England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE READING COUNTY COURT
HIS HONOUR JUDGE ELLY
4HW02004

		Royal Courts of Justice Strand, London, WC2A 2LL
		14th February 2007

Lord Justice Sedley :

1. Because of the widespread use of asbestos-based materials in the construction and equipment of buildings, workers employed many years ago in the building trade are still developing either asbestosis, which is a disabling but not necessarily fatal lung fibrosis, or mesothelioma, a cruel and invariably fatal cancer of which the only known cause is the inhalation of asbestos fibres. The latency period of the disease is in many cases extremely long. Medical opinion is now divided as to whether the carcinogenicity of asbestos lies, as it was always believed to do, in the intensity and duration of exposure or in the effect of a single fibre among the millions inhaled. Whichever it is, the House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] UKHL 22 decided that an employer was liable if it had materially and tortiously contributed to the risk of producing the mesothelioma, without need to prove direct causation of the condition. Any unlawful exposure of the employee to airborne asbestos will ordinarily constitute such a contribution if mesothelioma develops.
2. In Barker v Corus UK Ltd [2006] UKHL 20 the House held liability for such wrongdoing to be several and not joint, with the result that recovery had to be proportioned to each defendant's contribution to the totality of the employee's exposure. This doctrine was reversed by s.3 of the Compensation Act 2006, which provides, in substance, that in mesothelioma cases each contributory wrongdoer is liable for the whole of the damage, but without prejudice to its right to recover contribution from other tortfeasors.
3. Mr Brett died of mesothelioma at the age of 75 in October 2001. There was no evidence, the trial judge at Reading County Court, Judge Elly, noted, "to suggest that Mr Brett contracted this industrial disease other than through one of his employments". One of his employments had been with the present respondent, the University of Reading, which was the only defendant to the Fatal Accidents and Law Reform claims. But in the course of a long working life between 1940 and 1999, all of it in engineering and construction work, Mr Brett had worked for numerous employers as an electrician, chargehand, site supervisor and clerk of works supervising electrical and mechanical engineering work. Although there was a real possibility that he had been exposed in many of these jobs to airborne asbestos (his first employment, during World War II, had been in power stations), and although the joint medical opinion in the case laid equal blame on all such exposures, no other employer was sued in addition to the present respondent. Proceedings had been intimated against the London Electricity Board, for which Mr Brett had worked on power stations from 1953 to 1967, and against the University of Surrey, for which he had worked from 1973 to 1982, but had not been pursued, apparently for lack of evidence.
4. Reading University employed Mr Brett as a clerk of works from 1983 to 1988. For at least part of this time he was supervising the dismantling of the old library at the university, which took about two years. After his condition had been diagnosed Mr Brett told his wife "that he had come into contact with asbestos when he was supervising the tearing down of the old library at Reading University and adding the new library extension to it". The engineering expert called on the claimants' behalf, Mr Clark, gave evidence that the original library building, which was designed in the 1950s and built in the 1960s with a specification that included "flame-resistant fibreboard throughout", probably contained a number of asbestos-based materials in its structure; and the judge noted that, at least in two of the rooms dismantled in the 1980s when Mr Brett was clerk of works, asbestos was found.
5. Judge Elly directed himself accurately as to the effect of Fairchild:

"If the deceased … had been exposed negligently or in breach of statutory duty to asbestos by the defendants, then [the claimant] does not have to prove that it was the particular exposure in that employment which caused the mesothelioma."

He went on, after reviewing the evidence, to hold:

"… if the evidence is that the defendants exposed Mr Brett to asbestos in breach of statutory duty or negligently, then it is for the defendants to establish that there is no material contribution to the disease …"

6. The judge went on to consider the twin defences (a) that there was no or insufficient evidence that Mr Brett was ever exposed to loose asbestos while working at Reading University, and (b) that if there was any such exposure it was not due to negligence or breach of statutory duty on the university's part.
7. The judge found it proved that at Reading University Mr Brett had indeed worked "in an environment where there was asbestos". But it was not proved, and he was not satisfied that he could infer, that asbestos fibres were becoming airborne in that environment and so were likely to have been inhaled by Mr Brett. The difficulty with such an inference, he found, was "the possibility that he was exposed to asbestos fibres at one or other of his other employments", a possibility clearly flagged up by the claimant's own expert evidence.
8. The judge concluded that:

"…whilst [Mr Brett] was exposed to asbestos sheeting in the plant room at Reading University, he might equally have been exposed to it elsewhere, and without any evidence that there was some damage to the sheeting then it seems to me that it is impossible to infer that he must have acquired his asbestosis from that exposure as opposed to one of the other possible exposures during the course of his earlier employment."

