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High Court of Justice in Northern Ireland Queen's Bench Division Decisions
You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Robinson v Harland & Wolff PLC [2001] NIQB 45 (05 December 2001)
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Cite as: [2001] NIQB 45
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Neutral Citation no.[2001] NIQB 45
Ref:
NICC3539
Judgment: approved by the Court for handing down
Delivered:
05.12.2001
(subject to editorial corrections)
BETWEEN:
Plaintiff
Defendant
BETWEEN:
Plaintiff
Defendant
JUDGMENT
NICHOLSON LJ
Ethel Maud Robinson brings this action as administratrix of the estate of William Robinson, her husband, who died at the age of 77 on 11 May 1998. The action had been commenced during his lifetime.
From in or about 1941 until in or about 1980 Mr Robinson was employed by the defendant and no claim arises in relation to his employment after 1948. Between 1941 and 1948 he was exposed to asbestos dust and fibres on board ships at the shipyard premises of the defendant and the defendant admits liability for such personal injuries as he sustained as a result of the exposure to the dust and fumes. The action is for damages for the personal injuries, loss and damage including suffering and loss of enjoyment of life.
A bundle of medical reports and letters were handed in to Court as agreed. Dr Shephard, Consultant Physician at the Belfast City Hospital, gave evidence and referred to a number of the reports and letters from him which had been handed in. In his report of 12 June 1997 he set out an occupational history which indicated a period of exposure to asbestos. He also got a history from the deceased of smoking fifteen cigarettes a day stopping in January 1997. From about 1989 he suffered from shortness of breath on exertion which gradually became worse and on examination on 27 February 1987 Dr Shephard found that there was no finger clubbing and no crackles audible. A chest x-ray on 27 February 1997 showed that the lung fields were hyper-inflated consistent with chronic airflow obstruction and that there were bilateral calcified pleural plaques present. In additional there was a solid mass in the right lower lobe suggestive of a lung neoplasm. He stated that he had discussed the situation with Mr Robinson and his son (based on his letter of 27 February to the general practitioner) but having heard the evidence of the son and daughter I am satisfied that he was mistaken on this point. A CT scan was taken of the chest and abdomen on 5 March 1997 which showed calcified bilateral pleural plaques and interstitial fibrosis at the bases, which Dr Shepherd considered were probably related to asbestos exposure. There was a large lobulated mass at the right lower lobe peripherally which was in keeping with a large peripheral neoplasm (or cancer). I am satisfied that he discussed the findings with Mr Robinson's son and daughter and then with Mr Robinson and told him that he was suffering from asbestosis and cancer and advised a civil action against his employer. In his opinion given on 12 June 1997 he stated that Mr Robinson suffered from chronic obstructive pulmonary disease, interstitial fibrosis, carcinoma in the lower lobe of the right lung (lung cancer) and asymptomatic aortic aneurysm. As to the interstitial fibrosis, he also referred to crackles on inspiration at the base of the left lung and to the calcified pleural plaques. He concluded that the interstitial fibrosis was caused by exposure to asbestos, thus confirming his diagnosis of asbestos which he maintained until he saw histological findings after post-mortem.
He was of the opinion in 1997 that he had chronic obstructive pulmonary disease and asbestosis and that 80% of his breathlessness was due to his chronic obstructive pulmonary disease and 20% was due to his asbestosis.
He was of the opinion that the lung cancer was attributable to long-term cigarette smoking but that the exposure to asbestos was also a significant factor in the lung cancer as he was suffering from asbestosis.
A post mortem was carried out on Mr Robinson on 12 May 1998. Dr Shephard referred to a report of Dr A R Gibbs, a Consultant Histopathologist, and having regard to the opinion expressed by Dr Gibbs he reported that he felt that it would not possible to ascribe the lung cancer to his previous exposure to asbestos without support, unless it could be shown that there was asbestosis present. In a letter of 19 September 2000 he said that Mr Robinson may have been told that he had pleural plaques on 27 February 1997 but he would not have known that he had asbestosis until March after the CT scan report. He was now of the view that the interstitial fibrosis was not caused by exposure to asbestos and he confirmed in cross-examination that Mr Robinson did not have asbestosis. He could not say whether the man had asked whether his exposure to asbestos was the cause of cancer. The pleural plaques would not cause disability and would have been asymptomatic and there would have been no impairment of lung function from the pleural plaques. The cancer was much more serious than the pleural plaques. On examination in March 1997 he was of the view that most of the problems suffered by Mr Robinson were due to emphysema caused by smoking.
