APPROVED JUDGMENT
I direct that pursuant to CPR PD 39A para. 6.1 no official tape recording shall be taken
of this Judgment and that copies of this version as handed down may be treated as
authentic.
Neutral Citation Number: [2009] EWHC 0025(QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Case No: HQ07X00586
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 30th January 2009
Before :
HIS HONOUR JUDGE OLIVER-JONES QC
SITTING AS A JUDGE OF THE HIGH COURT
Between :
SUSAN SMITH
(Widow and Executrix of the Estate of
MICHAEL VICTOR SMITH, deceased)
Claimant
- and J & M MORRIS (ELECTRICAL
CONTRACTORS) LIMITED
First
Defendant
- and –
MIDLAND COOPERATIVE SOCIETY
LIMITED
Second
Defendant
ALLAN GORE QC and BRIAN GALLAGHER
(instructed by Field Fisher Waterhouse LLP, 35 Vine Street, London EC3N 2AA, solicitors for
the Claimant : Ref: AGM/SMITH)
A.JOHN WILLIAMS
(instructed by Berrymans Lace Mawer of Kings House, 42 King Street West, Manchester M3
2NU, solicitors for the First Defendant : Ref: VEW/249.2170/XC
ROBERT OWEN QC
(instructed by DLA Piper UK LLP, of 101 Barbirolli Square, Manchester M2 2DL, solicitors for
the Second Defendant
Hearing dates: 3rd, 4th, 5th, 6th, 7th, 10th, 11th, 12th November 2008
JUDGMENT
HIS HONOUR JUDGE OLIVER-JONES QC sitting as a Judge of the High Court :1.
On 19th May 2004 Michael Victor Smith (hereinafter ‘the Deceased’), then
aged 52 years, died of metastatic, malignant mesothelioma due to exposure to
asbestos. As is made clear in the uncontroversial medical reports1 and
correspondence of Dr. C.H.C. Twort, a Senior Lecturer in Medicine and
Honorary Consultant Physician, reporting on behalf of the Claimant,
mesothelioma, a rare tumour, and of which the Deceased first began to suffer
symptoms in January 2003, is almost always associated with exposure to
asbestos but only develops after a prolonged latent period following first
exposure - characteristically between 20 and 50 years. Dr. Twort, having
been provided with the Deceased’s working history and what he was told was
the Deceased’s exposure to asbestos, attributed the mesothelioma to asbestos
exposure allegedly encountered in employments as an electrician between
1967 and 1987. During that period the Deceased was employed by a total of
four different employers, including, latterly, the First and then the Second
Defendants. It is alleged that he was exposed to asbestos in his work for all
four employers. The claim with which this judgment deals, brought by his
widow as executrix of his estate under the Law Reform (Miscellaneous
Provisions) Act 1934, and on her own behalf and on behalf of his dependents
under the Fatal Accidents Act 1976, is for damages against two of those four
employers. It relates to periods of employment by the First Defendant between
May 1978 and June 1982, and by the Second Defendant between June 1982
and 1987. The Claimant contends that these employers, and each of them,
when they knew or ought to have known of the risk of causing asbestos
induced illness or disease, negligently and in breach of statutory duties,
exposed the Deceased to “substantial and injurious quantities of asbestos dust
and fibre” which he inhaled and which resulted in the development of the
mesothelioma. However, because, in current medical knowledge, the
development of mesothelioma cannot be attributed to any particular or
cumulative exposure, where it is alleged that there has been exposure to
inhalation of asbestos dust by different employer-defendants during different
periods of employment, a claimant only has to prove that each defendant
materially increased the risk of contracting the disease (Fairchild v.
Glenhaven Funeral Services and others, et al [2003] 1 AC 32 HL).
2.
By its Defence2, the First Defendant denies that the Deceased, whilst in its
employment, was exposed to asbestos at any material or significant level. It
points to earlier exposure to asbestos when the Deceased was employed by
GH Stacey Electrical Contractors (1967-72) and JJ & B Lock Electrical
Contractors (1973-75), as identified by the Deceased himself when making an
application3, during his lifetime, under the Pneumoconiosis etc (Workers’
Compensation) Act 1979, and contends that this was responsible for the
mesothelioma. Knowledge of the risk of injury from exposure to asbestos was
1
TB B/15/255-286D
TB: A/1/25
3
TB: A/4/111A – 112A
2
not admitted and nor was the injury alleged; negligence, breach of statutory
duty and causation were denied. The First Defendant (but not the Second
Defendant) also alleged exposure to asbestos debris and dust when the
Claimant was demolishing a domestic garage at his own home, and again
when mixing and applying Artex, and that the development of the
mesothelioma was caused thereby (either directly or by virtue of ‘Fairchild
modified causation’), and by his own contributory negligence; however, these
allegations were abandoned on the third day of the trial.
3.
By its Defence4, the Second Defendant complained that the Claimant’s
pleaded case was vague and speculative, and put her to proof that, during the
period of its employment of the Deceased, asbestos was present in any of the
workplaces where he worked, that he was exposed to asbestos dust/debris, and
that any such exposure was more than minimal. Although there was a pleaded
concession that “no knowledge defence is pursued”, negligence, breach of
statutory duty and causation were all denied. In fact, neither defendant sought
to argue that at the times they each employed the Deceased that they were
unaware of the risk of injury by reason of exposure to asbestos.
4.
The Deceased’s employment and family history
Save where identified, the following history is not controversial.
The Deceased left school when he was 15 years of age in 1967 and began an
electrical apprenticeship with a small family electrical contracting firm, where
he remained employed until the death of the firm’s proprietor, Mr.
G.H.Stacey, in 1972. He was apprenticed to Mr. Peter Black, with whom he
was to work in subsequent employments, and from whom I heard evidence.
For a short period between 1972 and 1973 he worked as a maintenance
engineer at Bardon Quarry in Leicestershire, where granite was quarried.
In 1973 the Deceased commenced employment with another firm, JJ & B
Lock, where he worked as an electrician. Whilst employed at JJ & B Lock,
and on 27th April 1974, the Deceased had married Elaine Kendrick (now Bird)
from whom he became separated in early 1984, shortly after the birth of his
son, Andrew, and was later divorced.
On 19th January 1976 the Deceased began to work for Mr. John Morris who
had set up an electrical contracting firm in 1971 and, by the time the Deceased
joined his firm, employed six or seven men. In May 1978 Mr. Morris formed a
limited company, the First Defendant. Although it is disputed that the
Deceased was employed as a foreman from 1976 (as he contends, and prior to
the formation of the limited company), there is no dispute but that the
Deceased became a foreman and was employed in this capacity when he left
on 3rd June 1982, then aged 30 years, to take up employment with the Second
Defendant, then known as Leicestershire Cooperative Society. The Deceased
makes no reference to his employment with Mr. Morris being broken, but
records of the Deceased’s wages5, produced by Mr. Morris, as well as details
disclosed by the Inland Revenue6, show that there was a period of over 7
months in 1977 when he was not employed by Mr. Morris. There is no
evidence about what he did during this period and that gap was not filled by
the evidence of his former wife when she gave oral evidence. The Deceased
worked for the First Defendant (the company) for almost exactly 4 years.
4.1
4.2
4.3
4
TB: A/1/51
TB: B/9/129
6
TB: A/4/278A
5
4.4
4.5
4.6
4.7
4.8
5.
5.1
7
In the first of two witness statements7 (admitted under the Civil Evidence Act
1995) the Deceased describes his work with the Second Defendant as being
that of “the foreman of the engineering section in charge of electrical,
plumbing, heating, refrigeration and anything mechanical.” The letter of
appointment8 dated 20th May 1982, offers employment as Foreman Electrician
with the Property Maintenance Division.
When, after a period of almost 5 years, the Deceased left the employment of
the Second Defendant, he had a number of employers for periods of relatively
short duration; for two years he worked for a building services business known
as Kelly Taylor Associates in a managerial capacity; it was during this period
he met the Claimant with whom he first lived, later married, and had a
daughter, Alexandra, who is now aged 13 years (of whom more, when I
consider the dependency claim). The Claimant also has a son, Matthew, by a
previous marriage who is now 19 and in employment.
For the next year he worked as a project manager for CCL Limited, a client of
Kelly Taylor Associates. In 1990, when CCL Limited ceased trading, he
moved to Emms (UK) Limited as a Temporary Construction Manager; this
company had financial difficulties which led to the Deceased moving again,
this time to a firm called Drayton Construction, which went into liquidation in
about 1993. This part of the Deceased’s employment history is consistent with
what was, at this time, a downturn in the economic cycle affecting, in
particular, the construction industry.
The Deceased then suffered a period of unemployment until he was employed,
in 1995, by Gleeds, which he describes as “a nationally renowned consultancy
company that provides building management services”. He became a director
and “headed up the Project Managers’ Department”. Four years later he
undertook a similar role as a partner in the firm of Davis, Langdon and
Everest.
From 1st August 2001 until the 6th February 2003, when he was obliged to
cease work with the symptoms of his later-diagnosed terminal illness, he
worked for E.C.Harris, a firm, subsequently a limited liability partnership. He
was first employed as a salaried employee, but became a partner on 1st May
2002. In due course, I will need to examine this period of employment in great
detail.
The allegations and lay evidence as to the Deceased’s exposure to asbestos
both prior to and whilst employed by the First Defendant
The only evidence as to the Deceased’s exposure to asbestos prior to being
employed by Mr. Morris, and later the First Defendant company which Mr.
Morris formed, is that given by the Deceased in his first witness statement and
in his applications for a payment under the Pneumoconiosis Act 19799 and
Industrial Injury Disablement Benefit10. Neither Mr. Peter Black, to whom, as
I have said, the Deceased was apprenticed at G.H.Stacey & Co and with whom
he continued to work at JJ & B Lock, nor the witness Mr. Kenneth Robinson
who also worked at JJ & B Lock with the Deceased whilst apprenticed to Mr.
Peter Black, were aware of any asbestos material being used or of exposure to
asbestos whilst working with these firms. The Deceased’s evidence11 is that
TB: B/7/4-9
TB: A/4/115
9
TB: A/4/112
10
TB: A/4/113
11
TB: B/7/4-5
8
5.2
5.2
5.3
12
13
(a) whilst working for G.H.Stacey he “frequently worked in school boiler
houses which were often lagged with asbestos” and where “it was necessary to
crawl over the old asbestos lagging, which would flake off as we crawled over
it” and was “a very dusty atmosphere” where he was provided with no
protective equipment; in his application for Industrial Injuries Disablement
Benefit (IIDB), although not in his witness statement, the Deceased also wrote
of being “involved getting access to ducts containing asbestos” and “asbestos
sheet was also used for fireproofing general purposes”;
(b) whilst working for JJ & B Lock, renovating a hospice, “the partitions in
this building were made of fireproof asbestos sheeting to which I was
exposed”; in his application for IIDB, although again not in his witness
statement, the Deceased repeated, for this period of employment, the
particulars of how exposure to asbestos occurred which he had given for
G.H.Stacey, and added “refurbishments involved uncontrolled removal of
asbestos products.”
