Green v Vickers Defence Systems & Ors

A consent order must be construed as a whole. Parties may agree that liability for future disease is admitted, while leaving particular causation issues open, but any reservation must be expressed clearly. An agreement that damages are to be assessed on a full liability basis ordinarily means that the defendants accept liability for the specified condition once its causal connection with asbestos exposure is established. A standard form or general practice concerning provisional damages cannot override clear words in the order and agreed facts.

George Green obtained consent judgment for immediate damages for asbestos-related pleural plaques. The order reserved his right to apply for further damages if he developed specified diseases, including mesothelioma. The agreed facts stated that the defendants accepted an award on a full liability basis and that future damages would be assessed on the same basis.

After Mr Green developed mesothelioma and died, his widow brought proceedings. The County Court held that causation remained open, relying partly on the Court of Appeal decision in Fairchild. The claimant appealed on the construction of the consent order.

1. Appeal allowed. The order of District Judge Atherton was restored. Judgment was entered for the claimant against each defendant, with quantum to be determined.

2. A consent order is construed by reading its terms and the agreed statement of facts together. The parties were entitled to agree the extent of liability and to reserve particular causation issues, but a reservation required clear wording.

3. The order expressly required asbestos causation to be established for mesothelioma and lung cancer. The agreed facts then provided that the defendants had agreed to immediate damages on a full liability basis and that future damages would be assessed on the same basis. The natural and sensible meaning was that, once a specified disease was shown to have been caused by asbestos exposure, the claimant would receive damages on a full liability basis.

4. The defence admitted that the mesothelioma resulted from asbestos exposure. No issue therefore remained as to which defendant or legal entity had caused the mesothelioma. The later decision in Fairchild did not reopen the liability already accepted by the consent agreement.

5. Hurditch v Sheffield Health Authority [1989] QB 562 established no general principle requiring causation to remain open. It turned on the correspondence in that case, which had expressly preserved disputes about responsibility. The present consent order and agreed facts did not do so.

The appeal was allowed with costs in both courts, subject to detailed assessment if not agreed.

• Court of Appeal (Civil Division): Appeal from the Newcastle upon Tyne County Court allowed; the order of District Judge Atherton dated 10 October 2001 was restored.
• Newcastle upon Tyne County Court: His Honour Judge Walker allowed the defendants’ appeal from the district judge’s order and held that causation remained open.
• District Judge Atherton: Ordered judgment for the claimant on full liability, with a trial limited to quantum if necessary.