Actionable damage? A mixed question of law and fact

Due to the long latency period of mesothelioma, routinely many decades after exposure, such claims present numerous challenges. Aside from the scarcity of documents and witnesses, many former employers are now defunct. The Third Parties (Rights against Insurers) Act 2010 (the Act), which came into force on 1 August 2016, was targeted at alleviating some of the hurdles faced by claimants as it introduced an expedited route to insurers.

In Brooks v Zurich & Aviva the claimant had been a maintenance engineer at a paper mill, allegedly exposed to asbestos from lagging and brakes. He began to suffer from symptoms in March 2020 and was formally diagnosed with mesothelioma in April 2021. The two employer companies were defunct. Consequently, claims were brought against the insurers under the Act. The defendants applied for strike out on the basis that bringing a claim under the Act was misconceived, the contention being that the Act was only applicable from 1 August 2016 by which time the claimant’s cause of action was complete. The defendants’ argument was that, whilst the mesothelioma had been symptomless until March 2020 it must:

“…nevertheless have progressed to the stage of angiogenesis (the tumour developing its own blood supply) about 5 years before then. Hence, he had at that time suffered actionable damage; his cause of action was complete and, because that was some 18 months before the date that the 2010 Act came into force, his claim against the insurers under that Act is unwinnable.”

At the strike out application on 12 May 2022, the parties cited a number of landmark industrial disease decisions in order to persuade that their interpretation, primarily as to what constituted “actionable damage”, was correct. Master Davidson made a number of points including:

• The point when the claimant suffered actionable damage sufficient to complete his cause of action is a mixed question of law and fact. He referred to this being an area of law which is “uncertain and developing”.
• He regarded the stance taken by each party on the law to be reasonably arguable. Noting that there was no authority from England & Wales on the point.
• The state of the authorities being as it is, the relevant facts should be found. Noting that Dr Rudd had not been asked the specific question as to when the claimant's disease had reached the point of angiogenesis.

Accordingly, Master Davidson refused both the defendants’ application and the cross-application to enter judgment in favour of the claimant.

There are a specific set of circumstances that appear to have led to the strike out application, namely the concept that angiogenesis in mesothelioma claims can occur 5 years before symptoms and that the Act has a hard cut off date of 1 August 2016. Given the complexity of the arguments and the persuasive observations of Master Davidson, it is not surprising that the strike out procedure was not found to be appropriate. For the insurance industry and industrial disease practitioners this claim is one to keep an eye on as, if the court were to accept that the date of an actionable damage was interchangeable with the date of angiogenesis, it could have wide reaching consequences.