Mr William Robinson, a son of the deceased, went with his sister and father to see Dr Shephard in March 1997. He had no recollection of any other visit. His father sat outside the room whilst Dr Shephard explained to him and his sister about what his father was suffering from, namely, a tumour and asbestosis and explained all at great length, drawing diagrams. Then his father came into the room and he remained. Dr Shephard gave further information to his father which was more or less the same as he had given to him and pointed out to his father that he was suffering from cancer and asbestosis and that he could claim against his employers and could also claim for industrial injuries benefit. The cancer and the asbestosis had been picked up by the CT scan.
He saw his father during the rest of his father's lifetime. He was offered treatment, but refused. He said that they wouldn't cure him, that there was no point as he had asbestosis. Before he was told that he had cancer and asbestosis the son used to visit his father and take him out to a pub where they would have a bottle of Guinness and his father would have the odd bet which his son would place at the bookmakers next door. That occurred at least twice a week and he would go to the son's house for dinner. But this came to an end within two months of being told that he had asbestosis. He would stay up in his room. He stopped eating. He would not answer the phone if he was in bed and if his son came into the room he would turn his back on his son. When he was at Beaconsfield Hospice he would not speak to his son most of the time. Before he was told that he had asbestosis he used to come downstairs, read the papers and watch television. He was able to go up and down to the toilet. But after he got asbestosis it all came to an end. There was no cross-examination of the son.
Mrs Windrum, the daughter of Mr Robinson, recalled that she went to see Dr Shephard with her father on the first occasion and as I have indicated I accept that Dr Shephard was mistaken in thinking that the son went. Her father went in to see the doctor, came out and told her that there was something on his lung but it was not very clear, that the x-ray was a bit fuzzy and they were going to send him for a scan. He suspected cancer. She did not talk to any doctor on that occasion. I am satisfied that he linked the cancer to the exposure to asbestos dust elicited by Dr Shephard.
She went with him so that he could have the CT scan and went back later with him and her brother to see Dr Shephard. Dr Shephard asked her brother and herself to come in to a room while her father remained outside and told them the results of the CT scan, namely, that Mr Robinson had asbestosis and a tumour and drew a diagram and told them what asbestosis was and where he got it from and told them that he was entitled to industrial injuries benefit and could claim against his former employer for asbestosis and told her brother and herself how to go about it. The doctor asked them if they wanted their father to know. They told Dr Shephard that they were content that he should tell their father. The father then came in and Dr Shephard explained to him what he had told them and examined Mr Robinson and told him what treatment he could get.
After this, as usual, she went round to her parents' house everyday. Her father was `different'. He became very quiet. He drew into himself, not interested in what was going on. He wasn't interested in life from then on. She had three children and he no longer took any interest in them. Before this he had a very good sense of humour, loved playing with the children, but after he was told of the diagnosis he lost interest in the children. The process of losing interest was a gradual process up until July 1997. Before he was diagnosed she would have taken him out for lunch. After his diagnosis he didn't want anything, he didn't go out, he went to his room, wasn't eating. He went downhill, he had no will to live. Before he was diagnosed as having asbestosis and cancer she would take him down to Groomsport where she had a caravan in the summertime and he would stay a weekend or even a week. He didn't go in the summer of 1997. He had stopped going downstairs before Christmas. At Christmas he came to her house, but when he got there he just wanted to go home. She was not cross-examined. I am satisfied that her recollection of the meetings with Dr Shephard was correct. I am satisfied that Mr Robinson connected the cancer with his exposure to asbestos, as Dr Shephard did.
Mrs Ethel Robinson, the plaintiff, said that she would be 80 years of age next month and that she had met her husband in late 1945 early or 1946; they married in 1949. He was a very witty, outgoing man. He liked children. After the news that he had got asbestosis he said that this meant one could not get better. He stayed up in bed and read and then he stopped reading. He said he was not going to get treatment, it only made it worse. Asbestosis was the end. He knew people who had had it before. A friend had it that died before him. He lost interest in his children and grandchildren. He stopped going out with his son. He lost all interest in practically everything. He told her about the cancer and the asbestosis. She was not cross-examined.
