High Court Hands Favourable Judgment in Mesothelioma Claim: Defendant Cleared of Alleged Asbestos Exposure

Clyde & Co was handed a favourable High Court judgment this month, in a fatal damages claim for mesothelioma.

That the deceased sadly succumbed to mesothelioma was not disputed, but the defence proceeded on the basis that the claimant could not prove exposure, that if there was any exposure it did not make a material contribution, and that there was no breach of duty. The judge was unable to find that the defendant exposed the deceased to asbestos and the claim was dismissed.

The deceased’s in-life evidence was that she worked as carer at Bradwell Grove Hospital in Burford. Over several months during 1974/1975, one of the hospital buildings which was made up of various asbestos materials was demolished, and she walked past the works several times a day when using a connecting corridor which contained “visible clouds of dust”.
 
The hospital was formerly a military camp and included a number of prefabricated buildings with corrugated asbestos cement roofs, and the Juniper ‘C’ Ward was one of those buildings. Documentation to include a tender, drawings and specification of works which were not available to the deceased at the time of making her statement showed that:

1. The Juniper ‘C’ Ward was to be refurbished by contractors engaged by the defendant;
2. Works were to be completed by the end of February 1976;
3. The works would involve, inter alia, the (i) removal of existing corrugated asbestos roofing, (ii) the fitting of new corrugated asbestos roofing to be drilled and screwed, (iii) the removal of existing internal doors and the fixing of Asbestolux sheet to those doors, and (iv) alterations to the central heating system.

The documents did not specify any safety precautions in relation to the proposed works.  

The claimant relied upon these documents to assert that when making her statement, the deceased was referring to the refurbishment of the Juniper ‘C’ Ward given the similarity between her recollection of the works and the detail set out in the contemporary documents.

The judge reminded the court that when approaching the evidence:

• It was for the claimant to prove exposure in breach of duty.
• The usual standard of proof applied with the same rigour in mesothelioma claims as in any other.
• Caution must be exercised when a witness was recalling events from the distant past and the inherent unconscious reconstructing of events.
• But one should not permit the defendant to allow such inherent difficulties into its first line of defence.

The judge found that the deceased’s recollection of the works and timing of the same was indeed broadly consistent with the works done to the Juniper ‘C’ Ward, but there were aspects of her evidence which had to be treated with caution.

Firstly, the deceased’s evidence of encountering such regular visible clouds of dust levels could not be accepted because the works specification provided for close co-operation between contractor and hospital to allow normal hospital functions to proceed and, in that context, it was unlikely that an operational hospital would have tolerated daily and consistent escape of clouds of dust into occupied parts. 

Secondly, before she prepared her witness statement, the deceased had stated in her benefits application that she had not been exposed to asbestos at work and had told her treating clinician that her only known asbestos exposure had occurred through laundering her husband’s contaminated work clothes.

Thirdly, the deceased referred to the demolition of a building whereas the works relied upon involved refurbishment and the two could not reasonably be confused.

Fourthly, the deceased gave evidence as to three locations in the building where she thought asbestos was present, but the weight of the documentary evidence indicated, and the evidence of both expert occupational hygienists confirmed, that she was mistaken in respect of all three.

The fundamental question was whether the deceased was exposed to asbestos during the refurbishment of the Juniper ‘C’ Ward as now alleged by the claimant. In answering that question, it was to be noted that:

• The occupational hygiene experts agreed that the replacement roof work would have been done outside with any asbestos dust being dispersed into the open air.
• There was no evidence to conclude where the work to fit Asbestolux to the internal doors was carried out, what tools were used or what precautions might have been taken.
• The defendant’s occupational hygienist, Mr Stear, considered that the central heating work was a potential source of exposure, but the extent of any disturbance was not known.
• Mr Stear’s position on exposure generally was that any dose, if found, was likely small and that an accurate assessment could not be provided due to evidential limitations. The claimant’s occupational hygiene expert, Mrs Martin, had provided various dose estimates had the deceased walked past the works, but had in cross-examination accepted that such estimates were “under-qualified” and so they could not provide reliable assistance in determining any exposure.

Therefore, had the deceased walked past the ward several times a day, it could not be said that she did so when any asbestos work was being carried out, how those works were carried out, or the deceased’s proximity to any works. Whilst such finding was sufficient to dismiss the claim, the judge went on to consider the standard of care, breach of duty and causation:

• In 1975/6 there was sufficient information for the defendant, as a public health authority, to have known that the alleged exposure would have given rise to a significant risk of asbestos-related injury being more than fanciful (per Bussey v. 00654701 Limited (formerly Anglia Heating Limited) [2018] PIQR 248).
• A reasonable and prudent employer should have taken precautionary steps. The works specification was silent on precautions, and the claimant invited the court to draw an adverse inference (per Keefe v. Isle of Man Steam Packet [2010] EWCA Civ 683). However, no such adverse inference could be drawn, noting that (i) the occupational hygiene experts agreed that in the mid-1970s measures to eliminate or mitigate the risks flowing from work with asbestos may not have been included in a specification, and (ii) it was not reasonable to expect the defendant to have preserved records in relation to a project that was completed so long ago.
• The court was not satisfied that the deceased had seen visible clouds of dust, and so it was unlikely that the works generated dust (including asbestos dust) which spread into the corridor.
• Even if any dust did emanate from the works, it could not be inferred from an absence of effective controls of general construction nuisance dust that no or no effective measures were in place to eliminate or mitigate the risks arising from asbestos dust.
• Given that the deceased was not found to have been exposed to any or any material amount of asbestos, by definition any exposure was insignificant compared to exposure from the other admitted source, namely her husband’s work clothes.