Occupational Disease Brief: latest decisions November 2020
A roundup of recent court decisions raising issues relating to a new test for what may constitute ‘de minimis’ exposure in mesothelioma claims, the application of limitation where a claimant applies to restore a dissolved defendant company for disease claims, and new changes to bereavement damages following the case of Smith v Lancashire Teaching Hospitals 
High Court decision on de minimis exposure for mesothelioma claims
Bannister v Freemans Plc [04.06.20]
The High Court gave a landmark judgment in favour of a defendant, setting out a test for what may constitute ‘de minimis’ exposure in mesothelioma claims.
The claimant developed mesothelioma in 2019 and brought a claim against the defendant, his former employer. He alleged that following a weekend of asbestos removal works on one occasion in 1983-84, he was then exposed to respirable asbestos dust when he came into the building the Monday thereafter as workmen had not properly cleared up.
The High Court dismissed the claim primarily because the claimant had not demonstrated that he had been exposed to asbestos dust. The court went further to say that even if the claimant had been exposed to asbestos dust, his claim would also have failed on the basis that any exposure was 'de minimis’.
Several factors assisted the court's judgment, including the court finding that the claimant's evidence lacked credibility, but also that it was unlikely (as was alleged by the claimant) the defendant had identified wall panels as containing asbestos and had warned its employees about asbestos works, but had then permitted contractors to carry out works without any precautions.
In mesothelioma claims, the onus is primarily on the claimant to prove that any exposure to respirable asbestos dust creates a 'material increase in risk' of contracting the disease. Until now the court's comments on de minimis exposure have been nothing more than passing observations. However, the court has, for the first time, approved (with qualifications) the use of a 'dose' test which is "a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about".
Engineering evidence concluded that the claimant's exposure (if it were asbestos) constituted 0.0004 fibre/ml years, in other words, a negligible level of exposure. The court also relied on a medical study which concluded that such low dose exposures were only likely to result in 0.2 deaths per 100,000 population.
It is welcome news to defendants that the courts are prepared to find a line where exposures do not automatically imply breach of duty. However such small amounts are unlikely to be seen in many claims, as many victims are unlikely to develop symptoms from such limited exposures in any event. Where such claims do arise, defendants are advised to obtain engineering evidence as to a dose estimate, and a medical expert to give a view on how any statistical risks can be interpreted. This will also require the medical experts to have an understanding of epidemiological literature when preparing their evidence.
- 'Spiking' of asbestos reinsurance policies: an attempt to remedy the anomaly
- Immunotherapy, mesothelioma and the pandemic
Limitation – not so game over
Christopher Holmes v S&B Concrete Ltd [20.08.20]
The claimant alleged noise induced hearing loss (NIHL) as a result of exposure to excessive noise levels during the course of his employment between 1986 and 1993. The defendant employer was dissolved in 1995. The claimant successfully applied to restore the defendant to Companies House Register in 2018 and thereafter issued proceedings.
The judge at first instance rejected the claimant’s contention that FSCS Ltd v Larnell Insurance Ltd (in liquidation)  applied, such that by restoration of the defendant company to its former liquidation state would mean the liquidation period (from 1995 onwards) should be disapplied. The limitation clock stands still. Therefore, in order for the claim to be deemed out of time, the claimant would be required to have knowledge of his injury for the purpose of Section 14 of the Limitation Act 1980 before 1992. The judge found the claimant to have knowledge for the purpose of his NIHL claim by mid-2007. The claim was therefore dismissed.
On appeal, Justice M Spencer referred to Smith v White Knight Laundry Ltd , such that “when considering the application to restore a company like in the present case, the court shall have regard to its power to make such directions which protect the rights or position of any person who might be affected by the proposed order for restoration.”
Spencer J held that “for a large number of cases like the appellant's, the restoration of the company to the Register of Companies would be automatic, the effect would be that the limitation period had never run, and there would be no need to direct that the period between the dissolution of the company and the making of the order to restore was not to count for the purposes of the Limitation Act 1980”.
Spencer J found that where the claimant had applied to restore the company and the restoration order made, if indeed the same equated to the limitation period not having run, this would be the same as granting Section 33 relief under the Limitation Act 1980 without any regard to the defendant’s case on limitation. Accordingly, the claimant’s appeal was dismissed.
Most applications to restore a dissolved company for disease claims are made without notice and without consideration to the resolution of any issue between the applicant and the company’s insurer in relation to a possible limitation defence. Accordingly, steps should be undertaken to protect the limitation defences at the very outset of the claim:
- Upon first notification of the claim (where the insured is dissolved), put the claimant on notice that the insurer must be notified upon any application to restore the defendant company.
- Write to the court seeking restoration proceedings be stayed confirming that the defendant seeks to raise a limitation defence.
- If need be, make a formal application for restoration proceedings to be stayed pending the outcome of any limitation defence.
Where the claim is set down for a split trial on the issue of limitation and the claimant is successful, the company can thereafter be restored. If the claim is dismissed, the need and costs associated with restoration will be avoided.
Changes to bereavement damages
The Fatal Accidents Act 1976 (remedial) Order [06.10.20]
On 6 October, the Fatal Accidents Act 1976 (FAA 1976) was amended. The new Fatal Accidents Act 1976 (remedial) Order 2020 enables cohabitees (as opposed to just legal spouses) to qualify for bereavement damages. As such, the new Section 1A(3) definition includes cohabiting partners in same sex relationships. Parents of deceased minors also now qualify for bereavement damages and the statutory bereavement award has been increased from £12,980 to £15,120.
This long awaited revision follows the case of Smith v Lancashire Teaching Hospitals  in which the Court of Appeal said that Section 1A of the FAA 1976 was restrictive by limiting the category of people eligible for bereavement damages to legal spouses only. The court further said Section 1A was incompatible with Articles 8 and 14 of the European Convention of Human Rights (ECHR).
The government subsequently agreed to amend the Act under the Human Rights Act 1998, bringing the rights of cohabitees in line with those who are married.
There are restrictions however:
- The cohabitee must have lived with the deceased for at least two years prior to death
- Where there is more than one cohabitant or there are two legitimate parents, the sum is divided equally between the parties
- It is not retrospective and therefore does not apply to deaths occurring prior to 6 October 2020.
Whilst this will not impact on disease claims for some time, it represents a further financial consideration to be borne in mind when looking at reserves in future claims and puts England’s position slightly closer to that which exists in Scotland where bereavement damages can be paid to “immediate family members”.
Contact: Philippa Craven