Liability roundup – February 2015

Liability roundup – February 2015


CategoryArticles Author James Todd QC, Sadie Crapper Date

This article was first published in the Personal Injury Newsletter 2015.

The Supreme Court published its judgment in the tragic case of Michael and others v The Chief Constable of South Wales Police & anor[2015] UKSC on 28 January 2015 (in which the charities Refuge, Liberty and Welsh Women’s Aid intervened). The family and dependants of Joanna Michael brought a claim against the police force which had incorrectly categorised a 999 call Ms Michael made shortly before her death as non-urgent, although no assurances had been made about when help would arrive. As a result, Ms Michael was without police protection when her ex-boyfriend made good a threat to kill her, stabbing her to death whilst her children (aged 7 years and 10 months) slept in the next room.

The force succeeded on appeal in obtaining summary judgment on the negligence claim but the claimants’ article 2 claim was allowed to proceed to trial. The claimants’ appeal to the Supreme Court on the negligence claim was dismissed by a 5:2 majority. In an impressive judgment for the majority, Lord Toulson SC considered both domestic and international case law on the imposition of a duty of care on public authorities in the absence of a specific representation and reliance (as was here the case) and concluded that the refusal of the courts to impose a private law duty on the police to exercise reasonable care to safeguard victims or potential victims of crime does not involve giving special treatment to the police. Rather “it does not follow from the setting up of a protective system from public resources that if it fails to achieve its purpose, through organisational defects or fault on the part of an individual, the public at large should bear the additional burden of compensating a victim for harm caused by the actions of a third party for whose behaviour the state is not responsible. To impose such a burden would be contrary to the ordinary principles of the common law.” The Court was clearly influenced by financial considerations as, at paragraph 122, Lord Toulson said “the imposition of liability on the police to compensate victims of violence on the basis that the police should have prevented it would have potentially significant financial implications. The payment of compensation and the costs of dealing with claims, whether successful or unsuccessful, would have to come either from the police budget, with a corresponding reduction of spending on other services, or from an increased burden on the public or from a combination of the two.” The force’s cross-appeal on the article 2 point failed and will be determined at trial in due course.

Asbestos

There have been three significant cases in asbestos litigation recently.

The case of McDonald v National Grid  [2014] UKSC 1346, [2014] 3 W.L.R. 1197 related to a Mr McDonald who, between 1954 and March 1959, regularly visited Battersea power station to collect pulverised fuel ash from an area of the plant which was free of asbestos but, whilst on site, would go (out of curiosity and only as a “casual visitor”) into areas where asbestos dust was generated by lagging work. Sadly Mr McDonald contracted mesothelioma in July 2012 and launched proceedings against his employer and the successor body to the occupiers of the power station. He succeeded on appeal in establishing a claim under the Asbestos Industry Regulations 1931 which the defendant promptly appealed (whilst the claimant cross-appealed the dismissal of his claim under s.47(1) of the Factories Act 1937).

The defendant’s appeal was dismissed by a narrow (Lord Kerr, Lady Hale and Lord Clarke: Lords Neuberger and Reed) majority on the basis that the 1931 Regulations apply not just to factories engaged in the production of asbestos products but to all factories at which the activities listed in the preamble to the regulations took place. In so doing the Supreme Court affirmed the approach taken by the Court of Appeal in Cherry Tree Machine Co Ltd & anr v Dawson [2001] EWCA Civ 101, [2001] P.I.Q.R. p19 (in which Hale LJ gave the lead judgment) and disapproved the approach taken by an earlier Court of Appeal in Banks v Woodhall Duckham & ors (unreported, Court of Appeal, 30 November 1995).

This is, of course, a very welcome affirmation of the decision in Cherry Tree for claimants who are unlikely otherwise to be able to establish a claim in negligence for early incidental exposure to asbestos given the limited state of knowledge around asbestos exposure in the mid-20th century.

