligible, even if it was then both unknown and undiscoverable: material damage; something more than that which the law will disregard." Having then heard medical evidence he found that the relevant fibrosis could not have developed, at least more than minimally in the period between the employment and the cut-off date so that no cause of action had arisen as at the latter. Before parting from this citation I should interpose, first, that the judgment was the subject of an appeal but not on this point and second, I respectively dissent from 'undiscoverable' – on my reading of Cartledge v. E. Jopling the essential point was that by October 1950 damage was 'discoverable' albeit that it had not been discovered.
71. In the overall result, the answer to issue a. has, in my judgment, to be 'no': inferred permanent penetration by asbestos fibres cannot, simpliciter, constitute injury or damage so as to found a cause of action. Penetration that is permanent (that is, such that has defeated the body's natural defences) raises a potential for damage, but no more. For damage to found a cause of action such has to be real, other than minimal and capable of being discovered – actual discovery is immaterial to this issue. So much flows from the facts and from Cartledge v. E. Jopling. Whether the radiological finding of pleural plaques serves to alter the situation remains for issue b. – I am concerned with the preceding situation in which damage has not been discovered and there is no evidence establishing an untapped capacity to discover. I acknowledge that in Fletcher, Keane C.J. in effect identified a. as arguable but given the circumstances of that case the issue was not argued. Had it been argued, and had that Irish Court chosen to be governed by English common law then (like McCullough J.) I can see no escape from the principles enunciated in Cartledge v. E. Jopling. Essentially, there was no evidence before me to suggest that anything material to the fact of damage could be discerned in advance of the appearance of plaques, assuming that the individual's condition remained asymptomatic. I should add for sake of completeness that, in so far as damage may be a matter of inference consequent upon an inference of prolonged permanent penetration then, absent symptoms or radiological findings, I would dismiss such as de minimis, see Lord Pearce, op. cit.
72. Second Issue. I am now in a position to consider the forensic impact of the findings of parietal plaques that are common to all the Claimants, hopefully now in the right context. If in the absence of symptoms and radiological findings there is no 'damage' to be inferred as arising from similarly inferred permanent penetration by asbestos fibres, is such established by radiological evidence of pleural plaques so as to found a cause of action?
73. It is here, at the centre of this litigation, that the respective submissions become detailed and forceful. The case as advanced to me by the Claimants flowed from their focus upon plaques as an entity in itself rather than as a development in a history. Thus, the submissions started with the proposition that by reference to some of the citations from the medical literature, pleural plaques constituted a 'disease' so that, by reference to the Section 38 definition, their presence had in itself the potential to found an action. Additionally, their presence as scars on the pleura served objectively to amount to an impairment of physical condition, so as to provide or add to the same potential. That said, per paragraph 45 of the Claimants' opening skeleton argument: "The Claimants do not contend that plaques simpliciter are actionable but that pleural plaques in conjunction with anxiety and future risks of other asbestos diseases combine to constitute an injury which is more than minimal and which is significant. Accordingly pleural plaques are actionable and set time running against a Claimant."
74. An alternative argument for the Claimants stems from my provisional approach. Thus, as and when radiological evidence of pleural plaques is available there is now evidence that serves, first, to confirm the previously inferred permanent penetration of the body; second, arguably to identify damage arising from such; and third, to enable the physician to identify and assess such future risks of asbestos based symptomatic conditions as could flow from that asbestos exposure and the resultant permanent penetration of the body. In this regard the Claimants can point to the views of Dr. Rudd as recited in paragraph 8 above. In effect, the radiological finding of pleural plaques equated in significance to the notional October 1950 x-ray in Cartledge v. E Jopling. Given that which it unlocks evidentially a cause of action founding a more than minimal claim can be discerned.
75. A further argument lay implicitly behind all the Claimants' submissions on the generic issue of liability. Granted that the Defendants could re-visit the issue ventilated in 1984 and 1986 in the absence of binding authority but, in so far as there is discretion involved in my judgments in the instant cases, the fact that this area of litigation has been conducted during the intervening period with the cooperation of Defendants on the basis of these three early decisions is not irrelevant. If policy has a part to play then I should note the adoption of a finding of pleural plaques as an 'entry point' for asbestos based claims made in anticipation of possible symptoms for nearly 20 years. Rhetorically, is it not too late to alter the position, presumably to require symptoms as a pre-condition for a cause of action?