It was submitted by Mr Fraser Elliott QC on behalf of the defendant that Mr Robinson had suffered physical injury and got pleural plaques which were asymptomatic and this was worth £5,000-£10,000 when one included knowledge of pleural plaques giving rise to worry. He contended that £7,500 should not be awarded for a physical injury alone which caused no pain or suffering. Such an award must reflect worry and upset. If a person then developed depression it would bring the case outside that range but Mr Robinson was elderly when he learnt of his diagnosis and that must be a relevant factor. None of his physical disability could be attributable to pleural plaques. There was no dispute about liability in respect of the period until 1948. He was not entitled to be compensated for his worry about lung cancer. The worry about asbestosis was caused by a novus actus interveniens, namely the mistaken diagnosis of Dr Shephard and the disclosure by Dr Shephard to Mr Robinson that he had asbestosis. Lung cancer was a killer, not the asbestosis. He was offered palliative treatment for the lung cancer. His physical condition entitled him to compensation from pleural plaques and if he was entitled to compensation for worry and anxiety it was significantly less than in the case of Kelly deceased (see later). Kelly lived for three years after he was told that he had asbestosis whereas Mr Robinson lived for 16 months after he was told.
Mr McNulty QC submitted that there was not a novus actus interveniens and that the decision in Kelly was predicated on a wrong diagnosis. He contended that it was wrong to compartmentalise pleural plaques, asbestosis and cancer. Pleural plaques which were asymptomatic were compensatable and he accepted that some mental element was involved in the value placed in the `Green Book' of £5 – 10,000 for pleural plaques. Mr Robinson's worries were not about pleural plaques but asbestos and cancer, and the diagnosis of asbestosis was not given negligently and Mr Robinson attributed the cancer to the asbestosis. His mental reactions were governed by that information. When someone is informed that they have asbestosis there are a range of possible consequences. You may have it and it may not progress. It may shorten your life, it may cause significant health problems. When someone is informed that they have asbestosis and cancer and believe that it is terminal and believe that the asbestosis and cancer are linked, the value of the claim goes well beyond £10,000.
I reject the argument advanced by Mr Fraser Elliott about `novus actus interveniens.' In my view the plaintiff is entitled to receive compensation in respect of the damage to her husband's lungs caused by exposure to asbestos dust even though pleural plaques are asymptomatic. She is also entitled to compensation in respect of the period from March 1997 until his death in May 1998 in respect of the anxiety and stress, the distress and loss of interest in life as described by her, her son and daughter so vividly but with no sense of exaggeration. In awarding damages I must discount for the fact that the physical damage of the cancer is not compensatable. But the last 15 months of his life were made intolerable by the belief that he had asbestosis and that the cancer was connected to it.
I am satisfied that Mr Robinson would not have reacted to the knowledge that he had cancer in the way that he did, if he had not believed that it was linked with asbestos. I am satisfied that Mr Robinson's anxiety was profound. The effect of being told that he had asbestosis and cancer devastated his way of life.
In Robinson v Post Office and McEwan [1974] 2 All ER 737 the English Court of Appeal held that when an employee of the Post Office suffered an injury at work through their own fault, where such an injury might well require medical treatment they were liable to compensate him not merely for the injury but for the consequences of medical treatment provided that the doctor was not negligent in treating him. They also held that they were liable for consequences which could not reasonably have been foreseen, however serious, applying Smith v Leech Brain & Co Ltd [1961] 3 All ER 1159. They were bound to take the plaintiff as they found him. Thus if our Mr Robinson had reacted to the wrong diagnosis in a way which could not reasonably have been foreseen, the defendant would have been liable, applying the principles set out in the judgement of Orr LJ in Robinson's case.
It was stated in Mercer v Gray [1941] 3 DLR 56, a decision of the Ontario Court of Appeal:-
"If reasonable care is taken to employ a competent doctor to treat personal injuries wrongfully inflicted, the result of the treatment, even though by error of treatment the injuries are aggravated, will be a proper head of damages, though there may be cases where the treatment is so negligent as to constitute a novus actus intervenius and to give the patient a remedy against the doctor."