As against the First Defendant it was pleaded, in the Particulars of Claim, and
amplified in responses to requests for information under CPR Part 1812, that
the Deceased worked “on various sites too numerous to particularise”
including :(i)
“many public houses for the chain of Ansells”, the once well-known
brewers, estimated as having been about 20 or 30 in number, of which
‘The Lime Kiln’ and ‘The Hammer and Pincers’ near Barrow-on-Soar,
were named, and
(ii)
the boiler houses and boiler rooms of “sheltered accommodation”,
and that whilst employed in these places he : (a)
cut holes in ceilings made of sheeting comprising or containing
asbestos, or worked close to, or supervised, others doing such work;
(b)
cut through insulation sheeting comprising or containing asbestos in
order to chase out or channel in walls for cabling, or worked close to,
or supervised, others doing such work;
(c)
swept up, cleared, collected and bagged dust and debris generated by
the processes at (a) and (b), comprising or containing asbestos, or
worked close to, or supervised, others doing such work; and
(d)
so far as the boiler houses and boiler rooms of ‘sheltered
accommodation’ were concerned, worked where boilers and associated
pipework were lagged with asbestos, while laggers were at work and
other trades were cutting and fitting fire proofing to doors.
It was pleaded that these tasks, whether undertaken by the Deceased himself or
by others in his presence, liberated, and the Deceased consequently inhaled,
substantial and injurious quantities of asbestos dust and fibre.
When applying for IIDB and describing the “task undertaken when exposed to
asbestos” whilst employed by the First Defendant, in the limited space
provided13, the Deceased limited the location to “electrician working on public
house rewires and refurbishments”; when responding to the question in the
same document as to how exposure occurred in this task he stated “the older
properties contained asbestos lagging and fire compartmentation rewires
involved access and disturbing these.”
In his first witness statement, signed on 17th January 2004, being the only
account (save for that identified in the preceding paragraph) the Deceased has
TB: A/1/33 et seq
TB: A/4/113
5.4
5.5
14
ever given so far as the First Defendant is concerned, he states that he was
employed by Mr. Morris (before the incorporation) as a foreman. His
emphasis was upon “the work this firm undertook”, what that involved, and
what “we” did. Whilst there is an understandable temptation to infer that the
“we” included the Deceased, in paragraph 8 of his witness statement he
appears to distinguish his duties by stating that “as the foreman, it was my task
to survey any new premises and to set them up for the work force”, identifying
a particular job in Nuneaton where he encountered asbestos whilst carrying out
a survey (not referred to in any pleading) and other places where he “would
also be surveying and working in the boiler rooms.”
In short, the Deceased’s own evidence does not, on a literal reading, begin to
support the case later pleaded on his behalf viz. he does not state that he was a
‘hands on’ electrician who personally did any of the tasks identified above
(paragraph 5.2), or that he personally was present whilst they were being done
by others. This point might appear to be a pedantic or semantic one, were it
not for the fact that there is a fundamental dispute as to the capacity in which
the Deceased was employed and the place or places where he worked.
Moreover, the Deceased made no reference at all to working in ‘sheltered
accommodation’ whether in their boiler houses or at all, and nor did he
identify the names of any public houses where work was done by him or
anyone else; nor is there any reference by him to working while laggers were
at work and other trades were cutting and fitting fire proofing to doors, as
pleaded.
Neither Mrs. Bird, the Deceased’s first wife, nor the Claimant, were able to give
any evidence at all about the Deceased’s working conditions or as to whether he
had, or had said he had, ever been exposed to asbestos in any employment at all.
Three witnesses were called on behalf of the Claimant to give oral evidence as
to the Deceased’s work and working conditions whilst he was employed by the
First Defendant. These were Mr. Kenneth Robinson and Mr. Peter Black to
whom I have already referred, and a Mr. Stuart Weston. Whilst I will have
much more to say about these witnesses when assessing their evidence in
paragraph 8 of this judgment, at this stage I will simply summarise what their
evidence was. Mr. Morris and Mr. Stephen Hall were called to give oral
evidence on behalf of the First Defendant14.
Mr. Robinson began to work for Mr. Morris in 1975 /76 and remained in this
employment until he became Mr. Peter Black’s partner, in the mid to late
1980’s, in a firm known as S & P Black Electrical Contractors. In his witness
statement15 Mr. Robinson said he could “remember at various times we would
come across asbestos material and dust in the environment.” However, the only
example he gave of this was in relation to electrical work done in Ansells’
public houses, in respect of which he stated “there was certainly asbestos in the
form of sheeting in quite a number of these premises, although I could not now
say where and on what sites, or how often we came across this.” Again, so far
as the Deceased was concerned, Mr. Robinson said that “we did not work
together on a regular basis”, and that as far as any work in boiler houses of
sheltered accommodation was concerned , “this was new build, so I do not think
it would have been asbestos lagging.” Under cross-examination, Mr. Robinson
accepted that the Deceased’s “main job” whilst employed by Mr. Morris was
There are three other witness statements in the Trial Bundle served by the First Defendant, namely
those of Coleman, Stanley and Darrell Smith TB: B/9/152-163. Because they are not relied upon they
have been ignored.
15
TB: B/7/28
5.6
16
electrical work at a granite quarry at Whitwick in Leicestershire and that he
“would not have been in the first-call pool of electricians for other jobs”. He
personally had no recollection of ever having worked with the Deceased in an
Ansell’s public house, and certainly not at the two named in the Claimant’s
pleaded case (The Lime Kiln and The Hammer and Pincers). Indeed the only
Ansells’ public house at which the Deceased ever worked of which he was
aware, was “one in Naborough”, but he never worked there himself, did not
know what the Deceased had done there, and could not say that the Deceased
ever worked on asbestos material in an Ansells’ public house. Nor, more
significantly, and despite what he had said in his witness statement, could Mr.
Robinson say if he, himself, had ever worked on any asbestos material. He
accepted that “you do not encounter asbestos panels on walls”, although, in
general terms, he was aware that asbestos was used for fire doors, suspended
ceilings and to line cupboards housing heating cylinders; however, so far as the
Ansells’ public houses work was concerned the only suspended ceilings he had
encountered - above bar areas – were made of wood, and he accepted that he
could not say when he had ever encountered asbestos in the cupboard location
to which he had referred. In short, Mr. Robinson was unable to say whether the
Deceased ever encountered asbestos whilst working for the First Defendant or
even speak as to the likelihood of him having done so.
By the end of his oral evidence, it was (and remained) unclear whether the
Claimant was relying on Mr. Black’s evidence at all; certainly Mr. Gore QC
acknowledged the difficulty he had in doing so. On the face of his witness
statement Mr. Black, who had always been only a sub-contractor of the First
and Second Defendants (and JJ & B Lock before them), stated that the
Deceased worked at all of the Ansells’ public houses, that he was able to
“corroborate what has been stated by the Deceased” about his work with the
First Defendant, and that he, himself, worked on many of the Ansells’ public
houses. He went on to say that he recalled “various times we would come across
asbestos material and dust in the environments in which we worked”. He then
purported to confirm all that Mr. Robinson had set out in paragraphs 4 to 6
inclusive of his (Mr. Robinson’s) witness statement (which paragraphs were
then repeated word-for-word in his, Mr. Black’s, own witness statement).
When, in cross-examination, and by reference to contemporaneous records 16
kept by the First Defendant, it was put to him that (apart from one week in
October 1982) he had only worked for the First Defendant between mid-April
and November 1979, he accepted this. He also accepted that when he had said
that he had first met the Deceased whilst working for JJ & B Lock, this was
wrong because (although never referred to by anyone before) the Deceased had
actually been his apprentice for 5 years at G.H. Stacey ( a remarkable
omission)! He then conceded that he had never been given any Ansells’ public
house work of his own at all by Mr. Morris, but had only “helped out” at one
public house on the old Ring Road in Leicester for what he thought was no
more than 3 days, and had never worked with the Deceased in a public house.
He could not say that he had encountered asbestos in the one public house in
which he had worked. Of perhaps the greatest significance was (a) his
admission that what he had said in paragraph 4 of his witness statement about
his ability to corroborate the Deceased’s evidence, was wrong and (b) his
concession that he was equally unable to confirm what Robinson had said, from
his own knowledge. In short, Mr. Black had never worked with the Deceased,
TB: B/9/143
5.7
5.8
17
only worked (he said) for three days in one public house belonging to Ansells
and retracted large sections of his witness statement. In the end, his evidence did
not support any identification of, let alone exposure to, asbestos in work
undertaken by the First Defendant. In answer to my own question, Mr. Black
told me that over his entire lifetime in the electrical contracting industry he,
personally, had only ever come across asbestos in connection with switchgear
and ceiling tiles.
Before he was cross-examined, Mr. Weston volunteered that he was “as guilty
as Robinson and Black” in terms of the false impression which might be left by
reading his witness statement17. He told me that when he had received a draft
witness statement from solicitors he had “only flicked it through and then signed
it”. Consequently, I adjourned the trial for a short while to allow Mr. Weston to
read his witness statement properly for the first time ! He then wished to make
corrections . The first, he said, was to correct his statement that the Deceased, as
foreman, “would turn up on a daily basis to inspect progress and would spend
some time there usually giving me help and advice …”; he wanted to change
‘daily’ to ‘weekly’ ! He then said that he wished to withdraw the statement that
“I would say therefore that he spent a good part of his day on premises such as
this (public houses), either supervising or actually assisting.” He said that he
personally had worked in five or six of Ansells’ public houses, naming two of
them, but he had not worked there with the Deceased, and was not sure if the
Deceased had ever visited. His recall of the Deceased “coming out to help us”
was just a generality. He could not confirm that he had ever worked with
asbestos in any location when he worked for the First Defendant but did state
quite clearly that, in his experience, and contrary to the assertions in the
Deceased’s witness statement, that neither walls nor ceilings were lined with
asbestos sheeting. Moreover he confirmed that he had never encountered
asbestos in any of the ceilings of any of the Ansells’ public houses at which he
had worked.
Mr. Morris had made two witness statements18 which stood as his evidence-inchief. He was able to produce a document19 which established that during the
period when the Deceased worked for the First Defendant work had only been
undertaken at twelve Ansells’ public houses. He said that the majority of the
Deceased’s work was at the quarry (where, as was common ground, there was
no exposure to asbestos) and that he, Mr. Morris, had not appointed the
Deceased to the role of foreman until shortly before the Deceased left his
employment altogether. Having been aware of the dangers of asbestos from the
time he himself had been an apprentice, and having been told to “keep away
from it”, his policy was not to undertake work which involved asbestos, and, as
a matter of fact, he said that he had not uncovered or otherwise encountered it.
He simply did not recognise any of the Deceased’s description of the work he
said he had done whilst working for the First Defendant; at one point in his
witness statement (paragraph 15) he made this observation:
“I am at a loss to understand why Mr. Smith should say many of the walls
and ceilings had been lined with sheet asbestos. The walls and ceilings in
question would either be painted or wallpapered. Invariably they would be
stained brown from years of smokers within the pub. These were typically
old buildings constructed from brick and plaster. The pubs we worked on
had not been fire-proofed and did not therefore contain asbestos sheeting.”
TB: B/7/45
TB: B/9/112 and 120
19
TB: B/9/139
18
5.9
6.
6.1
6.2
20
He said that it was he who surveyed all prospective sites of work for pricing
purposes and that to do this properly he had to have “a good look round”,
particularly for obstacles; when the jobs were taken on, he then visited each site
at least once a week. Although he was asked many questions about the nature
and detail of the re-wiring works which the company undertook, not only in
respect of public houses but also in, particularly, council housing stock, he did
not accept that asbestos material was ever encountered in respect of any of this
work. He disputed that Mr. Black had ever done any work in an Ansells’ public
house.
