Occupational Disease Brief: latest decisions March 2020
A roundup of recent court decisions raising issues relating to striking out proceedings against a dissolved company that was later restored, drawing adverse inferences in the absence of noise surveys, a defendant deprived of their defence as their expert was not available for trial, and a request to rely on expert evidence refused as courts applied the overriding objective.
Court can strike out proceedings against a dissolved company that was later restored
Cowley v LW Carlisle & Co Ltd [25.02.20]
The Court of Appeal upheld a strike out of a claim against a non-existent company and gave guidance on how an insurer of a dissolved company should proceed if faced with a claim without a concurrent application to restore.
The High Court had acted within its power when it struck out proceedings brought against a dissolved company. The court overcame the fact that the strike out application had been flawed, having allegedly been made by the then-dissolved company. It was also irrelevant that the claimant in those proceedings had, after strike out, later obtained a court order restoring the dissolved company.
The claimant brought an occupational deafness claim against various companies, including one (Carlisle) that had been dissolved some years before. The claim was supposedly served on Carlisle at its last known address, together with a letter stating that the claim would be validated when the claimant restored Carlisle to existence. Solicitors for Carlisle's former insurers purported to acknowledge service on Carlisle's behalf and successfully applied for the claim to be struck out. The claimant unsuccessfully appealed.
The court also advised insurance companies who receive notice of a claim against a dissolved insured to:
- Notify the claimant of the company's dissolution and request that they apply to restore the company to the register and to apply for a stay of the proceedings.
- If the claimant did not cooperate, ask the court to order a stay of its own motion until the defendant was restored.
- Following a stay, ask the court to strike out the proceedings of its own motion if the claimant had not taken action within a reasonable time.
Contact: David Bywater
Absence of noise surveys and the drawing of adverse inferences
Mackenzie v Alocoa Manufacturng (GB) Ltd [29.11.19]
In a noise induced hearing loss claim, the Court of Appeal upheld the decision that adverse inferences could not be drawn against the defendant where there was a lack of noise surveys.
The claimant alleged that the defendant was negligent in failing to carry out noise surveys to ensure he was not exposed to unsafe levels of noise, which the defendant’s disputed.
The single joint engineering report confirmed that without contemporaneous noise surveys it was not possible to sufficiently demonstrate that the claimant’s average daily noise exposure exceeded what was acceptable at the time. As the defendants had been unable to provide evidence of the surveys, the claimant invited the court to draw an adverse inference against the defendant.
The Court of Appeal confirmed that there was no evidence to suggest the surveys had never been undertaken and a finding of breach of duty against the defendant was refused.
Contact: Cameron Clark
Balancing exercise led defendant to be deprived of defence as expert not available for trial
Mitchell v Precis [15.11.19]
A defendant's application to vacate the trial date for a mesothelioma claim, based on the unavailability of its expert, two working days before the start of the trial was refused. While its defence relied entirely on the expert's evidence, the court confirmed that they should have made the application much sooner, and the claimant, suing on behalf of her deceased husband, would be seriously prejudiced if the trial did not proceed as planned.
The deceased (M) had been employed by the first defendant (D1) between 1949 and 1951 and between 1954 and 1956. The second defendant (D2) had occupied the premises where he had worked. The claimant's case was that, while employed by D1 and working at D2's premises, M had been exposed to quantities of asbestos dust which had caused him to develop mesothelioma.
There was a material dispute between the experts - the claimant's expert was satisfied that the extent of M's exposure to asbestos was sufficient to have put D1 on notice that M was exposed to significant quantities of dust liable to cause him injury, whereas the defendants expert took the opposite view. D1's defence relied entirely on G's expert evidence.
The court confirmed that the obligation had been on D1 to ensure their expert was available for the trial and they failed at this with a number of culpable errors, the most significant of which had been to wait three months to tell their expert of the trial date. It was accepted that if the trial was not vacated, D1 would be prejudiced because it would effectively be deprived of its defence. However, it was highly relevant in the balancing exercise that the position it was in had been entirely of its own making.
Furthermore, there would be serious prejudice to the claimant if the matter did not proceed as planned. The claimant was 84 years old and her husband had died over four years ago. It would be highly prejudicial to her if the matter was delayed any further. Having regard to the overriding objective, it would not be fair or just for the trial to be vacated.
Contact: Philippa Craven
Defendants request to rely on expert evidence refused as courts applied the overriding objective
Bhaloo v Fiat [12.11.19]
A defendant's application for permission to rely on expert evidence challenging the claimant's lifetime exposure to asbestos was refused. Permitting the evidence would result in losing the existing December 2019 trial date, the defendant could have acted on the evidence much sooner than it had and preserved the existing trial date, and an interim payment would not counteract the prejudice to the claimant, who suffered from mesothelioma, and whose life expectancy was predicted until December 2020
The claimant had brought a claim against the defendant for negligent environmental exposure to asbestos. She had worked for the defendant for 18 months between 1972 and 1974. She was 69 years old and was diagnosed with mesothelioma in January 2015; the disease had progressed slowly.
Contact: John Mackenzie