Workplace exposure to asbestos remains unproven

Recently, in Cuthbert v Taylor Woodrow Construction Limited [KB 2022], we saw how a defendant, despite an inability to adduce any lay witness evidence, was able to successfully rebut allegations of asbestos exposure in breach of duty. In the latest case to come before the High Court, Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB). Dexter Dias KC, sitting as a High Court judge, dismissed a claim brought for alleged workplace exposure to asbestos during the period 1973 to 1979. 

Facts  

The deceased was diagnosed with mesothelioma in late 2015 and died several months later in 2016. He was employed by the defendant between 1975 and 1979 as a “dryliner” – a plasterer who fitted (dry) plasterboards (indoors) to new build properties. His (lifetime) statement did not allege exposure from that source but via the activities of carpenters working on site whom it is alleged would cut soffit boards to size – inside when rain precluded work outdoors. The claimant alleged that the soffit boards contained asbestos.

The defendant denied exposure and served four statements which included one from a director of the defendant company and one from Mr Bruce Vine, the former site supervisor of the main site contractor – McLeans. 

Each side served an expert report from an occupational hygienist, though the judgment makes it clear that Dexter Dias KC, found these to offer limited relevance – the judge noting that the claimant’s expert had only been born at the time of the alleged exposure.

There was, however, an agreement that, at the time of exposure, some soffit boards contained asbestos – but some did not. This was broadly in the ratio of 40% - 60%. The hygienists accepted that if exposure had occurred as alleged by the claimant, the defendants had failed to take all reasonably practicable steps to limit exposure which would have placed the defendant in breach of duty.

The findings

The judge clearly found the testimony of the former site supervisor to be persuasive. Mr Bruce Vine’s evidence was that if weather conditions precluded the carpenters’ work outdoors, they would simply be sent home and would not be asked to work indoors.

The judge also concluded that on the balance of probabilities the soffit boards used on site at that time did not contain asbestos. Furthermore, elements of the deceased’s lifetime statement were held to be unreliable.

The claim was dismissed.

Comment

The judgment does not break with established precedent and is derived principally from the judge’s assessment of the respective strengths of the lay witness evidence. In the light of those factual findings it is unlikely that this case will be the subject of an appeal.

The judgment is, however, a reminder that the burden of proof in establishing proof of exposure and that the defendant was in breach of duty remains firmly on the claimant. Further, despite the undeniable link between exposure to asbestos and the development of mesothelioma, establishing exposure cannot always be achieved via a supportive report from an occupational hygienist.

Assumptions on historical exposure can be displaced by a lay witness in appropriate circumstances.

The deceased in this case had listed the defendant as one of six exposing employers in his application for benefits yet was the only named defendant in this litigation. The strong link between asbestos exposure and mesothelioma strongly suggests that one of the six employers was responsible for causing the fatal condition.

Whilst we are not privy (to the undoubtedly very good reasons) as to why other defendants were not named in the proceedings, we have noticed a practice develop, in other cases, of claimant solicitors targeting their energies and resources against just one rather than several employers, relying upon the workings of the Compensation Act [2006], and a claimant’s ability to secure 100 % compensation against any one of the exposing employers as a way of short circuiting litigation.

It would be as well for claimants’ solicitors to view the practice of naming a single defendant with an abundance of caution – particularly where there is plausible evidence of exposure elsewhere with insurers capable of satisfying any judgment.