The claimant’s cross-appeal on the Factories Act 1937 case also failed (by a majority of 3: 1, Lord Clarke declining to give judgment on the cross-appeal) because in order to establish breach of the duty owed under this section, the claimant needed to establish that “a substantial quantity of dust” had been produced in connection with the process carried on. As the judge at first instance had not made a finding to that effect and there was insufficient evidence for the Supreme Court to conclude that there was a substantial quantity of dust, the claim under the 1937 Act failed. This only goes to show how important it is for litigants in similar cases to lead evidence on the levels of dust produced during such processes or, as defendants, to bring themselves within the exemptions to the regulations or obtain some evidence of the practicable steps required by section 47(1) of the 1937 Act.

In December 2014 Mr Justice Jay delivered judgment in the case of Heneghan v Manchester Dry Docks & others (2014] EWHC 4190 (QB)). The issue in the case was narrow but novel: when a worker had been exposed to asbestos by a number of different employers and had lung cancer as a result of his exposure, did the more “benevolent” approach to causation in mesothelioma cases established in the case of Fairchild v Glenhaven Funeral Services ([2003] 1 A.C. 32) extend to multi-defendant asbestos-induced lung cancer claims (proof of enhancement of risk as opposed to proof of causation of damage). The issue was directly in point because the claimant (the son of the exposed worker and also the Professor of Evidence-Based Medicine at Oxford University) had sued only six of the possible defendants to his claim and their cumulative share of the total exposure was only 32.5% (crucially, far less than 51%). The defendants therefore argued that, whilst liability was admitted and it was accepted that it was more likely than not that the deceased’s cancer had been caused by exposure to asbestos, because causation as against any individual defendant could not be proved, Fairchild applied. Therefore, each defendant was only liable for the element of total exposure apportioned to them i.e. a portion of 32.5% of the agreed damages rather than the full sum as was contended for by the claimant, who argued that Fairchild did not apply and he was entitled to judgment in full against each defendant on the basis they had each made a material contribution to the risk of his father’s lung cancer.

The defendants argued successfully before Jay J that epidemiological evidence could not be used in this case to identify which of the defendants was responsible for the culpable exposure. As such, the claimant would be unable to prove his case against any of the defendants on conventional grounds even though they each admitted they had negligently exposed his father to asbestos. In those circumstances, Jay J found that the principle in Fairchild had to be extended to lung cancer claims as they are legally indistinguishable from mesothelioma claims. The approach to apportionment set out in the case of Barker v Corus UK Ltd [2006] 2 A.C. 572 therefore also applied and the defendants were only liable to pay in respect of their ‘share’ of the cumulative exposure.

Jay J gave the claimant permission to appeal and the hearing of that appeal is presently scheduled to take place between 1 June and 2 November 2015.

In Thompson v Renwick Group plc ([2014] EWCA Civ 635) the Court of Appeal considered whether a holding company which was a parent company to the claimant’s employers could owe a duty of care to employees of its subsidiary. The first matter relied upon by the claimant was the appointment by the parent company of a director of the subsidiary with responsibility for health and safety. Lord Justice Tomlinson dispatched that argument with ease on the basis that the person so appointed was not acting on behalf of the parent group. Secondly, the claimant sought to rely on the decision in Chandler v Cape plc 12 [2012] 1 W.L.R. 3111 and the three indicia13 given by Arden LJ to assert that there was sufficient proximity between the parent and subsidiary company to justify the imposition of a duty of care upon the parent for negligent exposure to asbestos. The matters relied upon, amongst others, were the use of the livery and trading name of the parent company on the lorries and paperwork of the subsidiary and the close working relationship between the companies’ operations which suggested a closer affiliation between the parent and subsidiary companies than the division of legal personality suggested. However, the court found that the facts of Thompson were “far removed” from Chandler where the parent company had employed a group medical advisor, who was responsible for the health and welfare of all employees within the group of companies, and a scientific officer to find ways to suppress asbestos dust, and where the Board of the parent had discussed and authorised the relevant production processes. In the absence of these factors, the Court of Appeal found that there was no evidence the parent company carried on any business at all apart from that of holding shares in other companies and thus the appeal failed at the first of Arden LJ’s indicia.

