Causation and Limitation Disputed in Chronic Bronchitis Group Litigation Claims: Pearce & Ors v The Secretary of State for Business, Energy And Industrial Strategy & Ors [2018] EWHC 2009 (QB)

In January 1998, Mr Justice Turner handed down judgment in a British Coal Respiratory Disease Litigation (BCRDL) case. The claims, brought by coal miners against their employers, British Coal, were in respect of respiratory conditions alleged to have been caused by coal dust at work and 8 lead claims were selected. One of the initial issues concerned the production of sputum and Chronic Bronchitis (CB) damages. Was this part of normal body function? It was deemed that sputum production was an injury and merited the award of damages for CB. This opened the door to a considerable number of potential claims, including those brought by the claimants in Pearce.

6 out of 8 lead claims in the group litigation order (GLO) were compromised. The remaining claims related to Mr Duck, 68, and Mr Nicholls, deceased, both of whom alleged that they had developed CB as a result of exposure to dust and fumes in the course of employment at coke oven works, in South Wales. Unlike the case of Kimathi (above), the defendants admitted breach of duty pre-trial – this may have influenced the outcome of the case.

Mr Duck worked at Coedely coke works, from 1975 to 1983, and Nantgarw, from 1983 to 1986. He maintained that he developed CB shortly after arriving at Coedely, with symptoms improving markedly after leaving Nantgarw. Mr Nicholls, a lifelong non-smoker, worked at Nantgarw from 1968 to 1985.

Mr Nicholls died in 1997, of a particularly aggressive form of lung cancer.

The defendants to litigation contended both claims, on medical causation, and the claim brought by Mr Nicholl’s widow was also contended on limitation.

Medical Background

Respiratory pathology experts, Professor Britton and Dr Moore-Gillon, gave oral evidence at the hearing on behalf of the claimants and defendants, respectively.

Both were in unanimous agreement with the description of CB, as provided by the Medical Research Council (MRC) in 1965, involves:

‘... the production of sputum on most days for at least three months of the year for at least two successive years’.

Excess sputum production is caused by inflammation in the bronchi, which can be caused by smoking and exposure to dust and fumes. Contributing factors have a cumulative impact on the severity of inflammation. Thus, a smoker with CB will usually accept that part of their condition will be attributed to smoking.

Mr Duck agreed apportionment of 11.9% of alleged CB to dust and fume exposure, given his long term smoking history, which was responsible for the remaining 88.1%.

To streamline claims in respect of CB, experts devised a Claims Handling Agreement (CHA) in 1999. In 2002, the Medical Reference Panel gave advice on medical assessment of claimants who would qualify for compensation under the claims handling scheme.

The advice on diagnosis of CB ‘stressed that positive entries in the medical records’ were ‘there only to assist’ with reaching a ‘positive diagnosis’. However, positive entries were not necessary if, ‘taking into account all aspects of the case’, it was in the experts’ ‘clinical judgment’ that the claimant had CB while working for the British Coal.

Mr Justice Turner, in Pearce, could ‘see no reason in principle why similar guidance should not apply to the consideration of claims made in respect of coke oven workers where the evidential material available is the same and a streamlined process is to be adopted’.

Consequently, the claimants in Pearce argued ‘that the defendant ... failed to pay adequate regard to the histories given by the claimants and … applied mechanistic weight to the medical records ... in any event, the records are, if anything, supportive of the diagnosis of CB. The defendant responds by asserting that the entries in the medical records, when considered in the round, actually contraindicate a diagnosis of CB’.

Medical Causation (Mr Duck)

Looking first, at past claims history of Mr Duck, Turner J found that he had ‘shown himself able to adapt his complaints, chameleon-like, to match the criteria of whichever claim he happens to be making at any given time’.

In his witness statement, he claimed to have coughed up phlegm ‘which was dark in colour both when he was at work and when he was not’.

In his GP records for April of 1978, reference was made to a ‘cough with green sputum’, but with no indication of the period of suffering.

As such, Turner J was satisfied that Mr Duck never suffered from CB and his claim had to fail.

Aside from a lack of conclusive medical records, at paragraph 39, the judge indicated that ‘where a diagnosis of CB is in dispute, any claimant may well run the risk that the court would draw adverse inferences from a failure to call readily available and relevant witnesses without adequate explanation’.

Limitation as a Preliminary Issue

The defendants submitted that the claim brought by Mr Nicholls’ widow, in 2011, under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934, was statute barred by 25 years:

The primary limitation periods started to run, day by day, over the period between 1983 and 1985 and expired, also day by day, from 1986 until exhausted by 1988’.

Before considering the merits of the substantive claim, it was first necessary to consider whether judicial discretion could lift the limitation bar. As was also the case in Kimathi, the 13 advisory points, highlighted by the Master of the Rolls in Chief Constable of Greater Manchester Police v Carroll [2017] EWCA Civ 1992, were adhered to.

Turner J considered each of the s.33(3) Limitation Act 1980 factors, such as:

a) Length and reason for delay

‘... the period of delay was very long but was not attributable to matters in respect of which Mr and Mrs Nicholls should fairly be criticised’. The fact that the deceased had been successful in bringing a NIHL claim in 1992 had no effect on the level of initiative shown by his wife in pursuing a CB claim.

b) Extent to which evidence adduced by parties would likely be less cogent than if it had been adduced within the limitation period

Although the defendant was correct to assert that the evidence was likely to be less cogent than if Mr Nicholls had been alive to give evidence, Turner J deemed that it would be‘... a matter of speculation as to whether his [Mr Nicholls] hypothetical contribution would have enhanced or diminished the strength of the defendant's case.

Interestingly, the judge also noted that:

‘... the extent of the evidential degradation is significantly less than it would have been in respect of an acute as opposed to a chronic condition’.

e) Prompt and reasonable action once the claimant had knowledge of attributable injury

Here, the judge was unable to categorise the actions of Mrs Nicholls as ‘unreasonable’ or ‘lacking promptness’, after she became aware of her husband’s eligibility to bring a CB claim, in 2000.

At paragraph 72, Turner J concluded:

‘Applying the statutory test and with the guidance in Carroll firmly in mind, I am satisfied that the claimant has discharged the burden of showing that her prejudice would outweigh that to the defendant if the limitation period were not disapplied. In particular, I am satisfied, despite some evidential deterioration over the years, that the passage of time has not significantly diminished the defendant's ability to fight this claim on either liability or quantum’.

Substantive Claim (Nicholls)

The defendant contended that Mr Nicholls’ medical records militated against a diagnosis of CB. Dr Moore-Gillon was of the view that the ‘relative paucity of supportive medical records’ rendered a diagnosis of CB ‘unlikely but not impossible’.

Diagnosis

On diagnosis, the judge found in favour of Mrs Nicholls. At paragraph 83, he reasoned:

‘I find Mrs Nicholls' evidence credible and that the contemporaneous medical evidence is not sufficiently contraindicative of a diagnosis of CB as to dissuade me from the conclusion that it is more likely than not that Mr Nicholls suffered from the condition’.

Quantum

Turner J deemed ‘... that the value of Mrs Nicholls' claim in respect of the general damages to which her husband would, if alive, have been entitled related to a period of about 19 years of productive cough until his death from lung cancer’.

Under Chapter 6(B)(e) of the JC Guidelines (14th edition), encompassing ‘bronchitis and wheezing not causing serious symptoms’, the claimant was awarded general damages in the sum of £15,853. This took into account contributory negligence, arising out of Mr Nicholls’ failure to wear a protective Racal helmet. 

Full text judgment can be found here.