Tompkins v Tompkins (Park Homes) Ltd - Mesothelioma claim dismissed

This was a fatal mesothelioma claim heard by HHJ Glen at Swindon County Court (sitting in Southampton).

The deceased was an employee and one of four directors of a family scrap metal business. The other directors were his father and brothers. It was alleged that in the course of his employment the deceased was negligently exposed to asbestos. The claim was pursued by his son, the executor of his estate.

There were numerous issues with the claim, but the decisive issue proved to be the application of Brumder v Motornet Service and Repairs Limited [2013] 1 W.L.R 2783.

Brumder

In Brumder the claimant was the sole director and shareholder of a company who suffered injury as a consequence of a breach of duty by the company. The claimant, by virtue of being the only director, was responsible to the company for health and safety. It was held that where the claimant had been injured as a consequence of his own failings as a director, the claimant could not recover damages. The judge applied the following principles:

• a person should not be permitted to benefit from their own wrongdoing; and
• there was a need to avoid circuity of action – if the employee sued the employer, they could in turn sue him for his breach for the same amount.

Tompkins Judgment

Applying Brumder, the Judge made the following findings of fact:

1.     The deceased, his father and brothers worked together in a family business.

2.     While they may have had individual strengths and weaknesses, there was no evidence (as the claimant sought to establish) that the deceased had delegated his health and safety responsibilities to his co-directors and was not involved in any administrative functions.

3.     In fact:

    a.     the claimant’s proposition was inconsistent with the evidence of two of the four witnesses;

    b.     the deceased was company secretary and worked at least one day a week in the office; and

    c.     the claimant acknowledged that his assertion that the deceased was only ‘hands-on’ was pure speculation.

4.     The claimant failed to prove that the deceased’s responsibilities differed from his co-directors.

In the absence of any delegation of duties, all directors are jointly and severally liable to the company for any breaches. HHJ Glen held it would be neither good morals nor good law for him to benefit from his own wrongdoing and it cannot be an answer simply to say that there were other directors who should have discharged their duty.

Accordingly, the claim was dismissed.

Consequence

The Judgment is a useful application of Brumder for defendants. Some care is required in applying Tompkins as cases involving a director are always likely to be fact specific, but the onus is on the claimant to prove that they did not have health and safety responsibilities. It does not matter that there was more than one director. In the absence of evidence of delegation of duties, the directors and thus the claimant are jointly and severally liable for any breach of duty and the injured director cannot recover.