Taylo v Fascia Future Ltd

In a preliminary factual trial concerning asbestos exposure, the court must make findings that enable causation to be assessed, while recognising the limits of the available evidence. A defendant’s failure to keep records required by the applicable regulatory regime may be relevant to the evaluation of competing factual accounts. It does not reverse the burden of proof, permit causation to be inferred from breach alone, or establish particular exposure levels without evidence. The court may nevertheless assess the claimant’s evidence benevolently and the defendant’s evidence critically, and may adopt the upper end of a credible evidential range where the absence of records has materially increased the difficulty of proof.

The claimant, who had developed lung cancer, brought a claim alleging that his disease resulted from asbestos exposure during his employment with the defendant. The defendant admitted breach of duty but disputed causation and alleged contributory negligence.

By order of Master Davison dated 6 September 2018, the case was listed for a preliminary trial of factual issues concerning the circumstances and extent of the claimant’s exposure between 1995 and the end of 2005. The court heard evidence from the claimant, former colleagues, a waste contractor and the defendant’s proprietor. The central issue was the frequency and manner of asbestos encounter, removal and disposal, so that causation could subsequently be determined with expert assistance if required.

1. Preliminary factual findings. The court found that the claimant worked on approximately 50 removal and replacement jobs annually and encountered asbestos soffits and/or guttering in up to three quarters of those jobs. Removal commonly involved sawing, cutting, breaking and dry brushing, creating a risk of asbestos dust. Waste was initially taken to a tip as general commercial waste. From around 1999, asbestos waste was separated, stored temporarily in a domestic garage, broken up and bagged for specialist collection.
2. Effect of missing records. The court accepted the relevance of Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683. The defendant’s admitted breach of the regulatory regime, including its failure to keep relevant exposure records, made the claimant’s evidential difficulty relevant when evaluating the evidence. The court therefore treated the upper end of the defendant’s accepted range, 60 per cent, as the lowest credible frequency of asbestos encounter.
3. The absence of records did not establish any particular fact, reverse the burden of proof or permit causation to be inferred from breach of duty. The court remained required to make findings on the evidence. It did not make reliable findings about the precise types of asbestos encountered, since that issue required more systematic evidence and potentially expert assistance.
4. Paper masks were available, but their use was neither enforced nor routine. The parties’ agreed factual questions were answered in accordance with the findings set out in the judgment. The matter was left for a subsequent trial of liability and causation.

This was a first-instance preliminary factual trial ordered by Master Davison on 6 September 2018. The judgment did not determine the ultimate issues of causation or liability.