Once more unto the breach
Vijay Ganapathy considers the high threshold in common law negligence claims involving dangerous activities and the apportionment of damages for asbestos-related illnesses
Many will be aware of the relatively recent series of cases where claimants injured while participating in dangerous activities have struggled to establish common law breaches. The most recent example is Maylin v Dacorum Sports Trust  EWHC 378 (QB), where the claimant, ‘M’, suffered a fractured vertebral disc when she fell from a bouldering wall at a climbing centre operated by the defendant, ‘D’.
Those visiting D’s centre were presented with various options that included beginners’ courses and personal lessons which provided training and supervision, as well as other lower cost options where there was no such supervision or training. For the latter, entry was not allowed to anyone who had not completed a rope competency test unless they were accompanied by someone who had. M had never undertaken this activity before, but attended with someone who was ‘rope competent’. Before starting, M completed a disclaimer statement which detailed the risks of injury. There was also a sign which warned about the dangers from uncontrolled falls. It advised descent should either be undertaken by climbing down or via a controlled fall (presumably with the harness attached). It also made clear the mats at the bottom of the wall did not provide any guarantee against broken or sprained limbs.
M proceeded to climb a bouldering wall without incident but on about her third attempt, when she was near the top, her right foot slipped and she fell, landing on her back. M alleged a common law breach and relied on the Association of British Climbing Walls’ Code of Practice, which recommended a safety induction for novice climbers. While she conceded in evidence she was aware of the risk, she assumed the matting at the bottom would provide sufficient protection. Following Poppleton v Trustees of Portsmouth Youth Activities Committee  EWCA Civ 646, the court confirmed that no such duty would exist if the risks were ‘inherent and obvious’. The judge considered the risk here was ‘plainly obvious’ and M’s assumption the matting would provide sufficient protection was wrong because it was clear no amount of matting would prevent injury from an uncontrolled fall. Therefore, the court found there was no breach and, even if there was, the claim would still fail as D drew M’s attention to the relevant risks in the disclaimer statement and by erecting a sign warning of the particular dangers from bouldering walls.
This case highlights the strict approach adopted by the courts. Many would say a novice undertaking an activity with associated dangers should be given some form of personal induction or training, but Poppleton has set a very high threshold for establishing a breach. However, it remains clear each case will turn on its own facts.
Moving away from breach to procedure, Micheal and others v Phillips and others  EWHC 142 (QB) confirms that non-compliance with court orders has equally serious consequences for both defendants and claimants, which solicitors in all practice areas must be aware of.
The claimants, ‘M’, and defendants, ‘P’, operate mini cab businesses that entered into management and purchase option agreements which M claimed had been breached. M issued proceedings, and at a case management conference before Master Eastman P was ordered to provide disclosure by 17 June 2016 with inspection on 1 July 2016.
P failed to comply with these directions and M issued an application for an unless order which required P to undertake searches and provide disclosure by 4pm on 28 October 2016. P consented to this order, which specified that if these directions were not observed, their defence and counter claim would be struck out and P would be debarred from defending the claim.
In the final hour before the deadline, P’s solicitors sent 16 emails by which they sought to comply with their disclosure duties. Hard copy documents and a data stick were subsequently sent but the disclosure was inadequate. In addition, the data stick had no data on it at all. As a result, M issued an application for the defence and counter claim to be struck out and P debarred from defending the claim. P sought relief from sanctions under CPR 3.9.
The court referred to the three-stage test in Denton v TH White Ltd  EWCA Civ 906 which requires consideration of: (1) the seriousness and significance of the failures, (2) reasons for these failures, and (3) all the circumstances of the case to enable it to be dealt with justly. While admitting their breaches were serious and they had no good reason for them, P claimed they should still be granted relief as this caused no significant prejudice, they had remedied the failures, and, as they had ‘strong’ answers to M’s case, it would be unjust and disproportionate to deny them the opportunity to defend the claim.
Despite P’s claims about remedying the failures, the court found there remained serious outstanding breaches. The judge considered proper disclosure would have provided information crucial to the determination of the case which prejudiced M’s ability to prepare for trial. It was further noted that P consented to the full terms of the unless order (which included the statement about their case being struck out, preventing them from defending the claim, if they breached it), so they were not entitled to now complain the consequences were disproportionate. The court also noted P’s conduct and the manner in which data was suppressed or lost. For these reasons, the defence and counter claim were struck out and P was debarred from defending the claim.
This may be regarded as a classic example of the type of party conduct which Denton was intended to catch. In particular, a breach of an unless order runs the risk of having a party’s case struck out. This ruling also confirms that the consequences of non-compliance with court orders cut both ways.
In Kearns v Delta Steeplejacks Ltd  EWHC 149 (QB), the court considered issues relating to causation and apportionment in a case where the claimant, ‘K’, developed pleural thickening (a respiratory disease that affects the lining of the lungs which can be caused by asbestos exposure).
K worked for the defendant, ‘D’, for about seven years when he was exposed to asbestos from various tasks such as cleaning and replacing asbestos distribution pipes and caulking. He also reported exposure with another employer, ‘E’, for whom he worked a period of about 11 years, but that claim was abandoned before trial. Both parties instructed engineering experts to provide estimates of the quantity of asbestos K was exposed to. Both agreed that if K’s account of his exposure was accepted, the exposure levels he suffered with D were very high.
The court found K sustained high levels of exposure when working with D, which breached its duty to prevent exposure as far as reasonably practicable or to reduce it to the lowest reasonably practicable level (as per the Asbestos Regulations 1969 and the Control of Asbestos at Work Regulations 1987).
As K was also exposed to asbestos working with E, it was necessary to determine the proportion for which D was responsible. There was, however, a dispute as to the approach to be adopted to determine such apportionment. K claimed this should be determined by reference to the relative time period spent with each employer. Therefore, as K spent seven years out of a total 18-year period with D, the percentage applied should be 39 per cent. D, on the other hand, contended this should be based on the dose of asbestos exposure sustained with each employer, which gave a 14 to 17 per cent apportionment for D. While the judge was able to make findings on K’s evidence of his exposure with D, no findings could be made for E as he did not hear any evidence from them and K’s account of his exposure with E was unchallenged. Therefore, the judge was unable to make any findings on the dose estimate with E, and so felt there was no option but to determine apportionment on a time spent basis, which meant D was liable for 39 per cent of K’s total exposure.
Turning to causation, as pleural thickening has other non-asbestos related causes, it was necessary to show K’s disease was caused by asbestos exposure. K claimed he had pleural thickening in both his right and left lung so it was necessary to consider each side separately. For his left side, the court was unconvinced that the radiological evidence proved the existence of any pleural thickening. It did conclude, though, that thickening was present in his right lung, but D claimed a previous fall and rib injury which K suffered was the cause of this instead of asbestos exposure.
The court disagreed. Among other things, it was noted that K’s radiology and consultation records were inconsistent with D’s claim. Also, and as the judge found K was exposed to high quantities of asbestos, causation was established. Based on the pleural thickening causing K a 20 per cent respiratory disability, general damages were assessed at £40,000 (£300 was awarded for special damages). Therefore, reflecting apportionment at 39 per cent, K was awarded £15,717.
While these damages appear quite modest, they were awarded on a provisional basis such that if K suffers any significant deterioration or develops a more serious asbestos disease, he could seek further damages.
There is an ongoing debate as to whether a time or dose-based assessment should determine apportionment. Using dose estimates may appear the fairer method, but the process of providing estimates is inherently difficult. Therefore, the approach adopted will be determined on a case-by-case basis.
Vijay Ganapathy is a partner at Leigh Day