76. The Defendants, similarly focusing upon plaques per se, dispute strongly the proposition that a finding of such betokens a finding of a 'disease' or of an 'impairment of physical function'. The categorisation as a 'disease' was not made for forensic purposes; it is medically controversial; and, properly understood, pleural plaques have none of the features normally associated with a disease. Further there are obvious difficulties in categorising this radiological feature as amounting to an impairment of physical condition when it is and will remain asymptomatic. The Claimants' concession that the entity that is said to be an 'injury' by reference to Section 38 could not sound in damages presumably as being 'de minimis' in effect demonstrates that reliance upon Section 38 is ill-placed – how could a 'disease', further or alternatively an 'impairment of physical condition' be de minimis assuming the categorisation to be correct?
77. The Defendants would further contend that damage for the purposes of a cause of action cannot be constituted by supplementing the fact of plaques with the assessed risks of future asbestos related diseases and anxiety. They contend that anxiety does not contribute to 'injury' so as to be compensatable. Further, any anxiety does not result from the fact of plaques but from the physician's evaluation of other factors. That which is relied upon by the Claimants is not a 'package'.
78. Adverting to the alternative argument rehearsed in paragraph 74 above, the Defendants strongly submit that the finding of pleural plaques cannot be accorded evidential significance such as permits identification of sufficient elements to found damage for the exposure of a cause of action. As an asymptomatic phenomenon with no or no adequate relevance to future onset of asbestos based symptoms nor to the assessment of the risks of such it is facile and wrong to make the finding of plaques an effective 'entry point' for litigation purposes. Mr. Bueno QC's rhetoric invoked 'the addition of nought to nought to nought, and still leaving nought'. Further, in so far as policy has a part to play the Defendants submit that, whereas it is obvious that as a matter of policy the law could not countenance simple exposure to asbestos and the inferences to be drawn therefrom as an 'entry point' but would rightly look for some 'control mechanism' to reduce the cohort of potential Claimants and to identify those who should qualify for compensation, that mechanism should not be supplied by an effective requirement that, absent symptoms, plaques should be radiologically apparent. As they emphasise, not only is it surprising that an asymptomatic condition should have this function but the incidence of radiological examinations is haphazard and is now being openly promoted for arguably commercial reasons. The essential, understandably recurring submission of the Defendants is that damage is only established as and when there are symptoms; it is by looking to symptoms, such in turn signalling the onset of a true asbestos based disease as the damage or injury for the purposes of a cause of action, that an appropriate 'control mechanism' serves appropriately to reduce the initial cohort of potential Claimants to a cohort of Claimants with something serious to sue for.
79. Before making my own judgment on this issue it is necessary to identify the extent of the argument as to the contribution of anxiety as engendered by the assessed possibility of the future development of an asbestos based disease to the foundation of a cause of action. As already noted, the Claimants seek to identify a more than minimal 'injury' by taking in conjunction plaques, assessed future risks and anxiety. The Defendants in response invoke the longstanding dicta as to the stance of the law with respect to anxiety that is no more than such, that is, that does not amount to a psychiatric injury. Thus, per Devlin J. (as he then was) in Behrens v. Bertram Mills Circus (1957) 2 QB 1, 28: "The general principle embedded in the common law (is) that mental suffering caused by grief, fear, anguish and the like is not actionable." Then, per Lord Bridge of Harwich in Hicks v. Chief Constable of South Yorkshire (1992) 2 All ER 65, 69: "It is perfectly clear law that fear by itself, of whatever degree, is a normal human emotion for which no damage can be awarded ….. fear of impending death felt by the victim of a fatal injury before that injury is inflicted cannot by itself give rise to a cause of action which survives for the benefit of the victim's estate." The force of these and other like citations led Mr. Burton QC to include in his closing submissions the proposition that anxiety as experienced by these Claimants fell to be compensatable as a 'loss of amenity' consequent upon the permanent penetration by asbestos and the resultant assessed risks of future diseases, that is, as accompanying and consequent upon physical injury. This submission does have echoes in further House of Lords 'Hillsborough' cases. In Alcock v. Chief Constable of South Yorkshire (1992) 1A.C. 310 at 401 Lord Ackner said: "Mere mental suffering, although reasonably foreseeable, if unaccompanied by physical injury, is not a basis for a claim for damages." Then in White (or Frost) v. Chief Constable of South Yorkshire (1999) 2 AC 455, at 491 Lord Steyn said: "There are those whose mental suffering was a concomitant of physical injury. This type of mental suffering is routinely recovered as 'pain and suffering'."

