Mrs Justice Swift :
Background
- This issue arises as a result of a dispute between the Department of Trade and Industry (DTI) and the Co-ordinating Group (CG), representing claimants in the British Coal Respiratory Disease Litigation (BCRDL), about the interpretation of the Claims Handling Agreement (CHA) which governs the compensation of miners and their families within the BCRDL.
- The CHA was agreed between the DTI and the CG, pursuant to the judgment in the successful lead actions of AB and Others v British Coal Corporation, given by Mr Justice Turner (as he then was) in 1998. The DTI succeeded to the liabilities of the British Coal Corporation (BCC) on 1 January 1998.
The issue
- The issue relates to the circumstances in which a claimant in the BCRDL should be entitled to damages for chronic bronchitis (CB). Chronic bronchitis is defined by the Medical Research Council (MRC) as "sputum production on most days for at least three months in the year for at least two consecutive years". Before a diagnosis of CB can properly be made, a patient must have symptoms corresponding with this definition and, in addition, other conditions (such as tuberculosis, cancer of the lung, bronchiectasis and heart failure) must be excluded.
- The claimants contend that, under the CHA, a respiratory specialist (RS) carrying out a medical assessment in the case of a living or deceased miner must determine only two questions, namely:
a) whether the miner's symptoms fulfil the MRC criteria for the diagnosis of CB
and, if so,
b) whether the symptoms of CB were present during a period when the miner was working underground at a BCC mine.
The claimants contend that, if the RS answers both these questions in the affirmative, the claimant is entitled under the CHA to compensation for CB. As with all successful claims under the CHA, this compensation will be subject to a process of apportionment to reflect such factors as the length of exposure to mining dust and fumes and smoking history.
- The DTI argue that, in order to be entitled to compensation for CB, a claimant must in addition establish to the satisfaction of the RS that the miner's CB was caused, or materially contributed to, by his exposure to dust and/or fumes during his work underground at a BCC mine.
- The dispute arises because of the findings relating to CB made by Turner J in the lead actions. He found that CB constituted actionable damage and that it was capable of being caused by exposure to dust and/or fumes, as well as by smoking. The BCC had argued that CB was a condition of rapid onset which would typically develop within a short period (two years or so) of first exposure to the precipitant substance(s) and which would then worsen to only a modest extent over the succeeding years. Turner J rejected that contention. He preferred the evidence of the claimants' expert which was to the effect that the symptoms arising from CB caused by exposure to dust and/or fumes may take many years to develop, with those who had suffered the heaviest exposure developing their CB earlier than those with lower levels of exposure. The claimants' expert also suggested that, once present, CB tended to deteriorate to a greater extent than had been suggested by the BCC's expert. Turner J accepted that evidence.
- The DTI argued before me that, given the findings of Turner J, it cannot have been intended that the CHA should have the effect of compensating miners who had worked underground in a BCC mine for only short periods of time before developing symptoms of CB and whose conditions were therefore unlikely to have been caused, or materially contributed to, by their work with the BCC. They contend that it was the intention of the parties (as evidenced by the CHA) that RSs should make a clinical judgment in each individual claim as to whether or a not a miner's CB had been caused by exposure to mining dust and/or fumes. Only if the RS decided that a causal link did exist would a claimant be entitled to compensation. They say that, in practice, many miners would have had long periods of employment underground before their symptoms developed so that it would not be difficult to infer a causal link. It is only in cases where the period of employment was short that the issue is likely to be in doubt.
The progress of the dispute
- It seems that, for some years after implementation of the CHA, miners who were diagnosed by RSs as having CB were compensated under the CHA regardless of how long they had been employed underground at the time their symptoms developed. In about 2005, however, the DTI (by their claims handlers, Capita) began to raise queries with RSs about claims where a miner had had only a short period of employment with the BCC before the onset of symptoms. It became clear that there was a dispute between the DTI and the CG as to whether a causal link had to be established in order for compensation to be payable. Several hundred claims are now affected by that dispute.
- Initially, attempts were made by the parties to resolve the dispute by agreement. Those attempts failed. In March 2007, the DTI sought to persuade me to direct that the issue should be referred to the Medical Reference Panel (MRP). The MRP is a panel of three distinguished medical experts whose function is, inter alia, to give medical advice to the parties, both generally and in relation to specific problems which may arise. The DTI argued that this matter fell squarely within the remit of the MRP. It was, I think, envisaged by them that the MRP might identify a minimum period of employment below which CB should not be considered attributable to employment underground and that the MRP might issue guidance to RSs along these lines. However, the CG contended that the issue was one of interpretation of the CHA, not of medical expertise. They pointed out also that paragraph 28 of Schedule 7 of the CHA provides that the MRP may not be instructed to consider any issue without the express agreement of the parties. That agreement was not forthcoming from the CG.
