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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Novartis Grimsby Ltd v Cookson [2007] EWCA Civ 1261 (29 November 2007) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2007/1261.html Cite as: [2007] EWCA Civ 1261 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
MR RECORDER BLACK QC
MA316857
Strand, London, WC2A 2LL |
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B e f o r e :
THE PRESIDENT OF THE FAMILY DIVISION
LORD JUSTICE SEDLEY
and
LADY JUSTICE SMITH
____________________
Novartis Grimsby Ltd |
Appellant |
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- and - |
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John Cookson |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Peter Cowan (instructed by Pannone LLP) for the Respondent
Hearing dates : 10, 11, 12 July 2007
____________________
Crown Copyright ©
Lady Justice Smith :
Introduction
The Carcinogenic Substances in use at the Appellant's premises
Alpha-naphthylamine is an aromatic amine. It was used by the appellant in the manufacture of azo dyes until 2001. It is probably not, in itself, carcinogenic. However, when purchased for industrial purposes, it is always contaminated to some degree by beta-napthylamine, which is a highly carcinogenic amine and is readily absorbed through the skin and by inhalation. Until 1967, the alpha-napthylamine used by the appellant contained about 4% to 5% of the beta-isomer. After that time, the level of impurity was reduced to between 0.5% and 1%. Later, an even purer product was available. Thus, contact with the raw material alpha-napthylamine was dangerous before 1967 and carried some risk of carcinogen exposure even after that date, although not as great as before. Until about 1980, the appellant purchased alpha-napthylamine in a dry form (described as flakes) which was dusty when handled. After 1980, the product was purchased in liquid form. Contact with the finished product dyestuffs, which are not of themselves carcinogenic, carries a slight risk on account of the presence of some free unreacted raw material.
Benzidine is an aromatic amine. It has been known to be carcinogenic to humans since long before the respondent started to work for the appellant. It is readily absorbed through the skin or by inhalation. The appellant used benzidine tetrazo, a benzidine derivative, as a raw material in the manufacture of dyestuffs until 1971. Neither benzidine tetrazo nor the resulting dyestuffs were of themselves carcinogenic. However, it has been known since at least the 1950s that derivatives may contain small amounts of free benzidine as also may the finished product due to the incomplete reaction of the raw materials. It was also discovered in about 1980 that benzidine-based dyestuffs, will, if absorbed into the body, metabolise into free benzidine. Thus, contact with both benzidine tetrazo and benzidine-based dyestuffs is potentially hazardous.
Dianisidine is a homologue of benzidine. It was used by the appellant as a raw material in the manufacture of dyes throughout the respondent's employment. There is evidence from published research that it is carcinogenic to humans. However, much of the research has been done on animals and the International Agency for Research on Cancer (IARC) describes Dianisidine as 'possibly carcinogenic'. Nonetheless, it is a controlled substance under the Carcinogenic Substances Regulations 1967 (the 1967 Regulations). The Recorder considered the evidence of carcinogenicity and concluded that, on the balance of probabilities, the substance is carcinogenic to humans. There is also some evidence that some dianisidine-based dyestuffs, not carcinogenic in themselves, metabolise to benzidine within the body. Thus, contact with the finished products carries some risk on account of the presence of unreacted material and on account of the possibility of metabolisation to benzidine.
O-tolidine is also a homologue of benzidine. It was used by the appellant as a raw material throughout the respondent's employment. The published material records evidence of carcinogenicity in animals. The IARC describes it as 'possibly' carcinogenic to humans. It is a controlled substance under the 1967 Regulations. After consideration of the evidence, the Recorder held that, on the balance of probabilities, O-tolidine is carcinogenic to humans. The risks are similar to those of dianisidine.
History of the Respondent's Employment and Exposure
The Basis on which the Respondent alleged Breach of Duty.
"In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom and in particular where the nature of the process makes it practicable, exhaust appliance shall be provided and maintained as near as possible to the point of origin of the dust or fume or other impurity so as to prevent its entering the air of any workroom. "
In that connection, the respondent alleged that he was exposed to dust which was likely to be injurious, in that it contained carcinogens. In so far as exhaust appliances were provided, they were not effective in preventing the dust and fumes from entering the air of the workroom.
"All practicable steps shall be taken to prevent persons employed in any manufacture or process to which regulation 6(2) of these regulations applies, or in the storage or movement within a factory of any controlled substances in connection with any such manufacture or process, or in the maintenance or cleaning of plant or the cleaning of containers stores or workrooms in connection with any such manufacture or process, being exposed to the risk of inhaling ingesting or otherwise absorbing any of the said substances."
The Appellant's Case on the Pleadings
Evidence given at the Trial
The Recorder's Findings in Respect of Breach of Duty
"The Defendant has accepted, subject to causation, that it was in breach of its common law and statutory duties to the extent that the Claimant was not provided with or required to wear an adequate dust mask in dusty conditions. I do not read the admission to extend to ingestion of carcinogenic substances otherwise than through inhalation. On my findings on the basis of the medical evidence, the carcinogenic substances may also be ingested or absorbed though contact and accordingly I also find breach of the Defendant's common law and statutory duties for failing to take all practicable steps to prevent such exposure as well."
The First Ground of Appeal
The Second Ground of Appeal – Medical Causation Issues
The Experts
The Third and Fourth Grounds of the Appeal
"It is an essential condition for the operation of the exception that the impossibility of proving that the defendant caused the damage arises out of the existence of another potential causative agent which operated in the same way. It may have been different in some causally irrelevant respect …. but the mechanism must have been the same. So, for example, I do not think that the exception applies when the claimant suffers lung cancer which may have been caused by exposure to asbestos or some other carcinogenic matter but may also have been caused by smoking and it cannot be proved which is more likely to have been the causative agent"
Although Lord Hoffman was there saying that the exception would not apply where one causative agent was occupational and the other was smoking, he plainly had in mind that the two agents would act on the body in a different way. In the present case, the evidence was that the amines in cigarette smoke act on the body in the same way as the amines in the occupational exposure. It seems to me that it is highly arguable that the mesothelioma exception should apply to bladder cancer and that it would be sufficient if a claimant were to prove that the occupational exposure had made a material contribution to the risk of him developing the disease.
Lord Justice Sedley : I agree.
The President : I also agree.