I turn to my own judgment:

a. I start by rejecting any notion that pleural plaques per se can found a cause of action. I am not satisfied that for forensic purposes they can be categorised as a 'disease' nor as an 'impairment of physical condition'. This whole forensic exercise arises because for practical purposes there is no disease, nor is there any impairment of physical condition. If I am wrong, then, the expert evidence as to their significance points (as is in effect, conceded) to them being disregarded as 'de minimis'. I do not think that that status can be enhanced by associating with such, the risk of onset of asbestos related symptomatic conditions as arise not from the plaques per se but from the history starting with the initial exposure – still less do I think that that status can be altered by invoking anxiety arising out of the now articulated risks.

b. Turning to the further contentions of the Claimants, I accept Mr. Burton QC's submissions that the forensic key to my judgment has to be the binding authority of Cartledge v. E. Jopling, op cit. I have already (in paragraph 67 above) cited the passage at page 781 at which Lord Pearce identifies the stage at which a cause of action accrues. Repetition is justified: "The cause of action accrued when it reached a stage, whether then known or unknown, at which a judge could properly give damages for the harm that had been done." Granted that the proposition threatens to be circular in effect, it is not difficult to apply to the instant situation. Thus, given that as and when a Claimant experiences the symptoms of an asbestos related condition there is then current an injury manifestly within the Section 38 definition, is that when a cause of action accrues? Or is it when there is discoverable 'harm' (whether known or unknown) that is not 'de minimis' and that would if known suffice to found an action in damages? In particular, as and when the pleura does feature plaques (whether identified or not) is there sufficient to found an award of damages notwithstanding that the overall condition is asymptomatic? I put out of my mind the obvious fact that judges do make awards in such circumstances – on the evidence put before me should they do so? In the event the evidence served to raise for me the following as a potential basis for an award as at the development of pleural plaques (with implications as cited in paragraph 8 above):

80.           (1) the nature, extent and dating of the initial exposure to asbestos with inferred ingestion;

(2) a resultant penetration of the chest by asbestos fibres (now evidenced or capable of being evidenced by the fact of pleural plaques) that is permanent, that is, such that has not been removed or neutralised by the natural defences of the body and that remains for life as a possible catalyst for the onset of one or more symptomatic diseases;

(3) physiological damage as encompassed by (2);

(4) risks as now assessable as to the future onset of symptomatic diseases; and

(5) present and prospective suffering or loss of amenity represented by anxiety engendered by the foregoing.

c. Can this evidence based on formulation be sustained as a foundation for an award of damages? I hold that the answer is 'yes', a ruling that reflects rejection of the Defendants' submissions. As to such, first, I am satisfied that when, as in the instant cases, anxiety is engendered by tortiously inflicted physiological damage it can properly contribute to 'damage' or 'injury' so as to complete the foundation of a cause of action. It becomes that which is routinely encompassed in 'pain and suffering' or 'loss of amenity'. I take it to be beyond dispute that a continuing anxiety engendered by a tortiously inflicted external scar can contribute to the compensatable injury and I see no logical difference between that situation and such that arises in the instant situation. I would distinguish anxiety pre-dating and in anticipation of physiological damage, see Fletcher v. Commissioners of Public Works, op. cit. Second, I cannot regard that encompassed by my formulation as 'de minimis' so as to be susceptible to rejection as a foundation for a cause of action sounding in damages, see paragraph 68 above for the relevant citation from Cartledge v. E. Jopling. Leave aside the consistent thrust of persuasive judicial opinion, I cannot myself regard as minimal the presence of asbestos within the body that is permanent, raising a possibility (albeit no higher than that) of the future onset of asbestosis or the even more daunting mesothelioma. Vivid from the trial is the impact of that possibility upon impressive, far from hysterical Claimants, notwithstanding consistent medical reassurance. Third, having ruled as above I am, as Mr. Burton QC submits, bound by Cartledge v. E. Jopling to find liability –I have in effect eliminated such potential as there ever was for distinguishing the decision. Fourth and finally, given submission to authority, there is no obvious scope for considerations of policy – that is, policy as to the forensic 'entry point'. I should perhaps add the following on this issue. Whereas I personally have much sympathy for the Defendants' contention that it should be with the onset of asbestos related symptoms that the cause of action is finally founded, I observe, first, that this contention was in effect rejected in Cartledge v. E. Jopling – and second, that if I am wrong and policy is still on the agenda, there is an obvious counter argument to the effect that it would prima facie be against public policy now to curtail reliance upon the finding of pleural plaques as furnishing the forensic 'entry point' when that reliance has persisted unchallenged for nearly twenty years.

81. In the case of Mr. Hindson, liability is admitted: I now find liability in favour of the remaining nine Claimants. It follows that I do not dissent from, nor distinguish the persuasive decisions of Church, Sykes and Patterson – indeed, I am fortified by them, not least because in each case the decision was in part similarly supported by active reliance upon Cartledge v. E. Jopling
82. Limitation. From time to time in the course of the trial I was invited to test propositions with respect to liability by considering potential impact in terms of limitation – and authorities in addition to Cartledge v. E. Jopling (a limitation case) were put before me. With great respect to the underlying energy and ingenuity I do not think that limitation can or should impact upon the crucial applications of substantive law to the issue 'liability or no' – it is as and when a cause of action is identified as founded that the resultant implications in terms of limitation can be addressed. I have found that as and when pleural plaques are found so as to confirm permanent penetration that there is a cause of action – it is then, and not before that a limitation issue, if any, can be addressed. In the overall result I see no present advantage in adding to this inevitably lengthy judgment by a digression on this topic.

