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Cookson v Novartis Grimsby Ltd, Court of Appeal, 29 November 2007

20 December 2007
The issues

Occupational exposure to Carcinogens – causation – bladder cancer – Bonnington Casting Ltd v Wardlaw.

The facts

The Claimant was employed by the Defendant in its dye plant. He developed cancer of the bladder. The recorder at first sentence found that his condition was caused by exposure to carcinogens in breach of duty in the course of the Claimant’s employment with the Defendant. The Defendant company from 1876 until about 2 years ago manufactured dye including Azo dyes in Clayton in Manchester. It had been well known since the last 19th century the contact with some aromatic amines used in the manufacture of Azo dyes was capable of causing bladder cancer. Until the plant was modernised between 1957 and 1963 the working condition resulted in the exposure of many employees to casting carcinogenetic aromatic amines and a significant number of them developed bladder cancer. They had been sued by employees who had worked on the old premises and liability had not been denied. However the Defendant company was of the view after the plant was modernised followed its best practice and the technology used was “State of the art”. The Claimant had been employed from 1964 and had worked in the new plant on the production of dye stuffs including Azo dyes. The Defendant denied liability contending the Claimants working conditions had been good, that any exposure to carcinogenetic substances were minimal and had not caused his bladder cancer and there was another more likely cause namely his smoking habit. The recorder had found that the working conditions had not been as good as the Defendant had said particularly in the early of the days of the Claimant’s employment and that in fact the Claimant had been exposed by the Defendant to significant amounts of carcinogenetic amines in breach of its duties to the Claimant. The recorder held that exposure to amines probably made material contribution to the development of the respondents bladder cancer and that the Defendant was liable to compensate for the development of his illness. The Defendant appealed arguing firstly that the recorder had failed to analyse the implications of his findings of fact in the necessary way for a proper conclusion of breach; and that instead he equated the fact of exposure with breach of duty; Secondly he equated the fact of exposures with causation; thirdly, he applied the wrong legal test for causation.

The Defendant had made admissions in relation to breach of duty and had conceded that the Claimant had been exposed to dust and that’s its protective masks were inadequate. This was enough for a finding of liability provided that there was some risk of harm arising from the dust. The only criticism of the Recorder’s findings on breach of duty is that they might have been more fully explained but the Court was satisfied that they were well founded in the findings of fact that he was entitled on the evidence to make.

The judgment did not contain a quantative analysis to the extent the Claimants exposure. This was because the material was not available to permit such analyst. The Defendant sought to rely on air monitoring which did not begin until the late 1980’s. These results were not representative of working conditions in the 1960’s & 1970’s. The extent of the exposure had to be a matter of impression of the experts. Dr Mullan a consultant chemist called on behalf of the Claimant put the view that the Claimant had been exposed to carcinogens during the 1960’s in particular in his first year of employment. He concluded that the exposure had created a significantly increased risk of him developing bladder cancer. Mr Smith a Occupational Hygienist called for the Defendant disagreed and took the view that the exposure would not have exceeded the in-house exposure limits but admitted in cross examination that he based this assessment on his understanding of the evidence before the trial had begun and that in light of the evidence that he now understood it, he might have to revise his assessment. Dr Mullans impression was that the exposure was harmful.

The Claimant relied in addition on Robin Barnard FRCS a Consultant Urologist. He was of the view that the long exposure to Carcinogenetic chemicals at work was probably responsible for the Claimant’s condition. The Defendant relied on a Consultant Urologist called Mr Philip Smith FRCS who noted the Claimants smoking and observed that smoking was the most common cause of bladder cancer. He was of the view that smoking had to be considered the cause until other aetiological factors could be determined.

Both Urologists agreed that it would be a good idea for Professor Ray Cartwright to be jointly instructed. Professor Cartwright was an Epidemologist who had published widely on the causes on bladder cancer. He produced a report discussing the Claimant’s exposure to carcinogens and his cigarette smoking and took the view the Claimant had only been at a low risk of developing cancer and that of the two sources of risk, the risk from smoking was the greater.

Subsequently Professor Cartwright had accepted that the Claimants exposure to amines had lasting longer that previously thought but still at such a low level that he did not wish to revise his conclusion. Mr Barnard disagreed with Professor Cartwright and concluded that the Claimants Cancer had been caused by the affects of occupational exposure and smoking but the exposure had been the main contributory factor accessing that contribution in the order of 25% – 30% for smoking and occupational exposure to 70% – 75%. Judge preferred the evidence of Mr Barnard to Professor Cartwright and set out his reasons in detail. The Judge was entitled to do so. He was entitled to accept that of the 2 contributory causes the occupational exposure had been the main contributory cause of the cancer.

The Defendant argued that the Recorders reliance on the decision in Bonnington Casting LTD v Wardlaw inappropriate. Although Bonnington had not been over ruled it was no longer appropriate to adopt the test of causation applied there. Bonnington, the Defendant argued, only ever applied where the disease was caused gradually by the cumulative affect of the exposure. In such a case it could properly be said that the negligent component of the exposure made a contribution to the disease. The Defendant argued that a case which would have been determined by the principles in Bonnington would nowadays be subject to apportionment of damages. Where only part of the exposure had been caused by the Defendants breach of duty, the Court would apportion the damages so as to more accurately reflect the extent of the damage caused by that breach. This had been done in Thompson v Smith Ship Repairers and had been followed in other cases since then. The Defendant had argued that the proper approach was as in Gregg v Scott. A Claimant whose case depended on showing that the Defendant’s negligence had given rise to a risk of harm had to show on balance of probabilities if it had not been for the Defendant’s negligence he would have not suffered harm. This was “but for” test of causation. This was the test the recorder should have applied but had not and the Defendants submitted that if the Recorder asked himself the right question he could not possibly answered it in the Claimants favour. This raised a particularly difficult area. The law of causation was uncertain in a number of respects. Did the principle in Bonnington apply only “divisible” conditions where various exposures contributed to the severity of the disease or did it also apply to cases which various exposures contributed only to the risk that the disease would develop?

Another uncertainty was the extent of the mesothelioma exception. In Gregg v Scott the House of Lords had held that it did not extend to a case of medical negligence where the Doctors negligence had increased the risk that the Claimant would die prematurely but not such as to make it probable that it would be so. In Barker v Corrs Lord Hoffman had specifically considered the situation where the Claimant suffered lung cancer that might have been caused by exposure to asbestos or by other carcinogenic matter but might also been caused by smoking and it could not be proved which was more likely to be the causative agent. He took the view that the exception did not apply in such a case. However Lord Hoffman had in mind a situation where, although there were two causative agents, they acted on the body in a different way. In this case the evidence was that the amines in cigarette smoke acted on the body in the same way as the amines in the occupational exposure. It seemed highly arguable that the mesothelioma exception should apply to bladder cancer and it would sufficient if a Claimant were to prove that the occupational exposure had made a material contribution to the risk of him developing the disease. The difficult issues of causation that had been advanced by the Defendant had been hypothetical and the Court was not prepared to burden the Judgment by any further discussion of them. The evidence of Mr Barnard that the recorder accepted was that the occupational exposure accounted for 70% – 75% of the total. In terms of risk the exposure had more than doubled the risk due to smoking. If the Defendant was right that the correct test of causation in a case such as this was the “but for” test then that test was plainly satisfied on the facts as found. A natural inference to draw from the finding of fact that the occupational exposure was 70% of the total was that, if had not been occupational exposure, the Claimant would not have developed bladder cancer. If the risk from occupational exposure more than doubles the risk due to smoking it must as a matter of logic be probable that the disease was caused by the former.

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