Beddoes and others v Vintners Defence Systems and others (2009) Newcastle CC, Unreported, HHJ Walton
Beddoes and others v Vintners Defence Systems and others (2009) Newcastle CC, Unreported, HHJ Walton
The question of recoverability of damages for asymptomatic asbestosis has been tried recently in Beddoes and Others v Vintners Defence Systems Ltd and Others (2009) Newcastle County Court unreported HHJ Walton. The claimants were represented by Allan Gore QC and Simon Levene, who were instructed by Robinson Murphy of Newcastle.Judgment was handed down on 2nd March 2009. In it, Judge Walton found as follows.
“125 …as the law stands I cannot see better guidance than that offered in the House of Lords in Cartledge and again in Johnson which tends to indicate that each case has to be looked at on its own facts. Whether the claimant has suffered material damage is a matter of fact and degree. In an injury case, the issue is whether the claimant proves that the impact of the defendant’s wrongdoing upon his body is more than minimal. More than minimal injury can arise even although the claimant is unaware that he has suffered injury at all, indeed even before science allows him to know it (Cartledge). In deciding whether a condition which otherwise does not amount to material injury, is in fact damage to sustain a cause of action, the court cannot take into account the possibility that at some future stage it may become symptomatic (Johnson).
128. The importance of concentrating on effect is also apparent from Johnson at [2008] 1 A.C. 28 at [19] : in the end the question is whether the claimant is as a result of the defendant’s breach of duty “appreciably worse off”.
129. It follows that if by perceptible he means symptomatic, I reject …(the)… suggested rule that lung fibrosis would have to be found to have had some perceptible effect before it could be regarded as damage. That formulation would as I understand it, also exclude from consideration the extent of lung tissue affected, which for myself I would think ought to go into the equation. The evidence tended to suggest that the greater the area affected, the greater the probability of adverse affect.
130. But I also reject …(the)… suggestion that it is sufficient if there is a disease process which is abnormal and irreversible. That errs in the opposite direction: on that test the first appearance of fibrosis would be actionable, without there being any discernible effect at all on the claimants’ functioning, and without regard to the area affected, and that seems to me to go too far. While Keenen proceeded on the basis that fibrotic change was itself damage, the evidence in that case appears to have referred to what was visible on chest radiograph, not CT or HRCT scan. The judge was not being asked to identify what level of fibrotic change would be enough for the cause of action to accrue : the choice given to him was between the time when asbestos fibres first entered the body or the later time when fibrotic change was apparent on X-ray.
131. In short, it seems to me that if medical science can identify an effect upon the claimant before he is aware of a symptom, that can amount to damage, provided it is more than minimal.
132. Mr Beddoes. … has fibrosis at several levels and bilateral crepitations at the bases of both lungs. … the fibrosis affects between 5 and 10% of his lungs. … That extent of fibrosis is in no sense trivial and seems to me significant.
133. … Mr Beddoes currently does not have respiratory symptoms …. Having said that Professor Britton made it clear that in agreeing that proposition he was not surrendering his point that asbestosis was producing a minor restriction on Mr Beddoes’ lung function when he engaged in vigorous activity. That restriction was present notwithstanding reserve lung capacity.
134. … by the time Professor Britton examined Mr Beddoes crepitations were present in the bases of both lungs. Professor Hendrick accepted in Mr Beddoes’ case “a hint of ventilatory restriction”, and accepted that he fell four square within Group 2 of the Staples research. Some effect of breathlessness as a result of asbestosis identified on CT scan would at least be consistent with that research. In the result, given particularly the 5-10% estimate of affected lung, I do accept there is in his case what might be characterised as a subtle but real, contribution to breathlessness on activity as a result of asbestosis. The disease will make Mr Beddoes more breathless than he would otherwise have been, to a small but identifiable extent. I accept Professor Britton’s estimate of a total respiratory disability of 5%. That has to be apportioned between three conditions, asbestosis, emphysema and obesity, giving a contribution from asbestosis of 1.6%.
135. In my judgment the combination of a significant area of lung fibrosis and an identifiable, if subtle, contribution to breathlessness is an injury which should be regarded as more than minimal. It follows that I consider there is damage in his case sufficient to complete a cause of action.