In Watson v Grant (1970) 72 WWR 665 at 671-672 Aikens J said:-
"I commence with the proposition that if A injures B it is reasonably foreseeable that B will seek advice and treatment for his injuries. It seems equally obvious that it is foreseeable that B will seek advice and treatment from a person who is qualified and authorised to diagnose and treat injuries, namely a qualified doctor. The reasonable man, in my opinion, would be aware that a doctor may err in diagnosis or in treatment, or both, without the patient … having any reason to suppose that he is being badly [I prefer `wrongly'] advised or treated."
In Cooper v Workers' Compensation Appeals Board 218 Cal Rptr 783 (Cal Ct App 1985) the court had undisputed evidence that an employee had been exposed to asbestos. Subsequently he was medically examined and the examining physicians diagnosed permanent and totally disabling asbestosis. Later, medical experts found no asbestosis but concluded that the employee had become convinced he was dying from that disease. The majority of the court found the psychiatric disability compensatable. See also Behm v Kodiak Island Hospital and others (AWCB No 91-0108).
The issue arose in Elizabeth Kelly (as personal representative of Joseph Kelly (Deceased) v Harland & Wolff Plc and Belfast West Power Limited although it was not expressly referred to in the judgment of Campbell LJ. Mr Kelly had been exposed to asbestos dust in the course of his employment and this caused pleural plaques. It was held that he suffered from crytogenic fibrosing alveolitis, not from asbestosis which had been diagnosed during the lifetime of Mr Kelly. None of the doctors criticised this diagnosis. Mrs Kelly gave evidence that her husband was told that he had asbestosis and that this devastated him. He died of an acute myocardial infarction in 1996 and the breathlessness from which he suffered towards the end of his life was due to renal failure. Campbell LJ took into account the effect on his general well-being following the diagnosis of asbestosis and awarded £17,500. He did not have cancer, was never told that he had cancer and never linked cancer with asbestosis although he once expressed the fear that he might have cancer because of the asbestos.
Clearly Campbell LJ must have considered that on basic principles compensation was payable for the faulty diagnosis. I was also referred to a number of other cases decided by Sheil J, Girvan J, Coghlin J and Gillen J.
In Phillips v Harland & Wolff Ltd Gillen J stated that a plaintiff was entitled to compensation for physical damage even though physical symptoms were absent. I am satisfied, as he was, that asymptomatic pleural plaques caused by exposure to asbestos amount to a significant degree of damage entitling a plaintiff or, if he has died, his personal representative to maintain an action for damages. He referred to a number of decisions in this jurisdiction and to the JSB guidelines in this jurisdiction and in England and Wales.
He went on to state:
"Once a tortfeasor had caused a person to sustain actionable physical harm, such as … pleural plaques, then stress or anxiety occasioned by a reasonably foreseeable mistaken diagnosis in the course of medical investigation of that wrongful act is in my view compensatable."
He rightly stated that the award for the element of stress or anxiety will vary considerably from case to case.
I am satisfied on the evidence that it was reasonably foreseeable on the part of the defendant that a wrong diagnosis might be made bona fide, might be disclosed to Mr Robinson, that he might react as he did and that he was entitled to compensation for the reaction which he suffered.
The period of stress was shorter than that of Mr Kelly, but the nature and extent of it was greater. I take into account that he probably thought that smoking contributed to his cancer but I am satisfied that he also thought, as did Dr Shephard, that the asbestosis contributed to all his problems, that it was not unreasonable for him to think so and that it was reasonably foreseeable that he would do so. There was no evidence to suggest that Dr Shephard discussed with him the extent to which smoking caused his cancer as contrasted with exposure to asbestos. I consider that Mrs Robinson, as administratrix of his estate, is entitled to £18,000 for the injury and for the distress, anxiety and misery which he underwent. I have awarded Mrs Robinson more than Mrs Kelly was awarded, although the period from diagnosis to death was shorter because I consider that Mr Robinson reasonably attributed his cancer and the belief that he was dying to the exposure to asbestos elicited from him in his occupational history in February 1997 and confirmed in detail in March 1997 when he was advised to sue his employer I would have been prepared to apply the principles stated in Robinson v Post Office if his reaction could not have been foreseen.
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
BETWEEN:
Plaintiff
Defendant
BETWEEN:
Plaintiff
Defendant