Quantum – The Respective Cases as to Generic Issues

83. Whilst I shall have in due course to make the respective individual assessments, it is initially necessary to address serious generic issues as to the brackets appropriate to, respectively, provisional and final awards of damages following upon a finding of liability in the context of an asbestos related condition that is so far asymptomatic, and that may well remain such. It is helpful first to look at the respective contentions.
84. Claimants' Case. The thrust of submissions on behalf of the Claimants is that there are brackets that are currently appropriate for, respectively, the claimed provisional awards and for so much of the claimed final award as is constituted by general damages. A starting point for the ascertainment of the current brackets is afforded by the J.S.B. Guidelines for the assessment of General Damages in Personal Injury Cases, 7^th Edition. True, the drafting of the relevant section is open to some criticism – with respect to an award for 'asymptomatic pleural plaques' it appears to contemplate a higher award on a provisional basis than on a final basis. That said, so submit the Claimants, it can be read as indicating a range in the absence of special factors of £5,000 to £6,000 on a provisional basis and their research into reported recent awards suggests that that is the bracket – if not, £5,000 to £7,000. I interpose with the obvious: this is the suggested range on the basis that symptomatic conditions will not materialise.
85. Turning to general damages for the purpose of a final award it cannot be said that the J.S.B. Guidelines offer much assistance: in this context the submissions on behalf of the Claimants are based on careful and helpful analysis of reported awards. In the overall result the submission is that the range starts at £12,500 – and that factors serving to aggravate the injury could justify £20,000 as representing the upper end of the bracket for present purposes.
86. With respect to both provisional and final awards, special damage may make an addition; and with respect to a final award there could be an additional calculated award for prospective financial loss and prospective expenditure, that is, for the potential loss of income and for the potential extra expenditure that can be assessed as arising in the event of the onset of a symptomatic condition. True, any such prospective award has of necessity to be discounted so as to reflect the risk assessment and accelerated receipt but that is achieved by way of the computations as utilised for the claims of Messrs Grieves, Storey and Hindson.
87. Defendants' Case. The thrust of the submissions is short but pointed. Given that thus far I have found the decisions in Church, Sykes and Patterson to be persuasive, then I should be similarly guided by the respective assessments of general damages. By reference to such, as adjusted for inflation, the present brackets whether for provisional or final awards are manifestly excessive, unaccountably so. Now is the time for a re-appraisal of these brackets.

Quantum – Judgment As To Generic Issues

88. Provisional Awards. My judgment seeks to reflect the following factors:

a. This type of award has to be compensation for a penetration of the body by asbestos fibres, which penetration is permanent and of sufficient extent and maturity as to give rise to pleural plaques and to the fact of a lifetime risk of the onset of a symptomatic condition, with concomitant 'suffering' or loss of amenity in terms of anxiety. It does not have to compensate for the onset of any such conditions in terms of general damages or prospective financial loss. I reject a Defendants' submission that the fact of an award presently predicated on the basis that no such condition will in fact arise somehow adversely affects so much of the claim as invokes anxiety. Whether or not there is an immediate award that reflects the onset of such a condition and its consequences, the threat of such remains and is a potential source of anxiety. That said, it is important to get 'anxiety' into perspective. First, save for the case of Mr. Grieves (which I consider subsequently in isolation), I am not concerned with a recognisable psychiatric or psychological condition but with an up to a point natural reaction to the potential for a disabling if not terminal hazard that will always threaten. Indeed, were it not for the fact that it can be categorised as suffering or loss of amenity arising out of the physiological condition, such anxiety would not sound in damages. Second, whereas I had no difficulty in accepting as sincere the respective avowals of anxiety, it should be emphasised that the causes for such were downplayed by the doctors who had respectively identified and advised upon the risks and that, even allowing for the heightened attention given to the matter by the litigation there were frequent acknowledgements by Claimants that, with the passage of time since the initial identification of the risks, anxieties were subsiding as encouraged by the medical advice. Third, to the extent that an award of damages is intended to restore the Claimant to the position he would have been in but for the tort, there is a limit to the efficacy of an award in this context. On at least one occasion in the course of evidence attention was drawn to the contrast between the attitude of doctors (playing down the significance of the risks) and that of the lawyers (seemingly playing up the significance), and I noted a comment to the effect, "if they are paying me as much as this it must be more significant than the doctors have said."

b. In Patterson Simon Brown J. made a provisional award of £1,250 (now £2,395). This was a considered assessment as perusal of his judgment reveals and represents, "a figure which accords reasonably with a scale established by Church and Sykes, both now 2 years old, and with my own views upon the particular facts of the instant case ….." In Church there had been a final award of £1,500 (now £3,213) and in Sykes a like final award (now £3,203). In my judgment the Defendants can rightly contend that, as with liability, this trio of High Court awards have to be persuasive, it being common ground that none such have been overruled or commented upon by the Court of Appeal. As I see it, I can depart from them, but I need to find and express a justification for doing so.

c. Turning to subsequent assessments of provisional damages, in like cases, the following awards were found for me:

