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LEGAL RESPONSES TO MALIGNANT MESOTHELIOMA CAUSED BY OCCUPATIONAL EXPOSURE IN THE SHIPPING INDUSTRIES OF HONG KONG AND SINGAPORE

Rohan Price∗ & Jack Burke**

This article evaluates a range of legal responses to issues of causation and compensation arising out of occupational malignant mesothelioma claims. A survey of the common law of the UK leads to an assessment of the law and policy settings which Hong Kong and Singapore should adopt in relation to these issues.

I INTRODUCTION A. Issues of Medical Causation Until recently, malignant mesothelioma has been quite rare in Hong Kong and almost nonexistent in Singapore. In Hong Kong there have been two modern incidence studies on mesothelioma. A study based on medical records from 12 of the 20 hospitals in Hong Kong discovered that there were 67 cases of the disease over the period from 1988 to 2000. 1 Considering that this survey covered over nearly three quarters of the patient hospitalizations in the territory, 67 cases over a 12 year span, while tragic on an individual level, it is not a high number relative to the total population of seven million people. Another study by the Hong Kong Cancer Registry found that during the period 1976–2006, a total of 199 new cases of mesothelioma were diagnosed (137 males and 62 females) in the general population of the Region.2 The disproportionate number of males contracting the disease is due in large part to their Honorary Fellow, Faculty of Law, University of Tasmania and author of RBE Price, The Employment Laws of Hong Kong and China (Hong Kong: Lexis Nexis, 2009) ISBN 978-9888016815. The authors wish to thank Mr James Chalmers (School of Law, The University of Edinburgh) for his very helpful comments on an earlier draft of this paper. ** Senior Teaching Fellow, School of Law, City University of Hong Kong. 1 KC Chang, C Kwok, CC Leung, CM Tam, WC Yu Wai C, DS Hui and WK Lam Wah, ‘Malignant Mesothelioma in Hong Kong’(2006) 100 (1) Respiratory Medicine 75-82. [Chang] 2 AT Tse, IT Yu, W Goggins, M Clements, RW Xiao, JS Au and SY Kai, ‘Are Current or Future Mesothelioma Epidemics in Hong Kong the Tragic Legacy of Uncontrolled Use of Asbestos in the 

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occupational exposure to crocidolite, amosite and chrysotile asbestos – exposure to which is scientifically causative of mesothelioma and lung cancer 3. The six causal indicators of cancer are met by asbestos: causal likelihood, statistically significant positive association, qualities of association, animal experimentation, structural cell changes and biological mechanisms. 4 Asbestos has particular potency and has an especially strong association with mesothelioma if it is compared with the cancers caused by other carcinogens. 5

Three quarters of the recorded cases in the Hong Kong 1988 to 2000 study related to occupational exposure to asbestos6 and on this basis Hong Kong is expected to see a rash of male workers’ claims in the near future because of the use of asbestos in the construction and shipping industries in the late seventies, with further peaks in the early eighties and late nineties.7 A Hong Kong media report has featured expert opinion that from 2010 onwards Hong Kong can expect a significant increase in mesothelioma claims, not only from dockworkers and construction workers of previous decades, but also from workers who are employed in more recent times by ignorant or cost-cutting contractors to renovate buildings. 8 Hong Kong is part of a larger and international trend in mesothelioma mortality which will only get worse as the decade from 2010 progresses.9 In terms of the ratio of mortality to incidence, mesothelioma has

Past?’ (2010) 118(3) Environmental Health Perspectives 382-386, 384. [Tse] 3 Richard Lemen, ‘Chrysotile Asbestos and Mesothelioma’ (2010) 118(7) Environmental Health Perspectives a282-a282. 4 R Kune and G Kune, ‘Proof of Cancer Causation and Expert Evidence: Bringing the Science to Law and Law to Science (2003) 11 Journal of Law and Medicine 112 at 115. 5 Edward Christie, ‘Toxic Tort Disputes: Proof of Causation and the Courts (1992) 9 Environmental and Planning Law Journal 302 at 311. The magnitude of the Relative Risk (RR) compares the likelihood of developing a particular kind of cancer if one is or is not exposed to a particular carcinogen. The RR of asbestos exposure leading to mesothelioma is high between 50 and 80; the RR of cigarette smoking leading to lung cancer is 10 and agent orange exposure leading to soft tissue sarcoma has an RR of between 0.53 to 8.64. Christie notes at 311: “where the Relative Risk is equal to or greater than 10, it could be concluded, with reasonable certainty, that a causal relationship exists.” 6 Chang, supra at 77. 7 Ibid. 8 Pearl Report, “Deadly Dust” Aired on Pearl TV, Hong Kong 15/11/2009. Avail at: http://evideo.lib.hku.hk (Accessed on 3 June 2010). 9 C Pelucchi , M Malvezzi, C La Vecchia, F Levi, A Decarli and E Negri, "The Mesothelioma Epidemic in Western Europe: An Update" (2004) 90 British Journal of Cancer 1022, 1035; J T Hodgson, DM McElvenny, A J Darnton, M J Price and J Peto, "The Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to 2050" (2005) 92 British Journal of Cancer 587-593; and J Peto, "Continuing Increase in Mesothelioma Mortality in Britain" (1995) 345 Lancet 535-539.

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only a marginally better survival rate than cancer of the esophagus, liver or pancreas. 10 Moreover, malignant mesothelioma, once a rare disease late in the UK in the 20 th century, is now set to cause an estimated 1950 to 2450 deaths per year between 2011 and 2015. 11 In global terms, malignant mesothelioma unheard of in the early 1950s, but since the 1970s its occurrence has increased markedly.12 Occupational exposure is regarded as the greatest risk factor for mesothelioma; it is responsible for 70–83% of the risk of contraction for males and 38% for females.13 Other suspected causes of mesothelioma are radiotherapy and exposure to erionite fibres (volcanic ash), as well as chronic inflammation of the lung. 14 The average latent period between first exposure to asbestos fibres and the development of mesothelioma is approximately 40 years but it may be as long as 50 years depending on how much exposure occurred throughout a lifetime.15 Different countries used asbestos for different reasons and this makes country-to-country comparisons difficult, however, the lengthy latency is universal and this means that incidence and mortality rates of malignant mesothelioma will continue in the decades ahead. 16 The main focus here will be on Hong Kong and although malignant mesothelioma of an occupational origin is rare in Singapore (16 diagnoses of the disease between 1996 and 2001) 17, the sheer quantity of Singapore registered ships and seafarers based in Singapore on asbestos-era ships suggests that it will not be immune from the expected spike in cases. Although Singapore only industrialized in the late 1960s, asbestos is prevalent in the country due to the use of the mineral as a building material from the late 1940s onwards and a significant increase in cases is expected.18 B. Maritime Dimensions of Asbestos Hong Kong Cancer Registry, Hong Kong Cancer Statistics 2007 (Version II, 2009) Table 17, p 19. Avail at: http://www3.ha.org.hk/cancereg/e_canstat2007.pdf (accessed 4 September 2010). 11 JT Hodgeson et al, ‘The Expected Burden of Mesothelioma Mortality in Great Britain from 2002 to 2050’ (2005) 92 British Journal of Cancer 587 at 591 cited in James Chalmers, “The Rights of Relatives to Damages (Mesothelioma) (Scotland) Act 2007” (2007) 11 University of Edinburgh Law Review 407 at 407. 12 Tse, supra at 382. 13 Chang, supra at 75–82. 14 Tse, supra at n13. 15 Chang, supra at n14. 16 Tse, supra at n15. 17 K Chan, K L Tan, H S Lee and P Eng, ‘Malignant Mesothelioma: Experience at the Singapore General Hospital’ (2003) 32 Annual Academy of Medicine 388-91. Avail at: http://www.annals.edu.sg/pdfMay03/chank.pdf (accessed 4 September 2010) 10