- Having heard argument, I decided that the first step in resolving the dispute must be to hear argument on the claimants' contentions as to the proper interpretation of the CHA. This I have now done.
The relevant parts of the Claims Handling Agreement
- The CHA comprises an Introduction, a Definition section, a section entitled "Procedures" and 22 Schedules, each dealing with a different aspect of the arrangements for compensation. Those Schedules include Schedule 2 (entitled "Medical Conditions"); Schedule 5 (containing the Claim Questionnaire (CQ) to be completed by living mineworkers and by claimants bringing claims in respect of deceased mineworkers); Schedule 7 (setting out the Medical Assessment Procedure (MAP) for living mineworkers) and Schedule 8 (setting out the protocol for claims in respect of deceased mineworkers. All these constituent elements form part of the agreement embodied in the CHA and must be considered when construing that agreement.
- The CHA was the subject of detailed and lengthy negotiations between the DTI and the CG. Consultant respiratory physicians instructed by each side were involved in the drafting of the medical content of the CHA, in particular Schedules 7 and 8. The whole process was overseen by experienced lawyers, informed by their knowledge of the conduct and outcome of the lead actions.
The Introduction
- Paragraph 1 of the Introduction to the CHA states:
"Several Plaintiffs have brought claims for personal injury, loss and damage against British Coal Corporation (BCC), alleging that various respiratory illnesses were caused by tortious exposure to mixed mine dust and/or fumes during the course of the Plaintiffs' various employments with BCC at various dates from 1947 onwards".
- Paragraph 6 of the Introduction states:
"The Parties have agreed a procedure for the fair, consistent and expeditious assessment of claims, and for the payment of damages where appropriate."
Schedule 2: Medical Conditions
- Paragraph 1 of Schedule 2 to the CHA defines the conditions in respect of which compensation will be paid:
"The DTI will pay damages in the manner provided for in this Agreement for the conditions:
(i) Chronic bronchitis;
(ii) Emphysema/small airways disease/Chronic Obstructive Pulmonary Disease (COPD) …
(iii) Temporary exacerbation of asthma."
- Paragraph 2 states:
"The DTI's liability has been determined following the Judgment of the Honourable Mr Justice Turner dated 23 January 1998 on the basis that the said conditions, save for small airways disease, have been caused or materially contributed to by exposure to coal mine dust and/or fumes during the relevant employment of the Claimant in a BCC Mine. The DTI will also pay damages for other conditions caused or materially contributed to by the above conditions which include heart conditions caused or materially contributed to by Chronic Obstructive Pulmonary Disease (COPD)."
Schedule 5: Living Mineworkers' Claims Questionnaire
- Schedule 5 contains the CQ to be completed by living mineworkers in support of their claims. The CQ includes (at 30 – 37) questions relating to CB. The claimant is required to answer a number of questions (30(b) – 37) intended to ascertain whether he fulfils the MRC criteria for CB and whether conditions other than CB can be excluded. All these matters go to the issue of whether CB can properly be diagnosed.
- At question 30(a), the claimant is requested to answer "Yes" or "No" to the question:
"When you worked underground at a British Coal mine after 4th June 1954 did you cough up phlegm from your chest?"
This question is clearly aimed at establishing whether or not the miner was suffering from the symptoms of CB at any time during his period of underground employment with the BCC.
- The contents of this part of the CQ are directed at providing the information necessary to enable the RS to answer the questions (a) and (b) referred to at paragraph 4 of this judgment. There is no question in the CQ which is designed to inform an RS for how long the miner had been employed underground prior to the onset of symptoms arising from his CB.
Schedule 7: Medical Assessment Process
- Schedule 7 of the CHA sets out the arrangements for the MAP and is primarily (although not wholly) concerned with claims by living mineworkers. Paragraphs 1–4 of Schedule 7 are entitled "Background and Objectives". Paragraph 1 states:
"The intention is to validate claims using an agreed Medical Assessment Process (MAP) acceptable to both Parties which is based on quality assured, standardised, procedures. This process will compensate Claimants as speedily as possible, be fair, and take account of the scarcity of the specialised resources required. It will also ensure value for the public monies expended."
- Paragraph 3 reads:
"The MAP is planned to cover up to 100,000 Claimants, and determine the degree of any lung injury they have suffered due to negligent exposure to mining dust and fumes when working underground at a BCC Mine. The DTI's liability is as established in the January 1998 judgment (save that the DTI will not seek to distinguish emphysema from Small Airways Disease with a view to reducing compensation awards)."
