PETER BROOKS v ZURICH INSURANCE PUBLIC LIMITED COMPANY & Anor

Whether a claimant has suffered actionable damage sufficient to complete a cause of action in a mesothelioma case is a mixed question of law and fact. Where the issue is uncertain and developing, it should ordinarily be resolved on actual facts found at trial, rather than hypothetical facts assumed for a strike-out application. A symptomless and undetectable physical change which will inevitably progress may raise a properly arguable question, but the court did not decide whether it constitutes actionable damage. A strike-out application also fails where the medical evidence does not establish, for the particular claimant, when angiogenesis occurred or when progression became inevitable.

The claimant, who had developed mesothelioma after historic asbestos exposure, sued the insurers of his dissolved former employers directly under section 1 of the Third Parties (Rights Against Insurers) Act 2010. The defendants applied under CPR rule 3.4(2)(a) to strike out the claim, arguing that actionable damage had occurred before 1 August 2016, when angiogenesis was said to have begun. The claimant disputed both the legal characterisation of symptomless tumour development as actionable damage and the evidential basis for identifying the relevant date. The central issues were whether the cause of action had been completed before the Act came into force and whether the claim was bound to fail.

1. Application refused. The defendants had not shown that the claim was bound to fail. The claimant’s cross-application for judgment in his favour on the issue was also refused. Directions were to be given for a speedy trial.
2. The point at which actionable damage sufficient to complete the cause of action is suffered is a mixed question of law and fact. Identifying when the development of malignancy gives rise to damage may be medically and legally controversial, and the area remains uncertain and developing.
3. The competing legal arguments, based principally on Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39 and Dryden & Ors v Johnson Matthey Plc [2018] UKSC 18, were reasonably arguable. The court did not determine whether a symptomless, undetectable physical change that must inevitably progress to incurable disease constitutes actionable damage.
4. It was inappropriate to strike out the claim in a developing area of law on assumed facts. The relevant facts should be found at trial, following the principle stated in Barrett v Enfield London Borough Council [2001] 2 AC 500.
5. Even if the legal test were clear, the medical evidence did not establish when this claimant’s disease reached angiogenesis or that progression was inevitable at that time. Evidence from Durham v BAI (Run off) Ltd [2012] UKSC 14 could not fill that evidential gap because it concerned another claimant and context.