Finally, Mr. Hall, who started working for the First Defendant in 1979, stated
that he had never worked in any location which involved contact with asbestos
and, more particularly, having regard to the specific pleaded allegations, had
never worked or known of anyone else working in ‘boiler houses’ for the First
Defendant : “I have never undertaken work in this type of environment during
the 28 years I have worked for the company.” He made two witness statements20
the second of which was admitted without challenge; in this latter statement he
stated explicitly that “I am well aware of the dangers of asbestos having read
about this in the media. I have always been very careful to ensure I do not come
into contact with this material and to the best of my knowledge, throughout my
employment with Mr. Morris I have never come into contact with asbestos.”21
The allegations and lay evidence as to the Deceased’s exposure to asbestos
whilst employed by the Second Defendant
Again, in the case of the Second Defendant, the allegations begin by reference
to “various sites too numerous to particularise” but then identifying, in
particular, the Cooperative Society Store in Union Street Leicester and “a
store in Coalville”. The type of work undertaken was, again, and as with the
First Defendant, pleaded in the Particulars of Claim as being:
(a) “the cutting of holes in ceilings made of sheeting (comprising or
containing asbestos) or the chasing or channelling of walls sheeted with
insulation (comprising or containing asbestos)”22 or working in close
proximity to or supervising others doing this work;
(b) (at Coalville only) working “in close proximity to builders removing
sheeting (comprising or containing asbestos) formed into partitions in the
top storey of the premises by means of hammers;”
(c) “sweeping up, clearing, collecting and bagging of the dust and debris
generated by the above operations”.
A CPR Part 18 Request for further information23, whilst unable to identify
another single premises at which the Deceased worked, the Claimant stated that
the “premises numbered over 200, including funeral parlours, stores, super
stores and corner shops”. So far as the Union Street premises was concerned, it
was pleaded that the Deceased had worked there “on several occasion when
various different jobs were undertaken” which had included (a) a whole floor
refurbishment project on the furniture floor and (b) a major refurbishment of the
restaurant. In response to a request seeking to elicit particulars as to why it was
being contended that sheeting contained asbestos, it was stated that some of the
TB: B/9/144 and 149
TB: B/9/154 at paragraph 15
22
TB: A/1/10 paragraph 4(a)
23
TB: A/1/58
21
sheets “bore the proprietary name Asbestolux.”24 It was also pleaded that “The
Deceased spent about 70% of his time actually ‘hands on’ undertaking
electrical works” in the locations he had identified.
6.3 No evidence was called or otherwise admitted on behalf of the Second
Defendant. Witness statements within the Trial Bundle which had been served
on behalf of the Second Defendant have therefore been disregarded.
6.4 The only evidence to support the alleged exposure to asbestos dust at Coalville,
comes from paragraph 1025 of the Deceased’s first witness statement. The
paragraph contains a clear and specific description of the particular work there
being undertaken.
6.5 So far as the ‘Union Street’ store in Leicester is concerned (since demolished as
part of city centre development) the Deceased described working there with
Kenneth Robinson and Peter Black (with whom he had previously worked for
the First Defendant and earlier – see above). The Deceased’s evidence was that
in the course of the undertaking of the refurbishment of a whole floor in this
store, “it was discovered that the ceiling was made of asbestos sheeting” and
work was halted, following which masks and overalls were provided. Although
this refurbishment work has not been dated, because the Deceased had worked
in the store (not just on this refurbishment work) “for such a long time”, as he
put it, then he stated he “must have been exposed to the asbestos dust already”.
6.6 Mr. Robinson and Mr. Black were in business as partners by the time of the
Union Street Coop refurbishment work for which they were engaged as
independent electrical subcontractors. A Mr. Mark Armson was working with
them on this job on a temporary basis. Mr. Robinson said that the ceiling of the
floor upon which they were working was a ‘suspended ceiling’, or a false
ceiling “made of some sort of sheeting or tiles which I remember were generally
2 foot square and these were fitted by screws onto the metal framework of the
suspended ceiling which had obviously been installed a good many years
before.” He recalled that after the work had begun “someone in the company
had taken steps to get the material here identified and that it was confirmed that
there was asbestos used in the ceilings.” He was then provided with “a white
disposable type of suit with elasticated wrists and anklets and also a hood. We
were also provided with a small face mask held in place by elastic … and a
Hoover to suck up all the dust which came off these (tiles) from the work”.
Cross-examined by Mr. Owen QC, Mr. Robinson recalled that the entire job
lasted for about 3 months, but that asbestos was discovered “early on” and
thereafter, equipped with the items to which he had referred, tiles were removed
during weekend working by taking them down, one by one in a track, hoovering
them and then putting them back ! In re-examination Mr. Robinson made it
clear that this weekend working was supervised by both the Deceased and, as he
described him, ‘the health and safety man.’
6.7. Mr. Black’s witness statement, again, adopted ‘word-for-word’ what had been
be said by Mr. Robinson, so much so that in the middle of paragraph 10 he
begins a sentence with the words “Peter Black and myself…” ! There was no
effort to disguise the complete ‘cutting and pasting’ of passages from Mr.
Robinson’s witness statement. Notwithstanding this unfortunate presentation of
his evidence, Mr. Black insisted that he was not reliant upon Mr. Robinson’s
recollection so far as the Union Street premises were concerned, but then, when
asked directly, stated “I just signed the witness statement without caring too
much about its contents” !
24
25
TB: A/1/62
TB: B/7/6
6.8
6.9
7.
7.1
7.2
7.3
26
Mr. Armson describes26 the work undertaken at the Union Street premises in
terms similar to those of Robinson and Black; he conceded that Mr. Robinson
“knows more about it than I do.” However, that apart, he was not substantially
challenged in his account that the presence of asbestos in the ceiling tiles was
confirmed and that “by this stage we had certainly been exposed to dust from
these in the course of the work we had been doing.” What he did not do, was to
make any reference at all to the Deceased’s work as ‘foreman’. It was probably
for this reason that Mr. Owen QC asked only one question in crossexamination!
Before leaving the Second Defendant’s premises it is noted that as late as 2003,
and during an ‘Asbestos Survey and Register’27 asbestos (chrysotile) was
discovered at the Coalville premises in nine locations, including ceiling tiles in
the first floor rear warehouse.
The expert evidence on exposure to asbestos
Although each of the parties had instructed, and disclosed the reports of,
consultant forensic scientists/engineers, none of them gave oral evidence. In a
Joint Statement28 the experts had reached agreement on what they believed to be
the salient issues, prefacing such agreement with the statement that “It is a
matter of evidence whether the Deceased performed the work or the types of
work described in the Particulars of Claim and in his statements.”
The expert evidence was not site-specific. The matters agreed were broad
generalisations such as :
- “It is unlikely that asbestos would be encountered during (making channels in
walls to conceal wiring)”
- “A conventional ceiling does not contain asbestos..”
- Asbestos insulating board was commonly used for some types of panel and for
suspended ceilings until the mid 1970’s”
So far as exposure to material hazard was concerned, the experts agreed that:
- “drilling and cutting asbestos insulating board without suitable precautions
would probably result in exposure to hazardous concentrations of asbestos
dust, such particularly being the case when overhead drilling and cutting was
being undertaken”
- similarly, “dry sweeping, collecting and bagging debris that included asbestos
insulating board, without suitable precautions, would probably result in
exposure to hazardous concentrations of asbestos dust”
- “working in close proximity to builders removing partitions containing or
made of asbestos insulating board without suitable precautions to contain the
dust, could result in exposure to hazardous concentrations of asbestos dust.
In opening the Claimant’s case, and in support of his submission as to the
likelihood of the Deceased being exposed to asbestos dust/debris whilst
employed by each of the Defendants, Mr. Gore QC sought to rely (without
objection) upon passages within the experts’ written reports.
To the extent that these passages are not, as some of them are, dealt with by the
joint statement, I will identify them:
(a) Mr. Deary, the Claimant’s expert, stated that “ prior to the Deceased
commencing work for the 1st Defendants, asbestos insulation boards, such as
Asbestolux boards, were much used for partitioning and fire protection
TB: B/7/51 et seq
TB: A/6/480 et seq and particularly at pp. 486-490, 494, 496, 497, 499-501
28
TB: B/14/252
27
7.4
8.
8.1
8.2
8.3
29
30
purposes. In particular, I have encountered the presence of such boards in
public houses.”
(b) although, in my judgment, this does form part of the agreed statement –
although not perhaps in such graphic terms - Mr. Gore QC emphasised a
concession made by Mr. Glenn, the First Defendant’s expert, namely “In my
opinion any man engaged in cutting ceiling tiles or panels made of asbestos
insulating board in situ after about 1975 would have been exposed to a
concentration of airborne asbestos dust that ought to have been considered
hazardous at that time.”29
(c) Mr. G.D.Smith, the Second Defendant’s expert, in paragraph 6.17 of his
report30, was able and willing to make assumptions not only as to the
Deceased’s exposure to asbestos whilst employed by the defendants of between
4 to 10 fibres/ml as a daily average, but also for 10-30% of his working day. He
went on to state that, in his opinion, it was “reasonable to assume that when the
Deceased was an apprentice in the business of G.H.Stacey and JJ & B Lock,
exposure to asbestos the Deceased could have received whilst he was an
apprentice was likely to have been lower than that he may have experienced or
received when he was a fully qualified electrician and worked in public houses
or superstores etc during his employment with the 1st and 2nd Defendants.”
Whilst none of the experts were able to point to any evidence (other than that
which the witnesses provided, which it was not in their remit to assess) that the
Deceased was actually exposed to asbestos anywhere whilst employed by the
defendants, Mr. Gore QC relies upon the general picture painted by all of the
experts of the common use of asbestos and the general likelihood of electricians,
in particular, encountering it, in a hazardous way in their work, if it was present.
Assessment of the evidence on the issue of liability
Apart from the usual considerations as to the accuracy, reliability and
credibility of those who gave oral evidence, I have to consider what weight I
should give to the first witness statement of the Deceased, necessarily
admitted under the provisions of the Civil Evidence Act 1995.
In what was a measured, but nonetheless forthright, attack not only on the
witness statements served on behalf of the Claimant (including, as will be seen
later, evidence directed solely at the quantification of damages) but also the
witnesses themselves, Mr. Williams, in his closing submissions contended that
this evidence, both written and oral, was selective, partial and, in parts, frankly
untrue or so misleading as to cause the witnesses to resile from their written
evidence when giving evidence orally; that the evidence was prepared to ‘an
agenda’ and was neither fair nor balanced; that the witness statements did not
comply with the Civil Procedure Rules, notably CPR 32.8 and the Practice
Direction thereto and that this non-compliance was not merely a technicality
but undermined the substance of the statements. In particular, he invited me to
find that there had been collaboration between Mr. Robinson and Mr. Black
and / or the Deceased before witness statements were formulated without this
being acknowledged within the body of the witness statement, so that it is
impossible to determine what facts came from the witnesses own knowledge
and which were acquired from another or others.
I have often had occasion to remark about the failure to comply with the CPR
so far as witness statements are concerned, as well as the obvious lack of skills
of witnesses, and those acting for litigants, in formulating them. It is not
TB: B/12/212 at paragraph 2.09
TB: B/13/244
8.4
infrequently the case that witness statements prepared by litigants-in-person
are superior in form and substance to those prepared by solicitors or their
agents based upon questionnaires, interviews (often by telephone) or
correspondence with witnesses. It is often the case that witness statements,
drafted by solicitors or their agents in good faith ( I exclude, of course, any
case of deliberate intent to deceive by a witness or drafter), are signed or
otherwise accepted by witnesses without any or any proper consideration of
their accuracy, completeness or even truth.