- Paragraph 19 of Schedule 7 deals with medical examinations by RSs. It states:
"The Respiratory Specialist will positively diagnose the presence of any COPD conditions and corroborate any past instances of chronic bronchitis. Any evidence of asthma, past or current, will also be noted, particularly when temporary exacerbation of asthma is claimed. Any co-morbid conditions for which the DTI is not liable will also be identified. The Respiratory Specialist will also confirm or correct the Claimant's smoking history."
- Paragraph 21 of Schedule 7 refers specifically to CB. It states:
"The Respiratory Specialist will confirm whether or not the Claimant has, on the balance of probabilities, suffered chronic bronchitis during, or shortly after, a period when he worked for British Coal."
Schedule 7, Annex 7a: Instructions and Guidance to Respiratory Specialists
- Annex 7a of Schedule 7 contains Instructions and Guidance to RSs (the Guidance) when examining and evaluating claimants for the MAP and completing the MAP Report Form. Paragraph A of Annex 7a reads:
"You are instructed to examine former employees of British Coal who have been exposed to mine dust and who say that, as a result, they are suffering from chronic obstructive pulmonary disease (COPD), primarily in the form of chronic bronchitis and/or emphysema and/or temporary exacerbation of asthma. This document is intended to help you make your assessment of the Claimants whom you are about to examine, and in particular to come to the conclusions required for the processing and fair settlement of their claims."
- Paragraph C states:
"It has been accepted by the Government since 1993 on the recommendation of the Industrial Injuries Advisory Council that chronic bronchitis and emphysema are diseases associated with coal mining. Subsequently, in a judgment in the High Court delivered on 23rd January 1998, the Judge decided that there was a proven causal link between chronic bronchitis, emphysema and potential exacerbation of asthma, and exposure to dust and/or fumes underground in coal mining. In consequence, present and former miners are eligible to receive compensation if they have COPD attributable to their occupation. Those conditions are:
i) chronic bronchitis;
ii) emphysema/small airways disease;
iii) exacerbation of asthma."
- At paragraph 23.3 of Schedule 7, under the heading "Chronic Bronchitis", the Guidance states:
"You are asked to assess the claim to establish whether the Claimant has, or had, symptoms which fulfil the criteria for the MRC definition of chronic bronchitis. Part of your role is, as set out in the qualification to the definition above, to satisfy yourself that the Claimant has or had no other conditions causing the symptoms. Bronchiectasis is likely to be the most common of these."
- It continues at paragraph 23.4:
"You will need to take into account your interpretation of the Claim Questionnaire, your review of the medical records, the details of the work history provided to you and finally your own assessment of the Claimant. The following paragraphs give guidance on some specific issues"
and at paragraph 23.5:
"The questions in the Claim Questionnaire are designed to elicit the key features which must be established before a diagnosis of chronic bronchitis due to working in mines can be considered. You should keep the following points particularly in mind, and may wish at this point to look again at the Claim Questionnaire."
- The first of the "points" mentioned in paragraph 23.5 is that the miner must have had a cough which produced sputum during (or, in very exceptional circumstances, shortly after) the period when he was working in a BCC mine. There is no reference within the list of "points" at paragraph 23.5 to the period of time for which the claimant had worked underground, before the onset of his CB. Nor is there any "point" which would alert an RS to the fact that he or she must make a clinical judgment as to whether, in an individual case, a causal link has been established between the miner's exposure to dust and/or fumes and his CB.
- The Guidance continues at paragraph 23.6:
"The records, if available, will normally contain references to symptoms suggestive of chronic bronchitis (see also paragraph 23.10 below). However, there may be circumstances when even though there is no such evidence in the records the Claimant nonetheless gives you such a persuasive history that you form a clear view that he did have chronic bronchitis whilst working in a British Coal Mine (or, in very exceptional circumstances, shortly after).
Thus, you do not need to find corroboration in records to diagnose chronic bronchitis if in your clinical judgment the claimant had chronic bronchitis whilst working for the British Coal Corporation, but in reaching your judgment you will of course bear in mind anything in the records which suggests that the claimant did not have chronic bronchitis."
- Finally, paragraph 23.13 advises:
"You should keep in mind the principle that you are not asked to give either the Claimant or the DTI "the benefit of the doubt". You are asked whether, in your judgment and on the information available to you, it is more likely than not (i.e. you are more than 50% sure) that the Claimant did have chronic bronchitis when working at a British Coal Mine. Similarly, you are forming a view, on the same balance of probabilities, whether or not the Claimant had other Respiratory Conditions which were wholly or partly responsible for a productive cough whilst working there (or, in very exceptional circumstances, shortly after)."
