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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Lubbe & Ors v Cape Plc  EWCA Civ 1351 (30 July 1998)
Cite as:  CLC 1559,  EWCA Civ 1351
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(SIR MICHEL KALLIPETIS QC
(Sitting as a Deputy High Court Judge))
B e f o r e :
LORD JUSTICE MILLETT
LORD JUSTICE AULD
|(1) RACHEL LUBBE|
|(2) NKALA JOHANNES MAILE|
|(3) MATLANENG JOHANNES MOHLALA|
|(4) CATHERINE EKSTEEN NEL|
|(suing as Administratrix of the|
|Estate of MATHYS CHRISTOFEL NEL)|
|(5) SEBUSHI PAULINE SELWANA|
|- v -|
180 Fleet Street, London EC4A 2HD
Tel: 0171 421 4040
Official Shorthand Writers to the Court)
MR S KENTRIDGE QC, MR B DOCTOR and MR COLEMAN (Instructed by Messrs Davies Arnold Cooper, London EC4Y 8DD) appeared on behalf of the Respondents
Crown Copyright ©
"3. A declaration that in the circumstances the Plaintiff's action should not be allowed to proceed on the principles of forum non conveniens."
"AND UPON the Defendant giving the undertaking recorded in Appendix "A" hereto
IT IS ORDERED that :-
(1) All further proceedings in this action be stayed on the grounds that the appropriate forum for the trial of this action and the issues therein is the High Court of South Africa, ....".
"(2) the defendant consents to these actions by these plaintiffs relating to Prieska, Koegs and Penge being heard together in any provisional division of the High Court of South Africa having jurisdiction in respect of them , provided that all cases of each of these Plaintiffs are brought in the same Court ; ....".
"It was a Cornish engineer named Frances Oates who was the driving force behind a consortium formed to mine the asbestos at the end of the 19th Century and in 1893 this cave birth to the predecessor of the defendant company The Cape Asbestos Company Limited ("London Cape"). Their operations centred on mines at Prieska and Koegas.
From its inception, the English company established a local agency to run the South African operations and appointed local directors to operate under regulations drawn up by the English company. Francis Oates was among the first of the local directors to be appointed and later that same year he was appointed as a director to the Board of the English company. The Defendants claim that the English company did not concern itself with the actual mining operations but merely owned the land and the mineral rights over the land and paid anyone who brought mineral fibre to its store. This appears to have been the pattern in the early days, according to the potted history reproduced at E/47 of exhibit "RM1".
Another development which may have some relevance in view of a late application by the Plaintiffs, was the acquisition of an Italian factory near Turin in 1894 to experiment in the manufacture of goods from Cape Blue. These operations were funded from London and the history of the company (E/52) describes the position thus : "After a year the company had little to show financially, but it had its two legs firmly planted in South Africa and Italy, a virile system of arteries running from London to many countries abroad, and an energetic leader in the shape of the peripatetic Mr Oates" There then follows on that page an extract from his speech to the shareholders in which he extols the virtues of the company and the operations in mining and manufacturing of blue asbestos.
The Boer War interrupted the mining of Cape Blue until 1903 and by 1905 the mine at Prieska was in full operation. In 1914 brown asbestos, called Amozite was mined in Penge, named after the London suburb. In 1916 Egnep Limited and Amosa Limited were registered to exploit the deposits of brown asbestos or amosite at Penge. London Cape bought amozite and processed it at its factory in Barking, Essex. In the early 1920s London Cape contemplated acquiring the mines at Penge, but the depression intervened and it was not until September 1925 that London Cape acquired both Egnep and Amosa.
After the Second World War the demand for asbestos increased. The Cape Blue mining operations were run from Kimberley by the local Board of Directors established in 1894 and the amozite mining at Penge was run by Egnep from Cape Town. It is not disputed that up to 1948, London Cape controlled the operations in South Africa.
In 1948 two new companies were formed : Cape Asbestos South Africa (Pty) Limited ("CASAP") a subsidiary of London Cape as a holding company, and Cape Blue Mines (Pty) Limited to acquire the Cape Blue mining assets. A Mr Riley was sent out from London to take up a permanent appointment controlling the whole of London Cape's asbestos operations in South Africa. He retained his seat on the Board of Cape London and reorganised the structure of the South African companies by transferring them all to Johannesburg.
By the end of the Second World War London Cape controlled the whole operations of asbestos production from "mine to manufacture" through a host of subsidiary companies. At E/78 is a family tree of the Cape organisation which is described in more detail at pages E/72 to 108.
The 1948 reorganisation, claimed the Defendants, resulted in the cessation of Cape London's control of operations in South Africa and the resumption of total control and thereby legal responsibility, by CASAP which is a wholly owned subsidiary of Cape London. The defendants allege that day to day control of each mine was entirely in the hands of local management. The Plaintiffs rely on the part played by Mr Riley to demonstrate that there was still a vital element of control by Cape London. The precise nature of the control if any exercised by Cape London over the South African subsidiaries is very much in issue but I do not have to decide that matter on this application."
"Mrs Lubbe : She lived in the area of Koegas and Prieska mines. Unfortunately since the inception of this action and just before the hearing of the application she died. No point is taken by the Defendants and I am asked to consider her case along with the others on the basis that her husband will subsequently have himself substituted as Plaintiff on behalf of her estate.
Mr Maile : worked at the Penge mine and lived in the mine hostel. It is alleged that at all times both while working in the mine and while living in the mine hostel he was exposed to asbestos dust and fibres.