Stress at work

The news of an Ambassador’s peremptory removal from office amid allegations of sexual impropriety was always likely to cause a storm, no more so than in the case of Yapp v Foreign and Commonwealth Office [2014] EWCA Civ 1512  where the Ambassador in question sued his former employers inter alia for psychiatric harm for his withdrawal from post without even an investigation into the claims, which later fell away. Significant both for the lengthy factual appraisal and careful analysis given in the judgment of Underhill LJ (this is another stress at work case run in contract as well as in tort, and the judgment deals with the different remoteness tests), the real impact of the case is the very clear adherence to the principle first clearly enunciated by Hale LJ in Hatton v Sutherland [2002] EWCA Civ 76, [2002] ICR 613 that psychiatric injury arising from stress at work will not usually be foreseeable unless there were indications, of which the employer was or should have been aware, of some problem or psychological vulnerability on the part of the employee. The claimant had argued that the need for known vulnerability was limited to those cases involving the accretion of pressure at work rather than those in which the stress (and consequential injury) arose from a one-off act of unfairness. The Court of Appeal rejected this aspect of the claimant’s argument  though stressed that the guidance given in Hatton was no more than that and reminded us all that each case turns on its own facts (See paragraph 119(3) of the decision).

Other recent cases of interest

We all eagerly await the next vicarious liability decision from the Supreme Court in the case of Mohamud v VM Morrison Supermarkets plc (heard on 28 October 2014 UKSC-2014-0087) but in the meantime this legal principle has been back before the Court of Appeal in Graham v Commercial Bodyworks Limited ([2015] EWCA Civ 47). Here the claimant was injured when one of his friends and co-worker decided, ‘for a laugh’, to spray inflammable thinner over his overalls and then set him on fire. Perhaps unsurprisingly the judge at first instance refused to make a finding that the employer was vicariously liable for the co-worker’s act. The claimant’s rather bold appeal was also dismissed as although Lord Justice Longmore accepted that the employer ‘created’ the risk of the harm providing thinner to be used in the workplace, that was not sufficient to impose liability.

In Johnson v Warburtons [2014] EWCA Civ 258 the claimant driver went into the back of his lorry to attend to a loose load. Access to the back was gained via some steps which folded out when the door to the load area was opened. As he descended these steps on his return to his cab, he slipped and fell down the embankment next to which he was parked. He alleged that the steps were inherently unsafe and that  he should have been trained in their use. The judge found that the steps were safe and the claimant appealed. The Court of Appeal, noting that the appeal would only be allowed if the judge’s decision were shown to  be  perverse, disagreed. It  was  open  to  the  judge  to find  that  the need to  take  care  was  obvious  (a  matter of ‘common  sense’) and  that  no  training  in  the use  of the  steps  was  needed. It  was  observed  that  employers do not usually have to teach their employees how to go up and down staircases. Common sense indeed.

A recent decision of the High Court deals a blow to those who are injured while generously helping their friends with  DIY. In Ford v Silverstone, the claimant was helping his friend, the defendant, to renovate a new property. They were clearing trees using a wood chipper. The unfortunate claimant used his hand to try to clear a blockage in the chipper and lost three fingers in the process. He claimed that he had watched the defendant successfully clear a blockage by hand on an earlier occasion and had assumed that that was the correct way to do it. On this basis, he alleged that the defendant owed him a duty of care. The judge rejected the claimant’s case on the facts and held that no such duty was owed.

In Dusek v Stormharbour (LTL 23/1/2015),  the dependants of the deceased claimed against his employers after he was killed while taking a helicopter ride in the course of his employment. The route taken by the helicopter was known to be hazardous, passing as it did over remote and inhospitable terrain in the Andes. The deceased’s employer chartered the helicopter nevertheless and the trip went ahead with fatal consequences. Hamblen J held that the deceased had been on the flight for the purposes of his employment and that his employer owed him a duty to take reasonable care not to subject him to unnecessary risk. The decision to take the flight, and the way in which the flight was conducted, were not risk assessed, as they should have been. Had a proper assessment been carried out, the employer would have instructed the deceased not to take the flight and he would have listened. The claim succeeded.

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