Schedule 7, Annex 7b: Medical Assessment Report Form
- Annex 7b of Schedule 7 contains the MAP Report Form for living mineworkers which the RS is required to complete after examining a claimant. The section relating to CB requires the RS to answer "Yes" or "No" to two questions, namely (at 23).
"a) Do you form the view that the Claimant had chronic bronchitis when he worked at a British Coal mine?
b) In very exceptional circumstances the Claimant may have developed chronic bronchitis shortly after ceasing work in coal mining. If the Claimant did not have chronic bronchitis when working at a British Coal mine but developed it since, did it develop sufficiently closely to the end of this employment for it, on the balance of probabilities, to have been caused or contributed to by mine dust?"
It will be noted that the first of these questions deals with the position where the miner developed symptoms of CB at the time he was engaged in mine work while the second question refers to the situation where the onset of symptoms occurred after the miner had ceased mine work.
Schedule 8: claims in respect of deceased mineworkers
- Schedule 8 of the CHA includes the Deceased Mineworkers CQ which contains similar questions to those in the CQ completed by living mineworkers. The Guidance to RSs is in similar terms to that in Schedule 7. The questions to be answered by the RS in the MAP Report Form in connection with CB are essentially the same as those for living mineworkers.
The law
- I shall now deal with the relevant issues of law.
The General Approach
- In the well known case of Investors Compensation Scheme Ltd v West Bromwich Building Society and Others [1998] 1W.L.R. 896 (which I shall refer to as ICSL), Lord Hoffmann summarised the principles to be applied when construing contractual agreements. At page 912, he identified the first of these principles:
"Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract."
He stated that the "background" included "absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man." However Lord Hoffmann identified one important exclusion to this general statement:
"The law excludes from the admissible background the previous negotiations of the parties and their declaration of subjective intent…"
- Lord Hoffmann referred to the need to avoid an unreasonable or inconsistent result, saying:
"The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had".
- All these principles are uncontroversial. In particular, it is agreed that the contract (in this case the CHA) must be construed as a whole and in a manner that best gives effect to the intention of the parties. There is, however, a dispute between the parties as to how the principles should be applied in this case.
The evidence of Dr Moore-Gillon
- The DTI have sought to rely on the evidence of Dr John Moore-Gillon, the respiratory physician instructed to advise them in connection with the development and implementation of the MAP and the drafting of the relevant parts (in particular Schedule 7 and 8) of the CHA. The CG were advised by Dr Robin Rudd. Both Dr Moore-Gillon and Dr Rudd are now members of the MRP, to which I have previously referred.
- Dr Moore-Gillon has provided a witness statement setting out a detailed account of his rôle in advising the DTI at the material time. Annexed thereto are copies of various documents, such as drafts of earlier versions of various parts of the CHA and correspondence passing between Dr Moore-Gillon, Dr Rudd and the solicitors within the CG and representing the DTI, which came into existence during the lengthy process of devising the MAP and negotiating and agreeing the terms of the CHA.
- In his witness statement, Dr Moore-Gillon explained that, throughout his involvement, he (and he believed, Dr Rudd also) had intended and understood that miners suffering from CB would be eligible for compensation under the CHA only if the RS carrying out the MAP concluded that their CB had been caused, or materially contributed to, by their exposure to mining dust and/or fumes. He said that the Guidance to RSs had been drafted with that in mind. It had never occurred to him that the mere fact that a miner developed symptoms of CB during a period of working underground would be sufficient to make him eligible for compensation.
- On behalf of the claimants, Mr Allan QC contended that, insofar as it related to his own subjective beliefs and intentions and those of Dr Rudd, Dr Moore-Gillon's evidence was inadmissible. He had been instructed as an expert and adviser by the DTI and had negotiated with Dr Rudd on the DTI's behalf. Mr Allan relied on the exclusion identified by Lord Hoffmann in ICSL: see paragraph 33 of this judgment.
- So far as the documents annexed to Dr Moore-Gillon's statements are concerned, Mr Allan argued that it was clear that they did not provide a complete picture. It appeared that the DTI had been prepared to waive legal professional privilege in respect of some documents but not others. He said that the court could not place reliance on documents presented on such a selective basis. In any event, he submitted that the documents had no relevance to the issue which I had to decide.
