Landmark Cases Succeed in Manchester Courts
Two awards by Manchester courts have provided some relief for asbestos plaintiffs in recent months. In the first case (Crompton v The Ministry of Defence and The Home Office), the concept of Crown immunity was breached by former workers from a gas mask factory while in the second (Harrison v Halsen Engineering Ltd.) an employer was held liable for disease contracted by a relative exposed to asbestos taken home on a storeman’s workclothes. Although compensation awarded in the Harrison case was set at £256,000, an insurance anomaly means that this money may never be paid. Both cases were brought on behalf of women plaintiffs.
The December 21, 2000 verdict of Mr Justice Holland awarded four plaintiffs, or their estates, between £37,500-£66,210 ($56,250-$99,315) for mesothelioma and asbestosis contracted after varying periods of employment. The women had worked at factories in Leyland or Blackburn which had, during the Second World War, been requisitioned by the Crown for the production of gas masks; the mask filters contained either chrysotile or crocidolite. Evidence was presented which established that the burden of asbestos in the women’s lungs was similar to that found in workers at asbestos factories. Testimony was given that working conditions had been dusty and the gas mask filters had contained asbestos. Although only chrysotile had been used for the civilian gas masks manufactured at the Blackburn factory, women at this factory developed mesothelioma.
The northern factory owners, J E Baxter and Co., had an agreement with the Government. Although the firm owned the factories and employed the labor, the Government had overall control of production, paid for the use of the factory, the installation of machinery and the purchase of raw materials. While early claims were settled, the firm eventually became bankrupt due to lack of insurance. Lawsuits were then brought against the Government. According to Solicitor James Thompson: "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." Initially these claims were settled. Government solicitors then changed tack and mounted a defense based on the doctrine of "Crown immunity," under which the monarchy, and by delegation the Government, can do no wrong. Even though a government employee might have been negligent in allowing the existence of high levels of asbestos contamination in a factory, the Crown could not be at fault and the Government could not be sued. A pragmatic solution was devised whereby the Government would volunteer a senior employee as defendant in personal injury cases; the defense was handled and any compensation awarded was paid by the Government. This practice was stopped by a 1946 ruling of the Court of Appeal. In 1947, The Crown Proceedings Act ended Crown immunity for personal injury claims by civilian government employees but maintained immunity for claims initiated by members of the armed forces.
In the Compton case, the Ministry of Defence (MOD) maintained that because exposure to asbestos occurred prior to the 1947 Act, the Government enjoyed the privilege of immunity. The plaintiffs denied this, saying they could only sue for negligence once their diseases had developed; this happened years after the Crown Proceedings Act had abolished the immunity. Just in case the 1947 Act was unclear, the plaintiffs’ solicitors cited the UK Human Rights Act which sets out claimants’ rights for a judicial hearing as stipulated in Article 6 of the European Convention on Human Rights. A verdict based on the human rights arguments could have been used by servicemen with asbestos-related diseases who are still barred from bringing claims against the MOD. Mr Justice Holland chose not to open this can of worms; he decided that the Crown Proceedings Act did not give the Government immunity in this case. The plaintiffs’ solicitors were pleased with the outcome saying: "The successful result for Mrs Crompton 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."
Christina Harrison’s brother worked for Halsen Engineering at the British Steel factory in Corby, Northamptonshire. As a storeman he handled a wide variety of asbestos products; he cut and shaped asbestos sheets into boiler blankets and laid on the material to stitch the layers together. No overalls were provided by his employer; it’s no wonder that he returned home covered in fibers. In 1970, Christina helped her mother do the family washing. In the mid-1990s, Christina was diagnosed with mesothelioma. Throughout the four years of her illness, she was resolute in her refusal to take morphine, believing that it would shorten her life. Consequently, she often suffered excruciating pain. Giving what is believed to be one of the highest awards of damages for mesothelioma, the judge said: "this was a particularly protracted period of suffering for a mesothelioma case." A sum of £256,000 was awarded of which £65,000 was for pain and suffering; the bulk of the compensation was for care, dependency and loss of earnings (Andrew Harrison, Christina’s husband, gave up work to look after her).
Convincing the judge that negligence had caused the fatal illness was the easy part. As the company was defunct it did not appear in court to defend the action; neither did any of its insurers. Once the judgment was issued, the question arose: who will pay? Workers, entitled to bring a case against a former employer can, if the company is defunct, sue the insurer which provided employers’ liability cover. If neither the company nor the insurer is viable, compensation for occupational injuries can be claimed under some government schemes. Such recourse is not open to people in Christina’s position; the only claims they can bring are against the company, if it still exists, (Halsen Engineering closed in 1988), or the company’s public liability insurer. Although Halsen had public liability cover, the insurers refuse to pay compensation on the grounds that they are not obliged to pay for damages claimed outside the policy period. Solicitor Pauline Chandler explained: "In Christina’s case, there was no public liability insurance in effect at all when the claim was made in 1998 because the company had ceased to trade some 10 years earlier. We do not accept what the insurers say and are seeking sight of all the insurance policies. We will then consider whether to sue any of the insurers under the Third Parties Rights Against Insurers Act but if the insurers are right it would be a terrible travesty of justice."
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November 28, 2001