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It is trite to observe that shipping is big business in Hong Kong and Singapore. In 2009 the Port of Hong Kong had 21, 000, 000 Twenty Foot (Container) Equivalent Units (TEUs) and ranks only a little behind Singapore (1) and Shanghai (2) in terms of container throughput. 19 The Year 2008 saw a boom in container throughput in Singapore and the Port recorded 29, 918, 200 TEUs 20 and over 131, 000 vessel arrivals in that year.21 Over 1977 ships are registered in Singapore. 22 In terms of gross tonnage of shipping owned, Hong Kong ranks seventh and Singapore tenth in the world.23 Although the average age of ships in the Hong Kong (twelve years old) and Singapore (eleven years old) neither has fleets so young as to generally postdate the 2002 global ban on the use of asbestos in vessels. Ship owners have been slow to recognize the health, environmental and insurance problems associated with asbestos and have not on the whole been proactive in surveying their vessels for the mineral. 24 Both regions also saw the widespread use of asbestos in thousands of vessels between the Second World War and the mid-1970s when they plied East Asian and global waters. Added to the ‘pipeline effect’ of cases from the earlier era, disturbing reports have emerged that Turkish and Chinese shipyards continue to use the mineral as insulation in vessel ‘newbuildings’ and refits and flout the 2002 global ban. 25 Furthermore, there is evidence from a technical manager of a Dutch engineering company (which removes asbestos) who believes that the purchase of spare second hand engine components (gaskets and the like) is the main way that contamination can happen even in recently constructed ships that were built outside of Turkey or China; a survey conducted SF Ho, HP Lee and WH Phoon, ‘Malignant Mesothelioma in Singapore’ (1987) 44 British Journal of Industrial Medicine 788-789. Avail at: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC1007920/pdf/brjindmed00163-0068.pdf (accessed on 5 September 2010). 19 Hong Kong Marine Department, ‘Port of Hong Kong in Figures 2010’, 6. Avail at: http://www.mardep.gov.hk/en/publication/pdf/portstat_pamphlet10.pdf (accessed 3 September 2010). [MARDEP] 20 MARDEP, Ibid. Avail at: http://www.mpa.gov.sg/sites/pdf/container-throughput.pdf (accessed 4 September 2010). 21 MARDEP, Ibid. Avail at: http://www.mpa.gov.sg/sites/pdf/vessel-arrivals.pdf (accessed 4 18

September 2010). ITF Seafarers Website, ‘Statistics’. Avail at ‘http://www.itfseafarers.org/ITF_statistics.cfm (accessed 4 September 2010). [ITF] 23 ITF, ibid. 24 John Chillingworth, “Personal Injury: Asbestos in Ships” (1994) 8(11) P&I International 8-9 25 David Ostler, ‘DNV find more asbestos on newbuildings’, Lloyd’s List Website. Avail at: http://www.lloydslist.com/ll/sector/ship-operations/article173416.ece (accessed on 4 September 2010). 22

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recently by his company of 300 ships in a range of ages found asbestos in around 95% of the ships.26 This modern contamination will doubtless lengthen the latency pipeline even further. Hong Kong has over 5, 000 seafarers registered in the region and there are nearly 60, 000 seafarers employed on Hong Kong registered ships. 27 The owners of the maritime industry of Hong Kong will be seriously affected by the projected surge in claims related to maritime asbestos, as will be Singaporean ship owners. Vessel construction and maintenance during the first two thirds of the twentieth century involved extensive use of asbestos containing products, particularly as heat insulation in wall lining in engine rooms. 28 Other properties of asbestos that made it important to international shippers are that it is lightweight, increasing ship speed and fireproof.29 Mariners, construction workers, maintenance technicians and others are likely to bring claims against their employers seeking for damages suffered as a result of lung conditions, including asbestosis and mesothelioma.30 Maritime claimants typically allege they inhaled asbestos particles which became airborne during operations and maintenance, resulting in lung conditions in their later lives. There were 350, 000 premature deaths from asbestos related cancers arising from exposure between 1940 and 1980, and of this number, 74, 000 occurred to employees in the shipbuilding industry. C Pelucci et al noted that, “ironically, most of these individuals jobs did not directly involve the use of asbestos, they were simply working nearby when application of insulation or removal work was underway.” 31 Moreover, a study by Harries of British Royal Navy ship workers found that pleural mesothelioma patients were not drawn predominantly among “asbestos workers” but from boilermakers, shipwrights, labourers, welders and fitters.32 These tendencies in exposure mean that leaders of the shipping industry in Hong Kong need to recognize that their liability for asbestos exposure will extend to classes of employees beyond installers and removers of maritime insulation.

Ostler, ibid. MARDEP, supra, 7. 28 Steven Block, ‘The New Wave of Maritime Asbestos Litigation’ (2004) Marine Digest and Transportation News 1 (Aug). [Block] 29 US Congress, Failure to Regulate: Asbestos – A Lethal Legacy: A Hearing Before a Subcommittee of the Committee of Government Operations, House of Representatives, 98th Congress, 1st Session , 28 June 1983, 192. [Failure to Regulate] 30 Block, supra. 31 Failure to Regulate, supra, 10. 32 PG Harries, ‘Asbestos Hazards in Naval Shipyards’ (1968) 11 Annual Occupational Hygene 136, 142. 26 27

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Until the early 1990s reliable information on pleural fibrosis consistent with prior exposure to asbestos among merchant marine seamen was difficult to find even though asbestos was commonly used in ship construction until the late 1970s. 33 However, a medical study published in 1990 revealed that, of a total of 3324 chest radiographs (1985-7) of long term United States seamen, one third (34.8%) had parenchymal or pleural abnormalities; or both and pleural changes were prevalent.34 It is legally contestable whether or not pleural plaques are in fact a disease which is compensable. The study also found that the longer the shipboard exposure (as defined by first year at sea) the greater the rate of abnormalities. 35 The occurrence of asbestotic changes was more frequent among seamen who had served in the engine department (42.5%) compared with seamen in other departments, including deck (36.6%), steward (28.4%), or with service in multiple departments (30.9%). 36 The occurrence of abnormalities such as pleural plaques is significant. According to Hillerdal, who conducted a medical study on 1596 men from Sweden with pleural plaques, ‘pleural plaques on the chest roentgenogram indicate significant exposure to asbestos with an increased risk of mesothelioma and possibly for bronchial carcinoma’.37 C. Recent International Developments There has been some good news about the way maritime asbestos is treated, at least at the end of a ship’s working life. The Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships 2009 was adopted by representatives of 63 nations at a conference in May 200938. The purpose of the Convention is to: “effectively address, in a legally-binding instrument, the environmental, occupational health and safety risks related to ship recycling, taking into account the particular characteristics of maritime transport and the need to secure the smooth withdrawal of ships that have reached the end of their operating lives.”39 The Convention provides that when each ship is recycled an individual inventory of its hazardous materials is to be prepared including where relevant materials including asbestos, IJ Selikoff, Ruth Lilis and Gayle Levin, ‘Asbestotic Radiological Abnormalities Among United States Merchant Marine Seamen’ (1990) 47 British Journal of Industrial Medicine 292-297 [Selikoff] 34 Selikoff, ibid at 292. 35 Selikoff, ibid. 36 Selikoff , ibid, 294. 37 Gunnar Hillerdal, ‘Pleural Plaques and Risk for Bronchial Carcinoma and Mesothelioma’ (1994) 105 Chest 144-150. 38 International Maritime Organisation (IMO) website. Avail at: http://www.imo.org/environment/mainframe.asp?topic_id=818 (on 2 September 2010). [IMO] 33

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heavy metals, hydrocarbons and ozone-depleting substances. 40 It further provides for a range of protocols for the handling and disposal of these materials. Crucially, the Convention places responsibility on both flag states (e.g. Hong Kong or Singapore) and recycling states (e.g. Bangladesh or India) to take necessary action to comply with the environmental and safety measures in Convention; it applies to ships as well as recycling facilities. 41 The Convention requires pre-cleaning of ships before their recycling elsewhere and in one high profile case France had to reimport an asbestos laden aircraft carrier it has sent under tow to India so that it could be pre-cleaned. 42 If a ship possesses no valid certificate or its condition does not match the details of the certificate, the port state can elect to carry out a close inspection.43 Furthermore, the port state has authority to “warn, detain, dismiss or exclude the ship from its ports” should the ship operate while in breach of the Convention. 44 These provisions when enforced by a port state will mean that shipowners in Hong Kong and Singapore, as elsewhere in the world, will suffer the financial burden of delay if caught with unaccounted for asbestos on-board a ship which is in transit to recycling.