- For the DTI, Mr Evans acknowledged that evidence of negotiations between the parties and their subjective intentions at the time could not be relevant or admissible. When pressed about this, he conceded that some parts of Dr Moore-Gillon's witness statement (paragraphs 8, 12(c), 13, 107 and 109-112) were not admissible. Those paragraphs all referred to Dr Moore-Gillon's subjective beliefs and intentions about the issue of causation with regard to CB at the time the provisions of the CHA were being drafted and debated. There were, however, other passages in Dr Moore-Gillon's witness statement (e.g. paragraphs 21, 94 and 101) which contained similar references but in respect of which no concession was made. It is not clear to me why it was contended that those passages were admissible while those which were the subject of the concession were not.
- In my judgment, all references to Dr Moore-Gillon's beliefs and intentions when advising and negotiating on the DTI's behalf, together with those attributed by him to Dr Rudd, are clearly inadmissible. Furthermore, the documents annexed to his witness statement shed no light on the issue that I have to decide. Their sole relevance, it seems to me, is to illustrate the close involvement that both Dr Moore-Gillon and Dr Rudd had in the drafting of the relevant parts of the CHA and in the devising and implementation of the MAP.
Evidence of practice following implementation of the Claims Handling Agreement
- I have previously referred to the fact that, for some years after implementation of the CHA, miners who were diagnosed by RSs as having CB were, it seems, compensated under the CHA regardless of how long they had been employed underground at the time their symptoms developed. Mr Allan told me that diagnoses of CB had been made, and compensation paid, in thousands of claims without any issue about length of employment arising. He said (and this was not disputed by the DTI) that, until 2005, RSs had not rejected any claim on the ground that the period of the miner's employment was too short to establish a causal link. Mr Allan argued that, if they had understood that they were to exercise their clinical judgment in order to decide whether a causal link existed, one would have expected there to have been at least a few cases where a claimant had been denied compensation on the ground that no causal link had been found. Mr Allan said that it was not until 2005 that Capita started to raise questions with RSs in those cases where the period of employment underground had been short. He sought to adduce evidence that, between 1999 and 2005, there had been claims where the period of employment had been short but which had nevertheless resulted in awards of compensation. Mr Allan submitted that this evidence was relevant and admissible in order to show that the terms of the CHA were not clear and unequivocal, as claimed by the DTI. He argued that, if the terms had been clear and unequivocal, it would have been obvious to RSs from the start that they should be looking for a causal link between a miner's symptoms of CB and his exposure to mining fumes and/or dust. If they had been looking for such a link, it was likely that there would have been at least the odd case where they concluded that there was no such link. He said that, as it was, that had not happened and RSs had instead had to be prompted by Capita to consider the point.
- For the DTI, Mr Evans contended that evidence of the parties' conduct after implementation of the CHA was not admissible as evidence of construction of the contract. He relied upon a passage in the judgment of Lord Reid in the case of James Millar & Partners Ltd v Whitworth Street Estate (Manchester) Ltd. [1970] A.C. 583 at 603:
"I must say I had thought that it is now well settled that it is not legitimate to use as an aid in the construction of the contract anything which the parties said or did after it was made. Otherwise one might have the result that a contract meant one thing the day it was signed, but by reason of subsequent events meant something different a month or a year later".
Mr Evans submitted that this principle applied, not only to the parties themselves, but also to others acting under the contract. That being the case, he submitted that evidence of how the RSs had approached their task was inadmissible.
- I accept the DTI's submissions in relation to this evidence. It seems to me that I must look – not at how RSs interpreted and acted upon the CHA - but at the intentions of the parties as conveyed by the terms of the CHA itself.
The parties' cases
- I now turn to the competing contentions of the parties.
The DTI's case
- For the DTI, Mr Evans emphasised the importance of looking at the provisions of the CHA as a whole and giving effect to all parts of it. He contended that it was clear, when the CHA was read in its entirety, that its object was to compensate claimants only for respiratory conditions caused, or materially contributed to, by dust and/or fumes to which the miner had been exposed as a result of his work in a BCC mine. It was equally clear that its purpose was not to compensate claimants for respiratory conditions that had developed coincidentally in time with the miner's employment and not as a result of that employment. The background against which the CHA and its individual terms must be viewed was, he submitted, the judgment of Turner J. He contended that there could be no liability outwith the terms of the judgment.
