Workers lose fight for asbestos compensation

Rothwell v Chemical & Insulating Co Ltd and other appeals; [2007] All ER (D) 224 (Oct)

Group 1 Contract and Tort

History

• 3 cases in the 1980’s– Church v Ministry of Defence – Sykes v Ministry of Defence– Patterson v Ministry of Defence

• Plaintiff’s all won at first instance • Reasoning of the judges varied• Pleural plaques were found to be actionable injury

• Pleural Plaques: Areas of fibrous thickening of the pleural membrane which surrounds the lungs. Save in very

exceptional circumstances, they cause no symptoms, nor do they cause other asbestos related diseases. But they signal the

presence in the lungs of asbestos fibres which may independently cause life threatening diseases such as

asbestosis or mesothelioma.

Until…

• Insurers decided to make a stand• In the High Court, Holland J initially allowed the 10

claims– Grieves v FT Everard & Sons and another and joined cases

[2005] EWHC 88 (QB)

• 7 of these were appealed to the Court of Appeal who reversed the decision

• With leave from the Court of Appeal, 4 claimants went on to appeal to the House of Lords

Negligence and actionable damage

• An employer does owe an employee a duty of care • That duty was breached • Claim is incomplete without proof of damage• Damage = being worse off physically or economically• Are pleural plaques actionable damage?

– “De minimis non curat lex”

The aggregation theory

• Claimants tried to argue the “aggregation theory”– Non-actionable pleural plaques– Non-actionable risk of developing diseases– Non actionable anxiety

• Gregg v Scott• BUT• The “single action rule” replaced by s.32 Supreme

Court Act 1981, does not support the aggregation theory

Mr Grieves’ Appeal

• Mr Grieves suffered from clinical depression as a result of being diagnosed

• Psychiatric illness does constitute damage• Did the defendants owe him a duty of care? • Page v Smith • Employer is entitled to assume his employees are

persons of ordinary fortitude• No finding that his injury was reasonably foreseeable

Claim in Contract?

• Employers owe employees a contractual duty of care • Damage does not have to be shown in order to

establish a cause of action for breach of contract• The claimants may have been more likely to succeed

in a claim for breach of contract.• This is irrelevant as the subject was not up for debate

• None of the claimants were successful as there was no actionable proof of damage

• They may have a future claim if any of them do contract an asbestos related disease

• All the Judges in the House of Lords agreed• House of Lords judgement is now binding on all the

lower courts

Douglas Bee v Carl Jenson[2007] EWCA Civ 923

Subrogated hire claim

Case 2

• Pivotal case - Diamond v Lovell [2002] 1 AC 384

• Challenge on enforceability: Consumer Credit Act 1974

• Recover spot hire charges

• Defendants argument that Mr Bee would not be held personally liable for hire charges

• Held: That the argument over liability for the hire charges was secondary to his right for a hire vehicle.

New Concept

• If he would be liable for hire charges there would be a normal special damages claim based on reasonableness of period and rate. If his liability for the hire charges is doubtful there is a general damages claim based on comparable spot hire charges

Evans v Kosmar Villa Holiday Plc [2007] EWCA Civ 1003

Extent of tour operator's contractual duty to guard against obvious risk

Facts of the case

• Claimant: 17 years of age.• Dived into swimming pool, shallow end,

despite the “no diving” signage.• Suffered serious injuries: incomplete

tetraplegia.• Judge held the tour operator liable to 50 per

cent contributory negligence.• Tour operator appealed.

Appeal

• Allowed.• No breach of contractual duty of care under

Package Travel, Package Holidays and Package Tours Regulations 1992 reg.15

• People had to accept a responsibility for the risk they chose to run, where they are obvious and the tour operator has no duty in this instance.

• Ratcliff v McConnell [1999] 1 W.L.R. 670 CA (Civ Div) and Tomlinson v Congleton BC [2003] UKHL 47, [2004] 1 A.C. 46 applied.