The reason for this was that he had

"no evidence which suggests that either the main contractor or the subcontractors or the University in any way failed to carry out the work properly.

9. Accordingly Judge Elly held:

"..I cannot infer on the balance of probabilities that because the claimant has only proved a connection with asbestos material at Reading that that is the place where he contracted asbestosis… In the absence of any evidence which showed failure on the part of the defendants or default in their duties, it seems to me that the inference that Mr Brett must have acquired his asbestosis at Reading University just does not follow."

10. It can be seen that, notwithstanding his correct initial self-direction on the Fairchild principle, the judge expressed his conclusions in quite different terms. He appeared to be looking for proof that Reading University was "the place where [Mr Brett] contracted" his terminal condition. In passing, I should say that the repeated reference to asbestosis instead of mesothelioma is unfortunate because different principles of law apply to the causation of the two conditions. But the real problem which emerges from the passages I have cited is that the judge appears in them to be comparing one potential source of exposure with another and forgetting that it does not matter to one defendant's liability for contributing to the material risk that another party, whether a defendant or not, may also have contributed to it.
11. In cases like the present one, where a diagnosis of mesothelioma ineluctably implicates asbestos dust, the first question in relation to any party alleged to be liable for contributing to the risk which has now eventuated is whether that party in fact made any such contribution. If it did, it remains to be decided whether the party was legally at fault. The two questions sometimes overlap: for example, evidence that full precautions were taken may answer both questions in the defendant's favour - but that did not happen here. Where there is only one employment in which asbestos exposure can have occurred, the inference that that is where it did occur will be practically irresistible. Where there are two or more such employments, the inference that exposure occurred in at least one of them will be equally irresistible, but it becomes a possibility that in one or more of them no such exposure occurred. It is a possibility which can frequently be discounted, usually because there is clear evidence that in that employment asbestos dust was regularly liberated and no respiratory protection was provided – but that too did not happen here. It therefore remained a matter to be judged on what evidence there was.
12. Is that what the judge was in reality doing here? If it was, I do not think he went about it satisfactorily. Conflating the separate issues of contribution and fault, he summarised his findings of fact in this way:

15. There is some evidence that Mr Brett went into a room which had asbestos in it on one or two occasions, either to show a specialist the room for the purpose of them preparing their quotation, or one other occasion to see what was happening, but not, as far as I can tell, during the course of any work being carried out – there is no suggestion that he was in there at that stage. What the Claimant asked me to do is to infer that as Clerk of the Works he was likely to be involved at the time of the work being carried out, but against that I have the evidence of Mr Westacott, who was employed by the University from 1984 and his position with the University was as a qualified architect, but he was employed ultimately as Head of Estates Services – that of course was after the date that Mr Brett started working there and after the dates which are most relevant in terms of his possible exposure to asbestos. But he says that on the basis of the instructions which were in force when he went there, he would not have expected Mr Brett to be involved at all in this side of the work. Having said that, he also said that he would not have expected Mr Brett to be asked to show contractors on the site, although in fact on the evidence that is before me I find that on one occasion at least he did do so.

13. The evidence was at lowest sufficient to show that demolition work was being undertaken in the old library which was going to liberate asbestos dust, and that Mr Brett had from time to time to inspect the work as it proceeded. It was not a defence in itself that the work was done by reputable contractors and subcontractors under professional supervision. There was evidence that the contractors had been given instructions to take all necessary precautions, but no direct evidence that the necessary precautions were in fact taken to seal off the spaces in which asbestos dust might be liberated and to ensure that nobody, including Mr Brett, entered them without respiratory protection. Nor, however, was there any direct evidence that precautions had not been taken.
14. A good deal of argument before us was devoted to how the case had been put below. Although Mr Matovu had sought, as he has also done before us, to argue from the development of mesothelioma to unlawful exposure by Reading University, for reasons I have explained this is a syllogism which does not work where there have been multiple employments that may have involved such exposure. It may explain why the judge reasoned part of his decision in the way he did, but it remained his task to apply correctly the law of which he had reminded himself. What would have been the outcome had he done so?
15. The evidence of the claimant's expert, Mr Clark, was that Mr Brett "probably would have encountered and/or disturbed asbestos-based materials himself and/or he would have been present while other tradesmen disturbed, disrupted and/or used asbestos-based materials". Although he agreed with Ms Adams in cross-examination that there was no evidence of exposure through damage to or deterioration of such materials, the evidence I have mentioned was unshaken and, given the records produced by the university, clearly right.
16. The critical question which remained, and which still remains, is whether the exposure to which it is likely that Mr Brett was subjected was such as to put the university in breach of its common law or statutory duties to him. In other words, did the university fail to take the necessary precautions to ensure that he did not inhale asbestos fibres?
17. I put the question in this way, rather than asking whether the university took the necessary precautions, because on principle it is for the claimant to establish the elements of his case, and one such element in a personal injury action is that the injury was caused by a breach of duty on the defendant's part.
18. Mr Matovu submits that this is not the right approach. He relies on Lord Mansfield's dictum in Blatch v Archer (1774 I Cowp. 63, 65, cited by Lord Bingham in Fairchild,§13:

"It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted."