- Mr Evans relied in particular on paragraph 1 of the Introduction to the CHA and paragraph 2 of Schedule 2 (see paragraphs 12 and 15 of this judgment) and their references to a causal link between tortious exposure to mining dust and fumes and the respiratory diseases suffered by the miners in the lead actions. He cited also paragraph 6 of the Introduction (see paragraph 14 of this judgment) with its reference to "the fair, consistent and expeditious assessment of claims". He suggested that a scheme which required the DTI to pay damages to a man whose respiratory condition had not been caused by his work could not be described as "fair".
- Mr Evans also referred to paragraph 3 of Schedule 7 (paragraph 21 of this judgment), which forms part of a section dealing with the Background and Objectives of the MAP. He pointed out that paragraph 3 states that the MAP "is planned to … determine the degree of any lung injury they [i.e. the miners] have suffered due to negligent exposure to mining dust and fumes when working underground at a BCC Mine [my emphasis]". He submitted that this provision showed that the parties had plainly intended that there should be a causal link between the injury for which a claimant was entitled to be compensated and the dust and/or fumes to which the miner had been exposed.
- Mr Evans submitted that, in addition to determining whether a miner had in fact suffered from CB and whether he had done so at a time when he was working underground at a BCC mine, an RS carrying out a MAP was also required to make a clinical judgment as to whether or not the CB had been caused, or materially contributed to, by the miner's work. It was only if the RS considered that exposure to dust at work had caused or contributed to the development of CB that the claimant was entitled to be compensated.
- Mr Evans conceded that the Guidance to RSs, contained in Schedule 7, Annex 7a, did not specifically state that the RS was required to exercise his or her clinical judgment as to whether or not a miner's CB had been caused by mining dust and/or fumes. He conceded also that the questions about CB posed in the CQ (see paragraphs 17 and 18 of this judgment) would not yield information about the length of time for which the miner had worked underground prior to the onset of symptoms from his CB, despite the fact that this information would be necessary in order for the RS to reach any conclusions about the association between the miner's CB and his work. However, he said that, despite these omissions, it had clearly been intended that an RS should consider whether there was a causal link between a miner's CB and his exposure to mining dust and/or fumes and that, in doing so, the RS should exercise his or her clinical judgment .
- In making this submission, Mr Evans relied in particular on paragraph 1 of the Guidance to RSs which states:
"You are instructed to examine former employees of British Coal who have been exposed to mine dust and who say that, as a result, they are suffering from chronic obstructive pulmonary disease (COPD), primarily in the form of chronic bronchitis and/or emphysema and/or temporary exacerbation of asthma."
He argued that the object of the CHA, as demonstrated by this paragraph, was plain. It was to compensate only those former miners whose injury had been caused by their work. The fact that the Guidance contained in the CHA may not have set out the position adequately, was, he said, immaterial; it was necessary to consider the CHA as a whole and to look at its overall object.
- Mr Evans submitted that the construction of the CHA contended for by the claimants would produce an unreasonable result in that it would disregard the causal link which must be established between a miner's injury and his exposure to mining dust and/or fumes. It would mean that compensation would be payable in some cases where a miner's injury could not in fact have been caused by exposure to mining dust and/or fumes. Such a result would, he suggested, be inconsistent with those provisions of the CHA that referred to the causal link between injury and exposure to mining dust and/or fumes. Mr Evans suggested that the "reasonable person" referred to by Lord Hoffmann in ICLS would consider it wholly unreasonable that a miner should be compensated under the provisions of the CHA for CB which had not been caused by his mining employment.
The claimants' case
- For the claimants, Mr Allan accepted that the court must have regard to the object of the CHA, which was to implement the judgment of Turner J by providing a scheme for compensating former miners and their families for injury caused by the miner's work. He argued that statements such as those set out at paragraph 1 of the Introduction to the CHA and paragraph 2 of Schedule 2 (see paragraphs 13 and 16 of this judgment) set out the basis of Turner J's judgment and the general object of the CHA. However, Mr Allan contended that a distinction must be drawn between the object of the CHA and the processes by which it had been agreed by the parties that this object was to be achieved, including the basis on which compensation was to be paid.
- Mr Allan said that the parties could have agreed (and incorporated into the CHA) a process whereby an RS was required to decide in each individual case of CB whether or not the condition had been caused or materially contributed to by the miner's exposure to dust and/or fumes. The CHA contained such a process for claims where it was alleged that mining dust and fumes had caused exacerbation of a miner's asthma. No such process was provided for CB claims where the miner had developed symptoms during the course of his mining work. Alternatively, the parties could have agreed (and incorporated in the CHA) a process whereby miners who had worked underground for less than a minimum specified period of time before the onset of symptoms arising from CB would not be eligible to be compensated for that condition. Under the CHA, a minimum period of employment was required in order to qualify for an expedited payment. However, the parties had not agreed any such minimum period in order to qualify for compensation in a CB claim.
