Scarborough College Ltd v Winter [2021] 4 WLUK 352- The Show Cause Test under Scrutiny

This post was written by Helen Waller.

An independent boarding school recently appealed a judgment on liability made against it under the ‘show cause’ procedure set out in CPR PD 3D. The claim was one made by a former pupil who had contracted mesothelioma as a consequence of his exposure to asbestos at the school. The mesothelioma led to the former pupil’s death in December 2020, a month after the show cause hearing. His widow continued the claim.

CPR PD 3D, paragraph 6.1 sets out the defendant’s obligations in the show cause procedure. A defendant is to “identify the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability.” Following Silcock v H M Revenue and Customs [2009] EWHC 3025 (QB), that obligation only kicks in once the claimant has adduced credible evidence in support of his case.

The Background

The Claimant/Respondent had been a boarder at the school from 1969 to 1973, housed in a Victorian building. He said that 6 days a week he and other pupils dried their sports kit on asbestos-lagged pipes in the basement boiler room. His case was that the lagging was damaged and frayed. In respect of establishing the Defendant/Appellant’s knowledge of the dangers of asbestos and breach of duty, the Claimant/Respondent relied on the following:

  1. A Department of Education memo, circulated to all schools in 1967, which stated that the inhalation of asbestos dust was known to cause asbestosis, lung cancer and mesothelioma.
  2. The now well-known 1965 article in The Sunday Times which discussed the danger of exposure to asbestos.
  3. A letter from a health and safety practitioner as a preliminary expert report, which stated that the pipes were likely to have contained asbestos.

The Defendant/Appellant submitted a preliminary report from an occupational hygienist.

The Master held that the school knew or ought to have known of the condition of the lagging, the risk of exposure to asbestos, and that the pupils were using the room. He held that the memo and the article meant that it would be fanciful for the school to maintain that it did not have concerns about exposure to asbestos, and that the school should have curtailed access to the boiler room in light of such concerns. Therefore, the Master concluded that the school had no realistic prospect of defending liability and that a breach of statutory duty was incontrovertible. Medical causation and assessment of damages remained to be dealt with at trial.

The Appeal

The appeal came before Cavanagh J. The school contended that the Master had applied too high a standard in deciding whether or not it had a “real prospect of success” in defending the case on liability. The school accepted that the lagging had likely contained asbestos, but argued that it had neither actual nor constructive knowledge as to the risks of asbestos at the time such as would place it in breach. It argued that asbestos had been used up to 1975, that contemporary publications had suggested that it had posed no health risk and that competing interpretations of what was known at the time should be a matter for trial.

The Judge dismissed the appeal. Drawing on Silcock, the Judge held that the test of whether the Defendant/Appellant’s case had some prospect of success that was not fanciful was a low bar. The procedure was inevitably rough and ready and often conducted without the benefit of full expert reports. It was held that the Department of Education memo should have put the school on notice of the risk. The Master had been entitled to conclude that it was not reasonably arguable that contemporaneous reports about the safety of asbestos present in buildings in an undisturbed state could have assuaged concerns. That conclusion was supported by The Sunday Times article from 1965. As a result, the Master had been right to find that the school ought to have taken reasonable steps to prevent exposure to the asbestos lagging and dust. Foreseeability was to be judged in the context of the state of knowledge at the time and the Master had been correct in his conclusion that the school would not be able to establish that harm had not been reasonably foreseeable. The school might not have known whether the dust swirling in the boiler room was chrysotile, but there had been a clearly foreseeable risk of injury. The school’s own expert did not exclude the possibility that the dust was chrysotile.

Comment

This is an important appellate judgment re-enforcing two key aspects of the show cause procedure.

Firstly, it is only a low bar that a defendant has to meet. However, the test is a clear one and the Masters are specialist asbestos judges. This case is a reminder that the Masters should approach these cases pragmatically and realistically. 

Secondly, the Masters regularly apply this test to incomplete expert evidence, but that is no bar to a finding of a defendant having no prospects of success. Defendants can often generate the semblance of a coherent argument, but once one takes a step back, it is clear that that argument is not one that stands reasonable prospects at trial. The procedure is necessarily rough and ready. It is designed to ensure, so far as possible, that dying victims are not deprived of the ability to live the short remainder of their lives with a modicum of financial security.