DOWDALL V KENYON AND OTHERS [2014] EWHC 2822 (QB)
Surrey Personal Injury – Mesothelioma and Limitation  
FACTS:-
The Claimant claimed damages for his contraction of pleural mesothelioma. The issue was whether he could maintain an action against three of the companies which employed him during a long career when he was exposed to asbestos by many employers, having already brought proceedings against 8 of the other employers which were settled in 2003.
In the Claimant’s previous action, his solicitors had sought details of the First Defendant but had been given the wrong name by HM Revenue and Customs.  Both the Second and Third Defendants were dissolved companies. The Second Defendant was dissolved in 1982. The Third Defendant was dissolved in 1987. At the time of the first action employers' liability insurers were not identified for the Second and Third Defendants. In April 2011 the Employers' Liability Tracing Office ('ELTO') was established and thus the identity of insurers for the Second and Third Defendants was discovered.
These Defendants said that they would have joined in that settlement had they been sued at the time, and would therefore have had a complete defence to these proceedings, namely compromise. In addition, each Defendant raised the issue of limitation.
JUDGEMENT:-
Andrew Edis QC said that asbestosis was a divisible injury in the sense that the injury varied in severity depending on the extent of exposure. In Holtby v Brigham & Cowan (Hull) Limited [2000] ICR 1086, the Court of Appeal held that in an asbestosis case a Defendant was only liable for that part of the injury attributable to the tortious exposure for which that Defendant was responsible. Further, that the burden of proving what part of the injury was caused by a particular Defendant lay on the Claimant.
On the other hand, mesothelioma was not a divisible injury. It might be caused by a single fibre, although the risk was increased by exposure. It could not be proved in the cases of each employer that the exposure for which it was responsible caused the condition. It could only be shown that, to the extent of that exposure, that employer increased the risk.
In Fairchild v. Glenhaven Funeral Services Limited [2003] 1 AC 32 the House of Lords held that there was a special rule of causation to be applied in cases of this kind, in which it was necessary to prove that a Defendant increased the risk of the development of mesothelioma in order to recover in full against that Defendant for the consequences. As between employers, the liability would be apportioned, but the Claimant was entitled to recover in full against all of them.
In relation to abuse of process, Edis J set out the principles to be derived from the authorities, of which by far the most important was Johnson v. Gore Wood & Co [2002] 2 AC 1.
The Defendants made the following points:-

• If these Defendants had been sued in the First Action, they would have settled. They may have paid between them an additional £10,000 or so. They could not then have been sued in these proceedings.
• The Defendants were now exposed to the very much larger claim now advanced. The present claim was valued by the Claimant at £185,543.49.
• If the Claimant had not chosen to abandon his provisional damages claim, the original Defendants might have sought a contribution from these three defendants towards the much larger claim but that liability would have been shared 10 ways, rather than 3 ways. In order to secure that contribution now, the Defendants would have to issue contribution proceedings which had an uncertain prospect of success.
• If the Claimant had been able to join these Defendants in the First Action there would have been an automatic right to have the liability apportioned between them. Again, any proceedings to secure that outcome now would be uncertain.

Edis J considered that it would be wrong to hold that these proceedings are an abuse of the process of the court.

• These Defendants were not parties to the First Action. This means that they were not "vexed" in it.
• The Claimant had not manipulated the process of the Court with the intention of "having his cake and eating it".
• The decision not to sue these Defendants was honestly made and was made because in each case the Claimant and his solicitors had been unable to discover an insurer liable to meet the claim against them.

The next issue was whether the Claimant had received full and final satisfaction of his claim, by bringing his first action. Had the Claimant accepted a sum which was intended to represent the full measure of his estimated loss? The answer was clearly not. The Claimant elected to accept a sum for the risk of mesothelioma and in return decided not to seek an order permitting him to return to court in the event that mesothelioma actually developed. The settlement deliberately excluded any sum which would follow from the development of the condition. It could therefore be said that it included such a sum.
The next issue was limitation. On the evidence, Edis J found that the Claimant’s date of knowledge in relation to the First Defendant was 12 months after June 1998 to allow a period of time to make necessary enquiries. The claim against the First Defendant was therefore statute barred, and the next issue is whether to direct that the claim might proceed under section 33 of the 1980 Act.
Edis J made the following points.

• He agreed with the Defendants' submissions that if they had been sued in 2001 they would have participated in the settlement in 2003 with the result that they would have acquired a complete defence to this claim, namely compromise.
• He was not clear that the Defendants would be unable to secure a contribution from the other 7 Defendants.
• The Claimant could have sued the First Defendant in the First Action because it should not have been too difficult to find the proper Defendant from the information available. However, it would have been pointless to sue the Second and Third Defendants without identifying their insurers.
• If he allowed the claim to proceed against the Second and Third Defendants but not the First Defendant for the reasons given in the previous sub-paragraph, the effect would be that the claim would be met in full by the Second and Third Defendants. The Claimant would not be prejudiced by such a decision at all. However, there would be very little purpose in stopping the case against the First Defendant for this reason, because the Second and Third Defendants would be able to issue Part 20 Proceedings for a contribution from it. That being so, there was no real prejudice to the First Defendant in disapplying the limitation period if the Action was to proceed against the Second and Third Defendants.

In the end, the principal consideration must be the fact that the Claimant had a substantial claim for a very serious injury. He had very good prospects of establishing that the Defendants contributed to the causation of the risk of that condition, and are liable for it by reason of the principle in Fairchild. He would therefore grant the application for relief under section 33 in respect of all three Defendants.