Mr Mohlala : worked at the Penge mine from the age of 12 packing asbestos fibre with his bare hands for some 14 years during which he also lived in the mine hostel.
Mrs Nel : The wife of Mr Nel who died in November 1995 from mesothelioma. It is said that he lived in the environment of the Prieska mine and mill and was exposed to the asbestos dust fibres in the atmosphere.
Mrs Selwana : worked as a servant for a family living at the Penge mine and was exposed to asbestos dust and fibre in the atmosphere. She also washed the overalls of her husband who worked in the mine and thereby it is said was further exposed to asbestos dust and fibres".
Allegations in Statement of Claim
"(1) Did each of the Plaintiffs suffer the injuries of which they complain?
(2) Were these injuries caused by inhalation of asbestos dust and fibre present in the atmosphere where they worked and lived?
(3) Did that asbestos dust and fibre escape from the mines and mills at Prieska, Koegas and Penge?
(4) Were the companies which ran those mines and mills liable in law to each Plaintiff for the escape of asbestos dust into the atmosphere? This can effectively be broken down in legal terms to the following two questions :-
(a) Did those companies owe a duty to those living and working in the vicinity of the mines and mills? and
(b) Did those companies or any of them commit breaches of that duty?
(5) Is Cape London liable in law for the breaches of duty by the South African companies?
"It does seem to me that this is an action, which given the modern methods of communication could be tried either in South Africa or in this jurisdiction. However that is not the question with which I am concerned. I have to decide which jurisdiction has the most natural and closest connection with the causes of action raised in the Statement of Claim". (paragraph 17).
"In my discretion I have to decide not which is the more convenient forum for the purposes of the parties but which is the most natural forum for the trial of this action. On balance it seems to me that everything in this action points to South Africa as the most natural forum for the trial of this action. If there is the duty contended for by Mr Johnson upon the English company it seems to me that that can easily be litigated in South Africa. All the other matters, notably those listed in issues (1) to (4) above, quite clearly in my judgment have their closest and most significant connection with South Africa which is the most natural forum for the trial of those issues. In all the circumstances in exercising my discretion I am satisfied that the Defendants have discharged the burden upon them and therefore I would grant the stay under the first limb in Spiliada."
"The law of England recognizes that a particular issue between the parties to litigation may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties. They agree with the statement of Lord Wilberforce at page 391 to 392, which has been set out above as to the extent of an application of the exception. they accept, as he did, that the exception would not be successfully invoked in every case or even, probably, in many cases, and at page 391H, that "the general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred.""
"The right approach is, when the tort is complete, to look back over the series of events constituting it and ask where in substance did this cause of action arise?" (per Lord Pearson at 468E)
"Rule 203 -(1) As a general rule, an act done in a foreign country is a tort and actionable as such in England, only if it is both
(a) actionable as a tort according to English law, or in other words is an act which, if done in England, would be a tort ; and
(b) actionable according to the law of the foreign country where it was done.
(2) But a particular issue between the parties may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrences and the parties."
The plaintiffs' claim re-formulated
"Whether a parent company which is proved to exercise de facto control over the operations of a (foreign) subsidiary and which knows, through its directors, that those operations involve risks to the health of workers employed by the subsidiary and/or persons in the vicinity of its factory or other business premises, owes a duty of care to those workers and/or other persons in relation to the control which it exercises over and the advice which it gives to the subsidiary company?"
"The Plaintiffs, or their deceased relatives on whose behalf they sue, all contracted one form or another of mesothelioma. It is against this background that I turn to the application before me. At the heart of the action is the question of whether or not Cape London has any liability in law for any injuries which the Plaintiffs may subsequently prove that they sustained as a result of inhaling asbestos dust in the atmosphere in South Africa. This may well be a difficult question for the Plaintiffs to prove but it is not one which is before me and not one that I have to decide.
Although it was accepted by both Counsel in the course of their submissions that the question of whether or not a duty was owed was not one for me, nonetheless a great deal of the argument by each Counsel has been directed to this question. In deference to the weighty arguments advanced by both sides I shall attempt to deal with as many of the matters as I think are relevant for the decision that I have to make but I trust that both Counsel will forgive me if I do not repeat in this Judgment every single matter that they have raised and every single submission."
"In effect the Plaintiff contends that the duty is owed by an English company to anyone worldwide who foreseeably might be injured by the negligent escape of asbestos dust into the atmosphere" (para.17)
"38. The duty of care, if it existed, did not exist in England. If it has a locus, it must be where the person who falls within its ambit is situated" (citing Caparo v. Dickman per Lord Oliver at 651).
The judge's decision
"(c) The question being whether there is some other forum which is the appropriate forum for the trial of the action, it is pertinent to ask whether the fact that the plaintiff has, ex hypothesi, founded jurisdiction as of right in accordance with the law of this country, of itself gives the plaintiff an advantage in the sense that the English court will not lightly disturb jurisdiction so established. Such indeed appears to be the law in the United States,where "the court hesitates to disturb the plaintiff's choice of forum and will not do so unless the balance of factors is strongly in favour of the defendant," : see Scoles and Hay, Conflict of Laws (1982), p.366, and cases there cited ; and also in Canada, where it has been stated (see Castel, Conflict of Laws (1974), p.282) that "unless the balance is strongly in favour of the defendant, the plaintiff's choice of forum should rarely be disturbed." This is strong language."
ORDER: Appeal allowed with costs. Leave to appeal to the House of Lords refused.
(Order not part of approved judgment)