1986 (Patterson)	£1,250	now £2,395
1987	£2,000	£3,714
1989	£3,500	£5,666
	£2,800	£4,023
1990	£3,300	£4,742
	£5,000	£7,366
1993	£3,400	£4,479
1997	£4,750	£5,655
1998	£5,500	£6,345
	£6,000	£6,818
1999	£4,500	£5,058
2002	£6,000	£6,440
2003	£6,500	£6,700
	£5,000	£5,112
2004	£5.500	£5,605

So much demonstrates the force of the Claimants' current submissions as to the present bracket as such emerges from these County Court decisions. That said, none of the respective judgments acknowledge the initial trio of High Court decisions, let alone explain or justify departures from the level then set. True, the Claimants are right to urge respect for these recent assessments and the underlying judicial experience but explanations for the rejection of the earlier level are not for easy surmise. One point did impress. Mr. Gore QC drew attention to a similar rise in the level of awards for mesothelioma and suggested that since 1986 the population at large had become more aware of asbestos related conditions and their significance – and that those who, like the Claimants, had been exposed to asbestos could be expected the more readily to suffer sustained anxiety, egged on by the incidence of asbestos related conditions amongst former work mates.

d. Whereas in Heil v. Rankin (2001) QB 272 the Court of Appeal sanctioned increases in awards in excess of inflation "in order to provide fair, reasonable and just compensation, taking into account the interests of Claimants, Defendants and society as a whole" it expressly did not do so with respect to awards under £10,000. Further, save for the point about public awareness of asbestos related conditions, it is difficult to see why the interests of Claimants, Defendants or society as a whole should call for provisional awards enhanced above the inflation rate.

e. Before me, all agreed that a narrow range, effectively standard provisional general damages award would be advantageous to the profession. Such would facilitate settlement, in particular by putting a limit on the scope for evaluation of anxiety (falling short of a psychiatric condition) in any particular case. With a narrow bracket there would be a limit to the extent to which an individual could seek enhancement effectively for a failure to heed good medical advice – and a limit to which Defendants could downplay anxiety as having in effect been sought through response to a Claimant trawling advertisement. I was properly and politely reminded that my judgment could not be that of a Court of Appeal, but merely a springboard for such and that the prescription of a bracket was not my function. With this, I obviously agree – my assessment presently seeks to do no more than explain the individual assessments that follow.

89. In my judgment the currently persuasive authority of Patterson would point to a current provisional general damages award of, say, £2,500. I think that I can and should add moderately to this figure in deference to Mr. Gore's submissions as to the raising of awareness of the possible long term onset of asbestos related conditions during the period that has elapsed since 1986, not least amongst those who have been exposed to asbestos and have the experiences of affected work mates to mind. Without hesitation I can justify an increase to £3,500; with hesitation, I can go to £4,000 but no higher. Of course I could make life easy and opt for a figure in the bracket as identified by the J.S.B. but I could not reconcile any such decision with Patterson – and given the pressure for moderation in this area I do not feel the urge to do so.
90. Final Awards. My judgment seeks to reflect the following factors:

a. Persuasive High Court authority is supplied, first, by Church and Sykes and second, by Patterson. In each of the former cases a final award of £1,500 was made – now about £3,500; in the latter case that assessment was accepted for the discounted provisional award – now £2,400, say, £2,500. Again, research has seemingly failed to reveal any subsequent attempt to address the current weight of these assessments – essentially they have been ignored as the current levels of final awards makes only too clear.

b. Granted that the final award has from the onset been pitched at a level higher than that for a provisional award, what is it that commands greater compensation? The only apparent factor is the actual assessed risk of the future onset of an asbestos related symptomatic, possibly terminal condition. I consider each of the three presently claimed full awards separately in due course – it is convenient presently to take Mr. Grieves as an example. In his case (as a 64 year old) that which arguably justifies a general damages award higher than that appropriate on a provisional basis are 2% risks of the future onset of diffuse pleural thickening, further or alternatively asbestosis; and 5% risks of the future development of a mesothelioma, further or alternatively lung cancer. It is the potential for the onset of one or more of these conditions that is said to merit an enhanced award. Essentially, proof on balance of probabilities that there are these risks justifies, so it is submitted, substantially higher compensation in terms of general damages.

c. I write 'substantially higher': the Claimants' submission that the County Court bracket for general damages starts about £12,500 (that is, with an approximate 100% uplift over a provisional award) seems well justified by their research and the resultant tables. It is further apparent that the bracket 'tops' at £20,000 or £22,500, but for present purposes such higher figures may not be helpful. Thus, awards at the higher end of the bracket may reflect conditions (for example psychiatric illness) that are not present in the cases put before me. Again, claims for final awards are commonly (as with the three before me) supplemented with a claim for prospective financial loss, that is, such as might arise if there were an onset of one of the identified conditions. As the schedules demonstrate, such a claim may result in an award, usually relatively modest, specifically for that loss or it may be reflected in a presumably enhanced final award. The schedules provided to me are available for perusal by the Court of Appeal: I readily acknowledge that they serve to show that an overall award for general damages and prospective financial loss with a Claimant in his sixties can reach £20,000 or thereabouts.

d. It is plain that Mr. Gore's submission as to the presumed increased impact of the potential for, and the significance of asbestos related conditions is equally pertinent to the assessment of final awards.

