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Success for Alexander Macpherson in High Court mesothelioma trial

Judgment has been handed down in Evans v Secretary of State for Health and Social Care, a case brought by the estate of a mesothelioma sufferer involving alleged historic exposure to asbestos dust in the 1970s.

The claim alleged that the Deceased had been exposed to asbestos when she walked past construction work being carried out at the hospital where she had been working in in the mid 1970s.  She alleged in her witness statement that she encountered “visible clouds of dust floating around in the corridor along which I had to walk every day for months”.  The specification which had been disclosed by the Defendant revealed that the works in question included the removal and reinstatement of an asbestos cement roof and the lining of doors with fire-proofing asbestos insulation boards.  No evidence was available as to how the works were carried out other than the Deceased’s description of what she saw.

The judge (Andrew Kinnier KC) reminded himself that the burden rested upon the Claimant to establish both exposure to asbestos dust and that such exposure was caused by the Defendant’s breach of duty (Brett v Reading University [2007] EWCA Civ 88).  He also referred to the series of cases which have emphasised the caution to be adopted in handling witness evidence in historic asbestos claims as to events in the distant past (in particular Sloper v Lloyds Bank [2016] EWHC 483; Bannister v Freemans [2020] EWHC 1256 and Jackman v Harold Firth [2021] EWHC 1461).

The judge found that, absent any corroboration, he could not accept Mrs Evans’ uncontroverted description of coming across “clouds of dust” as she walked down a hospital corridor.  He held that it was implausible that this state of affairs would have been tolerated in a hospital environment for any prolonged period of time, let alone for months.  He also noted that the Deceased had not described this source of exposure in her claims for benefits or in her accounts of exposure given to medical professionals (when she had referred instead to exposure from her husband’s overalls).

The judge also found that, even if the Deceased had witnessed some dust on one or more occasions, it was impossible to conclude that this would have had an asbestos content given the wide range of non-asbestos works which were also set out in the specification and the absence of any evidence as to what precautions may have been taken in relation to the asbestos works in particular.  There was also no evidence as to how close the Deceased would have passed to any works with asbestos which did take place.  In the circumstances, the judge concluded that the Claimant had failed to establish any material exposure to asbestos dust.

In obiter comments as to breach of duty, the judge stated that, had exposure been established, he would have found that the Defendant (as a public health authority at a date some 10 years after the publication of the Newhouse Thompson paper in 1965) should have been aware of the risks of exposure to asbestos even at low levels.  However, he also concluded that there was no evidence to suggest that the Defendant had failed to take any such precautions, and that this was not a case where any adverse inference could be drawn from the absence of evidence on this issue from the Defendant, given the many years which had passed since the works were done.  Even if dust had escaped the works, the absence of effective dust control generally could not support an inference that there was poor control of asbestos risks in particular.

Accordingly the claim was dismissed.  The case is an important reminder of the care with which trial judges will treat uncorroborated historic witness evidence in asbestos claims, particularly where such evidence can be demonstrated to be inherently implausible or inconsistent with accounts given at other times.  The judgment also underlines the requirement to prove both material exposure and breach of duty.  Merely establishing that there was airborne dust produced by construction works which involved work with asbestos materials is not sufficient to establish liability.

Alexander Macpherson was instructed by Simon Alexander of Clyde & Co on behalf of the Secretary of State for Health & Social Care.

For access to the judgment, please click here.

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