II

RECURRING LEGAL ISSUES

Litigation in the shipping context in the US has revealed that key issues in many asbestos cases are the topics of product or employer identification i.e. defendants argue that their particular asbestos-containing product was not to blame or that their ship was not the site where the lung disease was contracted.45 In Australia and the UK there has been substantial litigation relating to mesothelioma. The three key issues arising in those jurisdictions have been: (a) whether a particular manufacturer of an asbestos product can be shown to have had a duty of care to a particular end user; Hong Kong International Convention for the Safe and Environmentally Sound Recycling of Ships Text Adopted by the Conference Annex p 1 Avail at: http://ec.europa.eu/environment/waste/ships/pdf/Convention.pdf (Accessed 3 September 2010). 39

IMO, supra; also note also note Saiful Karim, ‘Environmental Pollution from the Shipbreaking Industry: International Law and National Legal Response’ (2010) 22 Geo. Int'l Envtl. L. Rev. 185, 188. 41 Karim, supra, 209. 42 Ibid., 214. 43 Art 8(2) 44 Art 9(3) 45 Block, supra. 40

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(b) If, for the purposes of compensation, the law should concentrate on exposure to asbestos or actual bodily manifestation of mesothelioma (c) the related question of whether pleural plaques (a precursor condition to mesothelioma) should be regarded as a compensable disease given the lengthy latency of mesothelioma. A. Actual Causation: Amaca Litigation (WA) The problems associated with legally proviing causation of mesothelioma are well illustrated by recent Western Australian cases of Amaca Pty Limited (under NSW administered winding up) v Moss 46 and Amaca Pty Limited (under NSW administered winding up) v Hannell .47 Both cases concerned a home handyman who alleged exposure to asbestos cement (AC) products. Their claims failed on appeal to the Full Court of the Supreme Court of Western Australia. Martin CJ found that the extent of the increase in risk occasioned by the specific exposures needed to be established before a finding of causation could be made and his Honour relied on the precedent of Seltsam Pty Limited v McGuiness.48 He found that the evidence relied on by the handymen, Mr Hannell and Mr Moss, only demonstrated an increased risk of contracting mesothelioma. The evidence did not prove on the balance of probabilities that the exposure had materially contributed to the mesothelioma. The Court of Appeal was unanimous in finding that Mr Moss could not prove that his handyman exposure was causative of his mesothelioma. Just as for handyman exposure, occupational exposure carries with it real evidentiary difficulties.

B. Exposure Versus Manifestation The case of Society of Lloyds v Sir William Ortho Jaffray 49 (‘Society of Lloyds’) concerned an allegation by a group of over 200 Names against the Society claiming, among other things, that they had been misled by the Society’s misrepresentations over the number of and risk posed by asbestos claims. In the course of deciding that it was strongly arguable that there had been gross negligence by Lloyds in the giving of advice to the Names about portfolio selection, in the context of claims against an insurer, Creswell J neatly summarized one of the key issues of asbestos related litigation, namely the “manifestation versus exposure debate”: 50 Proponents of the exposure theory, which in 1979 included most policyholders and some members of the insurance industry, argued that each injurious inhalation of asbestos fibre causes

[2007] WASCA 162 [2007] WASCA 158 48 (2000) 49 N.S.W.L.R. 264. 49 [2000] EWHC 51 50 Ibid. 46 47

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injury. Accordingly, it was argued, each insurer who provided coverage during the period of time that the claimant was exposed to asbestos fibres should pay a proportion of the damages. Supporters of this theory were able to point to the Borel case, as well as to expert medical testimony that confirmed the progressive nature of asbestos-related diseases. Those who, on the other hand, supported the manifestation theory, argued that bodily injury did not occur until the continuous and progressive injury process had overcome the body's natural defences and the individual evidenced some symptoms of an asbestos-related disease or some form of dysfunction. Therefore, the date when the claimant became aware of an asbestosrelated disease, or the date when the disease was diagnosed (whichever occurred first), was the controlling date for determining which insurance policy should respond. 51

The exposure theory was further refined in the English common law by the House of Lords in Barker v Corus52 when they answered ‘No’ to the question of whether, when some of the employers had become insolvent, the solvent employers should shoulder the proportion of the damage for which the insolvent employers were responsible? Therefore, a solvent employer’s responsibility for damages was pro-rated on the basis of the period which they exposed any claimant to asbestos. The case called on the House of Lords to rule on whether liability under the Fairchild principle for malignant mesothelioma ought be regarded as joint and several for the entire loss (the legal fraternity had until Barker assumed that this was the position), or whether liability was only proportionate (i.e. calculated according to the extent to a particular defendant employer contributed to the risk). It found that the claimant i.e. the mesothelioma victim should bear the risk of the tortfeasor becoming insolvent, rather than the remaining employers and so the employers were not jointly and severally liable. Several of the cases subject to litigation in the UK has concerned the liability of

employers for their employees’ asbestos exposure and the vagueries of responsibility of more than one employer for an employee’s illness in circumstances where an employee’s construction or seafaring career may have stretched over several decades. The apportionment of damages among multiple employers, the central topic in Barker v Corus53 which showed that the exposure theory had clear factual limitations when it came to the question of employer liability (even if

Note: Borel v Fiberboard Corporation 493 F. 2d 1076 (5th Cir. 1973) was a landmark US decision on asbestos in 1973. In it Mr Borel had an asbestos-related injury due to occupational use of asbestos products manufactured by Fiberboard and a District Court (East Texas) found liability on the part of the manufacturers on the basis of products liability for the products supplied to his employer. The case revealed a new pathway for employees in asbestos-related litigation: one can bring an action against a product manufacturer as well as an employer. 52 [2006] UKHL 20. 53 [2006] UKHL 20. 51

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we factor in the public outrage at the decision and it being corrected by s 3 of the Compensation Act).

C. Pleural Plaques In Hong Kong from 2010 onwards, there will be those who present with malignant mesothelioma, but doubtless also those who 'merely' have pleural plaques. In the medical literature, there is an association between asbestos exposure and pleural plaques – a localized fibrosis on the diaphragm and inner rib cage. 54 About a third to one half of those occupationally exposed to asbestos will have calcified pleural plaques thirty years after first exposure; after twenty years, 5 to 15 % will have uncalcified pleural plaques. 55 Thus, a key legal issue to be discussed later in this article is whether or not pleural plaques constitute a compensable disease and whether their presence should be regarded as a reliable indicator of the likelihood of the development of mesothelioma. In a 2005 case, Grieves v FT Everard & Sons Ltd, the plaintiff argued that as a result of him discovering pleural plaques he had suffered and continued to suffer from a

depressive illness and Irritable Bowel Syndrome and had, in consequence, sustained loss of earnings and would sustain future loss of earnings. It was ruled at first instance by Holland J that by themselves pleural plaques were not a disease and therefore could not found a cause of action.56 Mr Grieves’s appeal from this decision was heard by the Court of Appeal in Rothwell v Chemical & Insulating Co. Ltd who also dismissed the appeal on grounds that a defendant who negligently exposes a claimant to the risk of contracting a disease should not be held liable for free-standing psychiatric injury caused itself by the fear of contacting the disease, as this would be a radical extension of the compensation principle in Page v Smith57 which only parliament could make.58 This decision was upheld by the House of Lords. 59 For instance, C Bianchi et al, "Latency periods in Asbestos-Related Mesothelioma of the Pleura" (1997) 6 European Journal of Cancer Prevention 162 and R-T Lin et al, "Ecological Association between Asbestos-Related Diseases and Historical Asbestos Consumption: An International Analysis" (2007) 369 Lancet 844. 55 RW Parkes, Occupational Lung Disorders (Butterworths: London, 1982) at 121 (2 nd ed). 56 Grieves v FT Everard & Sons Ltd [2005] P.I.Q.R. P25; 57 [1996] 1 A.C. 155. 58 Rothwell v Chemical & Insulating Co. Ltd. [2006] EWCA Civ 27 at [90-91]. 59 Rothwell v Chemical and Insulating Co Ltd [2008] 1 AC 281. 54