- Mr Allan said that there would have been another approach open to the parties. This would have been to devise a process whereby, if the symptoms of CB had developed while a miner was working underground, it was assumed that the fumes and dust encountered during his mining work had caused, or materially contributed to, his CB. Such an approach would, Mr Allan said, have been an entirely reasonable one in the context of a compensation scheme which was designed to process many thousands of claims to the "fair, consistent and expeditious assessment" referred to in paragraph 6 of the Introduction to the CHA. It would have prevented inconsistent findings by different RSs in individual cases. It would have speeded up the assessment process and given greater certainty. Moreover, any compensation payable for CB would be subject to the usual process of apportionment and would fall to be reduced to an extent dependent on such factors as the extent of the miner's exposure to dust and fumes, the extent of his exposure to "guilty" dust and fumes, his smoking habits and the length of his employment before and after June 1954.
- Mr Allan submitted that, in order to determine objectively the intentions of the parties with regard to the way in which RSs should approach claims for CB, it was necessary to look at the relevant parts of the CHA, namely the terms of the CQ, the nature of the Guidance given to RSs and the contents of the MAP Report Form that RSs were required to complete. He said that it was "startlingly obvious" from these parts of the CHA that RSs were not being required to exercise clinical judgment in order to decide whether there was a causal link between a miner's work and his CB. There was not a word in the Guidance or in the MAP Report Form to suggest that they should do so. The role of the RS was limited to deciding whether the miner had developed symptoms of CB and, if so, whether he had done so at a time while he was working underground.
- Mr Allan pointed out that, in circumstances where RSs were expected to exercise their clinical judgment as to the causal link between a miner's respiratory condition and his work, this was made clear in the Guidance and in the MAP Report Form. For example, where a miner had developed symptoms of CB shortly after ceasing work underground, the RS was required by the MAP Report Form to answer this question:
"If the claimant did not have chronic bronchitis when working at a British Coal Mine but developed it since, did it develop sufficiently closely to the end of this employment for it, on the balance of probabilities, to have been caused or contributed to by mine dust?"
- A time lag between the miner ceasing to work underground and the development of symptoms arising from CB would, Mr Allan submitted, obviously give rise to a doubt as to whether there was a causal link between the two and clinical input was plainly considered necessary to resolve the question. It was, he suggested, highly significant that the MAP Report Form contained a specific question relating to the probable cause of CB where the symptoms had developed after a miner had ceased mining work whereas, in a claim where symptoms had developed at a time when the miner was working underground, no such question was posed.
- Another example of a situation where RSs are instructed to exercise clinical judgment as to the cause of a miner's respiratory condition is when the claim is for exacerbation of asthma. Paragraph 8.1 of Schedule 7, the Guidance to RSs, states (under the heading "Asthma"):
"You are asked to investigate three issues:
i) Does the Claimant have asthma now?
ii) Was he asthmatic during the period that included working in a British Coal mine?
iii) If he was asthmatic when he worked in a British Coal mine, did he on the balance of probabilities suffer from exacerbation of asthma as a result of exposure to dust and/or fumes?"
- The first two issues are broadly equivalent to the two issues which an RS is required by the Guidance to decide in a CB claim (namely did the miner have CB and did he have symptoms of CB whilst working underground at a BCC mine). However, in a case of a claim for exacerbation of asthma, the Guidance makes clear that an RS must exercise his or her clinical judgment in order to decide whether there is a causal link between the exacerbation of the miner's asthma and his exposure to mining dust and fumes. In addition, the MAP Report Form requires an RS to state (a) whether or not the claimant is suffering from asthma and, if so, (b) whether his asthma has been exacerbated by his work.
- Mr Allan submitted that, viewed objectively, it was clear from the CHA that the parties did not intend that RSs dealing with claims for CB (other than those claims where the onset of symptoms occurred after the miner had ceased mining work) should exercise their clinical judgment in order to determine whether there was a causal link between the miner's exposure to dust and fumes and his CB. Had they so intended, clear directions would have been contained in the Guidance to RSs and appropriate questions would have been included in the MAP Report Form, as was the case with claims for exacerbation of asthma and for CB where the symptoms were of late onset. This interpretation of the parties' intentions did not, he said, conflict with the object of the CHA or produce an unreasonable result. Rather, it represented a reasonable and pragmatic means of achieving consistency in the assessment by different RSs of a large cohort of claims.