The Practice Direction to CPR 32 provides that :
“18.1
The witness statement must, if practicable, be in the intended
witnesses own words, the statement should be expressed in the
first person and …..
18.2
A witness statement must indicate
(1) which of the statements in it are made from the
witness’s own knowledge and which are matters
of information and belief, and
(2) the source for any matters of information or belief
……..
20.1
A witness statement is the equivalent of the oral evidence
which that witness would, if called, give in evidence; it must
include a statement by the intended witness that he believes
the facts in it are true.”
The importance of compliance with the spirit of this Practice Direction, albeit
in the context of the Commercial Court Guide, was emphasised in Aquarius
Financial Enterprises Inc. and another v. Certain Underwriters at Lloyds (The
“Delphine”) [2001] 2 Lloyd’s Rep 542 at paragraphs 44 to 50, including
particular reference at paragraph 48 to
“The Law Society’s Guide to the Professional Conduct of Solicitors
provides guidance on the taking of witness statements. It requires a high
degree of skill and professional integrity. The object is to elicit that which
the witness is truthfully able to say about relevant matters from his or her
own knowledge or recollection, uninfluenced by what the statement taker
would like him or her to say.”
How the failure to comply with the Civil Procedure Rules and guides issued by
divisions of the High Court of Justice should be dealt with, was succinctly
expressed by Miss S. Prevezer QC (sitting as a Deputy Judge of the Chancery
Division) in My Fotostop ltd (in Administration) v. Fotostop Group Limited
2006 EWHC 2729 (Ch). In that case it was found to have been obviously
apparent that the Defendant’s witness statements had not been drafted by the
witnesses themselves but, in reality, represented a proof provided by one of its
senior directors following a “collaborative” review of limited documents carried
out by that senior manager and another, with which witnesses had then been
asked to agree. The Deputy Judge was not prepared to accede to a request by
Claimant’s counsel to exclude the evidence of those witnesses but instead
decided that
“I must take these matters into account in assessing the credibility and
reliability of these witnesses ……… the eerie consistency of the evidence
of these witnesses casts real doubt on their reliability and the Defendant
has not assisted itself by the provision of these witness statements in this
form.”
8.5
8.6
In submitting that the evidence adduced on behalf of the Claimant was
selective and partial, and in parts frankly untrue, Mr. Williams relied upon (i)
the concessions in each respect made by both Mr. Robinson and Mr. Black,
and in particular as to the circumstances in which they were interviewed
(together) with a view to providing information to assist the Claimant, and (ii)
the production of draft witness statements which (a) were not, in material
respects, expressed in the first person and (b) did not distinguish between what
they actually knew from their own experience, (c) omitted fundamental facts
as to the nature of the work which both they, as individuals, and others
undertook (disguised by the use of the word ‘we’ in the context of who did
what, where and when), as well as (d) the contradiction orally of the witnesses
written statements.
In reaching my conclusions as to the reliability and credibility of witnesses
and, consequently, the findings of fact I make on the basis of the evidence, I
will begin with the evidence of the Deceased. Of course, it is essential that I
bear in mind the Deceased’s state of health, enduring a terminal illness, at the
time when he made his two witness statements, particularly the second which
was shortly before his death. On the other hand, because it was known that the
Deceased’s condition was terminal, those whom he had instructed to act on his
behalf must have known how important it was to obtain the most
comprehensive evidence the Deceased was able to provide given that it was
likely (as has occurred) that the Deceased would not live long enough to give
oral evidence. These matters are part of ‘all the circumstances’ that I have to
take into account when assessing evidence admitted under the Civil Evidence
Act 1995. Section 4 of the Act provides that:
“(1) In estimating the weight (if any) to be given to hearsay evidence in
civil proceedings the court shall have regard to any circumstances
from which any inference can reasonably be drawn as to the
reliability or otherwise of the evidence.
(2) Regard may be had, in particular, to the following –
(a) whether it would have been reasonable and practicable for
the party by whom the evidence was adduced to have
produced the maker of the original statement as a witness;
(b) whether the original statement was made contemporaneously
with the occurrence or existence of the matters stated;
(c) whether the evidence involves multiple hearsay;
(d) whether any person involved has any motive to conceal or
misrepresent matters;
(e) whether the original statement was an edited account, or was
made in collaboration with another or for a particular
purpose;
(f) whether the circumstances in which the evidence is adduced
as hearsay are such as to suggest an attempt to prevent
proper evaluation of its weight.”
In my judgment the matters referred to in sub-sections 4(2)(a), (c) and (f) are
not relevant to my assessment of the weight to be given to the Deceased’s
evidence; nor has it seriously been suggested that the Deceased had any
motive to conceal or misrepresent the matters he stated. However, it is clear to
me (and I so find) that much of the evidence of witnesses, and I include the
8.7
Deceased, was an ‘edited’ or at least seriously curtailed account and made as a
result of collaboration encouraged by whoever was responsible for
interviewing and taking witness statements.
Where, as here, the Deceased was very ill when making his witness
statements, and was trying to recall matters which had occurred nearly 30
years before, the reliability of his evidence is judged by assessing the strength,
in terms of detail, of recall and the extent to which that detail is corroborated
by other evidence; that is because there is, in my judgment, a real risk of
confusion between one workplace and another, one job and another and the
detail of what was actually done in particular places and on particular jobs. In
my judgment there is a distinction which I am able to draw between the
Deceased’s evidence as to what he did and where whilst employed by the First
Defendant, and his work with the Second Defendant. The deficiencies of his
witness statement so far as the First Defendant are concerned do not,
automatically, undermine the reliability of, and weight I should give, to his
evidence relating to the Second Defendant, although such deficiencies are not
wholly immaterial.
In my judgment I can give very little weight at all to the Deceased’s account
of his work with the First Defendant. It is inherently very vague indeed; it
omits very important matters such as the fact that his main job was working in
a quarry; it includes allegations as to the use and locations of asbestos which
are supported by no other evidence at all when I would have expected to find
such support, particularly in the evidence of his work colleagues (see below);
it includes evidence which is positively contradicted by his colleagues,
particularly as to asbestos being found in public houses. The consequence of
such little weight as I do give to the Deceased’s evidence in respect of the
First Defendant will be dealt with in my findings of fact and conclusions.
By contrast, the Deceased’s evidence as to his work for, and his encountering
of asbestos, whilst working for the Second Defendant, is much more detailed,
and corroborated not only by colleagues with whom he worked but also by
unchallenged and objective evidence as to the existence of asbestos in the
locations he identifies. I have concluded that for these reasons, I am able to
give significant weight to the Deceased’s evidence in this respect, even
allowing for what might be regarded as a generally poorly presented witness
statement in many other respects. As I will make clear when dealing with the
witness statements of other witnesses, the deficiencies in witness statements,
whilst in part the product of difficulties in recall, have been much exaggerated
and exacerbated by the way the statements were produced by the Claimant’s
solicitors or their agents and a failure to obtain as complete picture as possible.
In particular, the statements were not taken in the way dictated by the CPR
and Practice Directions, and were clearly not the product of rigorous enquiry.
The fault for this cannot be laid at the door of the Deceased or his witnesses,
and I reject any express or implied suggestion that there was a conspiracy to
present false or misleading evidence, even though, as I will find, some of the
evidence was in fact inaccurate and misleading.
My findings as to reliability of witnesses other than the Deceased, echoes
much of what I have said about the Deceased’s evidence. In my judgment all
of the Claimant’s witnesses on the issues of liability naturally wanted to do
what they could to assist the Claimant’s claim, but never had any intention of
misrepresenting the facts. In my judgment, the criticisms of their evidence all
stemmed from a misguided attempt by those responsible for taking and
drafting the witness statements to present a simple case when it was not simple
8.8
8.9
9.
9.1
at all, without a thorough investigation of what each witness was able to say of
his own knowledge. Nowhere was this a more acute problem than with Mr.
Black. The witness was clearly embarrassed and confused by the obvious
difficulty in which he had (in my judgment unwittingly) been placed by the
way in which his witness statement had been drafted for him to sign. Whilst I
make it clear that I do not consider that any of the liability witnesses who gave
evidence before me were untruthful or setting out to mislead me, their general
reliability has been damaged by the fact that their oral evidence, particularly
so far as the First Defendant is concerned, contradicted their written evidence.
Neither Mr. Robinson nor Mr. Black nor Mr. Weston made any attempt to
conceal the true position, so far as they were able to recall it, when they were
cross-examined. That which they were truly able to recall was, of course,
substantially different to that portrayed in their witness statements. However,
that does not mean that I completely reject their oral evidence; on the contrary;
at least so far as the First Defendant is concerned, their evidence is material to
the weight I should give to the Deceased’s evidence.
As far as the Second Defendant is concerned, where I repeat my comments in
respect of Mr. Robinson and Mr. Black, Mr. Armson’s evidence must be given
little weight, whilst that of Mr. England and that which was otherwise
admitted in written form (Mr. Brown and Mr. Poole) is, as I will find,
evidence to which I am able to give particular weight.
Mr. Morris and Mr. Hall were impressive, and presented as careful and
accurate witnesses of fact; to the extent that there were any material
differences between their evidence and that of the Deceased or Mr. Robinson,
Mr. Black and Mr. Weston, I prefer the evidence of Mr. Morris and Mr. Hall. I
reject Mr. Gore QC’s attempt to ‘bracket’ Mr. Morris in the same category of
unreliability as, to some extent, he had to accept in respect of his own
witnesses.
Findings of fact and Conclusions on liability
I have no hesitation in making one finding of fact, the effect of which is that
the Claimant’s claim against the First Defendant fails on the issue of liability.
That finding is that I am not satisfied on all of the evidence I have heard and
read that the Claimant has proved, on the balance of probabilities, that the
Deceased was exposed to asbestos at all, let alone any injurious exposure,
whilst employed by the First Defendant. Apart from the evidence of the
Deceased, there is no evidence at all to support the pleaded allegations of
exposure contained in the Claimant’s pleaded case. For the reasons which I
have already given, the little weight I attach to the Deceased’s evidence so far
as it relates to the First Defendant is, in my judgment, insufficient to discharge
the burden of proof, and there is nothing else which can be put in the scales
with it. The fact that the Deceased’s evidence of his work with the First
Defendant is positively contradicted, not only by Mr. Morris and Mr. Hall, but
also by witnesses called on the Claimant’s behalf, provides a complete answer
to this part of the claim and leads me to conclude that the Deceased probably
confused working situations which he had encountered in earlier employments
with those he suggested he had encountered whilst working for the First
Defendant. I am quite satisfied that if there had been any asbestos encountered
in any of the work the First Defendant did, or required the Deceased to do,
then Mr. Morris would have been aware of it. I accept his evidence that it was
never encountered whether in the public house works or elsewhere. What I
have described as the Deceased’s probable confusion, as I find it to have been,
9.2
is best illustrated in his accounts of having encountered asbestos during (a)
work in Nuneaton and (b) surveying and working in boiler rooms. The only
work in Nuneaton recalled by any of the witnesses was that involving the rewiring of council houses and the wiring of new-build sheltered
accommodation where, as was agreed by all witnesses, asbestos would not be
encountered. None of the witnesses, including Mr. Morris, had any
recollection of working in ‘boiler rooms’ in any premises at all. In my
judgment, the likelihood is that the Deceased was here recalling work he had
undertaken before he became employed by the First Defendant, an
understandable mistake, but none the less a mistake, bearing in mind the
circumstances of his health and the passage of time.
Thus, on the issue of liability, there must be judgment for the First Defendant.
