Magill v Panel Systems (DB Limited)

In a mesothelioma claim, causation is determined on the balance of probabilities by evaluating the competing medical explanations and the likely effect of the omitted treatment. Where coronary artery bypass surgery would probably have materially reduced the risk of a fatal ischaemic event, the defendant may be liable for an indivisible injury even though other causes contributed.

For life expectancy, a prospective methodology is preferable only where the supporting studies closely match the claimant’s medical condition. Otherwise, a retrospective assessment based on clinical judgment may be preferred. A claim for loss of a deceased spouse’s care or intangible household benefits requires evidentially established lost services and cannot duplicate the bereavement award.

The claimant, Deborah Magill, brought proceedings in her own right and as personal representative of the estate of her late husband, Colin Magill. The defendant admitted exposing him to asbestos in breach of duty and accepted liability for damage flowing from mesothelioma, but disputed whether the disease caused or contributed to his death.

The deceased had significant pre-existing cardiac disease and was due to undergo coronary artery bypass graft surgery when mesothelioma was diagnosed. The operation was postponed. He later suffered a cardiac arrest and died following hypoxic brain injury. The trial concerned the cause of the arrest, whether surgery would probably have prevented it, life expectancy absent mesothelioma, and claims for dependency on services and loss of care and attention.

1. Causation. On the balance of probabilities, the cardiac arrest was caused by an acute ischaemic event triggering ventricular fibrillation. The evidence did not establish pulmonary oedema or acute left ventricular failure. The claimant’s expert’s explanation was more consistent with the absence of pulmonary oedema, the post-mortem findings and the deceased’s relative cardiac stability after resuscitation.
2. Effect of CABG surgery. The deceased would probably have undergone coronary artery bypass surgery in March or April 2015 if mesothelioma had not intervened. The court rejected the proposition that the operation would have provided no material benefit for approximately three years. The deceased’s condition differed materially from the much more severe population in the study relied upon by the defendant. The surgery would probably have significantly reduced the risk of the acute ischaemic event. The absence of surgery therefore doubled the risk of death from the relevant event.
3. Legal causation. The arrhythmia was an indivisible injury to which the mesothelioma materially contributed by preventing the surgery. The defendant was accordingly liable for the deceased’s death and its consequences, notwithstanding competing causes.
4. Life expectancy. Both prospective and retrospective methods were scientifically legitimate. The prospective method should be preferred only where the studies closely match the individual’s medical condition and co-morbidities. Here they did not. The court therefore preferred the retrospective assessment and found a life expectancy of 19.5 years absent mesothelioma. Table 1 of the Ogden Tables was used as adjusted in Smith v LC Windows Fashions Ltd [2009] EWHC 1532 (QB).
5. Services and care. The claimant had not proved a meaningful loss of her husband’s services because he was already receiving substantial care and was unable to perform the claimed household tasks. No additional award was made for loss of care and attention. The reasoning in Mosson v Spousal (London) Ltd [2015] EWHC was accepted, and the claim was also unsupported on the facts under the approach in Regan v Williamson [1976] 1 W.L.R. 305 and Beesley v New Century Group Ltd [2008] EWHC 3033 (QB).
6. The parties were permitted to agree the consequential calculation and order.