Today’s post is by Michael Brace. It summarises a decision in proceedings in the Technology and Construction Court, which arise out of very recent alleged asbestos exposure following asbestos removal works. As Mike says, this is a case we may post on again because in June 2020, it is due to go to a four-day trial of the issue of whether the Defendant’s admitted breach of duty in respect of the control of asbestos caused asbestos contamination. It will be interesting to see how the Court approaches these issues in a commercial rather than a personal injury context.
This is a commercial claim in which the defendant’s admitted breach of duty in respect of the control of asbestos during works which it carried out on the claimants’ properties is alleged to have resulted in asbestos contamination (which is denied). The parties had permission to rely upon expert evidence. In April 2020, the defendant served a witness statement from a non-expert explaining measurements taken in the course of testing carried out at the properties and whether the same amounted to “traces” of asbestos. The claimants objected to the defendant’s reliance on the statement. The objection was upheld on the following grounds: (1) the statement was from a new witness not an existing one and thus the defendant needed permission to rely on it; (2) the statement did not comply with the requirements of CPR PD32 para 18 in that it failed to indicate which of the statements in it were made from the witness’ own knowledge and which were matters of information or belief and the source of any such matters; (3) the witness, a non-expert, was expressing his opinion on the interpretation of the results, which was a matter solely for the parties appointed experts; (4) the statement alluded to a defence which was not pleaded. When/if the causation trial takes place and is reported, this case may be one to watch as it will consider asbestos contamination in a commercial, as opposed to a personal injury context.