Keoghs’ Partner, David Pugh, considers Lady Justice Swift’s decision in the Phurnacite judgment, where, “the obvious alternative,” to Sienkiewicz saw liability on the basis of the defendant’s urgings on the basis of doubling the risk of lung cancer. He discusses the extent to which the decision further clouds an already complex issue and leaves insurers wondering if asbestos related lung cancers will rise significantly as a result.
A common feature of the very best village fete is the bran tub. Eager customers pay a modest amount to plunge their arms into a sawdust filled bin. They keep whatever prize they can grasp. Some will be pleased and some disappointed. Occasionally, the prizes are so unusual that their real value only becomes clear after close inspection.
Lady Justice Swift's first instance judgment on the Phurnacite claims answers many questions and offers many prizes. Lying at the bottom of this bran tub is a gift of very doubtful value for both claimants and defendants in disease litigation.
The Phurnacite plant in South Wales mixed pitch and coal to produce briquettes for domestic heating. Claimants were exposed to coal dust and fumes from this process over many decades. The fumes contained polycyclic aromatic hydrocarbons (PAH), a known group of carcinogens.
The claimants suffered from various combinations of chronic bronchitis, chronic obstructive airways disease, skin cancer, bladder cancer and lung cancer. Lady Justice Swift found that the dangers of coal dust inhalation were always known to the defendants.
They also knew of the carcinogenic properties of pitch, and later of PAH. The defendants had been in breach of duty in relation to exposure to both coal dust and PAH fumes. Conditions at the plant, she said, were, "pretty dreadful."
The plant's management were reactive rather than proactive as to health risks to their workforce. The main impulse, she said, for any improvements followed pressure from outside agencies.
The defendant argued that damages awards should be reduced by apportionment to reflect the 'irreducible minimum' of dust - that proportion of the respirable dust which would have been produced as an inevitable part of the processes.
This was an argument with which substantially the same defendants succeeded in Griffiths - the test case which gave rise to the mammoth COPD scheme. It cut no ice with Lady Justice Swift. She found that she had no evidence on which to base such a finding, so it had to fail.
Many of the cases were potentially out of time. The judgment addressed s33 discretion essentially as an exercise of balance - setting the delay against the depletion in the defendants' evidential facilities. The defendants' contentions that documents were bound to have been lost over the years were rejected. On the facts of this case the court found that absence of evidence was the same as evidence of absence.
The court was also unconvinced by the defendants' complaints about the difficulties in securing witness evidence. Their attempts to do so had not been, "consistent with a real intention to gather as much evidence as possible." The defendants however, do get a small prize from this part of the bran tub.
Some claimants had argued that - chiefly due to funding difficulties - it would have made no difference had they instructed solicitors at an earlier stage. This could not help them, said the Judge. It would not be right for the court to explore a speculative exercise to try to determine what might have happened if claimants had tried to start their claims earlier.
The causation of chronic bronchitis and small airways disease by exposure to coal dust was the cornerstone of Griffiths (along with emphysema). Once the claimants with these conditions had got over breach and limitation, liability became a matter of simple arithmetic.
There was better news for the defendants in relation to both skin and bladder cancer. These claimants argued that their exposure could have caused their cancer by drawing analogies with other exposures in other industries. They failed on the basis that there was insufficient evidence to establish that their exposure was capable of causing their condition. So far as the skin cancer was concerned, this finding was specific to the particular kind of cancer involved - non-melanoma skin cancer. The association between pitch and squamous cell cancers has long been known. This left the issue of lung cancer, lying at the very bottom of the bran tub. It was accepted that exposure to PAH increased the risk of an individual developing lung cancer.
It was also agreed between experts that smoking and exposure to PAH had a multiplicative effect on those risks. All three claimants with lung cancer had a significant smoking history.
The claimants argued that the Fairchild test applied. All they had to do was establish a material contribution to the risk of developing disease. The defendants counter argued that the claimants had to prove a doubling of the risk.
These arguments cover ground so well trodden by asbestos practitioners that grooves are worn into the turf - but grooves in the turf are like satellite navigation. Unless you take care to stay alert, they will take you the wrong way.
Lady Justice Swift notes the Appeal Courts' recent reluctance - in Sienkiewicz and the Nuclear Test Veterans litigation - to extend the Fairchild test to conditions other than mesothelioma. She knows that to extend the test to lung cancer is not simply to apply the same test to a different condition - but to apply it to a condition with more than one known cause. This leaves her with a difficulty - since she also knows the Supreme Court's criticism of, 'doubling of the risk,' in Sienkiewicz. But, if material contribution to the risk is not the test, then what is? Lady Justice Swift takes what she describes as, “the obvious alternative.” She determines liability on the basis of these defendants’ urgings on the basis of doubling the risk.
Following her findings of fact, this leads to judgment in favour of two of the three lung cancer claimants.
What this finding fails to take into account are the clear strictures of Lord Rodger in Sienkiewicz - quite possibly because they suit the arguments of neither the claimants nor, apparently, these defendants.
What Lord Rodger says is that it can never be enough for a claimant simply to be able to prove that the defendant 'probably' caused his condition. He devoted an entire section of his judgment to the distinction between proof of a fact - and proof of a probability. Yet that is precisely what is done when assessing causation on the basis of risk.
Lady Justice Swift herself acknowledges that it is not possible to say what has caused an individual cancer. That observation should have been followed by a finding that these claimants could not prove their case. The grooves in the turf took the decision down the wrong road.
The implications of this judgment are enormous for insurers. The HSE believes that there are as many asbestos related lung cancers as there are mesothelioma cases. Relatively few claims for lung cancer are currently received. An appeal in this case could have very significant consequences indeed.
The service you deliver is integral to the success of your business. With the right technology, we can help you to heighten your customer experience, improve underwriting performance, and streamline processes.