19. I accept that special rules may apply, in accordance with this approach, in special cases, but I am unable to accept, in the absence of authority, that either generally in personal injury litigation or specifically in a case such as the present it falls to the defendant to prove that proper precautions were taken. The allegation that they were not was a necessary part of the claimant's pleaded case, and – at least in the absence of factors more special than we have here – it was for the claimant to establish it, whether from his own or the defendants' evidence or documents.
20. Ms Adams submits that there was no evidence even to show that the quantity of airborne asbestos exceeded the statutory threshold of 2 fibres per millilitre  of air; but this is fanciful. Stripping out constructional asbestos produces clouds of asbestos dust: hence the strict precautions required by the Asbestos Regulations 1969 in terms of respiratory equipment, protective clothing and cleanliness. Ms Adams' real case is that Mr Matovu has no direct evidence and no evidence from which it can be inferred that proper precautions were not taken.
21. The contractors had gone out of business, and neither party had traced (or at least brought to court) any of their former personnel. For reasons I have given, no inference about lack of protection could be drawn from the bare fact that Mr Brett had developed mesothelioma. Mr Matovu submits, however, that he is able to establish it, as it were, by default. He points to the batch of contemporaneous documents produced by the university, showing a clear awareness of the need for the contractors to comply with the Asbestos Regulations, and to the absence of any corresponding documents indicating compliance. From this, he submits, it is legitimate to draw the affirmative inference, in the absence of more concrete evidence, that protective measures were overlooked in the course of the demolition work.
22. I accept that where, as here, the rest of the evidence points neither way, a straw in the wind may be decisive. But if the absence of certain documents is to have this effect, they must be documents which one would have expected to be present. Those documents mentioning asbestos which the university has retained and produced are copies of letters from and to engineers, architects, specialist consultants, contractors (including asbestos specialists) and the university's buildings officer. They include estimates from contractors specialising in asbestos removal, setting out the precautionary measures to be taken (working area to be sealed off and restricted to operatives with HSE-approved protective clothing and respirators; clean-up with approved vacuum equipment), and minutes of site meetings noting the progress of asbestos removal.
23. In this situation the absence of any memoranda or other documents in the university's files confirming compliance with the Asbestos Regulations is in my judgment as consistent with compliance as with non-compliance by the contractors. Ms Adams argues that it is, if anything, more likely that building operations which can be seen to have been carried out for an institutional employer by a hierarchy of skilled professionals were carried out, as the estimates undertook they would be, in compliance with the law, than that compliance was overlooked or ignored. But this reasoning (which is not the same as allowing the university to answer the claim by simply saying that it took on reputable contractors) is not necessary to the decision of the case, and I prefer to express no view on it. What matters is that there are, in my judgment, no such eloquent or suspicious gaps in the university's documentation as Mr Matovu suggests: the undoubted absence of documents of the kind he proposes is as consistent with the exercise of the requisite care in the course of the demolition work as with neglect of it.
24. It follows that, while the evidence was sufficient to enable the court to infer that Mr Brett came into contact with asbestos in the course of his work at Reading University, it was not sufficient to show, or to support an inference, that the university had failed to take necessary steps to protect him from inhaling it.  The tragic fact that he eventually developed mesothelioma cannot fill the gap, because for most of his working life he had been in jobs which were equally capable of bringing him into contact with airborne asbestos. If there had been adequate evidence of breach of duty on the part of the university, Mr Brett's estate and dependants would have recovered the agreed damages in full notwithstanding the possible responsibility of other employers. But without such evidence the action against the university had to fail.
25. For these reasons, which are not the same as those relied on by the judge, I would dismiss this appeal.

Lord Justice Maurice Kay:

26. I agree. In a case such as this, Fairchild exceptionally relieves a claimant who has proved exposure and breach of duty from having to prove causation. What it does not do is to relieve him from proving the other elements. As Lord Justice Sedley has demonstrated, the evidence in this case sufficiently established exposure in the course of employment at Reading University but it did not begin to establish a breach of duty on the part of the university. Accordingly, I too would dismiss the appeal.

Lord Justice Laws:

27. I agree with both judgments.