Alison West (Widow and Administratrix of the Estate of Keith West, Deceased) v Wirral Metropolitan Borough Council

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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 [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][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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Young Austen & Young Limited v Bucon Heating & Ventilation Limited

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The claimant in this case made a claim pursuant to the Civil Liability (Contribution) Act 1978 and Section 3 of the Compensation Act 2006 for indemnity against or contribution in respect out their outlay in prior proceedings. In earlier proceedings, the claimant was among a number of defendants in an action for personal injury arising out of Mr Stratford’s death. Mr Stratford contracted mesothelioma and it was alleged that this was caused through exposure to asbestos during the course of his employment with several employers.

It was agreed that the deceased had probably worked for the claimants in the tax years 1968/69 and 1969/70 and for the defendants in the years 1975/76, 1976/77 and 1977/78. The court was asked to determine whether it was more likely than not that Mr Stratford was exposed to asbestos during his employment with the defendants.

The claimant sought to rely upon the witness statement of the deceased and Mr Bloxham who worked with the Mr Stratford and also died of mesothelioma. The defendant relied upon the evidence of Mrs Ling, a secretary at the firm and subsequently a director, who stated that the deceased was probably not exposed to asbestos as alleged. The court held on the evidence available that the deceased was not exposed to asbestos during the course of his employment with the defendant. Accordingly, the claim was dismissed.

Contributors Comments

Whilst a decision on fact, this case is nonetheless interesting in terms of the logistics of mesothelium litigation.

The claimant seeking contribution, Young Austen, had been one of a number of defendants in the original mesothelioma action and was subject to a show cause procedure as developed in the central registry.  Such procedure is conducted on the basis that unless the Defendant can show some credible evidence or argument to rebut plausible evidence of asbestos exposure, Summary Judgment will be entered.  As Defendant Young Austen was subject to Summary Judgment on this basis.

Bucon Heating and Ventilation Limited were able to produce evidence to challenge the allegations of asbestos exposure which meant that they were not subject to summary judgment and the judge at the trial, the contribution proceedings accepted this evidence as being likely true.

It therefore followed that the Judge considered the evidence of the deceased insofar as it related to Bucon Heating and Ventilation Limited to be unreliable.  It will be appreciated that judgment was entered on a summary basis against Young Austen, as Defendant, as they could not challenge the deceased’s evidence.  It does not follow automatically from this that the deceased’s evidence was inaccurate in relation to Young Austen, nor that they were incorrectly made subject to summary judgment.  However, this situation does indicate the potential for inconsistency and injustice to arise  if there is an overuse of Summary Judgment.

A similar, if not identical, situation arose in the case of Pugh v James Parkes & Sons (2008) EWHC 2964 (QB) where a claim was made against a third party after Summary Judgment had been entered against the Defendant.  On trial of the contribution proceedings, the Judge rejected the claim against the third party, which related to exposure at the third party’s premises where the original claim had been brought, in respect of the same alleged exposure having regard to the Defendant’s status of the claim as employer.  In other words there was clear inconsistency between the finding and Summary Judgment and the finding in the contribution proceedings.

Whether a number of parties and the Claimant is essentially relying upon the same evidence against each party, there is clear danger in entering Summary Judgment against such Defendants who cannot produce evidence if there are some who can.  Whether at a point in time, distant by many years from exposure, a Defendant can produce evidence to challenge exposure may be a matter of happenstance but the fact that one Defendant at least can challenge the Claimant’s account arguably makes the case unsuitable for Summary Judgment.  It might be thought more appropriate in this situation that interim payments be ordered which can be adjusted at final adjudication

Penelope Garner v (1) Salford City Council (2) P McGuiness & Co Ltd. (2013)

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Miss Garner contracted mesothelioma as a result of asbestos exposure. It was alleged that the exposure came from the demolition of some swimming baths adjacent to her school as a child. The claimant, and other former pupils of the school, provided evidence that dust from the demolition spread into the school playground and that they were unaware of any attempts to limit the spread of dust. The defendant and his employees provided evidence that the building was demolished one story at a time as was customary in cases such as this. The defendant also stated that water was used to prevent the spread of dust.

The court held that  it was likely some dust from the demolition drifted into the school playground. The court also held it was likely dust from other demolitions within the area drifted into the school playground. The court found on the evidence that the boiler room pipes contained asbestos lagging but that the lagging was removed while still in the boiler room and that it was likely water was used to soak it prior to removal. Given the findings of fact, the court concluded the chances of the dust containing asbestos were minimal. The court could not rule out the possibility of some dust containing asbestos being present in the playground but that the exposure would not have exceeded the controlled levels of the time.