Claimant Firm Negligently Handled Asbestos-Related Disease Claim, Rules High Court: Hanbury & Anor v Hugh James Solicitors (a firm) [2019] EWHC 1074 (QB) [THIS ARTICLE HAS BEEN AMENDED TO CORRECT AN ERROR IN THE ORIGINAL]

This week, High Court judgment was handed down in the case of Hanbury & Anor v Hugh James Solicitors (a firm) [2019] EWHC 1074 (QB). Mrs Justice Yip found that the defendant had been negligent in handling an asbestos-related lung cancer claim.

The deceased had been employed as a ‘lagger’ (insulation engineer) for many years and died in January 2010, shortly after receiving a cancer diagnosis. Post-mortem mineral fibre analysis found high levels of amosite and crocidolite asbestos and an inquest into his death revealed that his death was the consequence of ‘industrial disease’.

The defendant was instructed by the estate of the deceased, within the 3 year period afforded by the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976.

The claimants were told that the post-mortem report was ‘“unusually strong” in confirming the levels of asbestos and advised that there appeared to be reasonable prospects of a successful claim’ and on 4 November 2010, the defendant was formally retained under the terms of a conditional fee agreement (CFA).

According to National Insurance records, the deceased had worked for several employers that were known to have used asbestos. A ‘considerable amount of time was spent investigating employment history and attempting to identify witnesses’.

N.B. At this point in time, the Court of Appeal had not yet heard the case of Heneghan v Manchester Dry Docks Ltd & Ors [2016] EWCA Civ 86, meaning that the Fairchild[i] exception did not apply to asbestos lung cancer cases. Defendants (and their insurers) were therefore liable on a time-on-risk basis, rather than a joint and several basis, and apportionment was a live issue. Barker v Corus (UK) plc [2006] UKHL 20 applied.

In January 2012, the claimants were warned that the case would not be taken any further because the available witness evidence was not strong enough, but the outcome of a local press campaign provided some optimism.

Claimant solicitor, Simon Ellis, advised that the prospects of recovering in excess of 50% of the full value of the claim were ‘probably viable’, even if the witness evidence was unlikely to be improved upon.

On this basis, letters of claim were sent on 13 June 2012 and Dr Ian Williamson, the consultant chest physician, was instructed to prepare an expert medical report.

However, the letters of instruction did not mention the post-mortem report or mineral fibre analysis and this was reflected in his unsupportive report, dated 26 September 2012, which concluded:

‘There is insufficient evidence within the evidence provided to attribute an increased risk of lung cancer to previous asbestos exposure and on balance of probability his lung cancer was due to cigarette smoking’.

As such, the defendant notified the claimants that, ‘as the evidence stood, it would not be possible to proceed with the claim’. To obtain further evidence from a forensic engineer, outside of the retainer, would risk surpassing expiry of the limitation period.

By letter dated 8 November 2012, the claimants confirmed that they would no longer be pursuing the claim and the opposing parties were notified that the defendant was no longer on record.

The claimants subsequently brought a claim in professional negligence, alleging that the conclusion of Dr Williamson’s report would have been ‘materially different’ if he had been sent the post-mortem and mineral fibre analysis reports. Further that the claimants could have obtained damages either at trial or through settlement.

Though the defendant conceded breach of duty, it argued that causation was not established, i.e. the claimants lost nothing of real value to the underlying claim as a result of its negligence. The defendant submitted that the claim would have failed for reasons unrelated to the medical evidence.

At trial, Mrs. Justice Yip outlined that, in order for the claimants to bring a successful claim for loss of opportunity, representing a loss of something of value:

‘... [they] must prove that, but for ... negligent handling of the medical evidence, the underlying claim would have had a real and substantial prospect of success. If they overcome that hurdle, the court must assess the lost chance rather than determining the hypothetical outcome at trial of the underlying claim’.

On the matter of the medical evidence, the judge stated:

‘I heard from Dr Williamson, who confirmed that he had not received the post-mortem report or mineral fibre analysis. Had he seen this material, he would not have reached the conclusion he did, as set out above. Rather, he would have recorded that the results clearly supported the attribution of lung cancer to asbestos such that medical causation was established’.

What would have happened after the service of a favourable medical report?

At paragraph 48 of Yip J’s judgment, she foresaw that, but for the defendant’s breach:

‘... a favourable medical opinion ... would have been served on the proposed defendants to the claim. [The defendant] would undoubtedly have pointed out the strength of the case in that medical causation was clearly made out, as would any competent solicitor. Offers of settlement would have been invited’.

She went on to reason, in the following paragraph, that:

‘The only real issue likely to be live in this claim was apportionment. In the case of a lagger with a confirmed post-mortem diagnosis of significant levels of asbestos fibres in the lungs, it seems unlikely that the insurers would want to engage in a costly trial of liability but they would undoubtedly wish to ensure that liability was apportioned between those who had been responsible for the exposure (including those against whom recovery was no longer possible)’.

There were not, as the defendant contended, ‘multiple hurdles’ for the claimants to overcome to reach settlement. Proceedings would have needed to have been filed and served, on the instruction of counsel, and engineering evidence, broadly accepting that ‘laggers were commonly exposed to high doses of asbestos fibres during the 1960s and early 1970s’, would not have been required. Further, it was ‘highly unlikely that this claim would have gone to trial’, as the ‘vast majority of industrial disease claims are resolved without trial’.

Having concluded that there was not ‘any real risk that the court would find that all exposure occurred’ in the course of employment with uninsured companies that were no longer live, it could be said that ‘highly likely that the claim would have been settled’:

‘I am therefore entirely satisfied that the claimants have lost something of real and substantial value through the defendant's negligence’.

The High Court judge arrived at a full liability valuation figure of £217,256. She applied a 20% deduction for contributory negligence (the deceased was a smoker), a 25% discount for apportionment risk and a further 20% deduction for settlement risk. The final award (minus interest) was £104,283.

‘Having adopted that approach, I stand back and look at the assessment in a broader way. If the figure after discounting for contributory negligence is viewed as the full realistic value of the claim, the result that I have arrived at means that the claimants are recovering 60% of that. I consider that to be a fair reflection of the claimants' loss of chance in this case’.

Full text judgment can be accessed here.

As an aside and perhaps of interest for those who regularly agree / nominate expert engineers in disease claims, Yip J heard oral evidence from Chris Chambers (for the claimants), of Chris Chambers consulting, and David Powell (for the defendant), of Finch Consulting, in Hanbury.

Mr. Chambers was the preferred, more experienced expert in this instance and was seen as the more reliable witness.

Whereas, the judge noted that Mr. Powell was a ‘poor witness, who was visually uncomfortable in the witness box’ and ‘appeared to have entered into the arena and to have strayed into issues that were matters for the court to decide on rather than for expert opinion’.

Hypothetically, had breach of duty been contentiously disputed, the performance of the defendant’s engineer could have been damaging to its defence.

Expert witnesses must be capable, both on paper and in person. That is unambiguous.

 

[i] Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22.