Scottish Court of Session Decisions

27 June 2001

[1] The pursuers are the sons of the deceased Patrick Gilbride, who died on 6^th April 1998. They sue the defenders for damages in respect of the death, which they aver was caused by a malignant mesothelioma brought about by exposure to asbestos dust. The action was raised in January 2000 and the record closed on 14^th June 2000. The pursuers aver on record that the deceased was employed as a shipwright by each of the six defenders over various periods from 1936 to 1974. He worked in the construction and repair of ships and was often in close proximity to joiners and laggers, whose activities gave rise to substantial quantities of asbestos dust. The pursuers aver that the defenders each failed to take any precautions to prevent the deceased inhaling such dust. They aver breaches of a detailed series of common law and statutory duties. No positive cases are averred by the defenders and the pursuers' averments are answered essentially by general denials. Each defender has a plea of apportionment as well as one of excess of quantum of damages.

[2] A proof before answer was agreed by the parties on 1^st August 2000 and fixed thereafter for 13^th February 2001. Because of liquidation proceedings in respect of the insurers for the first, third to sixth defenders, the diet of proof was discharged in January and another diet fixed for 3^rd July 2001. On 12^th April 2001, the first etc. defenders lodged a Minute of Amendment adding to their answers the following :

The pursuers responded in their Answers as follows :

On 21^st June 2001 the cause came before me on the first etc. defenders' motion to allow the record to be opened up and amended in terms of the Minute of Amendment and Answers and to find the first etc. defenders liable in the expenses of the amendment procedure.

[3] The first etc. defenders referred to the powers of the Court to permit amendment under R.C. 24.1.(2)(c) where the amendment "may be necessary for determining the real question of controversy between the parties". They submitted that whether it ought to be allowed was a matter for the Court's discretion but that the matters raised in the amendment did go to the heart of the controversy between the parties given that the onus was on the pursuers to prove that the mesothelioma was caused by the particular defender's negligence. This, they maintained, required the pursuer to prove which defender was responsible for the particular fibre causing the mesothelioma. The source for this reasoning was a judgment of Curtis J in Fairchild v Glenhaven Funeral Services and others, unreported, Queen's Bench Division, 1^st February 2001. Support for the averments was said to have derived from an oral opinion expressed by Professor Moran, the first etc. defenders' expert. However, the first etc. defenders did not rely so much on Curtis J's opinion but upon the general principles of causation set out in Wardlaw v Bonnington Castings 1956 SC (HL) 26, Lord Reid at 29 and 33; Nicholson v Atlas Steel Foundry and Engineering Co. 1957 SC (HL) 44, Viscount Simonds at 60; McGhee v National Coal Board 1973 SC (HL) 37, Lord Reid at 53, Lord Simon of Glaisdale at 57; and Wilsher v Essex Area Health Authority [1988] 1 AC 1074, Lord Bridge of Harwich at 1084, 1090. The first etc. defenders maintained that the cases demonstrated that it was not sufficient for the pursuer merely to say that the defenders had increased the risk of contracting a disease, as might be the case with asbestosis. The pursuers required to identify the single triggering source in order to pin liability on any one defender. Thus, it was a relevant defence to aver that it was not possible to do that.

[4] The first etc. defenders maintained that they would be prejudiced if the amendment were not allowed in that they would be unable to advance their defence. This, they said, outweighed any prejudice to the pursuers regarding the late notice of the defence case. So far as lateness was concerned, there was no excuse for the length it had taken to introduce the case other than the time it had taken the first etc. defenders to react to and take instructions upon the case of Fairchild (supra). The first etc. defenders also moved that the diet of proof be discharged because of their amendment.

[5] The second defenders had no objection to the amendment proposed or to the discharge of the proof. However, they did not seek to adopt the factual or legal bases set out in the Minute of Amendment. The second defenders did not consider that the matter raised, which was also being raised in a number of similar cases, was capable of being resolved on the motion roll.