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III CURRENT LEGAL SETTINGS IN HONG KONG & SINGAPORE In Hong Kong statutory compensation is payable by the state under the Pneumoconiosis and Mesothelioma (Compensation) Ordinance (PMCO) to a claimant who is actually suffering from either disease and is diagnosed, or to a family member of a sufferer who has died from the disease.60 The PMCO has effect if the diagnosis or death occurred on or after 18 April 2008. 61 The PMCO places no limit on common law damages. 62 Moreover, the PMCO provides a large measure of employer indemnity by providing that “where any person has paid damages for death or disability resulting from pneumoconiosis or mesothelioma (or both) pursuant to a judgment of any court in Hong Kong, he shall be entitled to recover from the Fund the amount of such damages and interest thereon together with the amount of any costs ordered by the court to be paid by that person.”63 As with most health-related occupation claims in Hong Kong, this is a manifestly generous position. However, notwithstanding the indemnity in determining local asbestos claims, Hong Kong courts will likely consider the common law of England which, it is clear, is not well disposed to applicants with latent disease claims associated with mesothelioma.64

To date, there is no documented Hong Kong law case which deals either explicitly or incidentally with causation issues arising out mesothelioma. The UK Court Service updated the forty-two Civil Procedure Rules (CPR) in 2008 and one of them concerned management of mesothelioma 65. As Hong Kong grapples with Civil Justice Reform (CJR) the UK’s procedural approach will be closely watched in Hong Kong. In the UK, ‘Practice Direction 3D - Meothelioma Claims’ uses a show cause case management procedure against defendants 66 and allows plaintiffs to expedite PMCO, ss 4 and 5. PMCO, s 4(2A). 62 PMCO, s 13(1). 63 PMCO, s 13(2). 64 See Rohan Price, “Judicial Review of the Damages (Asbestos-related Conditions) (Scotland)” (2010) 14 Edinburgh Law Review 146. [Price] 65 Gary Meggit, ‘Civil Justice Reform in Hong Kong – Its Progress and Its Future’ (2008) Hong Kong Law Journal 89 at 95. 66 Ministry of Justice, ‘Practice Direction 3D - Meothelioma Claims’. Avail at: http://www.justice.gov.uk/civil/procrules_fin/contents/practice_directions/pd_part03d.htm 60 61

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proceedings and this is particularly important in mesothelioma claims because the sufferer has on average only 14 months to live after diagnosis. The show cause procedure requires the defendant to demonstrate what if any aspect of the claim can be realistically defended and (as we shall see) the common law of England gives employer defendants ample opportunity to show cause i.e. raise defences to liability for mesothelioma exposure.

Singapore does not have a statute-based compensation system, but for the purposes of workers’ compensation, does recognize the disease as an occupational disease. 67 The disease is a notifiable industrial disease under the Factories Act 1973. 68 Although there has been some obiter dictum in Ngiam Kong Seng and Another v Lim Chiew Hock69 on the leading UK decision of Rothwell v Chemical and Insulating Co Ltd 70 this was in the context of a nervous shock/foreseeability claim. It remains to be seen how far the English and Scottish common law positions in relation to mesothelioma claims will prevail in Singapore, but an indication is given by the Court of Appeal in Ngiam Kong Seng: “[a]lthough English decisions on the common law (in particular, those emanating from the House of the Lords) are accorded great respect by our courts, they ought not to be followed blindly.” 71

IV.

MESOTHELIOMA CLAIMS UNDER THE COMMON LAW

It is fair to say that the common law of England has not been a source of comfort for mesothelioma sufferers. The cases fall into three common categories: (i) the question of quantifying loss of earnings, (ii) joint and several liability among multiple employers and (iii) propensity, pleural plaques and latency (as we noted earlier). In the first category, a mesothelioma claims occasion rulings on general principles but in the second two categories, rulings quite specific to the disease, its causes and liability for it, will be discussed below.

(see in particular PD 6.1 & 6.2). 67 Workplace Safety and Health Act 2006, Sch. 3. 68 Factories Act 1973, Sch. 6. 69 [2008] 3 SLR 674 at [94]. 70 [2008] 1 A.C. 281. 71 [2008] 3 SLR 674 at [95].

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A. Mesothelioma, Lost Earnings and Other Heads of Loss In Hong Kong the Pneumoconiosis and Mesothelioma (Compensation) Ordinance provides that any member of the deceased’s family may be paid compensation in a lump sum. 72 This award is comprised of lost earnings73, compensation for the period prior to the date of diagnosis, compensation for pain, suffering and loss of amenities, total incapacity, care and attention, funeral expenses and bereavement.74 In Scotland, where asbestos-related legal claims have been very prominent due in part to its shipbuilding industry, a relative of a deceased person can bring a claim for loss of financial support suffered or likely to be suffered since the date of the deceased’s death, funeral expenses, distress and anxiety before the deceased’s death, grief and sorrow after it and lost benefit from society and guidance. 75 The lost earnings damages are a vital issue in a mesothelioma claim because, the late presentation of the disease and the short average period between diagnosis and death arguably make lost wages, as a component of the total damages payment, an unfairly paltry amount. If, for instance, a court asks but for a claimant’s contraction of mesothelioma what would he or she have earned in the future, the fact that many claimants are advanced in age means that in all likelihood they are approaching or past retirement age. In particular, to see some measure of justice to dependents of mesothelioma suffers, the courts need to consider whether hedonic damages for the loss of enjoyment of life have a special significance in mesothelioma claims or whether a generous approach to lost earnings is to apply. On the issue of quantification of lost earnings in a case of a working life cut short by mesothelioma, there is some supportive authority for sufferers to rely on. In Pickett v British Rail Engineering Ltd76 the appellant had a wife and two children. Up to the age of 51, he was healthy and was working for the railway. In building railway coaches, he came into contact with asbestos dust which was injurious to his health. He contacted mesothelioma which eventually PMCO, s 5. This is calculated using a formula based on average yearly earnings and an age factor , with the age factor multiplier decreasing the older the deceased was at death. 74 Ibid, Sch 1. 75 Damages (Scotland) Act 1976, ss 1(3) & (4). 76 [1980] A.C. 136. 72 73

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caused in death. At 51 he became ill and died five years later. He could have and would have worked until 65 but for his ill-health and premature death. Pickett sued his employer for negligence and/or breach of statutory duty. He was awarded £14,947.64 damages of which £1,508.88 was the net sum in respect of loss of earnings. The sum was based on a finding that Pickett's expectation of life had been reduced to one year from the date of trial, and the loss of earnings related to the period of likely survival. Pickett appealed to the Court of Appeal but he died before the appeal was heard. The Court of Appeal did not award any sum beyond the survival period. On appeal by the administratrix, who had obtained an order to carry on the proceedings, the House of Lords awarded damages for the ten lost years. The majority of the Law Lords held that a person is entitled to be compensated not only for the immediate reduction in their earnings but also for the loss of the whole period for which he or she has been deprived of his or her ability to earn them, but that the damages should be computed after deduction of his probable living expenses during that period. This approach was applied in Singapore (albeit in a non-mesothelioma case) in Low Kok Tong v Teo Chan Pan77 and is likely to prevail in Hong Kong if a similar issue is raised. Actuarial science forms a foundation for calculations made the Ogden Tables to determine life expectancy and future earnings. They comprise of twenty-eight tables and twelve of them are devoted to providing multipliers for loss of earnings up to various retirement ages. As Chan and Chan pointed out, in theory “the actuarial multiplier derived from the Ogden Tables is only a starting point. The court is entitled to make adjustment for contingencies resulting in a temporary loss of earnings. Such an adjustment will chiefly depend on the evidence and facts of the individual case…”78 This approach has applied in England in Wells v Wells79 and followed in Scotland where in Logan v Strathclyde Fire Board the Ogden Table multiplier was reduced to account for the possibility of post-retirement earnings of a fireman who sustained an ankle injury when attending a car accident 80 and, most relevantly to our discussion, in McManus' Executrix v Babcock Energy Ltd81 where a pipe fitter who died of mesothelioma, as a result of occupational asbestos exposure, had a reduction to his lost future earnings multiplier on the [1982] 2 Medical Law Journal 299. Felix Chan and Wai-sun Chan, “Actuarial Assessment of Damages in Personal Injury Litigation: The Hong Kong Position” (2000) 30 Hong Kong Law Journal 272, 284. 79 [1999] A.C. 345. 80 [1999] Rep. L.R. 97. 81 [1999] Rep. L.R. 127. 77 78

