Case Background

The Claimant brought an action alleging that the Deceased was exposed to asbestos, which subsequently led to the development of mesothelioma, while in employment at a school run by the Defendant between 1993 and 1997. Previously, the Deceased had worked as a mechanist involved in cutting asbestos sheets on a cross bench saw for twelve months between 1954 and 1955. In addition, between 1989 and 1993, the Deceased was in charge of maintenance at a Harlow hotel. As part of his employment the Deceased was responsible for cleaning the boiler room however, it could not be said with any certainty, that he was exposed to asbestos as part of this.

The claim focused on the Deceased’s work as a caretaker at South Wirral High School. As part of his responsibilities he maintained the boiler room which was found to have asbestos in two places: first, in the lagging on pipe work; and second, sprayed asbestos insulation within the ceiling. The basis of the Claimant’s argument was the poor practices employed by the Defendant in relation to asbestos management which- mainly- occurred before the Deceased’s employment. It was argued that these practices led to an inference that the Deceased was exposed to asbestos. The Defendant’s records showed a knowledge that asbestos was present within the boiler house and a recommendation for its removal. The records indicated in 1987 that the lagging and ceiling were damaged and in need of repair. In 1987 the asbestos was encapsulated but not removed. In 1988 the sprayed ceiling was sealed rather than the asbestos being removed and replaced.

The Defendant relied upon evidence of the Borough’s architect in relation to the condition of the asbestos after encapsulation and of the past and current Head Teacher at the school. Both Head Teachers gave evidence that they made infrequent visits to the boiler room and expressed no concerns about damage to the lagging or any other part of the room.

The court held that the evidence before it showed that the Defendant was exposed to no more than background asbestos during his employment and, consequently, there was no breach of duty. The court also expressed the opinion that even if there had been a breach, the exposure was not sufficient to have materially contributed to the risk of contracting mesothelioma.

Contributor Comments

This claim will be recognised by practitioners in this area of the law as being representative of a type of action being seen with increasing prevalence; that is a victim who has had ample historic exposure but cannot pursue the likely guilty party because they are no longer traceable, insured, or solvent.  The Claimant is therefore driven to pursue a difficult claim against a more recent and viable defendant.

Such claims put into very clear focus the issues of material increase in risk and de minimis in the context of the Fairchild exception.  The consequence of a finding of material exposure is compensation in full even though it is obvious that the likelihood is that most of the risk, and indeed the causation of the injury, has come from another source.

In ‘The Dust Settles? Fairchild to Williams’ (2013) 21 Tort L Rev 87, I tentatively suggested that the use of de minimis in this context would appear to be an accident of legal history.  It seems incongruous that a level of risk which is just above de minimis should entitle a Claimant to full compensation where the vast preponderance of the risk, and likely causation, lies elsewhere.  However, it has to be acknowledged that identifying a touchstone for materiality will be difficult even arbitrary.

The essential allegations of exposure related to asbestos in situ and the failure to maintain the same.  Again, this is an increasingly prevalent feature of mesothelioma claims.  The evidence served on behalf of the Defendants indicated that they, like others, may have been slow to react to this particular type of risk.  However, by the time of the Deceased’s employment, the Judge accepted that proper procedures were in place and the Deceased’s account of exposure could not be squared with the evidence of care which was shown to have been taken in other respects.

The Judge went on to consider that any exposure would have been de minimis.  As this was not a determinative decision, his comments are understandably brief but appear, essentially, to be correct.

Remarks by Lord Phillips in Sienkiewicz v Grief 

[2011] UKSC 10  implied that de minimis could be established by reference to a comparative exercise involving other exposures.  In other words, an exposure which might be considered material on its own could become de minimis if it was shown to be a very small part of the overall exposure history (see paragraphs 107-111).  Lord Justice Aikens in Williams v University of Birmingham [2011] EWCA Civ 1242 (at paragraph 71) also indicated that such an exercise was possible but was understandably reluctant to go further in his analysis on the facts of that particular case.  It does appear to be reasonable that a point must be reached at which a contribution to risk is so slight that it cannot be considered material.

The Claimant’s essential attack on this approach, as reflected in their submissions in this case, is that comparative exercises are so shot through with imprecision that they should be completely ignored.  However, it is one thing to say that something is imprecise and prone to error and another to say that it is wholly unhelpful.  Whatever realist assumptions were applied to the relative exposures on the facts of the case, it would appear that the vast preponderance of risk came from the earlier exposures and the Judge was entitled to regard such evidence as being helpful in forming a view as to whether the exposure was de minimis.

Clearly, further consideration by the Appeal Courts of these difficult and important issues is both necessary and inevitable.

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