91. In the overall result I find myself unable to deny to Church and Sykes some continuing persuasive effect – and embarrassingly unable to adopt the approach to, and the level of assessment demonstrably current in the County Court. The essential problem for me lies in the focus for the award. Consistently, Courts seem to focus almost exclusively upon the potential condition (what is it worth, as discounted?), rather upon that which on balance of probability will occur. Back to Mr. Grieves: granted that there is a 5% risk of the future onset of a mesothelioma, there is a 95% chance that there will be no such onset, a chance that does not fall far short of a certainty. To introduce an uplift of 100% or more upon the provisional award to accommodate a near minimal risk cannot be readily justified – at least, not by me. It is this consistent refusal to look at the overall probabilities that reasonably concerns Defendants and those who fund them: it is not so much a question of being obliged to award a sum that must be too big or too small; it is rather the apparent pressure to award sums which on balance of probability will be too big.
92. The foregoing views were initially engendered by perusal of the calculations of prospective financial loss prepared for Messrs Grieve, Storey and Hindson – calculations as to loss potentially sustainable by each such in the event of the onset of one of the conditions, all as discounted for present award. The skill and integrity that found these calculations are beyond question and I acknowledge that, save in the case of Mr. Hindson, the resultant sums are modest. That said, any such calculation has of necessity to reflect speculation as to what might result in financial terms, in its turn based upon speculation as to what condition might in the event occur and when – notwithstanding that the probabilities are that no such condition will occur. This whole approach has departed from the guidance given by the Court of Appeal in Moeliker v. A. Reyrolle & Co. Ltd (1977) 1 W.L.R. 132 as to the not dissimilar calculation of damages for disadvantage on the labour market, that is, the so-called Smith v. Manchester award. Similarly concerned with the assessment of a loss that would only arise if at some future date the Claimant lost present employment so as to be in search of alternative employment, Browne L.J. at page 140 said " ….. what has somehow to be quantified in assessing damages under this head is the present value of the risk that a Plaintiff will at some future time suffer financial damage because of his disadvantage in the labour market ….. where a Plaintiff is in work at the date of the trial, the first question on this head of damage is: what is the risk that he will at some time before the end of his working life lose his job and be thrown on the labour market? I think the question is whether this is a 'substantial' risk or is it a 'speculative' or 'fanciful' risk ….. Scarman L.J. in Smith's case referred to a 'real' risk which I think is the same test. In deciding this question all sorts of factors will have to be taken into account ….. if the Court comes to the conclusion that there is no 'substantial' or 'real' risk of the Plaintiff losing his present job during the rest of his working life, no damage will be recoverable under this head." Should not the same approach govern so much of final awards in the instant cases as relate to prospective financial loss? And if so, are they not demonstrably unsustainable? Mr. Grieves has no risk of future loss consequent upon the onset of an asbestos related condition that can presently be categorised as 'substantial' or 'real' as distinct from 'speculative', given that the odds are overwhelming against the onset of any such condition. Further, if claims for prospective final loss based on the identified risk are no more than speculative, should not the Courts be cautious when evaluating the uplift on provisional awards?
93. In submissions, Mr. Limb for the British Shipbuilder Defendants, pointed out that those who opted for a final award had presumably considered the risk of the future onset of an asbestos related condition and heeding the medical advice and the commercial realities, had discounted such in favour of immediate final payment in full. Thus, for the robust person not overburdened with present anxiety the pressure was all one way: 'you can have an immediate sum reflecting at least 100% uplift if you are prepared to stand a risk assessed by the physicians as little more than minimal'. In a sense this was a jury comment by Mr. Limb but it led on to a pertinent rhetorical question: why should the Court place such a significant value on risks that the Claimant is inclined to discount upon medical advice? This point is arguably reflected in the closing words of the judgment of Peter Pain J. in Church: "I do not think I can rate the damages as being very substantial in this case; and it may well be that if the plaintiff is unfortunate, he may feel that the damages I have awarded are very inadequate. But after all, it was the choice of the plaintiff and his advisers to bring the matter before the court at this stage, and all I can do is really to compensate him for the risk which he undergoes in addition to the anxiety he has suffered. It would appear to me that a sum of £1,500 would be appropriate compensation."
94. It remains for me to be constructive. My bracket for general damages by way of a final award assuming risk levels as featured in the cases put before me is £6,000 to £7,000. This judgment reflects, first, the persuasive authority of Church and Sykes as endorsed by Patterson, whilst seeking to take into account the current perception of asbestos and the risks arising from exposure. Second, it reflects my inability to adopt the approach to assessment that is demonstrably current in the County Courts. As to this, I cannot explain or justify total abandonment of the early moderation; more particularly, I cannot equate awards starting at, say, £12,500 with strong overall probabilities that the identified risks will not materialise. Third, this bracket does not take into account financial loss that is now perceived to be a possible consequence of the future onset of an asbestos related condition. As and when particular facts may serve to rate the present prospect for that financial loss as 'substantial' or 'real' then no doubt such a claim can be maintained so as to supplement a general damages award but no such present prospect has been evidenced in the cases before me. Fourth, this is an area in which moderation is at a premium. On balance of overall probabilities any uplift over the provisional award will prove to be excessive in most cases. Further and in any event, the less the uplift the more the pressure to heed responsible legal advice so as to opt for a provisional award.
95. Before departing from this section of my judgment, I think it right to add the following. I bow to no one in my compassion and concern for those who do contract an asbestos-related symptomatic disease, particularly mesothelioma – indeed vivid to my memory is the terminal suffering of a personal friend who contracted this condition. But by way of this litigation, I am concerned with those who do not suffer from any such condition – and who in all probability will not suffer from such in the future. Mr. Bueno's resultant rhetoric extended to categorising these Claimants as the 'worried well'. This was not entirely fair (for all such the onset of an asbestos related symptomatic condition remains a worrying possibility however remote), but it did serve to underline the subtlety of the task confronting me as an assessor of quantum.