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basis of and his residence in Scotland, the “apparently” risky nature of his job and the fact no evidence was led on his dependent wife’s health. 82 In some respects the McManus case contains all the typical issues in a mesothelioma action for lost earnings. Mr McManus died just before the age of 56 and until his symptoms became apparent, he had been “fit, active and in full time employment”83 and had a life expectancy of 80 years. From Easter 1995 he began to feel tired and a year later he experienced a shortness of breath and he went to his doctor. He was diagnosed with malignant mesothelioma and told that he was likely to have only six to 18 months left to live. He underwent surgery and chemotherapy to try to reduce the size of the tumour was unsuccessful. His condition deteriorated rapidly he suffered strong pain, lost a lot of weight and had labored breathing. He was particularly unhappy that he would not live to see his grandchildren. But for his illness he would have worked until his retirement at age 65. His net annual earnings were £ 20,620. The Ogden’s Table multiplier after discounts was adjudged to be 6.5 and Mr McManus’s wife received an award for loss of support from his earnings of £72,280 as part of a total award of £ 133, 694. Mr McManus’s children received very modest awards for loss of society and in the case report84 Lord Kingarth recognized that the comments of the Scottish Law Commission that the levels of loss of society awards were restrictive 85. Damages awards in cases of bereavement have been on the low side and this was noted by the Lord President, delivering the opinion of the Court in McLean v William Denny & Bros and Ors.86 As law reformers and judges agree that damages for loss of society in cases including mesothelioma claims are too low, adoption by Hong Kong or Singapore of the Scottish approach, although arguably exemplary in other aspects of its legal recognitions of mesothelioma, would not result in substantive justice being done. Although loss of society and guidance of the deceased worker has been undervalued in the courts, the use of the Ogden Tables and the adjustment of their multipliers on a case-by-case basis, while at issue in a number of cases, has not been overly problematic. In McNulty v Marshalls Food Group Ltd Lord Macfadyen ruled that the multiplier for future earnings of a Ibid, 23-67. Ibid, 23-04. 84 1999 SC 569 at 583D. 85 Scottish Law Commission, Report on the Effect of Death on Damages, Report No 134, para 2.12 Avail at: www.scotlawcom.gov.uk/download_file/view/445/ (accessed 15 September 2010). 86 2004 SLT 1099 at 1103J. 82 83

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forklift operator with a lumbar disc prolapse need be adjusted downwards, having regard to risk of occupation, his initiative in seeking lighter duties or retraining and residence in Scotland. 87 Wells, Logan and McNulty now represent the modern approach and it would seem that Lord President Hope in O'Brien's Curator Bonis v British Steel plc has fallen from favour. In that case he said, ‘In cases where experience can be relied upon as a guide as to what is reasonable — and claims for future loss of earnings will usually fall into that category — it will be sufficient to rely on the figures used in comparable cases without resort to more sophisticated methods of calculation, even as a check.’88 A little later in his judgment he averred: ‘It is important that whenever possible the court should follow the traditional approach of basing its award on a conventional figure derived from experience and awards in comparable cases.’ 89 The Ogden Table multiplier is now clearly the starting point for future earnings claims in a mesothelioma case as any other and it will be discounted on a fact specific basis. B. The Problem of Multiple Employers: Fairchild and Barker v Corus In Fairchild v Glenhaven Funeral Services Ltd 90 the claimants were employees of contractors that had been exposed to asbestos dust while working for Leeds City Council and one other, Glenhaven. Under the ordinarily applied test of causation it need be shown that on the balance of probabilities A has caused B harm and that, applying this, it is very difficult to say that any one employer was the cause of the mesothelioma and so none would be found liable. Fairchild introduced a different test than would normally apply, namely, whether the defendant employer had materially increased the risk of harm to the claimants. In particular, each employer's conduct in allowing asbestos dust remain in the air increased the deceased’s risk of exposure and this was sufficient to attach liability. In the words of Lord Bingham, “it seems to me just and in

accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him.” 91

[1999] Rep. L.R. Q1-115 to Q1-117. 1991 SC 315, 323. 89 Ibid, 330. 90 [2002] UKHL 22 91 Ibid., at [34]. 87 88

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In Barker v Corus the claim at first instance was brought by the wife of the deceased who died from mesothelioma as a result of occupational exposure to asbestos. 92 The deceased was negligently exposed to asbestos during three periods. The exposure during the first two of these periods was from two employers (Employer 1) and (Employer 2). The exposure from Employer 1 and Employer 2 occurred in the late 1950s and throughout much of the 1960s respectively. In addition, the deceased was also exposed to asbestos while self-employed during a period encompassing the late 1960s to mid-1970s. He later contracted mesothelioma and died from that disease. Employer Number 1 was insolvent. The court held that Employer 2, from the standpoint of causation, was responsible for the disease on the Fairchild principle as it had materially contributed to the risk of injury. Although the deceased had negligently allowed himself to be exposed to asbestos during his period of self-employment, this did not in the view of Moses J take him outside the Fairchild principle. It was additionally held that Employer 2 was jointly and severally liable for all the damages because the claim concerned an indivisible injury where it was not possible to identify the extent to which the various tortfeasers had contributed to it, based on the authority of Rahman v Arearose Limited.93 The trial judge further stated that even if this were not the case, the defendant would have been liable as a matter of justice and fairness because the defendant had increased the risk of the claimant getting the disease. However, the damages awarded against Employer 2 should be reduced because of the deceased’s contributory negligence. The defendant appealed to the Court of Appeal. 94 Kay L.J., taking as his text the judgment of Lord Bingham in Fairchild, recognized at that in cases where a defendant had not actually caused an indivisible injury, then there would be an injustice if judgment was entered against the defendant purely because it had exposed the claimant to a material risk. 95 Conversely, if the defendant was in breach of their duty to the claimant who suffered an injury which could not be proved under the usual rules of causation, then this would also lead to injustice. Kay L.J. observed that if the deceased was only partially to blame this should not absolve the defendant of all liability.96 Any fault of the deceased in materially contributing to the risk of injury could be Decision of Moses J in the Manchester High Court 23 May 2003. The report is avail: at www.johnpickering.co.uk/news/barker.doc. 93 [2001] Q.B. 351. 94 Barker v Corus UK Ltd [2004] P.I.Q.R. P34 95 Ibid., at 590. 96 Ibid., at 591. 92

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cured by reducing the damages for contributory negligence. Moreover, on balance where an employer was in breach of the employer’s duty of care, by contributing to the risk, it was less of an injustice to find for the claimant. 97 Kay L.J. confirmed that the ruling of Moses J, that the usual principles of non- apportionment in the case of indivisible injuries applied to this situation, should not be upset irrespective of the fact that the claimant may be blamed for what occurred.98 While the outcome was not completely satisfactory from the defendant’s perspective, the fundamental goal to be achieved here was to protect the victim of the wrong. Keene L.J concurred with Kay L.J and in particular stressed that to absolve the defendant from liability, because it could not be proved that the claimant was not wholly responsible for the damage, was inconsistent with social policy considerations and analogous to the early law of contributory negligence which completely precluded a claimant from recovery. 99 All that was required under the reasoning in Fairchild was that a defendant exposed a claimant to risk. Keene L.J. was also of the view at that it would be unfair to deviate from the usual principles of apportionment where there had been an indivisible injury as this would lead to an injustice if one defendant had become insolvent.100 Accordingly, if there had been fault by the claimant, this could be addressed via the current law of contributory negligence. Wall L.J agreed with both the judgments of Kay L.J. and Keene L.J. The insurer appealed from the decision of the Court of Appeal to the House of Lords. 101 Lord Hoffmann considered that there were two main issues to be determined. Firstly, whether or not the exceptional category to the general tortuous requirement of causation should apply in circumstances outside the facts in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32? The second issue was whether all the defendants should be jointly and severally liable or responsible for their share of the creation of the risk in this case? In relation to the first issue, in Fairchild, the House of Lords delivered a quite ‘radical’ decision 102 on the law on causation, although it was at pains to stress that the ratio was limited to the special fact of the cases before the House. 103 Ibid., at 592. Ibid. 99 Ibid., 593. 100 Ibid., 594. 101 Barker v Corus [2006] UKHL 20; [2006] 2 A.C. 572. 102 As described by Lord Walker of Gestingthorpe at 113 in the House of Lords decision in Corus. 103 See especially Lord Bingham at [2] and [9]. 97 98

