This post was written by David Green.
HHJ Platts, sitting as a judge of the High Court, dismissed a claim for a contribution from the Part 20 Claimant (X) against a Part 20 Defendant (Y), on the grounds that X could not establish that the deceased had been exposed to asbestos while employed by Y.
Clifford Ingleton died of mesothelioma on 16 April 2014. His widow, Eileen, succeeded in obtaining an order for £180,000 in damages and costs against X, one of Mr Ingleton’s former employers. X sought a contribution from Y, for whom Mr Ingleton had worked for a period in the 1970s.
No witnesses were called in proceedings: Mr Ingleton made a witness statement on 1 July 2013, approximately nine months before his death, where he gave his employment history and some details of his occupational exposure to asbestos. There was also expert medical evidence on both sides of the Part 20 claim, and expert evidence from occupational hygienists who examined Y’s premises and were in substantial agreement about the likely level of occupational exposure there.
In his witness statement, Mr Ingleton had said that Y’s premises consisted of vaults whose walls and ceilings were lined with worn asbestos sheeting: as he collected items using a sack barrow, he was unable to keep from knocking into walls and causing the asbestos lining to crack and break up, releasing asbestos dust into the confined vault atmosphere.
This was, however, contradicted by the expert occupational hygienists: they found asbestos ceiling tiles (which included, in various places, tiles consisting of both chrysotile and crocidolite) in place in the vaults in 2006 and 2007, but no evidence of asbestos surfacing on the vaults’ walls, which were of a brick or block construction and thus largely fireproof without asbestos cladding. They agreed that, if asbestos wall coverings had been removed at some point between Mr Ingleton’s employment and 2006, it was most likely that the ceiling asbestos would have been removed at the same time.
On balance of probabilities, the experts’ agreed conclusion was that the walls of the vaults had never been covered with asbestos, and HHJ Platts found this as a fact.
This provided a difficulty for X, who nevertheless sought to establish that Mr Ingleton had been exposed to asbestos during his employment with Y as a result of making contact with ceiling tiles. X relied on photographs in the vault surveys showing that goods stored in the vaults were often stacked close to the ceiling, and that it was likely that Mr Ingleton would have disturbed ceiling tiles as well as the walls (despite the fact that he had only mentioned the walls, and not the ceilings, in his witness statement).
The experts agreed that, if Mr Ingleton had indeed disturbed the ceiling tiles, his exposure was “probably relatively low”. the ceiling tiles were described in the initial surveys as being almost exclusively of low or very low risk.
Given the evidence, the judge considered that there was no evidence that Mr Ingleton had disturbed the ceiling tiles: although there was some evidence that items were sometimes stacked near to the ceiling, this was not enough to draw an inference that the ceiling was disturbed. There was consequently not enough evidence that Mr Ingleton had been exposed to asbestos during his time with Y: a mere potential or possibility was not enough. X thus failed to establish that Y was a “responsible person” within the meaning of Section 3 of the Compensation Act 2006.
The judge added obiter that, if he had found exposure, he would not have accepted Y’s submission that there was insufficient evidence for an apportionment to be made: he considered this a jury question (quoting Holtby v Brigham & Cowan (Hull) Ltd  3 All ER 421). Doing the best he could, the appropriate apportionment would have been 20% to Y.
This case is a salutary reminder to mesothelioma defendants considering the possibility of seeking contributions from other employers: although the mesothelioma victim’s evidence may well point to the possibility of exposure from other employers, this evidence must be treated with caution. Particularly when the victim is deceased and their evidence is not available to be tested in cross-examination (as in this case), but also for living mesothelioma cases, it is very likely that any expert or survey evidence available to the court will be preferred where it contradicts the victim’s recollections, which are inevitably made many decades after exposure took place.