Conclusions
- The parties sought, by means of the CHA, to implement the judgment of Turner J by setting up processes for compensating claimants within the BCRDL. There is no doubt that the overall object of the CHA was to compensate claimants for injury caused by negligent exposure to mining dust and fumes. To this end, the MAP was designed to identify the respiratory condition(s) from which the miner was suffering or had suffered. The apportionment process was intended to separate out the contribution made to a miner's condition(s) by post–1954 exposure to negligent mining fumes and dust and to compensate the claimant for that contribution.
- A detailed account of the nature of the medical assessment to be carried out by RSs is set out in the Guidance at Schedule 7, Annex 7a of the CHA. The Guidance makes clear that there are certain areas in which the RS must exercise his or her clinical judgment. As I have explained, the questions in the MAP Report Form to be answered by RSs, and the contents of the Guidance, make clear that, where exacerbation of asthma is diagnosed, the RS must direct his or her mind to the question of whether there is a causal link. Neither the Guidance nor the MAP Report Form, however, contains any suggestion that an RS is required to carry out a similar exercise in connection with CB where the symptoms developed at a time when the miner was working underground.
- Paragraph 23.13 of the Guidance at Schedule 7, Annex 7a states:
"You [i.e. the RS] are asked whether in your judgment on the information available to you, it is more likely than not (i.e. you are more than 50% sure) that the Claimant did have chronic bronchitis when working at a British Coal Mine."
It seems clear from this paragraph (and from question 23(a) of the MAP Report Form: see paragraph 30 of this judgment) that all the RS is required to do is to satisfy himself or herself of the diagnosis of CB and that the miner was suffering from CB at the time he was working underground.
- As Dr Moore-Gillon's evidence makes clear, Schedule 7 and 8 were largely drafted by himself and Dr Rudd in consultation with the party's lawyers. Dr Moore-Gillon and Dr Rudd are highly experienced respiratory specialists and the lawyers involved in the process were also very experienced, with a deep knowledge of the litigation which gave rise to the CHA. It seems to me inconceivable that, if an error of drafting had occurred whereby a vital element in the MAP process had been omitted from the relevant documents, the omission would have remained undetected throughout all the redrafting and intense scrutiny of the various versions of the CHA that took place over a long period of time. This is particularly so since question 23(a) of the MAP Report Form was juxtaposed with question 23(b), which specifically invited the RS to consider, in a case where symptoms of CB developed after the miner had ceased mine work, whether the condition had developed "sufficiently closely to the end of this employment for it, on the balance of probabilities, to have been caused or contributed to by mine dust". The juxtaposition of the two questions makes the difference in the exercise to be carried out by the RS in respect of each of them very obvious indeed.
- The content of these documents is, in my view, very strongly indicative of an intention on the part of the parties that, whereas cases of exacerbation of asthma and late onset CB should be evaluated for a causal link with the miner's work, the same should not be so in cases of CB where the symptoms developed during a period when the miner was working underground. I accept Mr Allan's submission that there may be very good reasons why the parties should have formed such an intention. They may well have considered that, in the vast majority of cases, it could reasonably be inferred that, if a miner developed symptoms of CB while working underground, his CB would be attributable – at least in part – to his mining work. A decision may have been taken that a practical solution, which would achieve the objectives of fairness, consistency and expedition referred to in the CHA, would be to assume a causal link in all such cases. Such a solution would promote consistency and certainty (and therefore fairness as between claimants) and would speed up the process of medical assessment. Claims involving the late onset of CB symptoms, on the other hand, could be expected to be relatively uncommon and it would be practical in those cases for the causal link to be examined by the RS.
- Such a solution would seem to me to be a reasonable and pragmatic way of implementing the judgment of Turner J and of furthering the object of the CHA. It may mean that some individual claims succeeded which, if subjected to the exercise of clinical judgment, would not have done so. However, in a scheme designed to deal with hundreds of thousands of claims, it would not be surprising if the parties had accepted such an outcome. It would not necessarily imply a radical departure from the general object of compensating miners for injury suffered as a result of their work. It would merely suggest that it had been considered appropriate, in this particular part of the process, to take a "broad brush" approach in order more effectively to achieve the objectives of fairness, consistency and expedition. Thus, it does not seem to me that, as the DTI argue, the claimants' interpretation of the case would produce a result that was unreasonable.
- For these reasons, I accept the interpretation of the CHA urged upon me by Mr Allan. I therefore find that, under the terms of the CHA, claimants in respect of whose CB claim the RS answers the two questions set out at paragraph 4 of this judgment in the affirmative are (provided that they satisfy the other requirements not the subject matter of this judgment) entitled to be compensated.