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In this case, the claimants, who subsequently developed mesothelioma, had been exposed to asbestos while working for a variety of different employers. It was held that it was not possible to identify at which place of employment the claimants ingested the asbestos fibres which caused their illnesses. Therefore, the claimants were not in a position, according to the traditional principles of tort law, to satisfy a court on the balance of probabilities that a particular employer had through its negligence, caused or otherwise, the claimants’ condition. In order to ensure that the claimants were not left without a remedy in respect of the defendants’ wrongful actions, the House of Lords calibrated the law of causation in these circumstances to substitute the evidence which existed here that the defendants had increased the claimants’ risk of contracting the disease as sufficient for this aspect of liability, in place of the usual need for proof that a defendant had caused the relevant damage. In Corus, although the exposure by the claimant to asbestos occurred during a period of selfemployment Lord Hoffmann was of the view that it would not be fair to leave the claimant without any remedy.104 However, it would be rough justice if a defendant, who is liable because of the mere possibility of causing harm, was required to contribute on a joint and several bases.105 Therefore, the damages should be apportioned between the defendants based on the degree to which they contributed to the risk. 106 This decision seemed to be at odds with the decision of the House in Fairchild per Lord Hutton107 and Lord Rodger of Earlsferry.108

Barker, ibid, at [40]. Ibid., 43. 106 Ibid, 48. 107 Ibid., at 117: “I observe no argument was addressed to the House that in the event of the claimants succeeding there should be an apportionment of damages because the breaches of duty of a number of employers had contributed to cause the disease and therefore the damages awarded against the defendant should be a proportion of the full sum of damages which the claimant would have recovered if he (or the claimant’s husband) had been employed by only one employer for the whole of his working life. Therefore, each claimant is liable in full for a claimant’s damages, although a defendant can seek contribution against another employer liable for causing the disease.” 108 “No argument was advanced to the effect that, if they were held liable, the defendant’s liability should be reduced or apportioned in some way to reflect an assessment of the chances that the particular defendants, rather than other employers, were actually responsible for the exposure that lead to the claimants’ mesothelioma. Indeed it was said that no such assessment, even on a rough basis, was possible. Counsel accepted accordingly that, if liable at all, the defendants would be jointly and severally liable for the whole of the damages done to the claimants.” 104 105

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Lord Scott of Foscote agreed with the reasoning and decision of Lord Hoffmann. However, his Lordship provided additional noteworthy commentary that a deviation from the usual principles of joint and several liability in a case involving indivisible damage was appropriate in a case where specific causation had not been proved, as such a case is more appropriately compared to that of independent tortfeasors. 109 Lord Walker of Gestingthorpe, in a rather novel approach, dealt with the question of apportionment before that of liability, arguing that it was vital in determining how far the doctrine in Fairchild should be developed. In this respect, His Lordship stated at that the House had not provided any guidance on this issue, 110 although this does not appear to accord with a literal reading of that part of Lord Hutton’s ruling. Lord Walker stressed that heavy burden would fall on remaining defendants in these kinds of cases where other culpable defendants are no longer solvent or cannot be found 111. His Lordship further averred that continued exposure to asbestos only increases the risk statistically rather than cumulatively112. Lord Walker also noted that the injustice of not providing a remedy for this type of indivisible injury was lessened where the claimant might have been responsible for it, although on balance maintenance of the principle laid down in Fairchild was the fairest result here.113 In a dissenting judgment on the issue of apportionment, Lord Rodger of Earlsferry, averred that the defendants were liable for causing mesothelioma, not for contributing to the risk of acquiring it.114 His Lordship further asserts that the majority of the court’s opinion was not Ibid., 61. Ibid., 106:“In Fairchild it was not argued by any of the respondents that the liability of a defendant employer should be limited to part only of the claimant’s damage, in proportion to the duration and intensity of the claimant’s exposure to asbestos during successive periods of employment. The House noted this and deliberately abstained from expressing any view on the point which could have been argued: see Lord Bingham, at p 68, para 34, Lord Hoffmann, at p 78, para 74, Lord Hutton, at p 95, para 117, and Lord Rodger, at p 97, para 125.” 111 Ibid., 108. 112 Ibid., 112. 113 Ibid., 117. 114 In Fairchild the majority of the House employed the test of risk per Lord Bingham at [34], Lord Nicholls of Birkenhead at [42], Lord Hoffmann at [47], [61], [67], [73]. On the other hand, Lord Hutton appeared to employ a test operating on the principle that the added risk of getting the disease caused by exposure to asbestos amounted to an “inference of causation” at [111] or “a substantial contribution to the disease” at [116] and Lord Rodger of Earlsferry at [168] wrote “… by proving that the defendants individually materially increased the risk that the men would develop mesothelioma due to inhaling asbestos fibres, the claimants are taken in law to have proved that the defendants materially contributed to their illness.” Lord Hoffmann included a 109 110

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purely attributable to one based on the creation of risk 115 although this is apparently at odds with the unambiguous rulings of Lord Bingham, Lord Nicholls of Birkenhead and Lord Hoffmann.116 Lord Rodger relies on his interpretation of Lord Bingham’s judgment in Fairchild for this conclusion.117 Quoting His Lordship, And Lord Bingham is indeed saying that in these circumstances someone who exposes the victim to a risk to which he should not have been exposed is to be treated as making a material contribution to the victim’s contraction of the condition against which it was his duty to protect him. It was on this basis that Lord Bingham concluded that the appeals should be allowed because the claimants had proved that the defendants had caused the men’s death or injury. This is scarcely surprising since the claimant’s appeals were argued on exactly that basis.118 Lord Rodger’s view illustrates aptly what means to be jointly and severally liable; an employer can be liable for a proportional share in causing tortious exposure to asbestos fibres, but is subject to a caveat concerning evidence of having employed a particular employee and exposing him or her to asbestos. In the context of manufacturers’ liability we discussed above the case of Amaca Pty Limited (under NSW administered winding up) v Moss and that this very issue has been

resolved in at least one Australian court by taking a very factual and case-by-case approach to whether or not a given defendant manufacturer has been proven to be the only possible source of an asbestos exposure.119 Lord Rodger’s judgment on the apportionment issue is worth considering in full: Of course, it may seem hard if a defendant is held liable in solidum even though all that can be shown is that he made a material contribution to the risk that the victim would develop mesothelioma. But it is also hard and settled law that a defendant is held liable reminder in his judgment in Corus at [33] that he had described that line of reasoning in McGhee v National Coal Board 1973 SC (HL) 37, at [65] of his decision in Fairchild as resorting to “legal fictions”. 115 Ibid., 83. 116 In Fairchild the majority of the House employed the test of risk per Lord Bingham at [34], Lord Nicholls of Birkenhead at [42], Lord Hoffmann at [47], [61], [67], [73]. On the other hand, Lord Hutton appeared to employ a test operating on the principle that the added risk of getting the disease caused by exposure to asbestos amounted to an “inference of causation” at [111] or “a substantial contribution to the disease” at [116]. 117 Ibid., 80. 118 Ibid. 119 [2007] WASCA 162; supra n43.

