In this Asbestosis case, both limitation and causation were in dispute. The Judgment appears in full at Balls v Reeve and Thurlow  EWHC 751 (QB). The claim was heard by David Pittaway QC, sitting as a Deputy Judge of the High Court.
In this Asbestosis claim the Claimant alleged his injury was due to exposure to asbestos whilst employed by the defendant company S. T. Thurlow between 1954 and 1983.
The Claimant was a carpenter who has said he regularly came into contact with asbestos in the construction of houses, bungalows and farm buildings.
The claim specifically related to the period between 1979 and 1984, the only period where insurance cover had been identified. There was also a claim for provisional damages.
The issues for the case were in relation to limitation and medical causation.
The Claimant was aware that he was suffering from a respiratory condition as far back as the 1990. The Defendant relied on an admission by the Claimant that he may have spoken to the late Mr Thurlow (who died in 2015) at a funeral in 2004. In that conversation the Claimant said that he was suffering from breathing problems.
Mr Thurlow’s son, daughter and son-in-law all said that Mr Thurlow had later told them that the Claimant was suffering ‘from asbestos or asbestosis’.
There was no evidence from an occupational hygienist as to the degree of exposure to asbestos for the Claimant.
However, the Claimant’s medical expert Professor Maskell, a consultant chest physician, noted the X-ray showing the formation of pleural plaques and pulmonary fibrosis, combined with the work history given by the Claimant. The expert considered that the Claimant was extensively exposed to asbestos between 1961 and 1983. He considered that such exposure was likely to meet the Helsinki criteria for the purposes of diagnosing asbestosis.
However, the expert’s report set out the caveat that it ‘would obviously be for an occupational hygienist to confirm’ the degree of exposure.
The Claimant’s evidence as to exposure of asbestos was solely in relation to his building work. This included sawing asbestos and asbestolux for the use in soffits in roofs of bungalows. The Claimant would also pull down old roofs made of corrugated asbestos sheets. He used a hammer to smash up old asbestos sheets. New sheets were also then installed.
Such sheets were cut to size using a hand saw. They were then drilled to secure into position generating large amounts of asbestos dust. The Claimant said that he was repeatedly cutting, drilling and handling asbestos throughout constructions. He wore a boiler suit which was covered with asbestos dust at the end of the working day.
Judgment – section 14
The Judge found that the Claimant did not have actual knowledge of significant injury attributable to asbestos until diagnosed with asbestosis in August 2017.
Although the Claimant accepted that he had suffered from respiratory problems for some years, he personally consider that they were not sufficiently serious to bring them to the attention of the GP or doctors until seeking assistance in early 2017.
There have been a letter from an appointment in 2013 from hospital when asbestos was mentioned. Subsequent radiology suggested that the radiology showed with pulmonary fibrosis which was consistent with asbestos exposure. However, the Claimant said that he had not regarded the reference there to exposure to asbestos as being a diagnosis of asbestosis. The Judge accepted that the asbestosis was an insidious progressive disease. He found that it did not manifest itself until late 2016, after which he was promptly diagnosed.
As to constructive knowledge the Judge again relied heavily on the fact that asbestosis was not diagnosed until August 2017.
The Judge accepted a distinction between an X-ray showing signs of asbestos exposure and asbestosis. Signs of asbestos exposure are capable of being homeless, (as is usually the case with pleural plaques). However, asbestosis is clearly a development of an asbestos related disease.
The Judge also noted that the Claimant had been referred to the hospital in 2013 because of weight loss and not for breathing complaints.
The Judge cautioned against considering the evidence given at the funeral, which was second-hand from the Mr Thurlow’s relatives. This may have been interpretation of what Mr Thurlow made of the conversation and not what the conversation actually comprised.
Judgment – section 33
The Judge said that if he was wrong in relation to section 14, then he would have allowed the claim to proceed under section 33 in any case. The Judge found that there was no serious prejudice to the Defendants. The Judge considered that the evidence would not have been very different that that presently available even if the Claimant had knowledge by, say, 2004. The evidence of the general nature of the Claimant’s working pattern of work would have been broadly the same. If the date of knowledge was 2013 and the action commenced within three years then Mr Thurlow would not have been alive and therefore not been able to give any further evidence for the Defendants.
Breach of duty and Causation
The Judge was satisfied there was a breach of duty. The Claimant was required to work with asbestos without protection being provided during the period.
As to causation, the Judge accepted the evidence from the medical expert as to the Claimant‘s asbestos exposure probably meeting the Helsinki criteria. The Judge found that this case was one that was not necessary to obtain expert evidence from an occupational hygienist. The combination of Professor Maskell’s evidence taken together with the Claimant’s evidence was sufficient to prove on the balance of probabilities that moderate to severe exposure for a period of 30 years was consistent with the Helsinki criteria.
Apportionment and quantum were already agreed between the parties.
Limitation always falls on the interpretation of the facts of an individual case.
This is perhaps an unusual case in that there was no expert occupational hygienist evidence. The Defendant had argued that such evidence was required. However, the Helsinki key criteria were set out by the medical expert to require a minimum of moderate exposure to asbestos for 5 – 10 years. On the facts of this case, there was exposure of that degree for 30 years. Therefore, it appears that the Judge was confident the level had been reached in this case.
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