I have already made it clear that, notwithstanding the highlighted deficiencies
in the Deceased’s evidence and that of Mr. Robinson and Mr. Black, this is not
a case in which because the claim has failed against the First Defendant it
necessarily follows that it fails against the Second Defendant.
I make two relevant findings of fact; the first is that the Deceased did
undertake the ‘hands-on’ work of an electrician and, secondly, that he was
probably exposed to significant and injurious, quantities of asbestos dust at the
premises he has identified. There is no doubt that significant quantities of
asbestos products were used in, at least, the ceilings, and in my judgment
probably other locations, within the Second Defendant’s premises. There was
no challenge to the evidence that asbestos ceiling tiles were discovered in the
Union Street premises, that work, including electrical work was stopped, and
that protective clothing (albeit inadequate – see below) was provided. Mr.
Robinson and Mr. Black were only employed as independent subcontractors
for some refurbishment work on one of the premises. In my judgment, as the
Deceased himself suggests, it is likely that the Deceased had done general
electrical works, including ceiling lighting work before the refurbishment
works were ordered and that both then, and during the refurbishment work, it
was likely that he had been exposed to asbestos dust. The fact that he was a
foreman, does not, in my judgment, significantly diminish the likelihood of
injurious exposure. I was told, and accept, that the Deceased was a hands-on
working foreman; however, even in his supervisory duties it is likely that
during the refurbishment works of which I have heard, he was working in an
atmosphere which was polluted by material amounts of asbestos dust.
Asbestos was still to be found in significant quantities and locations at
Coalville even in the recent past. Its existence at both of the sites relied upon
by the Claimant is not disputed. There has been no positive evidence adduced
to demonstrate the possibility, let alone the probability of the Deceased not
having been exposed to that asbestos that existed. Given the nature of the
Deceased’s background and skills, there is, in my judgment, more than a mere
probability of significant exposure; the probability is a high one. Mr. Brian
Poole’s evidence was admitted and he was not required to be called to give
oral evidence. He said:
“He (the Deceased) was very much a hands on foreman and
although he would supervise the various people under him in their
work on different sites, he would visit everyone on a daily basis to
check on the progress and help with any problems or just to give
hand to get the job one.”
I have carefully considered the submissions made by Mr. Owen QC in his
helpful, written closing submissions, but, with respect to him, I reject the
submissions to the extent that they invite me to conclude that there is no reliable
evidence of exposure to asbestos to a material extent or degree. That evidence is
to be found in the Deceased’s witness statement and materially corroborated by
the witnesses the Claimant called and that which is not disputed as to the
location of asbestos materials.
To the extent that it is necessary for me to deal with the liability of the Second
Defendant for breach of statutory duty as well as at common law (there being no
issue about the Second Defendant’s knowledge of the potentially harmful
consequences of exposure to asbestos), then, for the reasons recited at length in
Mr. Gore QC’s Skeleton Argument, I find that the Asbestos Regulations 1969
applied to the work carried out by the Deceased, and that there was a breach of
Regulation 7(1) which requires the employer to provide, maintain and use
exhaust draught equipment unless it is impracticable to do so. The Second
Defendant did not comply with this statutory duty and has neither pleaded nor
proved, the burden of doing so being upon it, impracticability. The fact that
there is evidence that some, inadequate, protective equipment was provided,
leads me to conclude that however early in the material works asbestos was
discovered at the Union Street premises, there was likely to be continued
exposure to injurious dust after provision of the equipment because of its
inadequacy. I would add that there has never been any serious argument raised
in the pleaded cases, or considered specifically by the expert witnesses, that in
the event of the Deceased being found, as I have done, to have been exposed to
asbestos dust in the locations and circumstances identified in his evidence then
this would not have been “to such an extent as is liable to cause danger to the
health of employed persons” within Regulation 2(3) of the Regulations. For the
avoidance of doubt I find that the requirements of Regulation 2(3) are satisfied,
not only on the basis of the Deceased’s evidence, but also given the agreement
between the expert engineers at paragraphs 6, 8, 9 and 11 of their joint
statement, and the opinions expressed by Dr. Twort (see TB: B/15/261 and his
supplementary report at TB: B/286-286C).
In the circumstances there must be judgment for the Claimant against the
Second Defendant on the issue of liability.
10.
The Claimant’s damages claim : introduction and the extent of agreement
10.1 The Claimant’s Amended Revised Schedule of Financial Loss evaluates the
claim in the sum of £2,750,158, of which over 85% represented the claim under
the Fatal Accidents Act 1976 for dependency on the Deceased’s earnings. The
dispute centred upon this part of the claim, and in particular as to the level of the
Deceased’s earnings during his lifetime and after his death had he not suffered
the terminal illness. Apart from this there is almost complete agreement about
the other heads of loss claimed; the only other disputes are (a) what, if any,
allowance should be made for contingencies other than mortality in reaching the
multiplier for the dependency claim (b) the duration of Alexandra’s dependency
and (c) whether the outlay made by BUPA in respect of the Deceased’s medical
care and treatment expenses is recoverable.
10.2 I will now record the detail of that which is agreed:
(a)
The claim under the Law Reform (Miscellaneous Provisions) Act 1934 on
behalf of the Deceased’s estate is agreed in the sum of £112,343.10
inclusive of interest. This includes damages for the Deceased’s pain and
suffering during his lifetime, the care he received and expenses incurred;
(b)
The claims under the Fatal Accidents Act 1976 for bereavement, funeral
expenses, and services dependency are agreed in the total sum of
£50,848.69, again inclusive of interest.
10.3
It is also agreed that the dependency claim should be calculated in accordance
with the decision in Coward v. Comex Houlder Diving Limited (1988)
Independent, July 25, CA (Civ Div) with a dependency of 75% of earnings
from the date of death until Alexandra ceases to be dependent.
10.4
Because of the complexity of the various elements of the Deceased’s alleged
remuneration package, forensic accountancy evidence was permitted. In the
event only the Claimant’s expert, Mr. Hogg, was called to give oral evidence,
and was then only cross-examined on a limited basis. The issue that emerged,
involved no real challenge to the accountancy methodology, but rather the
basis upon which the arithmetic had been carried out. Mr. Hogg’s complex
calculations and appendices to his report were based upon two propositions.
The first was that Mr. Alan Brookes’ evidence, as a Senior Partner at EC
Harris LLP, was generally correct in the information which he had provided
(based in part upon figures provided by Ian Rudkins, Group Accountant), and
secondly, and more particularly, that Mr. Brookes had correctly identified a
Mr. Phillip Black (no relation of the Mr. Peter Black who gave evidence as to
liability) as being the appropriate comparator for the purpose of assessing the
Deceased’s likely future earnings. Although the defendants’ Counter-Schedule
challenged the reliability of the data provided by Mr. Brookes and / or Mr.
Rudkins and the appropriateness of assumptions made by Mr. Hogg, as well as
the appropriateness of Mr. Black as a comparator in respect of the accuracy
and relevancy of which the Claimant was put to strict proof, no-one had
predicted just how fundamental the attack upon Mr. Brookes’ evidence would
turn out to be. That attack arose out of what was very late disclosure of a
substantial quantity of documents none of which had been in the original trial
bundle. The consequences of that attack and the effect of it argued for by Mr.
Owen QC, subject to my findings of fact, was (potentially) completely to
undermine the way in which the Deceased’s career and earnings, but for his
illness, had been presented to the court, leaving a deal of uncertainty as to how
an alternative evaluation of damages should be assessed. Mr. Brookes gave
oral evidence over a period of two days. I had anticipated, before the trial
began, that he would be in the witness box for less than one hour ! The most
serious issue arising from Mr. Bookes’ evidence is whether I am able to
conclude that Mr. Brookes was an honest and reliable witness, or whether, as
Mr. Owen QC submitted: “Mr. Brookes is an unreliable witness whose word should not be accepted
in the absence of reliable support from elsewhere. His statements are
made up of ‘half truths’ and ‘incomplete facts’. The statements are wholly
misleading and inconsistent with the oath which he took in court and with
the statement of truth which appears in each statement”
As a matter of fact, and apart from what is capable of being inferred from
documents, there was no reliable support for Mr. Brookes’ evidence from any
other witness. The Claimant told me she had no real knowledge of the
Deceased’s financial affairs nor of the circumstances of his employment; she
and the Deceased had separate bank accounts and she said that her husband
rarely talked about work. No evidence was adduced from Mr. Brookes’
superiors (the possible necessity for which did not become apparent until he was
cross-examined); Mr. Phillip Black was not called as a witness.
11. The Deceased’s medical history
11.1
The Deceased’s medical history became relevant in the light of Mr. Brookes’
evidence as to the Deceased’s performance and prospects, so I will review the
former to provide the background to the latter. I remind myself that the
Deceased was employed by EC Harris on 1st August 2001, becoming an equity
partner (see hereinafter) on 1st May 2002.
11.2
In March 2002 the Deceased presented himself to his General Medical
Practitioner complaining of a “stress related problem : Stress at work, feels
generally uncomfortable in chest all week, pins and needles in both arms, and
not usual self.”31 A previous episode of stress was noted, an EEG was found to
be normal and he was advised.
11.3
He presented again in October 2002 for what it appears was a formal medical
examination related to his having been appointed an equity partner32. He
reported that he had had no more chest pain but had been suffering stress for 2
years. A quite detailed history includes the following:
“Stress 2 years : Regional manager up at 6 am out at 6.30 get home
at 7pm; stresses of the job, finds difficulty to switch off responsible
30 million turnover; Sleeping emw sleep 9-10 can be awake 1-2 am
+ catnaps after. 18 months. Thinking about work. Mood short
tempered occ low tearful on occasion ……”
11.4
Two weeks later on 15th November 2002 his GP reported “Anxiety with
depression. Now affecting work. Chairs meetings. Boss noted. Anxious. Poor
memory and conc. Tossing and turning” A month later the Deceased was
reporting “main problem now tiredness”.
11.5
On 31st January 2003 the Deceased presented with a dry cough for one month
associated with occasional shortness of breath and wheeze. He was prescribed
an antibiotic with a query diagnosis of ‘chest infection with a bit of asthma’. A
week later shortness of breath was increasing and he was admitted to hospital
with a query diagnosis of pulmonary embolism or pneumonia. Following
discharge from hospital he continued to have and then again present (on 3rd
March) with shortness of breath; the diagnosis remained that of a pulmonary
embolism. He was readmitted to Queen’s Hospital in Burton on Trent on 4th
March 200333. Within the notes is the following. “Regional Manager
Construction firm denies exposure to asbestos. Never smoked. No pets/birds.”
Following tests over the following days, the hospital doctors’ impression was
that the Deceased was suffering from asthma.
31
TB: C/4/319
TB: C/4 317-8
33
TB: C/1/56
32
11.6
A week later, on 13th March 2003 the Deceased had been referred to, and seen
by, a Dr. Sheldon. In response to the referral he wrote in the notes:
“Thank you. This young man has worked as an apprentice electrician in
the late 60’s and was exposed to asbestos. I fear he may have
mesothelioma. I suggest that you ring Mr. David Waller on Friday, ask
him for a thoroscopy….”34
The Deceased was discharged home on 14th March.
11.7 He was again admitted to the same hospital on 21st March 2003 when a known
history of right pulmonary embolus and effusion was noted. Again the diagnosis
was ‘recurrence of effusion.’ On 26th March 2003 Mr. Waller, a consultant
thoracic surgeon, wrote to Dr. Willis, a consultant physician at Queen’s Hospital
recording the “strong history of asbestos exposure’ but, at this stage, reaching no
conclusion pending further tests.
