Revenue & Customs v Silcock

In a mesothelioma show-cause hearing, the claimant retains the legal burden of proving exposure to asbestos and negligent or statutory breach. Once credible evidence is sufficiently strong to support an inference of exposure, the defendant may bear an evidential burden of showing a realistic, non-fanciful prospect of success. That evidential burden does not arise automatically on every issue. Where the claimant’s evidence of breach remains weak, the defendant may rely on the absence of evidence from the claimant and need not disprove liability by its own evidence. A court must distinguish the exposure issue from the negligence issue and apply the correct burden separately.

The claimant, Rita Silcock, brought a fatal mesothelioma claim against her late husband’s former employer, HM Revenue & Customs. The Deputy Master entered judgment for the claimant on liability at a show-cause hearing under the mesothelioma Practice Direction. The defendant appealed, contending that the evidence did not establish exposure during employment or negligent breach of duty, and that the Deputy Master had wrongly shifted the burden of proof. The central issues were whether the evidence justified an inference of employment-related exposure and whether it was sufficiently strong to shift an evidential burden on negligence or breach of statutory duty.

The appeal succeeded on the negligence and breach of statutory duty issue, but failed on exposure.

1. Applicable approach. Under [2007] EWCA Civ 88, the claimant had to prove both exposure to airborne asbestos during the employment and exposure caused by negligence or breach of statutory duty. At a show-cause hearing, the claimant must first adduce credible evidence. Only then may an evidential burden arise requiring the defendant to show a realistic, non-fanciful prospect of success. The issue is not whether the defence is likely to succeed at trial.
2. Exposure. The evidence, considered as a whole, supported the inference that the deceased had suffered significant asbestos exposure during his employment by the defendant. The Deputy Master had first assessed the claimant’s evidence and then considered whether the defendant had evidence capable of mounting a realistic challenge. That was a correct approach, or would in any event have produced the same result. The exposure ruling was neither wrong nor unjust.
3. Negligence and breach. The evidence on precautions was materially weaker. The claimant had not shown circumstances sufficiently establishing that the exposure resulted from a failure to take proper precautions. The defendant was entitled to rely on the claimant’s evidential deficiencies and on indications of responsible conduct. The evidence was not strong enough to shift an evidential burden to the defendant. The Deputy Master therefore erred by relying on the absence of evidence from the defendant and by entering judgment on this issue.

The judgment was an appeal from an order made by Deputy Master Eastman at a telephone show-cause hearing on 26 March 2009. Permission to appeal was granted by Mr Justice Sweeney, who heard the appeal on its merits.