[6] The pursuers opposed the motion to amend on the basis that : (a) it came too late; (b) no reasons for that lateness had been advanced; (c) the new averments were fundamentally irrelevant; (d) the averments lacked specification; and (e) if the first defenders' proposition in law were correct then it would lead to an unjust result. Under reference to Greenhorn v J. Smart & Co 1979 SC 427, the pursuers moved that the contents of the Minute ought to be deemed irrelevant at this stage. They would be so if they were seen not to lead the case anywhere. If they were irrelevant then the amendment ought not to be allowed.

[7] On a proper analysis of Wardlaw (supra), Lord Reid at 31; McGhee (supra), Lord Reid at 52-53, Bryce v Swan Hunter Group [1987] 2 QB 426, Phillips J at 436, 438 and 442; and Wilsher (supra), Lord Bridge at 1087, 1089-90, the defenders' averments were irrelevant since the pursuer did not have to establish which particular fibre caused the mesothelioma, merely that each defender caused that mesothelioma in the sense of materially contributing to the risk of it occurring. Curtis J in Fairchild (supra) at pp. 6,7 and 10 was wrong.

[8] No substantial explanation had been given for the late introduction of the new case. There had been many asbestos cases raised against the defenders yet in none of them had this question been raised. If the first etc. defenders were basing the defence on the authorities mentioned then this defence had been available to them all along. The pursuers accepted that the allowance of the Minute would necessitate another discharge of the diet of proof, this time because of the further consultations, which would be needed with the medical experts on the scientific questions raised. Such a discharge would be based upon the first defenders' Minute, which in turn was based solely on what was said to be an oral opinion from their expert. This opinion might not even be a concluded one.

[9] If the first etc. defenders' argument were correct then it would lead to an unjust result because all defenders could escape liability in similar circumstances (see McGhee (supra) Lord Simon at 58, Lord Salmon at 61). The correct approach was that of Judge Rudd in Wix v Wilson Cobley and others, unreported, Southampton County Court, 12^th May 2000. It was not a scientific view of causation that required to be taken but a "common sense" view and that would render the defenders liable irrespective of the lack of scientific proof.

[10] In determining whether the amendment should be allowed, I must first decide whether the amendment proposed falls within the terms of the R.C. 24.1. (2)(c), i.e. whether the exploration of its factual content may (my emphasis) be necessary to determine the real question of controversy between the parties. I answer that question in the affirmative. It is no doubt correct to say that if a proposed amendment is clearly irrelevant then its content would not assist in the determination of the cause and it should therefore not be allowed. However, I do not consider that the first defenders' averments are so irrelevant even although, at this stage, I am not at all convinced that at a proof the pursuers will require to identify the particular employer whose fibre triggered the disease in order to succeed in their claim against the defenders.

[11] Before they can secure a decree against a particular defender, the pursuers will require to prove on the balance of probabilities that the disease resulting in the deceased's death was caused, at least in part, by the fault of that defender in the sense that the defender's actings materially contributed to the disease. Proof only that the fault established was a possible cause is not enough (Wardlaw (supra), Lord Reid at 31). However, it is sufficient that the pursuer proves that the particular fault contributed to the disease in a material way and he need not prove that the fault was probably the cause as distinct from any of the other contributory factors (Wardlaw (supra), Lord Reid at 32).

[12] Just how a pursuer can prove that a defender's fault has made a material contribution to the contraction of a disease will depend on the facts of the case. However, where a pursuer proves that his employer's fault is such as to give rise to a material risk or material increased risk that a particular disease will be contracted and the pursuer in fact contracts that disease then the Court is entitled to infer that the fault caused the disease (Wardlaw (supra) Lord Keith at 36, McGhee (supra), Lord Kilbrandon at 59). It is not bound to make that inference since that will depend on other facts and circumstances in the given case but it can do so and thereby hold the causal connection proved. It is true that Lord Wilberforce (in McGhee (supra) at 56) was not keen to describe the process of reasoning as that of drawing an inference from the evidence and went some distance to suggest some form of onus being transferred onto defenders in cases where the precise causal chain could not be scientifically demonstrated from the medical evidence. However, his view was effectively disapproved of in Wilsher (supra) (Lord Bridge of Harwich at 1087) where the Court emphasised that what was being done in McGhee (supra) was indeed simply the drawing of an inference of fact relative to causation based upon the evidence led (Lord Bridge at 1090).