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in solidum even though all that can be shown is that he made a material, say 5%, contribution to the claimant’s indivisible injury. That is a form of rough justice which the law has not hitherto sought to smooth, preferring instead, as a matter of policy, to place the risk of insolvency of a wrongdoer or his insurer on the other wrongdoers and their insurers. Now the House is deciding that, in this particular enclave of the law, the risk of insolvency of a wrongdoer or his insurer is to bypass the other wrongdoers and their insurers and to be shouldered entirely by the innocent claimant. As a result, claimants will often end up with only a small proportion of their damages which would normally be payable for their loss. The desirability of the courts, rather than Parliament, throwing this lifeline to wrongdoers at the expense of claimants is not obvious to me. 120 The difficulty raised in Lord Rodger’s analysis is that it is conceivable that one employer’s small part in exposure of an employee (5%), once considered joint and several, can result in potentially a liability for damages of 25% (where there are three other employers) or 33% (or two other employers). His Lordship’s analysis of the consequences issue is also compelling. He asserts that an ‘enclave’ will be formed as a result of the (new?) rules concerning causation in Corus for those suffering from mesothelioma from which other litigants will be excluded. 121 An added inconsistency identified by Lord Rodger is that while those inside the enclave may receive favouritism in relation to liability on the basis of Corus, their situation in relation to apportionment is worse than claimants outside the enclave who can recover fully against any tortfeasor found liable for an indivisible injury. 122 The decision of the House was to allow the appeals and to remit the cases back (presumably to the trial judge) for redetermination of damages. It is hard to regard any judgment in the entire litigation as entirely satisfactory as many are delivered with an admission, express or implied, that rough justice is being done. The final judgment, that of Baroness Hale of Richmond, tries to ascertain a more acceptable solution which yields justice for litigants in a way that does not bend the law of causation completely out of shape: “For as long as we have rules of causation, some negligent (or otherwise duty-breaking) defendants will escape liability. The law of tort is not (generally) there to punish people for their behavior. It is there to make them pay them pay Ibid., 90. Ibid., at 85. 122 Ibid. 120 121

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for the damage they have done.” 123 While Her Ladyship decided that a ruling that the defendants would pay only according to their share would cure much of any resulting unfairness, such a decision is inconsistent with the (general) principle which she has described.124 The position in Barker v Corus has now been reversed by the passage of the Compensation Act 2006, s 3(2) of which makes it clear that an employer (‘the responsible person’) is to be liable in respect of the whole of the damage caused to the victim by the disease (irrespective of whether the victim was also exposed to asbestos – other than by the responsible person, whether or not in circumstances in which another person has liability in tort, or by the responsible person in circumstances in which he has no liability in tort), and jointly and severally with any other responsible person. In Singaporean legal commentary, it has been recognized that although Fairchild held that that several defendants who consecutively exposed claimants to the same risk of mesothelioma, involving the same damage-causing agent, could all be treated as having materially contributed to the disease, and could thus be held jointly liable. 125 It has also been noted that Barker favoured an apportionment approach, there had been a statutory reversal in favour of joint liability.126 Moreover, the principle in Fairchild has been applied in Singapore albeit in the context of negligence in hospital rather than in respect of a mesothelioma claim. 127 C. Propensity: Rothwell

The issue of propensity to development of mesothelioma and pleural plaques has been covered in depth by one of the authors elsewhere. 128 Needless to say it is the subject of a major legal controversy in England and Scotland129 and it is likely to fall for decision in Hong Kong before very long. In particular, the House of Lords decision in Rothwell v Chemical and Insulating Co Ltd130 ruled that pleural plaques did not affect life expectancy or lung function and so could not Ibid., 127. Ibid. 125 Singapore Academy of Law Website. ‘Chapter 20 Law of Negligence’ 20.5.7 to 20.5.8 Avail at: http://www.singaporelaw.sg/content/Negligence.html (accessed on 14 September 2010) 123 124

126

Ibid.

Ibid; citing Surender Singh s/o Jagdish Singh and another v Li Man Kay [2009] SGHC 168. Price, supra. 129 Ibid. 130 [2008] 1 AC 281. 127 128

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be properly regarded as a compensable disease at common law. Thus, negligent exposure to asbestos was not actionable on the basis of pleural plaques. This effectively means that a mesothelioma patient needs to wait through their period of latency until malignant mesothelioma presents itself, and this often means that their last 9.5 months of life (on average)131 after diagnosis is spent fighting in court for damages for their surviving family. In Scotland, the Rothwell ruling was met with disbelief in the mesothelioma community 132 and has been reversed by legislation in the Scottish parliament to make, in effect, pleural plaques compensable regardless of mesothelioma and has established latency, as indicated by the existence of pleural plaques, as sufficient for the purposes of common law claims against former employers, and others too.133 As it stands, Hong Kong has an advanced approach to damages for future illness which can be invoked in cases of mesothelioma. The District Court Ordinance (Cap 336) provides that in an action for a claim for personal injuries in circumstances where it is admitted that there is a chance in the future that the claimant will develop a serious disease or deterioration in physical or mental condition as a result of the act or omission which gave rise to the cause of action, rules can be made by the Rules Committee to enable an award of further damages at a future date if the disease does develop134. Although this is not as adventurous as the Scottish position (which effectively allows pleural plaques to be considered a disease for compensation purposes) the Hong Kong position, that a future damages award will be triggered by subsequent diagnosis of mesothelioma, is clearly a step in the right direction. Provisional damages are also available in England and Scotland. There is a great similarity between the course of the disease in Hong Kong mesothelioma patients and the epidemiology described in the international medical literature: mean age of 63 years upon diagnosis, mean latency of 46 years, median survival of 9.5 months, patients are predominantly male and there is a high prevalence among workers in ships and dockyards. 135 Thus, the legal questions raised in Hong Kong’s shipping industry by mesothelioma about causation, latency and measure of damages will be very similar to those in the United Kingdom. 131

Chang, ibid n 1, 76.

132

Bob Dickie, ‘Press Release from Clyde Bank Asbestos Group’ 18 October 2007 Avail at: http://www.clydebankasbestos.org/discus/messages/4/18.html?1193049051 (Accessed 15 September 2010)

Price, supra, 148-149. s 72E. 135 Chang, ibid n1, 77. 133 134

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V

THE USE AND POTENTIAL OF OTHER LEGAL CLAIMS

A. Employer, Manufacturer and Duty of Care We have noted the problems associated with common law asbestos exposure claims brought against employers in the UK, and to a lesser extent, Australia. This calls for an assessment of an alternative causes of action and two in particular show good prospects: (i) manufacturer liability to an employee on the ground of misleading conduct actionable under statute and (ii) manufacturer liability under a common law duty of care to a reasonably forseeable end user of an asbestos product. The first cause of action holds out the best prospects for sufferers of mesothelioma because claims based on the manufacturer’s duty of care have recently run into problems, most particularly the difficulty of establishing reasonable foreseeability on the part of the manufacturer. For instance, it was argued before the New South Wales Court of Appeal in CSR Ltd v Amaca Pty Ltd the possibility that

136

by the respondent that because CSR Pty Ltd had medical knowledge of

crocidolite asbestos from its Wittenoom mine could cause pleural

mesothelioma in 1962, it owed a duty of care to children who played in asbestos fibres after home renovations in 1965 to close the mine before they were contaminated.

It was decided (Allsop P and Basten JA forming the majority) that

in the

circumstances, the uncertainty which existed concerning the toxic effects of asbestos dust and the level of exposure which could produce illness in susceptible persons were such that a duty of care did not arise.137 This can be compared with the outcome in CSR Ltd v Young138 which found that CSR owed a duty of care to the townspeople of Wittenoom. The duty of care arose because of the risk of contracting asbestosis or bronchogenic carcinoma flowed from asbestos being a dangerous substance. Mesothelioma was a sufficiently similar injury to the other ones for it to be reasonably foreseeable that inhalation of fibres would cause a similar injury. In recent times in the UK foreseeability has arisen as an issue in a mesothelioma claim brought by a shipyard employees’ family in relation to liability for secondary exposure: Maguire v Harland & Wolff Plc. In this case, Mrs Maguire washed her husband’s work clothes and died of 136

[2009] NSWCA 338.

137

See esp. Basten JA at 131. (1998) 16 NSWCCR 56.

