Garner v Salford City Council & Anor

In a mesothelioma claim involving alleged low-level bystander exposure, the claimant must prove exposure and causation within the ordinary framework of the burden and standard of proof. Sympathy for a victim cannot replace proof, and the court must avoid speculative inferences. Statistical prevalence alone does not establish that a particular material contained asbestos; it must be connected to the facts of the case. Where the evidence is too weak to establish the necessary exposure on the balance of probabilities, the claim fails. The absence of any identified alternative source does not justify adopting an improbable account once the court has rejected it on the evidence.

The claimant developed mesothelioma after attending a school beside swimming baths demolished in 1978 or 1979. She alleged that asbestos fibres released during the demolition entered the school playground and caused her disease. She sued Salford City Council, the owner which commissioned the demolition, and P McGuiness and Company Limited, the demolition contractor.

The central issues were whether asbestos-containing lagging had been present, how it had been removed, whether asbestos fibres had escaped into the playground, and whether the claimant had proved exposure sufficient to attribute the mesothelioma to the defendants.

1. The claim was dismissed. Judgment was entered for both defendants. Costs were left for agreement, with provision for written determination if agreement could not be reached.
2. The court approached the evidence by applying ordinary principles concerning the burden and standard of proof and the drawing of inferences. The court adopted the caution in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229 that evidence may be too weak to prove a claim to the required standard.
3. It was probable that some demolition dust entered the playground. There was also a strong likelihood that the pipework had been lagged with asbestos-containing material and that the contractor removed the lagging. However, the evidence established that the lagging was probably soaked or hosed down before removal. The chance that asbestos fibres were released into the atmosphere was therefore minimal.
4. The court considered statistical evidence concerning the prevalence of asbestos-containing lagging. Following the caution discussed in Hotson v East Berkshire Area Health Authority [1987] 1 AC 750, prevalence could not by itself prove that the particular lagging contained asbestos. In this case, the expert opinions were also based on professional experience, and the court found that the lagging was likely to have contained asbestos.
5. The court rejected an inference that the unlikely removal method must have occurred because no other source of exposure had been identified. That would have repeated the error identified in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948: eliminating some possibilities does not establish an improbable remaining possibility.
6. Even on the alternative hypothesis that dry removal had occurred, the evidence did not establish with the required degree of likelihood that the claimant had been exposed to asbestos fibres from the baths. The claim therefore failed.

Not stated in the judgment.