Brett v University of Reading

In a mesothelioma claim involving several possible sources of asbestos exposure, the Fairchild exception relieves a claimant who proves exposure and breach of duty from proving conventional causation. It does not relieve the claimant from proving that the defendant materially contributed to the risk by exposing the victim to asbestos and was legally at fault.

The development of mesothelioma cannot by itself prove exposure or breach by a particular employer where several employments could have involved asbestos. The burden of proving breach remains on the claimant. An absence of records supports an inference of breach only where the missing documents would be expected to exist and their absence is probative.

The deceased worked in engineering and construction for numerous employers and died from mesothelioma. His personal representative brought Fatal Accidents and Law Reform claims solely against the University of Reading, which had employed him as a clerk of works during demolition and extension works involving asbestos-containing materials.

Judge Elly in Reading County Court dismissed the claim. Although he correctly directed himself on the Fairchild principle, parts of his reasoning sought proof that the university was the place where the disease had been contracted. The central questions on appeal were whether the evidence established exposure at the university and whether it established that the university had failed to take the precautions necessary to prevent inhalation of asbestos fibres.

1. Appeal dismissed unanimously. Sedley LJ held that the evidence supported an inference that the deceased encountered asbestos during his employment at the university. The trial judge had erred by comparing possible sources of exposure and appearing to require proof that the university was the place where the mesothelioma was contracted. Another employer's possible contribution does not prevent liability where the defendant materially and tortiously contributed to the risk.

2. The Fairchild principle addresses causation. In a mesothelioma case, the court must first determine whether the defendant contributed to the risk by exposing the victim to asbestos. It must then determine whether that exposure resulted from negligence or breach of statutory duty. Those questions may overlap, but they remain distinct.

3. The evidence showed that demolition capable of liberating asbestos dust was undertaken and that the deceased had to inspect the work from time to time. The use of reputable contractors and professional supervision was not, by itself, a defence. There was nevertheless no direct evidence showing whether the necessary precautions had or had not been taken.

4. The claimant retained the burden of proving breach of duty. The evidential maxim in Blatch v Archer may support special evidential rules in special cases, but it did not transfer that burden on these facts. Fairchild exceptionally relieves a claimant who has proved exposure and breach from proving conventional causation; it does not dispense with proof of those other elements.

5. The absence of documents confirming compliance with the Asbestos Regulations 1969 did not establish neglect. An evidential gap can be decisive only where the missing records are documents which would be expected to exist. Here, the retained files contained correspondence, specialist estimates and site minutes addressing asbestos precautions. The absence of additional compliance records was equally consistent with compliance and non-compliance.

6. The evidence therefore failed to establish that the university had neglected necessary precautions. Mesothelioma could not fill that gap because numerous other employments were equally capable of involving airborne asbestos. Had breach been proved, section 3 of the Compensation Act 2006 would have permitted recovery of the agreed damages in full notwithstanding other employers' possible responsibility. Maurice Kay LJ and Laws LJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the dismissal of the action, although its reasons differed from those of the county court.
2. Reading County Court: Judge Elly dismissed the Fatal Accidents and Law Reform claims because the evidence did not establish the necessary case against the university.