Sloper v Lloyds Bank Plc

In a mesothelioma claim, the claimant must prove exposure to asbestos on the balance of probabilities. The special causation rule in Fairchild v Glenhaven Funeral Services Ltd applies only after the necessary exposure and material increase in risk are established. Distant recollection must be tested carefully against contemporaneous documents and objective probabilities. The court should remain alert to the reconstructive and litigation-influenced nature of memories, particularly in tragic mesothelioma cases. Where alleged exposure is based on occasional maintenance of a small ceiling area, the court must assess the realistic likelihood of disturbance and the resulting level of exposure. On the evidence, the claimant failed to prove asbestos exposure at either branch.

The claimant developed mesothelioma after working for Lloyds Bank at branches on the Isle of Wight between 1978 and 1986. She alleged exposure to asbestos from suspended ceiling tiles at the Freshwater and Yarmouth branches, including during maintenance and alleged refurbishment works. Liability was disputed; quantum was agreed at £250,000.

The central issues were whether asbestos-tiled suspended ceilings existed, whether tiles were disturbed in the claimant’s presence, and whether any exposure materially increased the risk of mesothelioma under the principles in Fairchild v Glenhaven Funeral Services Ltd.

1. Claim dismissed. The claimant failed to prove, on the balance of probabilities, any asbestos exposure at either the Freshwater or Yarmouth branch.
2. The court approached the factual evidence with particular caution. In mesothelioma cases, the exceptional causation rule identified in Fairchild v Glenhaven Funeral Services Ltd does not justify a relaxed approach to proof of essential elements. The observations in Sienkiewicz v Greif UK (Ltd) were applied.
3. Distant recollection is inherently fallible and may be affected by litigation and other external influences. The court must test such evidence against contemporaneous documents, other evidence and the objective probabilities. The observations in Prescott v The University of St Andrews and Gestmin SGPS S.A. v Credit Suisse (UK) Ltd were treated as apposite.
4. At Yarmouth, plans and other evidence showed that the claimant and supporting witnesses were mistaken about fundamental features of the alleged refurbishment. Their evidence concerning the existence of asbestos ceiling tiles and their removal was therefore unreliable.
5. At Freshwater, the detailed 1977 plans and bill of quantities accounted for the ceiling areas and described only a small area of perforated fibre-board beneath the stairs. The documents, together with inconsistencies in the oral evidence, made it overwhelmingly probable that there was no significant suspended asbestos-tiled ceiling.
6. Even assuming that the 3 square metre area beneath the stairs contained asbestos, exposure would have been de minimis. There was no reliable evidence of a light requiring tile removal, routine maintenance would not ordinarily require tile removal, and the claimant worked in that area only occasionally.