Crown Immunity Breached by Asbestos Claimants
In December, 2000, at the High Court in Manchester, UK, Mr Justice Holland awarded compensation in the case of Crompton and others v Ministry of Defence to the families of four women who died of asbestosis and mesothelioma after being exposed to asbestos sixty years ago. The plaintiffs had assembled gas masks at government-controlled factories in Blackburn and Leyland, northwest England, during the Second World War. Earlier claims brought by Mrs. Crompton’s solicitors, John Pickering and Partners, for other former employees at these factories resulted in settlements. The courts had rejected some claims brought by other solicitors for women who had worked at a Nottingham gas mask factory on the ground that the claims were time-barred. The Crompton case is the first to have succeeded at a court hearing. Evidence showed asbestos fibres in the women’s lungs at similar levels to those found in people working in asbestos factories. Surviving employees told of working in dusty conditions and handling gas mask filters which contained asbestos. It is sometimes said that white asbestos (chrysotile) does not cause the asbestos cancer, mesothelioma. The evidence in these claims was otherwise: there were mesothelioma cases among the women who had worked only with chrysotile, as well as among those who had handled filters made with blue asbestos (crocidolite). One of the Blackburn gas mask factories produced civilian gas masks which contained chrysotile but no other form of asbestos; women who were only exposed to asbestos here still developed mesothelioma.
The earliest claims for the Blackburn and Leyland factories were brought against the employers of the women assembly workers, J E Baxter and Co. This firm employed the labour, owned the factories and had an agreement with the government. Baxter’s assembled the gas masks for the government and was paid for the use of the factory, the installation of the machinery required and the materials used. The government had overall control of production. The earlier claims resulted in settlements which exhausted the assets of Baxter’s which, having no insurance coverage for such claims, went bankrupt. With no chance of compensation for later Baxter’s claimants, lawyers looked to the UK government, in their position of having controlled the production process, to satisfy the continuing claims. It was argued that the government should have protected the factory workers with the knowledge they already had in the 1930s of the hazards of asbestos, their position of control of the factories and their own inspectors and managers working in the factories. At first, these later claims resulted in settlements, but government lawyers decided to fight the next series of claims by arguing that they were subject to "Crown immunity". According to the doctrine of Crown immunity, the UK government traditionally could not be sued. Because the UK is a monarchy, the government, technically speaking, is the means by which the queen or king governs the country. Because the monarch is God’s chosen representative to rule the UK, it is said, he or she is incapable of doing wrong. So, if an employee of a government department is negligent (for instance, by allowing someone working in their gas mask factory to breathe in millions of asbestos fibres), it can’t be the fault of the Crown, because to allow that would constitute a wrongful act of the Crown. On the basis of that reasoning, a rule of law developed under which no one could sue the government. Instead, a practice developed of the government naming a senior employee to be sued, handling the defence and paying any compensation awarded. This practice continued until the Court of Appeal outlawed it in 1946, when they denied compensation to a government employee who had been injured at work.
The Court of Appeal decision left injured government employees without the means to claim compensation. The Crown Proceedings Act 1947 was passed ending Crown immunity for injury claims by civilian government employees and other categories of claims against the Crown, but keeping immunity for injury claims by serving members of the armed forces. In the Crompton case, the Ministry of Defence argued that the immunity applied because the exposure to asbestos occurred before the 1947 Act removed the immunity. The claimants argued, successfully, that the immunity did not apply: they could not sue for the negligence of the government until injury or disease had developed. No injury was present until long after the Crown Proceedings Act had come into force; by that time, the immunity had gone.
The claimants also argued that, if the 1947 Act was not clear, the UK Human Rights Act obliged the court to interpret the Crown Proceedings Act so as to be consistent with the claimants’ right to have a hearing of their case. That right is contained in Article 6 of the European Convention on Human Rights. The existence of Crown immunity, it was said, was an arbitrary and blanket ban on the claimants having their right to compensation determined by a court of law. Mr Justice Holland found that he could interpret the Crown Proceedings Act as not giving the government immunity in this case, without resorting to the human rights legislation. Had he declared an opinion on the human rights arguments, his decision would have been examined closely by those seeking compensation for armed forces veterans who are still denied compensation for asbestos diseases and other injuries because Crown immunity still applies to them: non-civilians can only claim compensation from the UK courts for injuries caused by the fault of the Ministry of Defence from 1986 onwards. The successful result for Mrs Hunt and the other claimants means that civilian claims for asbestos diseases against the Ministry of Defence are unlikely to face this argument again, where the exposure to asbestos happened before 1947. There are still, sadly, former gas mask factory workers and former civilian naval asbestos workers becoming ill from asbestos exposure in that era.
James Thompson
John Pickering and Partners
_______
November 26, 2001