Individual Cases – Judgments

96. By way of preface, having directed myself as to brackets I will be consciously making my individual awards by reference to the upper ends. Each Claimant has been 'used' for forensic purposes that are proper in themselves but which have made undoubted personal demands. If there is scope for an upper end award I intend to act upon it in the particular circumstances of this litigation.
97. Gordon Jackson Storey. I refer to paragraphs 18 to 20 above. In terms of general damages by way of a final award, I see no reason to depart from my provisional bracket and I award £7,000. There is no claim for special damage. There is a claim for prospective loss but I make no award in response. I can find no evidence to raise any inference that there is a substantial or real present prospect of future financial loss as is claimed. What is raised is no more than that which is presently feasible: speculation as to the consequence of a speculative event. Perusal of the proffered computation inevitably underlines that description. The total award is therefore £7,000.
98. Joseph Quinn. I have to assess an award upon the assumption that he will not suffer disabling diffuse pleural thickening, nor asbestosis, nor a malignant mesothelioma, nor lung cancer (as enhanced by asbestos exposure). I refer to my bracket. I see no reason to dissent from it and I award £4,000.
99. John Grieves. In this case specific issues arise. First, should my assessment of general damages for final award purposes be enhanced so as to compensate for the depressive illness and the already consequent irritable bowel syndrome? Second, if 'yes' should there be an award of special damage as claimed? Third and finally, should there be an award for prospective financial loss. Dealing with the first such issue, I think that the answer is 'yes'. The effect of the evidence has already been summarised in paragraphs 23 and 24 above; I can add that I found both Mr. Grieves and Dr. Menon to be impressive individual witnesses. Thus, Mr. Grieves presents as moderate and I draw attention to the concessions made by him as recorded in paragraph 24, Dr. Menon effectively gave unopposed evidence and was in any event impressive as to skill and authority. I have sought to evaluate the weight and significance of the depressive illness. Granted that I would be hesitant in acknowledging any enhancement of simple anxiety as commanding increased damages, I do not see a difficulty when as here the 'suffering' or 'loss of amenity' consequent upon the physical injury can be categorised as a depressive illness. I think that the evidence takes the assessment of general damages out of my bracket and I award under that head, £10,000.
100. Turning to special damage (see paragraph 25), there is no evidence that he will undergo cognitive behaviour therapy but on the basis of findings as aforesaid, there is no issue over the remaining heads of special damage. I therefore award under this head £16,580.
101. I turn to prospective financial loss. Here the first head, continuing loss of earnings to retirement, obviously represents a current loss with a substantial risk of continuing. No real opposition is raised and I allow it. The remaining two heads, which are dependant upon an asbestos related condition arising against the odds, are too speculative to found recovery.
102. Mr. Grieves accordingly is awarded £10,000 plus £16,580 plus £6,712 = £33,292.
103. David Mears. With respect to general damages on a provisional basis, I see no reason to depart from my provisional bracket and I award £4,000. True, a high level of anxiety is contended for but I am unwilling to undertake the essentially undesirable task of measuring anxiety. There are in addition claims for special damage and prospective final loss. The former relates to lost earnings as foreshadowed by paragraph 27 above and amounts to £6,692.74. The latter features as to part an alleged prospective loss of earnings to retirement in the sum of £63,749.87 plus modest awards contingent upon the future onset of an asbestos related condition. I think that evidence as to the past impact of anxiety and as to present prospects for all round improvement substantiates the claim for special damage but not that for prospective financial loss. Essentially the latter claim is speculative and if present improvement in morale bears fruition, as is probable, it may as to the large part not arise.
104. I award £4,000 plus £6,692.74 = £10,692.74.
105. Brian Jackson. The evidence suggested that it would be appropriate to go to the lower end of a bracket (see paragraph 30 above) but in the circumstances of this litigation I award £4,000 on a provisional basis. There is no additional claim.
106. Alan Rothwell. Another Claimant for a provisional award. For general damages on this basis I award £4,000. There is no special damage claim.
107. Patrick Downey. The claim is for general damages on a provisional basis; there is no special damages claim. I award £4,000.
108. Bernard Topping. The claim is for general damages on a provisional basis; there is no special damage claim. I award £4,000.
109. Kenneth Johnston. Again, the claim is for general damages on a provisional basis; there is no special damage claim. I award £4,000.
110. Ellis Hindson. I have first to assess a final award of general damages. I see no reason to go above my bracket and the award is £7,000. There is a sophisticated computation of future financial loss that might arise with the onset of an asbestos related condition, totalling £25,193.74. I hold that the chance of this loss, or any part of it, arising in the future is no more than speculative, that is it is neither substantial nor real and I make no award under this head. There is no claim for special damage.
111. Adverting to the concerns expressed earlier, I draw attention to this case. An impressive, engaging man he now works 7 days a week in his business – notwithstanding a physically disabling heart condition. The stresses of this way of life are such that he still smokes 30 cigarettes a day despite repeated warnings from doctors, and despite the impact upon his heart, his life expectancy and the potential for lung cancer. It is in these circumstances, that those advising him contend for an overall final award of £42,693.74 (£17,500 plus £25,193.74) by way of compensation for the threat of the onset of conditions that would in itself be against the overall probabilities. The resultant sense of unreality is a factor that has kept me not too far away from Church and Sykes and added force to Mr. Limb's jury point.
112. I therefore award Mr. Hindson £7,000. I should add that I cannot regard any perceived distinction between the views of Drs. Rudd and Hind as being sufficiently significant as to invite and justify alternative awards.