11.8 It was not until the Deceased and the Claimant saw Mr. Waller on 8th April
200335 that they were informed of the presumed diagnosis of epitheloid
malignant mesothelioma.
11.9 The importance of the summary set out above is that:
(a) it could have been no earlier than 8th April 2003 that there might have
been a question mark over the Deceased’s return to work. Although he
had clearly been unwell from the end of January 2003 there was not, in
my judgment, any question at all that he would not recover eventually
and return to work; indeed, as far as the Claimant herself was aware the
Deceased enjoyed good health until January 2003. I add that there was
no medical evidence to suggest that the Deceased suffered any
symptoms of his terminal illness prior to January 2003. Mr. Gore QC
invited me to conclude that, during 2002, if not earlier the Deceased had
“not been a well man”; this was not the evidence of his wife, nor, apart
from work-related stress which has not been shown to have any
relationship with asbestos exposure / mesothelioma, is there anything to
support that conclusion.
(b) the Deceased had, as I have said, complained of stress at and caused by
his work, and, as will be seen, there were issues about his ability to
manage effectively his areas of responsibility; I will have to consider
whether, and if so, to what extent, this might have impacted upon the
Deceased’s future prospects
12.
The evidence as to the Deceased’s work and earnings
12.1 The only oral evidence adduced before me as to the Deceased’s work and
income with EC Harris was that of Mr. Alan Brookes. Little of the detail into
which the evidence descended, was dealt with in Mr. Brookes’ two witness
statements. He made a number of statements of fact and prediction which, I
regret to say, were simply not sustained by his oral evidence and from some of
which he was forced to resile completely. Mr. Brookes is an extremely
34
35
TB: C/1/62
TB: C/1/25
intelligent man; as a Board Member and Senior Partner of such a well-known
and prestigious Limited Liability Partnership it is both very sad and regrettable
that, as I will find, he was, at times, attempting to deliberately mislead the court,
although I have concluded that his motives were undoubtedly to present the
most favourable picture to achieve the highest award of damages for his
colleague’s widow and family.
12.2 The following statements made by Mr. Brookes in his witness statements36
(supporting appended calculations made by EC Harris LLP’s Group
Accountant, which Mr. Brookes, rather than Mr. Rudkins, produced) will need
to be considered for their truth, accuracy and reliability:
(i)
“At the time of his illness (the Deceased) had a senior role as an Area
Leader covering both East and West Midlands”
(ii)
“His career progression would have taken him to Regional Managing
Partner leading the Regional Board. I estimate the prospect of his
advancing to that level as 25% of less ….. I estimate the prospect of his
advancing to the level of Chief Executive as 5% or less”
(iii) “I can say that (the Deceased’s) profit share for the year ended 30th April
2003 would have been £42,356”
(iv) “I can confirm that (the Deceased’s) earnings for the years ended 30 April
to 30 April 2007 would have been similar to the earnings of Mr. P Black
who took over (the Deceased’s) role at EC Harris following his
departure”
“The recruitment of Phil Black began in December 2002……. Initially we
were recruiting a junior for Birmingham but once the seriousness of (the
Deceased’s) illness became clear it was decided that ‘Mr. Birmingham’
would become a replacement for (the Deceased), not just a junior….”
(v)
Mr. Rudkins’ Schedule 1 shows “our best estimates of what (the
Deceased) would have earned” between 2005 and 2013”
(vi) The Deceased was “due to retire just short of his 61st birthday. However,
it is likely that (the Deceased) would have continued as a partner for two
further years on full partnership earnings.”
15.
The basis of remuneration within EC Harris
15.1
When the Deceased joined EC Harris he was a salaried partner; as this
suggests he was paid a salary, but he was also able to achieve a bonus. His
actual gross salary for the period between 1st August 2001 (when he joined the
firm) and 30th April 2002, a period of 9 months, was £48,750, equivalent to an
annual salary of £65,000. In addition he received benefits of pension
contribution, car and fuel allowances, medical insurance and permanent health
insurance, worth £16,117 per annum. In July 2002 he received a bonus of
£20,000. Thus, whilst employed, for 9 months, as a salaried partner he
received £80,838 gross in total by way of salary, bonus and benefits,
equivalent to about £ 108,000 gross per annum.
36
TB: B/8/86 and TB: B/8/111A
15.2
On the 1st May 2002 he became what was then known as a ‘C Partner’ having
introduced initial capital to the partnership of £115,000 by way of a bank loan.
At material times EC Harris had two types of equity partnership. These were
‘B Partners’ and ‘C partners’ (‘A partners’ were those who were salaried). ‘B
and C Partners’ received a fixed amount of income ( in fact a share of profits)
each month based upon a ‘notional’ salary and benefits which was similar to
that received as actual salary by ‘A Partners’. However, rather than receiving a
bonus, as was the case with salaried partners, ‘B and C Partners’ were
subjected to a very detailed performance assessment for which they were
awarded ‘points’. The total points awarded to every equity partner are then
added up and the ‘total additional profit pool available’ (viz. the profit of the
partnership after deduction of notional salary and benefits) is divided by the
total number of points. Equity partners do not simply receive the share of the
‘additional’ profits which represents their individual total points score. Firstly,
the first 100 points do not count in the additional profit sharing; thus, if a C
Partner’s performance assessment resulted in a score of less than 100 he would
receive no additional profit. Any additional profit to which a partner was
entitled was distributed as follows:
‘B Partners’ received 30%, 40% and 50% of the value of their points (over
100) in years 1, 2 and 3 respectively of their ‘B’ partnership
‘C Partners’ received 50%, 75% and then 100% of the value of their points
(over 100) in years 1, 2 and 3 respectively of their ‘C’ partnership
Thus, the remuneration of an individual partner depends upon his status,
performance and length of service. Any individual joining the partnership will
not necessarily have to start at the bottom and work his way up. So, for
example, the Deceased was appointed to a ‘C Partner’ status at the outset.
15.3
EC Harris has made considerable profits since 2001. The way in which the
additional profit share payable to a ‘C Partner’ has been calculated for the
years 2001 – 2007 inclusive is set out in one of Mr. Rudkins’ Schedules37. The
performance points for the financial year 2002 – 2003 for ‘C Partners’ is set
out at TB: B/8/108 from which it can be seen that the Deceased scored just
100 points, the lowest of the 40 partners listed. Mr. Brookes sought to explain
this by the fact that the Deceased had, in that year, only been a ‘C Partner’ for
9 months. However, for all years thereafter, the Deceased’s additional profit
share has been based upon that which Mr. Black achieved based upon HIS
assessment points score. Appendix C of Mr. Hogg’s report38 shows how this
translates into gross earnings for every year from 2003 to 2013; it must be
noted, of course, that the use of the word ‘salary’ is an indication of ‘notional
salary only’. These figures suggest that had the Deceased survived, he would,
in 2008 have received total income of over £400,000 gross including an
additional profit share of over £260,000 gross, which, after taxation equates to
£310,000.
14.
Mr. Brookes’ oral evidence
37
38
TB: B/8/96
TB: B/16/311
14.1
When he began his evidence, Mr. Brookes maintained, despite very close
cross-examination by Mr. Owen QC, that the contents his witness statements
and letters39 were true. He said that he knew that the accuracy of his evidence
was being relied upon and asserted that he was the best person to provide
information.
14.2
Again, when his evidence began he told me that “but for the Deceased’s
illness he would have remained as Regional Development Manager for the
Midlands” and that “I have no reason to believe otherwise.” In my judgment,
by the end of his evidence, both of these statements had been demonstrated to
have been untrue.
Mr. Brookes was cross-examined extensively about the circumstances in
which Mr. Philip Black was recruited and became a partner. Mr. Brookes, at
first, was adamant that the ONLY reason why Mr. Black had been recruited
was because of the Deceased’s terminal illness. Whilst it was true, said Mr.
Brookes, that because of performance problems in Birmingham, which was
part of the region for which the Deceased was responsible, EC Harris had been
seeking to recruit someone to run the Birmingham office, as a junior to and
under the authority of the Deceased, Mr. Black would not have been appointed
to that role. He was, said, Mr. Brookes, only employed when it became
necessary to replace the Deceased because of his illness. There was, added Mr.
Brookes, no plan or intention to replace the Deceased because of his poor
performance.
14.3
Gradually - indeed, only after many hours of cross-examination – Mr.
Brookes accepted that the Deceased had been under-performing in key areas
in his role as Regional Development Manager for the Midlands; he conceded
that the area for which the Deceased was responsible was too big for him to
handle effectively; he conceded that the Deceased needed ‘coaching’.
Nonetheless he contended that the poor score (actually 98, rounded-up to 100)
which he had given to the Deceased40, would have improved significantly in
the last three months of the year had the Deceased not been absent through
illness. At my request, and over an adjournment, Mr. Brookes attempted to
predict a score for the Deceased. He accepted this was “a really hard” task but
came up with a total which he felt would have been within the “range of 170
to 225 points” which, as was established during Mr. Brookes’ re-examination
compared favourably with the average score of 195 points achieved by six of
the other first year ‘C Partners’41. However, he accepted that even on the basis
of his view of the Deceased’s potential to have achieved a higher annual score
on assessment, there was a “complete gulf” between that and Mr. Black’s
scoring which, in subsequent years, was always in excess of 240, and latterly
as high as 280 points. As Mr. Brookes eventually agreed Mr. Black “was
performing” whereas the Deceased had not.
14.4
The document at TB: B/8/110 is a narrative assessment of the Deceased’s
performance which, as Mr. Brookes told me, “goes with TB: B/8/109” (the
Deceased’s poor points score sheet). The narrative records a “disappointing”
performance in Birmingham and the need for the Deceased “to realise both his
39
See particularly those at TB: B/9/70, 98 – 105 inclusive
See the detailed scoring sheet at TB: B/8/109
41
See TB D/209
40
own and others’ potential and at times drive this forward harder than
perhaps has been achieved to date”. It was also stated that “Leicester has had
a disappointing year and there has been no real action to address this with the
team”; Leicester was part of the Deceased’s region. The narrative concludes:
“Overall, it is the lack of direction and drive of the Business Plan that has
caused the problems both in Birmingham and the East Midlands……. A
difficult and disappointing year in the role but with some learning points
to take us forward into next year”
Of course, by the time this was written, in or after April 2003, the Deceased
had, as a matter of fact, been replaced by Mr. Black. The circumstances of that
replacement now need to be examined
14.4
Mr. Black had emerged as a candidate when, at the end of 2002, recruitment
was directed to identifying someone who could look after the Birmingham
Office alone. During many questions directed at establishing what Mr.
Brookes’ intentions had been in late 2002 with regard to the Deceased’s
underperformance, particularly in Birmingham, Mr. Brookes maintained that
‘Mr. Birmingham’ (as he was described) was to be recruited as a junior to the
Deceased, and that the Deceased was not going to be replaced as Regional
Development Manager. Mr. Brookes was referred to Mr. Black’s letter of
appointment42 which was amongst those documents disclosed only a few days
before the trial commenced. The significance of this letter is its date, 7th March
2003. The offer made was expressed as follows:
“You would come into position as Regional Development Manager for
the Midlands based in our Birmingham office. The role would involve
leading the planning and development of the areas of operation in your
portfolio…. You will form part of the UK West Regional Board….”
