Occupational Asthma Trial on Liability: Cotton v Helphire Ltd [2019] EWHC 508 (QB)

This week, judgment has been entered in respect of liability in an occupational asthma claim.

Facts of the Case

In Cotton v Helphire Ltd [2019] EWHC 508 (QB), a former car valet, checker and driver alleged that he had developed occupational asthma as a result of negligent exposure to chemicals, cleaning products and exhaust fumes in the course of employment with the defendant.

In response, the defendant submitted that ‘it was not in breach of any regulation or [common law] duty of care, nor was the appellant exposed to fumes or chemicals that gave rise to any foreseeable risk of injury and his asthma was not caused by exposure to workplace substances’.

The claimant’s strongest pleading, on breach, was that the defendant had failed to adhere to Regulation 11 of the Control of Substances Hazardous to Health Regulations 2002 (COSHH), i.e. the defendant had failed to put in place health surveillance of the claimant, who presented symptoms of an asthmatic cough at work. Had the Regulations been followed, the claimant asserted that it would have led to a medical diagnosis of occupational asthma and subsequent measures would have been taken to provide personal protective equipment (PPE), or relieve him of valeting duties.  

12.png

The Evidence

According to the technical evidence, compiled by Michael J Walker (Consultant Forensic Engineer on behalf of the claimant) and Martin Stear (Chartered Occupational Hygienist on behalf of the defendant), it was agreed that ‘intermittent’ use of ‘small amounts’ of cleaning agents (with reference to the manufacturers’ technical data sheets) during the valeting process would have led to chemical exposure ‘well below the Workplace Exposure Limits’.

Thus, the claimant accepted that the defendant would only be liable for injuries sustained if it had knowledge of the claimant’s susceptibility to ‘the development or exacerbation of asthma’. In the absence of knowledge, no Regulation was triggered or breached.

The claimant instructed Dr Howard, a Consultant General and Chest Physician, to produce medical evidence, while the defendant instructed Dr Charles R K Hind, a Consultant Physician in General and Respiratory Medicine.

There was consensus, between the medical experts, that the claimant had a constitutional history of atopic (allergic) asthma. In ‘measured’ and ‘reliable’ written evidence, Sara Moore, a former colleague, stated that the claimant was a heavy smoker, who had a persistent ‘smoker’s cough’, but never complained that his cough was due to working conditions.

Dr Howard, in his report, concluded that the claimant had ‘contracted irritant induced occupational asthma by reason of low dose unprotected exposure for long periods before the typical features of asthma appeared’. By contrast, Dr Hind’s report concluded that the claimant had ‘constitutional asthma which was eventually triggered to its chronic state by a severe chest infection in January 2011’.

As regards their reasoning, Dr Howard based his diagnosis on the simple fact that the cleaning agents handled by the claimant were known to cause the condition, which onset following a latent interval. On the other hand, Dr Hind reached his diagnosis predominantly on the engineering evidence, i.e. exposure levels and concentrations.

What is more, while Dr Howard averred that 5% of occupational asthma cases worsen after exposure ceases, Dr Hind opined that the lack of improvement was suggestive of an asthmatic condition which was not caused by chemical irritation at work, irrespective of the fact that his ‘hyper-active airways’ made him more susceptible to irritation.

The 1st Instance Finding

At 1st instance, Mr Recorder Clayton rejected the claimant’s claim for damages for personal injury.

Both parties agreed with the Recorder’s determination that there was no evidence to support the finding that occupational exposure to diesel fumes added to any 'irritant-load', which could have onset the claimant’s asthma.

However, the Recorder preferred the defendant’s medical expert where evidence was conflicting, as recounted by the judge on appeal:

‘He [Recorder Clayton] found that the appellant had a persistent but unchanging cough throughout the relevant period and that he suffered from a serious viral upper respiratory tract infection in January 2011 that persisted for several months and now had a heightened sensitivity, and that, taking account of the agreed level of exposure of the appellant to any hazardous substances, there was no basis for a finding that the appellant suffered from work related symptoms prior to January 2011.

The Decision on Appeal

The claimant appealed, on the grounds that:

  1. The Recorder had failed to appreciate that his persistent cough was a ‘manifestation of his underlying asthmatic condition caused by chemical irritation at work’.
  2. The Recorder wrongly synthesised the effect of Regulation 11 of COSHH, because the precise terms of the statutory duty were not applied to the specific facts of the case.
  3. The Recorder failed to appreciate the unsustainable ‘factual premise’ behind Dr Hind’s preferred medical evidence.
  4. The Recorder’s determination on issues of breach and causation placed ‘excessive weight’ on the engineering evidence; the fact that workplace exposure limits were not foreseeably hazardous to the average individual was of ‘marginal relevance’, given that the claimant was a susceptible individual.

Counsel for the claimant argued that the Recorder had erred in emphasising that exposure levels did not exceed prescribed levels, as the medical experts had agreed that the claimant was vulnerable to asthma at levels lower than those prescribed by COSHH. Further, that the claimant’s coughing, over the relevant employment period, constituted an ‘adverse health effect’, thereby engaging the criteria of Regulation 11(2)(b).

Defendant counsel disputed the claimant’s submissions, on appeal, as they were formulated on a ‘misinterpretation’ of the defendant medical expert's evidence. They argued that the Recorder was entitled to reject the extent of exposure to fumes and the timing of progress of symptoms. Moreover, that he was entitled to find, on the evidence, that the claimant had no ‘work-related symptoms prior to January 2011’ and thus, there was no foundation for Regulation 11 health surveillance to be carried out.

The legitimacy of criticism aimed at the Recorder’s ruling was further called into question by the claimant medical expert’s admission that ‘the evidence for low dose chemicals causing irritation was controversial and not published in the period in question’. It could therefore not be said that any 'reasonable employer', between 2006 and 2010, should have known that ‘low level irritant substances would give rise to an identifiable disease or adverse health effect’. Reference was also made to ‘guidelines for occupational asthma and the characteristics of an asthmatic attack’, in the Appendix to the Code of Practice,[i] which were ‘absent’, on the facts of this case.

Accordingly, Goss J upheld the 1st instance ruling and dismissed the claimant’s claim, concluding, at paragraphs 21 and 22:

‘... the Recorder was entitled to make the findings that he did in relation to the appellant's condition and working conditions over the relevant period and to prefer the opinion of Dr Hind over Dr Howard for the reasons that he gave. On Dr Hind's evidence the appellant did not contract irritant induced occupational asthma. There was no substantive failure by the Recorder to make findings nor are the bases of his findings unclear. Although the appellant had a cough over the relevant period, it was far from agreed medical evidence that it was a manifestation of the appellant's underlying asthmatic condition or that it was caused by chemical irritation at work, for the reasons that he gave.

In my judgment, on the evidence and in the light of the justifiable findings to which the Recorder made, the claim under Regulation 11 was not made out. There was no basis for a finding of liability, not least given the failure of the appellant to establish causation’.

Full-text judgment can be accessed here.

 

[i] ‘Appendix 3 - Control of substances that cause occupational asthma’ (HSE) <http://www.hse.gov.uk/asthma/acop.htm> accessed 8 March 2019.