[13] The problem with the reasoning stated in Bryce (supra) is that it was decided before the House of Lords had issued their judgment in Wilsher (supra). Phillips J, quite understandably, based his decision upon what was said to be the principle in McGhee (supra) identified by the Court of Appeal in Wilshire (supra), notably in the opinion of Mustill LJ, itself based upon Lord Wilberforce's dicta (see Bryce (supra) at 440). However, the principle identified by the Court of Appeal was said by the House of Lords not to exist! Rather, according to their Lordships in Wilshire (supra) the pursuer in any given case still has to prove, by inference or otherwise, that the fault caused the disease in the sense of materially contributing to it. That contribution can be, but need not be, inferred as in McGhee (supra) by proof of a material increase in the risk caused. In Fairchild (supra) it seems that Curtis J was not prepared to make the appropriate inference on the medical evidence he heard. His approach may be seen as slightly at odds with that taken by the Court in McGhee (supra) and I note that Judge Rude took a quite different view in Wix (supra). However, it may be that different approaches are possible depending upon just what the medical evidence is. In the present case, for example, the issue may well turn on whether it can be said that the more asbestos fibres introduced into the lungs, the more likely it is that the disease will be contracted. If that were so, there would certainly appear to be room for the view that each person who has contributed to the totality of the fibres will be liable. Suffice it to say, however, that whether that is proved and what inferences may be drawn will depend on the medical evidence adduced.

[14] The first defenders in this case seek to introduce averments to support positive medical evidence being led. These averments include the statement that "The number of fibres of asbestos is immaterial to the development of the disease." They seem to be saying, or at least not accepting, that the more fibres introduced into the lungs, the greater the risk of contracting the disease. Their basic point is that it cannot be demonstrated that any defender made any contribution to the onset of the disease even in the McGhee (supra) sense. I do not consider that at the stage of the motion roll upon a motion to allow an amendment I can conclude that these and the other new averments are clearly irrelevant to the issue of causation. Indeed, even were I testing their relevancy at a Procedure Roll debate, I rather suspect that I would require to allow a proof before answer. However, I express no concluded view on that. Suffice it to say, therefore, that I do think that the amendment falls within the provisions of the rule.

[15] Given that the proposed amendment is potentially necessary for the resolution of the issue in the case, the next question is whether it should be allowed at this stage of the case. Although it has been said that amendment is simply belated adjustment for which the person seeking to amend has to pay, there does reach a point at which allowing the amendment would cause injustice to the other party. This point tends to arise with the imminent proximity of a proof. The first etc. defenders have had this defence available to them ever since the action started and either chose not to raise it or did not consider it a viable proposition. In recent years there have been a great number of mesothelioma cases through the Court and no doubt many of these cases have been disposed of without reference to this point. Indeed, it would seem that although the first etc. defenders found upon the well known line of House of Lords cases referred to, the line now adopted seems to be one which has been prompted primarily by Curtis J's reasoning in Fairchild (supra).

[16] There has already been a discharged diet of proof in this case and the proposed amendment will cause further delay, no doubt of six months or more. On the other hand, the progress of this case to date has been relatively swift. Perhaps of some significance also is the fact that the pursuers have had the amendment since 12^th April, almost three months in advance of the proof diet. Because of that, I confess to being somewhat surprised that its effect ultimately was agreed as requiring a discharge of the proof. I do, of course, require to determine on which side of the balance the scales of justice are tilted. There has been no excuse tendered as to why the amendment comes at this stage and it will cause some delay. However, consideration of evidence based upon the new averments may well be necessary, in the interests of justice, to reach a correct decision in the case. Balancing all the factors, I consider that the scales are tilted marginally in favour of allowing the record to be amended in terms of the Minute of Amendment and Answers thereto and that is what I will do. As the parties are agreed that, in consequence, the proof should discharged, that will follow too.