Mr. Brookes accepted that Mr. Black was thus appointed to replace the
Deceased (despite what he had said in his witness statement and earlier oral
evidence); he accepted that at the time this offer was made he did not know
that the Deceased would not be returning to work (see the medical history,
which shows that at this date there was no suspicion of mesothelioma). He
accepted that the replacement of the Deceased was opportunistic, given his
absence on sick leave. He justified the decision by stating that Mr, Black ‘was
best for the job’, but was at a loss to provide me with any evidence as to what
would have become of the Deceased; this, he said, was in the hands of the
partnership’s Chief Executive. Mr. Brookes’ evidence was “the Chief
Executive (Mr. David Sparrow) just told me to appoint Mr. Black. He must
have thought about it. Mr. Sparrow said to me that what he was going to do
with (the Deceased) was up to him”. Mr. Brookes recalled a very difficult
meeting at the Deceased’s home when he was forced to break the news of Mr.
Black’s appointment. Although, in my judgment, this could not have been
known by anyone at the time, the fact that the Deceased did not return to work
at all, relieved Mr. Brookes and the Chief Executive from the ultimate
decision as to what would become of the Deceased. That decision is now, in a
real sense, mine !
42
TB: D/12
14.5
When, in his cross-examination of Mr. Brookes, Mr. Williams suggested that
“if the Deceased had been an employee, what you did was sacking him!”, Mr.
Brookes maintained that it was not a sacking but rather “a removal from post”
with his expectation that the Deceased would not have left the partnership. He
accepted, however, that, as far as he was ever aware there was no ‘plan’ for
the Deceased (“Mr. Sparrow ran things close to his chest”!) although,
admittedly in response to further questioning, he speculated (and, in my
judgment, it was no more than that) as to possible roles that might have been
created with the Deceased’s ‘realignment’ within the partnership or as a result
of ‘restructuring’. He also acknowledged the possibility of the Deceased
resigning from the partnership given the way Mr. Black had been appointed
behind his back or the possibility of the Deceased not wishing to risk injecting
any more capital into the partnership.
14.6
Finally, I must refer to a letter dated 25th July 2003 from Mr. R.J.Clare, the
Chairman of the partnership, to the Deceased43. This letter would never have
reached the Deceased because it is addressed to a village near Thetford on
Norfolk which has absolutely no connection with the Deceased or his family.
There has been no explanation for this extraordinary occurrence. The letter is,
in my judgment, in part a proforma letter dealing generally with profit
distribution for 2002/03 and in part personal. The author acknowledges ‘the
standard nature of this letter’. Although the letter refers to a problem over the
calculation or payment of income tax and to the need “to avoid this problem
arising in the future”, I am not persuaded that this letter supports, or was
intended to support, an intention to retain the Deceased’s services as a ‘C
Partner’. Apart from this there is no other correspondence that provided any
written explanation to the Deceased of what had occurred or what was
intended.
15.
Submissions on the damages issues
15.1
The unexpected developments that arose out of both late disclosure and Mr.
Brookes’ evidence resulted in substantial upset of the factual basis for
assessment of damages, although Mr. Gore QC attempted to persuade me that
the claim as presented in the amended schedule was still fundamentally sound,
given his submission that I should find that it is unlikely that the Deceased
would not have remained a ‘C Partner’ in EC Harris until his eventual
retirement.
15.2
Mr. Owen QC invited me to find that the witness statements of Mr. Brookes
presented to Mr. Hogg, the Defendants and to the court, forming the basis of
the schedule of loss, deliberately presented a false impression, and that,
consequently, the claim stands or falls on the evidence of Mr. Brookes. He
argued that because the case presented by Mr. Brookes’ evidence has been
shown to be false, he can not be allowed to present an alternative case based
upon, for example (as he suggested), the possibility of the Deceased returning
to a less demanding role had his illness (the nature of which was unknown at
all material times) resolved. To do this, it is argued, overlooks the fact that the
Deceased was removed from office for significant underperformance, that no
effort had been made before this time to provide ‘coaching’ for the Deceased,
and that the Deceased had been suffering significant work-related stress.
43
TB: B/8/106
15.3
Mr. Owen QC argued that “the Deceased had a chance of survival at ECH but
for his illness … but might well have opted to leave … (or) take ‘realignment
to class A or B and not participated in profit share…”. He accepted that the
Deceased clearly had an earning capacity which should be reflected in the
earnings available to being realigned as an ‘A Partner’ or moving to another
organisation outside EC Harris at a similar rate of remuneration. He argued
that Mr. Black’s earnings were obviously an inappropriate guide to that which
the Deceased might earn in alternative employment whether within or outside
EC Harris.
15.4
Mr. Williams argued that the Deceased would probably have left EC Harris
given there was no obvious job for him, the way he had been treated and his
own knowledge of his psychological health. He submitted that the loss of the
chance of remaining with EC Harris should be valued in terms of “one years
earnings” and that the value of his earning capacity should otherwise be used
as the basis for calculating the dependency. He pointed out than in the
partnership to which the Deceased had previously belonged he had earned just
over £50,000 per annum gross44 including benefits, compared to £81,000 (plus
bonus) per annum as a salaried partner at EC Harris.
15.5
Mr. Gore QC submitted that I should conclude that the Deceased’s poor
performance was probably related to his ultimately terminal illness, even
though this was unrecognised at the time and that consequently, but for that
illness his performance would have been much better, he would not have been
replaced and the claim as presented in the schedule based upon the
calculations done by Mr. Hogg, are essentially valid. In any event, he
submitted, the Deceased’s points scoring was not so bad as to have led, but for
his absence from work, to being replaced, particularly as it was likely he
would have scored favourably (compared to those at the same level as himself)
on a full year when he reaped the advantages of good work which he had done
(and which Mr. Brookes had acknowledged he had done) in Nottingham. Mr.
Gore QC also relied upon Mr. Brookes’ evidence that partners were never
removed after only one year in office, that normally two years were allowed
for partners to prove themselves and that it was rare to remove equity partners;
that if the Deceased remained as an equity partner, is was still fair to use Mr.
Black as a comparator. He also pointed out that the pool from which profits
were shared had been calculated on what has turned out to be a conservative
basis.
16.
Findings of fact relevant to the claim for dependency on the Deceased’s
earnings
16.1 I have already made it clear that I am unable to conclude that Mr. Brookes is a
witness upon whose evidence I can safely rely in any significant respect. I am
not prepared to find as a fact that any of the propositions which were advanced
by Mr. Brookes, and which I have set out in paragraph 12.2 of this judgment,
are established on the balance of probability. The one person who might have
assisted me is Mr. Sparrow. He did not give evidence. As Mr. Brookes made
clear, the Deceased’s future lay entirely in Mr. Sparrow’s hands and he, Mr.
Sparrow, had not discussed that future with him.
44
TB: B/17/347
16.2 I am unable to find as a fact that the Deceased’s under-performance in his role
as Regional Development Manager for the Midlands was caused by or
otherwise related to the mesothelioma. In my judgment the Deceased’s main
difficulty was with work-related stress which was, in turn, a consequence of his
being unable to cope with the demands of his equity partnership role. The fact
that he might be unable to cope, was anticipated in a written assessment45 made
(I was told, although it is not signed or dated) by Mr. Sparrow, as Chief
Executive of the partnership, in March or April 2002, just before the Deceased
was appointed as a ‘C Partner’. In that document having highlighted that the
Deceased “will have some tough targets to achieve during the coming year and
will need to be fully motivated to achieve these”, he added:
“In terms of personality, Mike is a likeable individual who has the ability
to get on with most people. His style is, however, rather light-weight
for our needs and he has agreed that he will need some personal training
to develop his charisma into something rather more powerful and
impressive - this will be important if we are to achieve our ambitions for
this region. All credit to Mike, however, in that when I mentioned this to
him as a requirement he jumped at the idea of personal training and stated
immediately that he knows he needs to develop. Whether this can
actually be achieved with a 49 year old remains to be seen but at least
he is extremely willing and understanding of the need.”
In my judgment, this note identifies the possibility of the Deceased failing to
achieve and thus not satisfying the partnership’s ‘needs’. I find as a fact that is
what happened.
16.3 Nor am I able to find as a fact that had the Deceased not suffered mesothelioma,
and thus not been absent from work in February 2003, he would not have been
replaced in any event. I am satisfied that once Mr. Black had been identified, if
not before, it was determined that the Deceased would be replaced. His absence
from work simply provided a convenient opportunity to do it behind his back
rather than confronting him directly which, I am satisfied, would have occurred
had he not been absent. My reason for this conclusion is the fact that Mr.
Brookes has clearly gone to great lengths to avoid telling the truth about the
Deceased’s poor prospects, in an effort to do the best that could be done for the
Claimant, although I make it clear that the Claimant herself was, in my
judgment, not aware of the history I have set out in this judgment. If there was a
clear intention to retain the Deceased, or to transfer him, or to change the
structure of the region, then there would have been absolutely no reason for this
to have been hidden. As the senior partner with overall responsibility for three
regions, of which the Deceased’s was one, I am unable to believe that Mr.
Brookes was unaware of what the Deceased’s fate would have been; he was
bound to have discussed it with Mr. Sparrow because it would fundamentally
affect the way in which the region was run. The fact that Mr. Brookes sought to
hide behind Mr. Sparrow’s alleged reticence in the matter of the Deceased’s
future, leads me to find as a fact that it is probable that the Deceased would have
either resigned, sought and obtained a salaried partnership elsewhere or
accepted ‘re-alignment’ within EC Harris to a role which was less stressful as a
salaried partner. The fact is, that once Mr. Black was appointed to the
Deceased’s job, covering the whole of the Midlands, there was no job for the
45
TB: B/8/110A
Deceased at all in the area in which he lived and had worked all his life. I find
that it is unlikely that, having defined Mr. Black’s geographical area of
responsibility, Mr. Sparrow or Mr. Brookes would then have changed it in some
way to accommodate the man Mr. Black was replacing. The time for such
accommodation was before Mr. Black’s letter of appointment, not after !
16.4 In the circumstances I am unable to find as a fact that the Deceased would
probably have remained a ‘C Partner’ beyond the date of Mr. Black’s
appointment, or that there was anything other than a very small chance of him
doing so or of finding alternative employment which would have offered similar
profit sharing or bonuses. There was, as I find, certainly no chance of him being
promoted within EC Harris even if the small chance of him remaining as a ‘C
Partner’ had materialised. In my judgment, it is probable that the Deceased
would have found employment, in the capacity of a partner or senior manager,
in a less demanding work structure and environment than that offered by EC
Harris LLP. Doing the best I can on the basis of the findings I have been obliged
to make, he would probably have commanded a salary with benefits at a level
which approximated to that which he would otherwise have enjoyed as an ‘A
Partner’ with EC Harris, but without no more than a chance of bonuses. I have
noted that he received no bonus payments in his previous salaried partnership.
16.5 Appended to Mr. Owen QC’s Closing Skeleton Argument is a table (which is
incorporated by reference into this judgment) setting out the level of income,
including all benefits other than bonus, which the Deceased would probably
have expected to have received as an ‘A Partner’ with EC Harris. The footnotes
to this table are fair qualifications of the calculations. I find as a fact that the
earnings, year by year, set out in this table represent a fair evaluation of the
Deceased’s likely income, subject only to my awarding general damages (see
paragraph 18.7 below) for the loss of a chance of the Deceased remaining with
EC Harris as a ‘C Partner’ enjoying some share of profits, and the chance of
him receiving bonus payments whether as an ‘A Partner’ with EC Harris or in
other employment.