Finally

113. I must express my appreciation of all the effort and skill that have founded the respective submissions along with the firm courtesy with which they have been advanced. A particular mention is saved for those who prepared the bundles: a tedious job has been done notably well.

Post Script

114. The foregoing when in draft was provided to the parties for their welcome assistance in correcting typographical errors and drawing up the orders necessary to give effect to the judgment so soon as it was handed down in final form. In the event, following perusal of the draft, Mr. Bueno QC sought and obtained my leave for a further hearing so that, on behalf of his clients he could raise points of concern, viz.,

a. Was I by way of paragraph 80c. above identifying simple penetration of the chest by asbestos fibres as constituting a more than minimal injury for the purpose of founding liability?

b. If so, his clients had not been forewarned that I was inclined to make any such finding and could he now have leave to secure and serve a further joint generic medical report providing an assessment of the significance of penetration simpliciter?

115. Having convened this further hearing for the 10^th February 2005 (and delaying handing down pending such) I heard submissions from Mr. Bueno QC as answered by Mr. Burton QC. In the upshot I can and do respond to Mr. Bueno with reiteration and reassurance. I do not hold that simple penetration by asbestos fibres constitutes an injury and thus an 'entry point' for the purpose of a compensation claim – indeed I have postulated such a contention only to reject it. I do hold that penetration by asbestos as has resulted in, and is evidenced by pleural plaques does amount to an injury and thus provides an 'entry point', given the accompanying 'package' of now practicable risk assessments and resultant anxiety. I believe that the evidence put before me was adequate to sustain this finding and I do not conceive it to be necessary or desirable now to receive yet more medical advice. Further and in any event, I have to point out that at the conclusion of the evidence I did give written forewarning of my thinking as to the 'injury' as disclosed by the evidence, conscious that it arguably differed from that then identified by the Claimants and countered by the Defendants, see paragraph 64 above. Mr. Bueno's submissions have to be rejected but I record them for reference upon appeal.
116. The parties took sensible advantage of this hearing of the 10^th February to formulate and agree the orders that would give effect to this judgment so soon as it was handed down. For this exercise, I was asked by all the Defendants who contested liability for permission to appeal against my finding that there was such, and by one Claimant (Mr. Hindson) for permission to appeal against my assessment of quantum. I readily intimated an intention to give such permissions, considering that there were compelling reasons why such appeals should be heard (see CPR 52.3(6)). I was told that applications would in due course be made to the Court of Appeal for expedition – would I care to comment? As to this, I can strongly confirm the considerable professional and public interest in my findings – and, a fortiori in the anticipated rulings of the Court of Appeal. A considerable number of claims are presently in an inevitable state of limbo – and since the beginning of term my Clerk has been fielding repetitive urgent requests for a judgment.