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Living mesothelioma victims – A direct claim against insurers

In Brookes v Zurich Insurance PLC and Aviva Insurance (UK) Ltd [2022] EWHC 1170 (QB), Master Davison heard an application to strike out a claim made by a mesothelioma sufferer directly against two insurers under the Third Party (Rights Against Insurers) Act 2010. His work for two companies at a paper mill in Enfield brought the Claimant into contact with asbestos lagging and asbestos brake pads on the machinery he maintained. The Claimant was diagnosed with mesothelioma in April 2021 and when examined by Dr. Rudd in October 2021, his estimated life expectancy was only 8 months. It was not in issue that the dissolved companies would be liable for the Claimant’s disease once they had been brought back into existence, but he did not want to take the preliminary steps of restoring the dissolved companies to the register, obtaining judgment against them and then enforcing that judgment against the insurers under the Third Party (Rights Against Insurers) Act 1930, because simply applying for the companies to be restored to the register could take up to 6 months. The Claimant’s wife suffered with dementia and in the event of his death, she would be unable to progress a claim. The Claimant therefore sued the insurers directly under 2010 Act because the effect of that Act, if it applied, would be to condense the three steps otherwise needed into a single action.

The question before Master Davison was whether or not the 2010 Act applied.

Master Davison confirmed that the 2010 Act does not have retrospective effect and that a “relevant person” under the 2010 Act (in this case, the dissolved companies) incurs a liability not when the Claimant has established a right to compensation, but, rather, when his cause of action is complete: Redman v Zurich Insurance Plc [2017] EWHC 1919 (QB). The 2010 Act came into force on 1st August 2016, and so if the Claimant’s cause of action was complete before then, the Claimant would have no direct right to sue the insurers.

The Defendant relied on evidence in Dr. Rudd’s report which stated:

“There is, on average, a long latent interval between first exposure to asbestos and the onset of clinical manifestations of mesothelioma, more than 30 years in most series, but the range of intervals is large, extending down to ten years and perhaps less in rare cases, and upwards with no upper limit. The latent interval between first exposure and the onset of clinical manifestations should not be confused with the interval between commencement of growth of the tumour from the first cell and the onset of clinical manifestations. The latter period is usually much shorter than the former because the mesothelioma does not start to grow as soon as the first fibres are inhaled but after a period of years during which repeated interactions between asbestos fibres and mesothelial cells occur, eventually resulting in the malignant transformation of a mesothelial cell. It is at this point that the tumour starts to grow. Initially growth of the tumour is not dependent upon growth of new blood vessels, a process known as angiogenesis, but eventually this is necessary for growth of the tumour to continue so that it may eventually become clinically manifest.

On the basis of epidemiological evidence and evidence about the growth rates of tumours it may be estimated that mesothelioma probably begins to grow from the first mesothelioma cell about 10 years, on average, before clinical manifestations appear. Angiogenesis probably commences several years after that and it has been estimated that this may be about 5 years before clinical manifestations appear, on average. However, it must be appreciated that there is no scientific means of determining when the first malignant cell starts to grow or when angiogenesis begins. There is good epidemiological evidence to suggest that asbestos exposure within 10 years of the appearance of clinical manifestations of mesothelioma does not contribute to its causation. All employments involving asbestos exposure up to about 10 years before the onset of clinical manifestations will have contributed to the risk that mesothelioma would develop. The mechanisms of causation are incompletely understood. Thus all exposure which contributed to the risk that mesothelioma would occur should be regarded as having contributed to causation of the mesothelioma.”

 The Defendant argued that the Claimant’s cause of action was complete once angiogenesis occurred at which stage it became inevitable that the Claimant would go on to suffer mesothelioma. On the basis of Dr. Rudd’s evidence that angiogenesis occurred 5 years before clinical manifestation of symptoms, the Claimant’s cause of action crystallised before August 2016 and he could not rely on the 2010 Act.

Master Davison set out the Claimant’s arguments as follows:

“12. i. A physical change, or even something that might properly be called an ‘injury’ did not necessarily amount to actionable damage. In each case, the question was whether that change was “material” or left the claimant “appreciably worse off”.

  1. The words used by the House of Lords in Rothwell and other high authorities to define the concept of actionable damage such as ‘appreciably’, ‘perceptibly’ or ‘materially worse off’ all necessarily implied that damage was detectable or capable of measurement. For example, ‘appreciable’ meant ‘capable of being estimated or assessed’.

iii. Relying on the medical evidence in this case and on paragraph 52 of the judgment of Rix LJ in the Durham v BAII trigger litigation, Mr Swoboda said that the pathogenesis of mesothelioma was, until its late stages, undetectable and undiagnosable and so, by definition, incapable of measurement or assessment.

  1. At the (still relatively early) stage of angiogenesis, the tumour would cause no symptoms and would be undetectable. Although that state of affairs might constitute a physical change in the body (albeit an unknowable one), the claimant was not appreciably / perceptibly / materially worse off because there were as yet no deleterious effects and no damage that was susceptible to detection or measurement.
  2. It did not matter that at that stage the ‘die was cast’, (if it was). The inevitability of progression of the disease was, by itself, irrelevant. A latent injury or a latent loss of amenity did not sound in damages; see Guidera v NEI Projects (India) Ltd (1988) (an asbestosis case).
  3. In any event, whether there was actionable damage was, in each case, a question of fact. Here, there was no medical evidence relating specifically to the claimant as to the precise date of angiogenesis. Dr Rudd’s evidence about the date of angiogenesis was only an approximation based upon epidemiological evidence. The date of angiogenesis in the claimant’s case might have been less than 5 years prior to clinical manifestations. Although the claimant would bear the legal burden of proving his claim, he would discharge that burden by reference to the fact that liability was admitted and that he first manifested symptoms in March 2020, (see the speech of Lord Pearce in Cartledge at 784). On the basis of the maxim ‘he who asserts must prove’ it would then be for the defendants to show that he suffered damage at a date earlier than 1 August 2016 – a burden which, on the present state of the medical evidence, they would not be able to discharge.

vii. There was, similarly, no evidence specific to the claimant of the point in time when the progression of his disease became inevitable, whether that point in time was (as the defendants contended) angiogenesis or some other time. Thus, even if the defendants were correct in their contention that actionable damage occurred when the ‘die was cast’, they had not shown when it was cast.”

Master Davison held that “the point in time when the Claimant suffered actionable damage sufficient to complete his cause of action is a mixed question of law and fact. So far as the law is concerned, two points are obvious. The first is that (to adopt the words of Turner J in the Redman case) ‘identifying the point at which the process of the development of malignancy, for example, gives rise to damage can be medically and legally controversial’. The second is that this is an area of law which is ‘uncertain and developing’.

 He further held that whilst damage may be regarded as material even if it is “unknowable”, to use the phrase adopted by Rix LJ in the Trigger Litigation, that phrase was based upon Cartledge and in that case the disease would have been visible on x-ray, unlike here.

Master Davison held that both parties’ positions were reasonably arguable and therefore refused the insurers’ application to strike out the claim as well as an application made orally by the Claimant at the hearing to enter judgment against them. The Master gave directions leading to a speedy trial.

The trial will apparently take place in late July 2022.

Robert O’Leary, Barrister.

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