Atkinson v Geoffrey Robinson Ltd

At a mesothelioma “show cause” hearing, the claimant must adduce credible evidence capable of showing exposure to asbestos and breach of duty. The defendant then bears an evidential burden of identifying a real, non-fanciful prospect of successfully defending the claim. The issue is not whether the defence is likely to succeed at trial.

On appeal, the decision is reviewed rather than reheard. The appellate court may intervene only where the decision was wrong in law or exceeded the generous limits within which reasonable disagreement is possible. A different view of the evidence is insufficient.

The claimant, who had developed malignant mesothelioma, obtained judgment on liability and causation, together with interim payments, after a Master applied the “show cause” procedure in mesothelioma claims. The evidence concerned alleged asbestos exposure during his employment with the defendant between 1981 and 1995.

The defendant appealed, contending that its evidence raised a sufficient prospect of a full defence and that the competing evidence required a trial. The central issues were whether the Master had applied the correct show cause test and whether his assessment of the evidence was open to him on appeal.

1. Appeal dismissed. The Master’s decision was an exercise of judgment on the evidence. It was not a rehearing, and the appellate court could not intervene merely because another judge might have reached a different conclusion.
2. The applicable appellate standard was whether the decision was wrong because of an error of law or because it fell outside the generous limits of reasonable disagreement. The Master’s ex tempore ruling was not to be subjected to a close textual analysis, provided that the essential parameters had been observed.
3. Under the show cause procedure, the claimant first had to adduce credible evidence of asbestos exposure and breach of duty. The defendant then had to show a real prospect of successfully defending the claim. The relevant question was not whether the defence was likely to succeed at trial, but whether its prospects were more than fanciful, as explained in Silcock v H M Revenue and Customs [2009] EWHC 3025 (QB).
4. The evidence entitled the Master to find significant and prolonged exposure. The claimant did not need to prove exposure on a daily basis throughout the whole employment. Significant exposure at some stage during the employment could suffice for show cause purposes.
5. Where significant exposure occurred over a substantial period, fairly strong prima facie evidence was required to establish that it was not in breach of duty. The defendant’s general instruction not to disturb suspected asbestos was too unspecific, and the evidence of continuing exposure suggested that the instruction had been ineffective.
6. The fact that most cases lacked an arguable defence did not remove the need to examine each case on its merits. The Master had conscientiously considered the competing evidence and reached a sustainable conclusion.

• High Court (Queen’s Bench Division): Appeal from the order of Master Gidden dated 3 June 2015 dismissed. The Master’s judgment on liability and causation, and orders for interim payments, stood.