136. It is sufficient to note that for quantum purposes there being a compensatable injury, account can also be taken of the risk of progression and anxiety. I have already accepted that asbestosis is at least a potentially progressive condition. Dr Rudd thought there was a 5% risk of progression. I think myself that is as good an estimate as any of the risk that Mr Beddoes will come to a position in his lifetime when he will suffer more extensive symptoms.
141. Mr Cooksey. Mr Cooksey’s scans have revealed the effects of asbestosis in both lungs at several levels. Dr Rubens said he would estimate that less than 5% of the lungs were affected. The disease is described as “limited” by Dr Rubens and “minor” by Professor Britton. He detected fine crepitations at the base of both lungs laterally and posteriorly. Lung function tests were described as normal. Nevertheless Professor Britton considered the fibrosis visible on the scan would be having an effect upon Mr Cooksey’s ability to perform vigorous exercise and estimated a total respiratory disability of 5% divided equally between asbestosis, asthma, emphysema, and hypertension.”
The implicit finding therefore is of respiratory disability of 1.25%.
“142. Mr Cooksey was agreed to have no respiratory symptoms in 2008. Interstitial abnormalities attributable to asbestosis were agreed not to have not progressed between 2004 and 2007. Dr Rudd thought there was a minor restriction of ventilatory function. In January this year Professor Britton thought there was a minor adverse effect on lung function albeit one that could not be demonstrated by a full range of conventional tests. Again the point rests on a comparison between Mr Cooksey’s better than normal results in spirometry and his other results. Here the balance of opinion favours an effect since that is the view of both Professor Britton and Dr Rudd. There is some marginal assistance for the claimant from the Staples study, since a majority thought he would qualify for Group 2, in which breathlessness was an accepted feature.
143. In the result I accept that Mr Cooksey has both asbestosis and that it has resulted in a small but identifiable contribution to additional breathlessness on activity. I accept he has suffered a material injury.
144. In relation to progression Professor Britton believes Mr Cooksey’s asbestosis will progress slowly ; Professor Hendrick thought not and referred to an interval of 30 years since exposure ceased, also the absence of progression after lung function tests over 7 years and CT scans over four. I agree that it is very unlikely it will progress to more significant disability and would estimate that chance at 5%.
BUT
137. Mr Minniken. … any estimate of the area of Mr Minniken’s lungs affected by fibrosis … would appear … to be a small area. The radiological changes are described as “very minor,” albeit at more than one level in the lungs. There are crepitations as heard by Professor Britton.
138. Mr Minniken is essentially symptomless ….
139. Here the majority opinion appeared to be that Mr Minniken does not have a respiratory disability. While I accept a disparity between spirometry and the gas transfer test, as identified by Professor Britton and Dr Leonard, I do not accept the inference Professor Britton draws, which the others felt unable to draw. While the numbers of experts who line up behind a proposition are not always decisive, it does seem to me that where you are dealing with something which on any view would be a subtle effect, it is legitimate to observe that two very experienced doctors do not accept it. In short, I am not satisfied that Mr Minniken has any deficit at all in his lung functioning as a result of his asbestosis. …. “
In the writer’s submission, it is difficult to reconcile the conclusion that if medical science can identify an effect upon the claimant before he is aware of a symptom, that can amount to damage, provided it is more than minimal (paragraph 131) with the conclusion that because a claimant has not demonstrated any deficit at all in his lung functioning as a result of his asbestosis he has no claim (individual case of Milliken at paragraph 139;
the conclusion rejecting the suggested rule that lung fibrosis would have to be found to have had some perceptible effect before it could be regarded as damage (paragraph 129) with the conclusion that because a claimant has not demonstrated any deficit at all in his lung functioning as a result of his asbestosis he has no claim (paragraph 139).
The only possible conclusion is that to cross the threshold into actionability, although there need be no subjective symptoms, there must be objective signs of harm that is more merely than radiological evidence of disease. While this is consistent with Cartledge, it requires an investment in medical investigation that is questionably proportionate, but unavoidable in that there have already been cases in which insurers have sought (unsuccessfully) to argue that symptomless claimants were nonetheless so damaged as to set time running for limitation purposes more than 3 years before they commenced proceedings. It remains to be seen whether (proposed English or Scottish) legislative intervention will provide a clear and unequivocal answer to this dilemma that applied equally to asbestosis, pleural thickening and pleural plaques.
Allan Gore Q.C. and Simon Levene