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David Platt QC obtains landmark judgment in low-exposure asbestos claim: Bannister v Freemans Plc

David Platt QC has just received judgment from the High Court in Bannister v Freemans Plc, a low exposure claim where the Claimant alleged he developed mesothelioma as a result of brief exposure to asbestos in 1983-4. Judgment was given for the Defendant on the basis that the Claimant could not demonstrate that he had in fact been exposed to asbestos. However the Court further held that (if the exposure had taken place) then it should be treated as de minimis and the claim would also have failed on this basis.

The judgment gave useful further guidance on the assessment of historic witness evidence in disease claims, but also for the first time accepted epidemiological and medical evidence on what constitutes a “material increase in risk” for the purposes of the Fairchild principles of causation. It also determined a test for the materiality of risk in such low exposure claims.

Facts

The Defendants were Freemans- a well-known mail order company which traditionally produced catalogues with a wide range of consumer products. At the time, the offices of the Defendant were located in a Victorian building on the Clapham Road in London.

Mr. Bannister was a manager in the accounts department. He worked from one of six partition offices located on the side of the first floor. It was alleged that as a result of exposure to asbestos during one short incident in 1983/4, Mr. Bannister died of epithelioid malignant mesothelioma on 12 March 2019. The incident did not involve the Deceased working with asbestos. Rather it was alleged that a residue from a weekend of asbestos removal works was left in his office when he came into the building on a Monday morning.

These works involved the removal of infill panels from the office partitions. It was contended that this resulting dust was clearly visible all over his desk and floor after the works. It was largely not cleaned up until that evening by the company cleaners. The allegation was predominantly of a one-day exposure, although attenuated exposure for the rest of the week (after the initial cleaning) was also relied upon.

The trial took place before Geoffrey Tattersall QC sitting as a High Court Judge with the evidence heard between 16 and 18 March 2020. Substantial written submissions were delivered thereafter with no further oral hearing in view of Covid-19 crisis.

The Issues

  1. Could the Deceased prove he was exposed to asbestos dust at all during the episode upon which the Claimant relied? The issue was whether this removal operation did indeed leave asbestos dust- or whether the dust in the office was in fact other construction dust. It was agreed that if the panels which were removed were asbestos, then they would have been AIB and thus amosite (brown) asbestos;
  2. If he was so exposed, was the diminutive level of such exposure sufficient to be regarded as a cause of the Deceased’s mesothelioma? This involved a consideration of whether the exposure resulted in a “material increase in risk” for the purposes of the Fairchild causation principle and whether such a low dose would reach the necessary probative threshold. Was the resultant increase in risk too small and therefore “de minimis”?

Findings of Fact

Ultimately the Claimant failed to demonstrate that the dust which was found in Mr. Bannister’s office was asbestos dust. On this basis the claim failed.

The Claimant alleged that a memo had been circulated just prior to the works alerting employees to the forthcoming asbestos removal, but this document was not preserved and was the subject of dispute. However the Judge did find that the memo had indeed been sent and that the panels in Mr. Bannister’s officer were made of asbestos and had been removed by the Defendant. Nevertheless he viewed the evidence of Mr. Bannister as lacking credibility when he sought to link this particular episode with the presence of dust in his office and determined that he had no independent memory of the memo. The Judge did credit some of the evidence of his supporting witness (from whom the memo evidence originally came), but not sufficiently to prove that the relevant dust which was in the office was in fact asbestos.

The main basis for the Judge’s finding was that it was inherently unlikely that the Defendant would have identified asbestos panels, warned employees about forthcoming asbestos works in a memo but then permitted the contractors to undertake the works without precautions.

In coming to this conclusion, the Judge gave some general guidance on why the evidence of lay witnesses in historic disease claims should be viewed with particular care, most importantly because of the backdrop of the ongoing litigation process. He cited dicta and general principles from Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066, Gestmin SPGS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 and Sloper v Lloyds Bank Plc [2016] EWHC 483.

Material increase in risk

The rules of causation in mesothelioma claims are well known and originate from the House of Lords’ judgment in Fairchild. They require a Claimant to prove that any exposure to asbestos was of sufficient magnitude to create a “material increase in risk”. But how was the test of materiality to be determined?

Although there had been some obiter expression of view from Lord Phillips in Sienkiewicz, the point had never been the subject of any more than passing observations in other case law.

The Court approved (with qualifications) the use of a “dose” estimate to guide any risk analysis. The Judge also largely preferred the evidence of the Defendant’s Martin Stear over that of the Claimant’s expert, Mr. Raper, although the differences between them were not substantial. He assessed the total dose burden of the incident (were the dust found to be asbestos) at 0.0004 fibre/ml years.

The Judge also largely preferred the evidence of Dr. John Moore-Gillon over Dr Robin Rudd in how that dose estimate should be deployed in assessing risk. This involved the incorporation of epidemiological evidence and regression analysis from the 2000 study by Hodgson & Darnton on the risks associated with low levels of asbestos exposure.

The Judge accepted the Defendant’s submission that the test of materiality was not arbitrary but could be formulated as follows, namely: “a dose of asbestos which was properly capable of being neglected could be defined as a dose which a medical practitioner who is aware of the medical risks would define as something that the average patient should not worry about”.

The Judge accepted Dr. Moore-Gillon’s evidence that using a combination of the dose estimate and the Hodgson & Darnton paper would result in an estimated incidence of 0.2 deaths per 100,000 (lifetime risk) in those exposed- or a 1:50 million (annual risk). He accepted Dr. Moore-Gillon’s evidence that he would not regard such a risk as medically material. Contrasting this with comparable risks and those levels viewed by the HSE as significant, the Judge concluded that exposure at such a level could not be characterised as a “material increase in risk” and was therefore de minimis.

It should therefore be noted:

  1. That the Court was prepared to adopt a specific framework for the consideration of what amounts to a “material increase in risk” which involves a medical and epidemiological assessment of that risk;
  2. That any argument mounted in comparable claims requires a dose estimate, an understanding of epidemiological literature and a medical expert to give a view on how any statistical risks can be interpreted.

The Claimant has indicated his intention to apply for leave to appeal.

Representation: David Platt QC instructed by Simon Cradick of BLM for the Defendant; Harry Steinberg QC and Gemma Scott for the Claimant, instructed by Field Fisher.

For a copy of the judgment, please see here.



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