Asbestos Induced Lung Cancer Claim Dismissed in the High Court: A Commentary on Ward v Wellcome Foundation Ltd

On Friday 12 November 2021, HHJ Melissa Clarke, sitting as a Judge of the High Court, dismissed the claim of Terence Ward. Mr Ward sought damages for lung cancer which he contended had been caused by exposure to asbestos in the course of two periods of employment, the first with Burroughs Wellcome & Co between 1969 and 1978 and the second when working as a Fire Officer with Harrods Ltd between 1988 and 1995. Breach of duty and causation were each in issue in the claim, but the emphasis was on the latter.

At present the case is unreported. Philip Turton, instructed by Damon Burt of Plexus Law, Evesham, acted for Burroughs Wellcome and can provide a note of the judgment on request.

Mr Ward had a long history of smoking, calculated variously at between 48 and 52 pack years and dating back to 1960. He had finally given up in September 2009, assisted by prescription of a nicotine suppressant from his GP. His adenocarcinoma of the lung came to light as an ancillary finding in the course of investigations for bowel cancer in January 2017. At first the Claimant denied asbestos exposure to his doctors, subsequently thinking it may have occurred when he worked on car brakes as a hobby. In due course he instructed solicitors, Royds Withy King, and made applications for Industrial Injuries Disablement benefit and for a payment under the Pneumoconiosis (Worker’s Compensation) Act 1979. By this time he was alleging extensive asbestos exposure, through working in the vicinity of workmen stripping asbestos lagging in the course of his employment with each of the Defendants. The exposure with Harrods was said to have occurred during a refurbishment which occupied a period of six years from about 1989 onwards.

It was common ground between the medical experts that, in order to show his lung cancer had been caused by asbestos exposure rather than smoking, the Claimant would need to show a cumulative exposure which exceeded the Helsinki criteria, of either 25 fibre/ml years to a heavily amphibole predominant mix of asbestos fibres or, if exposure was to a mix of amphibole and chrysotile, of something in excess of 40 fibre/ml years. The Claimant had no other asbestos related changes to his lungs (although the absence of, for instance, pleural plarques was not exclusive of the diagnosis). Thus, following Heneghan v Manchester Dry Docks Ltd [2016] ICR 671, the question was whether the Claimant was able to establish that his lung cancer had been caused by asbestos (the “what” question formulated by Lord Dyson). If he was able to overcome that hurdle, issues of apportionment then arose as between the Defendants (the “who” question) pursuant to Fairchild principles and Barker v Corus (UK) Ltd [2006] ICR 809.

The Claimant’s case, and his evidence, was of heavy sustained exposure sufficient to exceed the higher threshold of the Helsinki criteria. Both Defendants challenge the Claimant’s evidence on this point, the Second Defendant particularly relying upon contemporaneous witness evidence and incomplete records, suggesting that the refurbishment had been undertaken in compliance with contemporaneous duties. Nonetheless, the Claimant relied upon an absence of health surveillance records and contended that the principle of Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ. 683 should be utilised to support the Claimant’s case.

The Judge considered that the shock of the diagnosis provided an explanation for the Claimant’s failure to identify that he had worked with asbestos. However, the Claimant’s evidence of his exposure with Harrods had been less than clear when taken on commission a year earlier (in fact the Claimant survived until trial). She considered the Claimant’s description of work which, if correct, amounted to a wholesale dereliction by Harrods of its duties in relation to asbestos, to be inherently improbable. When coupled with the evidence called, she was not able to accept his case that the work exposed him to asbestos dust, rather than dust from other materials. Keefe did not assist because the duty imposed upon Harrods to maintain health surveillance records applied only for employees exposed to asbestos in excess of the action level, which did not include the Claimant. In the premises, no adverse inference could be drawn and the Judge could not conclude that any incidental exposure to asbestos dust would be of a level sufficient to reach the threshold.

The evidential position in relation to Burroughs Wellcome was less robust, but it adduced two witness statements, one from a contemporaneous employee, admitted under cover of Civil Evidence Act Notices and other documentation pointing towards practice generally in the industry. The effect of those sources of evidence together made it improbable that Burroughs Wellcome had disregarded the risk posed by asbestos or had failed to put in place measures to guard against the risk of exposure. Coupled with the error into which the Claimant had fallen when describing his exposure with Harrods, the Judge could not accept the Claimant’s case that he was exposed to asbestos in breach of duty, still less that his asbestos exposure reached even the 25 fibre/ml years threshold.

In the premises, much the more likely cause of the Claimant’s lung cancer was his smoking habit, which had endured for most of his life. In the premises, the claim was dismissed with costs.

Had the claim succeeded, the Claimant conceded that a deduction for contributory negligence would have followed. On the facts of the case, the Defendants argued a deduction of 35% was appropriate, but the Judge was not required to resolve that issue and did not do so in her judgment.