16.6 The Deceased’s retirement would not, on the facts as I have found them to be,
have been limited by the constraints of the EC Harris partnership terms. I find as
a fact that it is likely that the Deceased would have retired at about 63 years of
age in 2015 and that Alexandra, who by then will be 20 years of age, would
probably have still been dependent upon the Deceased whilst she completed
further education.
16.7 Given my findings as to the Deceased’s likely earnings, I have no evidence at
all as to what, if any, provision the Deceased could or would have made for
pension. The Amended Revised Schedule contains no claim in respect of
financial dependency beyond the date of the Deceased’s retirement. The pleaded
loss of financial dependency on pension46 is no longer sustainable. I have no
evidence as to what, if any, allowance should be made for any tax relief to
which the Deceased might have been entitled on the facts as I have found they
would probably have been. To the extent that Mr. Gore QC invited me to make
some award for financial dependency beyond the date of the Deceased’s
retirement (contrary to the pleaded case), I have no material upon which I can
make any assessment on a multiplier/multiplicand basis. All that can be said 46
TB: A/3/98
and here I note the Deceased’s own evidence in his second witness statement is that he intended, during his 50’s and early 60’s, to make provision for a
retirement pension out of his income, which pension he hoped to supplement
with the hiring out of a vintage wedding car. He had a very modest pension fund
of about £50,000 at the time of his death. Mr. Hogg was unable and unwilling to
make any predictions about pension, hence the way in which the claim (based
upon tax relief on pension contributions during the Deceased’s working life)
was framed. Nonetheless, I find as a fact that the Claimant was likely to remain
dependent to some extent upon a pension which the Deceased would have
secured. The Claimant is much younger than the Deceased and would, but for
the tragedy of her husband’s death, have continued working until she was 65
years of age and the Deceased, by then, was 71 years of age. The Claimant’s
employment was pensionable. The Claimant’s dependency on what was likely
to have been the Deceased’s modest pension would itself have been modest.
17.
Other damages issues
Apart from calculating the losses where this can be done arithmetically and
making lump sum awards for the losses of chances and pension dependency,
the only other issue relates to the recoverability of payments made by BUPA
in respect of the Deceased’s medical care. BUPA’s outlay was £32,412. The
contract under which the total payment was made was between BUPA and EC
Harris. On behalf of the Claimant, Mr. Gallagher (junior counsel) argued that
because EC Harris was a partnership each partner was ‘the insured’ under the
contract and thus the Deceased’s estate was entitled to recover the sum from
the Second Defendant.
In a letter dated 30th October 200847 (just before the trial commenced), a
member of BUPA’s Third Party Financial Recovery Team wrote:
“We confirm that the legal basis to our claim for medical expenses arises
out of the long established law of subrogation. The contract between
BUPA and your client is a contract of indemnity and therefore we are
entitled on payment of medical expenses to be subrogated to the rights and
remedies of our member against third parties in respect of such expenses.
We are unable to supply you with a copy of the contract in this matter.
Your client is covered through their employer’s Corporate Scheme and the
contract is confidential between BUPA and the Group.”
The quoted passage contains obvious contradictions. In the first place it
suggests a contract between BUPA and the Deceased, but then asserts that the
Deceased is covered by virtue of his being an employee of a corporate body,
and that the contract is confidential because it is not a contract with the
Deceased !
Schedule B of the specimen agreement provided by BUPA makes it clear, at
paragraph 248, that the group insurance scheme “is governed by an agreement
between your sponsor and BUPA. The terms and conditions of your (the
Deceased’s) membership have, therefore, been agreed between your sponsor
and BUPA and there is no legal contract between you and BUPA …..”
47
48
TB: D/399
TB: D/445
Paragraph 8.3 of the Schedule provides that if BUPA requires it, reasonable
steps must be taken by the member “to recover from the person at fault the
cost of the treatment paid for by BUPA”. I agree with the submission of Mr.
Owen QC that this provision, if it is intended to refer to the Deceased, is
inconsistent with paragraph 2 quoted above.
BUPA itself has refused to disclose the relevant contract because it maintains
that neither the Deceased (nor his estate, nor the Claimant) were parties to it.
By clause 3.4 of the specimen contract – if applied to EC Harris - then EC
Harris undertook to bear the costs and not to seek recovery from any of its
members; and, by clause 7.3 it is specifically agreed that only the parties to the
agreement might enforce it, and no such right is conferred on a third party
such as an individual member.
In my judgment, because there was no legal obligation on the Deceased to
meet the costs of medical expenses, there is no legal right vested in the
Deceased’s estate to seek these costs. The Deceased was not a part to the
BUPA contract notwithstanding his status as a partner. It seems to me that the
BUPA policy is trying to be a ‘one size fits all’ contract which, in the instant
case has not begun to take account of the legal status of the ‘sponsor’
contracting party. Finally, and in any event, where, as there clearly are,
inconsistencies appear in the contractual documentation then the terms have to
be construed ‘contra preferentem’.
This part of the claim fails.
18.
Calculation s and assessments of damages to which the Claimant is entitled
18.1 The total of the heads of damages which were agreed at time of the hearing trial
is £ 163,191.79; to this figure must be added a further agreed sum of £1,269.96
representing interest between the trial date and the date this judgment is handed
down.
18.2 It is not disputed that whilst Alexandra remained financially dependent upon the
Deceased, the Claimant is entitled to recover, on behalf of the dependents,
including herself, damages calculated in accordance with Coward v. Comex
Houlder Diving Limited (see paragraph 10.3 above). Given that no dependency
is claimed beyond the date when the Deceased would, as I have found, have
retired, then Alexandra would probably have been dependent until then.
Consequently, as is agreed, the calculation of past and future dependency is
based upon 75% of the joint incomes of the Claimant and the Deceased, less the
Deceased’s income as it would have been but for the Deceased’s death
18.3 Loss of Earnings prior to death
The Deceased was paid on the basis of his existing remuneration package until
6th August 2003 (see Hogg TB: B/16/292). There is no loss prior to that date.
Thereafter, until his death, the Deceased received payments under a permanent
health insurance policy only, totalling £58,314 for which credit must be given
against the claim for lost earnings.
On the basis of the net figures in the Table annexed to Mr. Owen QC’s Closing
Skeleton Argument and my findings as to the likely income of the Deceased,
then between 6th August 2003 and 19th May 2004, the Deceased would have
earned
(a) £39,304.78 in the period 6th August 2003 to 5th April 2004 (viz £59,282
divided by 365 x 242) and
(b) £ 7,167.33 in the period 6th April 2004 until his death on 19th May 2004 (viz.
£60,839 divided by 365 x 43)
The total figure of £ 46,472.11 is extinguished by the payments made under the
permanent health insurance policy.
18.4
The appropriate multiplier for loss of financial dependency between the date
of death and the Deceased’s 63rd birthday on 11th May 2015, is 9.34 years (as
claimed by the Claimant and explained in Appendix G to Mr. Hogg’s report)
of which 4.46 years represents pre-trial loss. I have carefully considered the
Second Defendant’s argument, as set out in the Counter-Schedule, for
applying a further discount for contingencies other than mortality. However, in
the light of my findings as to the Deceased’s probable career, I am not
satisfied that any discount beyond that allowed for by Mr. Hogg, is justified.
18.5
Loss between date of death and date of trial
Subsequent to the trial, and in the light of my findings in respect of the
Deceased’s likely income (as set out in what was then a draft judgment sent to
the parties in early December 2008), the parties have agreed the arithmetic of
the dependency calculations for past future loss, inclusive of interest, as
amounting to £ 229,408.87. The agreement includes, in particular, agreement
as to the level of the Claimant’s net income as required for the ‘Coward v
Comex calculation’; although no submissions were made to me about the
Claimant’s income calculations, notwithstanding some apparent disagreements
on the face of the accountants’ reports, it is now unnecessary for me to deal
with this. The following table sets out the details of the calculation.
2003/4
2004/5
2005/6
2006/7
2007/9
2008/9
Deceased’s
Income [A}
£60,839.00 £62,408.00 £63,973.00 £65,595.00 £67,533.00
Claimant’s
Income [B]
£19,972.00 £20,630.00 £21,219.00 £21,860.00 £21,860.00
[A] + [B]
£80,811.00 £83,038.00 £85,192.00 £87,455.00 £89,393.00
75% x (A +
B) = [C]
£60,608.25 £62,278.50 £63,894.00 £65,591.25 £67,044.75
Dependency
£40,636.25 £42,210.19 £42,675.00 £43,731.25 £45,184.75
(C-B)
Loss 19.5.04 £40,636.25 x 322/365
– 5.4.05
£35,848.97
Loss 6.4.05 –
5.4.06
£41,648.00
Loss 6.4.06 –
5.4.07
£42,675.00
Loss 6.4.07 –
5.4.08
£43,731.25
Loss 6.4.08 – £45,184.75 x 300/365
30.01.09
£37,138.15
TOTAL
PRE-TRIAL
LOSS
£201,041.87
Interest
14.11%
@ From 19th May 2004 to 30th January 2009
TOTAL
18.6
£28,367.01
£229,408.87
Future loss of dependency
The multiplicand is £45,184.75. The multiplier and discount for contingencies
is 4.88 years x 0.95. The loss is thus £209,476.50.
18.7
Damages for loss of chance and dependency on the Deceased’s pension
I have already concluded that the Deceased had only a small chance of
retaining his status as a ‘C Partner’ and enjoying a share of profits in addition
to ‘notional salary’. I am not satisfied that even if he had enjoyed a share of
profits it would have been at the same level as that which was claimed on the
basis of Mr. Black’s points’ score or average points’ score across all ‘C
Partners’. In assessing the value of the lost chance I must take account of the
fact that the loss is the loss of a chance of the Deceased receiving a share of
profits or a bonus only (basic remuneration package having been allowed for)
and that in recent times the risks of profit losses face every business. I have
taken account of the figures for profit share that were claimed in Appendix C
of Mr. Hogg’s report which amount to just short of £1 million pre-trial and a
further £1.75 million (both gross figures before a substantial tax liability)
projected until retirement (without any forward discounting being applied) but,
as I say, based upon a comparator which I do not accept would be a fair one. I
have taken account of the fact that the Deceased’s dependents would have
been dependent only to the extent of 75% of net profit share after tax, at most.
I take account of the fact that the chance of an enhanced income based upon a
share of profits or bonus would reflect in the dependents’ potential benefit
from a pension which would probably have been financed from profits/bonus
payments to the Deceased. Finally, I take account of the fact that the loss of
the chance of bonus payments as a salaried partner is subsumed within my
assessment of the loss of a chance of participation in profit sharing, as is the
loss of a chance of dependency on a pension. In my judgment the loss of
chance and possible dependency upon a pension should, in total, be valued at
£100,000.
18.8
19.
It follows that, to the extent that the Claimant claims damages under any other
head of loss or by a method of evaluation or calculation which I have not
employed above, I reject such claims and methods. In saying this, I am
acknowledging the fact that, by reason of my rejection of Mr. Brookes’
evidence, that the whole basis upon which Mr. Hogg proceeded to present his
expert analysis, has been undermined. It appears that this was not really
anticipated by anyone until shortly before the trial.
Summary
The Claimant is thus entitled to judgment against the Second Defendant for
damages under the following heads (all figures including interest where
appropriate):
1.
Agreed damages [see paragraph 18.1]
2.
Arithmetically agreed damages for financial
3.
£ 164,461.75
pre-trial and future dependency
£ 438,885.37
Damages for loss of a chance
£ 100,000.00
GRAND TOTAL AWARD
£ 703,347.12
His Honour Judge Oliver-Jones QC
30th January 2009