138

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mesothelioma (her husband’s health was not affected by his occupational exposure). In Maguire a similar outcome to that in CSR v Young prevailed and Lord Justice Judge averred that by not later than 1960 “and ahead of contemporary understanding” the shipbuilder should have appreciated that Mrs Maguire was at risk of pulmonary or other asbestos-related injury and by not so doing their failure to take appropriate precautions for her safety was negligent. 139 This was the finding although a relevant UK government report in 1960, Toxic Substances in Factory Atmospheres, implied that the risk posed by asbestos was dose related.140 This seems to be a claimant-friendly standard applied to questions of foreseeability. In a case of primary occupational exposure, Jeromson v Shell Tankers Pty Ltd, an employee argued successfully that in relation to his exposures to asbestos during his employment as a fabricator of dry-cleaning presses and subsequently as a marine engineer, a reasonable and prudent

employer, having positive thought for the safety of their workers, would be concerned by the risks involved in the potential maximum exposure. 141 This was decided in a case where the exposures occurred in 1946-1949 and 1951 to 1957, rather prompting the question: is there no exposure time early enough for an employer to plead ignorance and to avoid a finding that he or she should have foreseen an injury? Expansion of product liability law is feasible in Hong Kong and readily applicable to asbestos claims. Under the Sale of Goods Ordinance (Cap 26), for persons dealing as consumers, there is an implied condition that the goods are of merchantable quality, meaning that the goods should be as free from defects and as safe as it is reasonable to expect. 142 Product liability encompasses defective design and manufacturing and a failure to adequately warn the consumer. It is based on either negligence (liability in tort) or breach of warranty (liability under a contract). Hong Kong courts have upheld plaintiffs’ claims in a range of claims on the inadequacy of warning labels on manufacturers’ products including one of an exploding aerosol insecticide can. 143 Hong Kong is entertaining a stricter approach to product liability on the basis that tort and contract actions have the problems, respectively, of denial of liability through supply chain/indemnity arguments and a “lack of user friendliness”. 144 [2005] EWHC Civ 1, [58]. Ibid., [32]. 141 [2001] I.C.R. 1223. 139 140

s 16(2). Lam Mo Bun v Hong Kong Aerosol Co Ltd & Ors [2001] 1 HKLRD 540. 144 Hong Kong Law Reform Commission, ‘LRC Proposes Stricter Liability for Product Defects’ Avail at: http://www.hkreform.gov.hk/en/docs/rproductp-e.pdf (accessed 15 September 2010). 142 143

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B. Liability for mislabeling products in Australia Australia is following a novel path in relation to mesothelioma claims and one from which other jurisdictions may learn.

Statutory provisions protecting consumers from misrepresentations or

misleading or deceptive conduct are used in asbestos cases as an alternative to duty of care/manufacturer’s liability.

In most cases an employee will not be liable to a co-employee

under s 52 Australian Trade Practices Act 1974 (Cth) (TPA) for injuries caused by a misrepresentation because such a misrepresentation is not ‘in trade or commerce’: Concrete Constuctions NSW Pty Ltd v Nelson.145 However, such claims are not completely unarguable in circumstances where an employee is harmed by an misleadingly labelled product used in an occupational setting. In Hampic Ltd v Adams,146 the NSW Court of Appeal found that Mrs Adams, a cleaner with the Newcastle City Council, was entitled to recover from a third party chemical manufacturer under s 52 of the Act in respect of injuries she sustained to her hands because of a misleading and deceptive label on cleaning fluid (“Power Kleen”) which she was directed by her employer to use. It was found that the failure to label the substance contributed to the plaintiff’s injury, a debilitating dermatitis on her hands that she developed from contact with the fluid and which eventually prevented her from working. She had only worn vinyl and cotton gloves when she used the fluid. Hampic distributed the fluid in 25 litre drums and such drums did have a notice advising in part “WARNING: RUBBER GLOVES SHOULD BE WORN WITH PROLONGED USE”

Adams’s supervisor, Ling, decanted the fluid into smaller containers for use and this tin did not have a warning label on it. Ling did not dilute the fluid as required by the manufacturer. The majority of the Court, consisting of Mason P and Davies AJA, apportioned liability on the grounds that the chemical manufacturer and the employer were joint tortfeasors. The damages were assessed at $250, 520. The employer was 40% responsible and the manufacturer 60% responsible. The Court held that: In our view, the trial judge was correct to conclude that the label was misleading or deceptive or was likely to mislead or deceive. To anyone who read it, it had the capacity to lull into a false sense of assurance. True, it warned that rubber gloves should be worn; but the warning was 145 146

(1990) 169 CLR 594.

[1999] NSWCA 455.

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qualified by the words ‘with prolonged use’. And true the recommended average strength was one part Power Kleen with fifteen parts water; but the label added that the product may be used ‘stronger or weaker as required’. The absence of first aid directions would further contributed to a representation that the product was not potentially harmful as it turned out to be. 147

In the course of its judgment, the court in Hampic considered Anderson v City of Enfield 148 where there was a similar set of facts and a holding that the failure to label a drum of cleaning fluid adequately contributed to the employee’s failure to realise the danger and resulted in a successful third party claim by the employee against the chemical manufacturer under s 52. The Court in Hampic did, however, gain guidance from the decision on a s 52 action in similar circumstances in ACCC v Glendale Chemical Products.149 This case concerned the use by a consumer, Barnes, of caustic soda and hot water on a blockage in his shower recess. The label on the caustic soda did not contain a warning not to use the caustic soda with hot water. Emmett J found the label to be defective within the meaning of s 75AC(2) of the TPA on the grounds that people are entitled to be warned of the potential harm that might befall them in respect of use of goods which they might reasonably be expected to be put. 150 Glendale appealed to the Full Court of the Federal Court151 on the grounds that the ACCC had failed to prove contravention of s 52 or 53. The Full Court upheld Emmett J’s finding in relation to defective product and pointed out that Emmett J had held that no representation of safety should be implied so as to enliven s 52. The Full Court found it unnecessary to rule on the matter as it had been disposed of by finding as Emmett J did in relation to the s 75AC(2) claim. In Amaca Pty Ltd v A B & P Constructions Pty Ltd the Dust Diseases Tribunal found that a builder who worked with fibreboard throughout the 1980s and who contracted mesothelioma was owed a duty of care by the manufacturer and this finding was not disturbed by the Court of Appeal. 152 The DDT found that during the builder’s period of exposure it was not widespread knowledge that asbestos caused health problems and the warning labels on the fibreboard were ‘anodyne’. 153

Ibid, [34]. (1983) 34 SASR 472. 149 (1998) A.T.P.R. 41-632 150 Ibid, para 40, 972. 151 (1999) A.T.P.R. 41-672. 152 [2007] NSWCA 220. 153 (2006) 3 DDCR 671, [35]. 147 148

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VI CONCLUSIONS The UK experience to date indicates that it can be preferable for the legislature to step into take action rather than leave it to the common law to find a solution that remains compartmentalized from the rest of the law of tort or which steadily erodes the law of causation. The shortcomings of Corus are further illustrated by the statements by various of their Lordships that their findings of culpability would have been altered had another agent been a contributor to the risk.154 Statutory indemnity for Hong Kong employers from common law damages under the PMCO is due, it is suspected, to the unlikelihood of a successful common law claim arising, given position under the prevailing UK case law. A simple method to assist claimants and avoid the outcome of lumping all of the financial burden onto surviving defendants, would be to take claims out of the remit of the courts and to create a common fund to which potential defendants could contribute to and from which claimants could receive compensation which is reflective of the risks causation poses to litigants. This approach is warranted in Hong Kong as a conclusive answer to the problems of causation for ship-owners, maritime employers and ship component manufacturers, as well as a host of employers and principals in the construction industry. It could achieve a just and defensible damages outcomes for claimants when claims begin to spike without exposing the potentially liable to hefty class actions and decades of litigation draining investment from their respective industries. It is likely that ship owners and employers in Hong Kong will “pass the parcel� of asbestos claims just like those in the British cases. However, the US trend in maritime-related claims is for a wider range of defendants to attend court than was the case twenty years ago. Shipyards and carrier lines were the primary accused in salty asbestos claims but now service and product providers are being sued too. The manufacturers of the maritime employer’s air conditioning units, hoisting equipment, and metal piping are now defending mesothelioma claims and so are the manufacturers of respiratory masks and protective gloves used to prevent exposure currently are named as defendants (based on alleged product failure). 155 Sufferers of 154 155

Per Lord Hoffmann at [24] and Lord Scott of Foscote at [64] Block, supra, 2.

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mesothelioma in the UK and Hong Kong can make much better use of misleading conduct concepts and product manufacturer’s liability than is currently the case and this trend is now clearly evident in Australia as well as the US.

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Mesothelioma in HK  

Mesothelioma in HK