Bannister (Estate of) v Freemans Public Ltd Company (Rev 1)

In a mesothelioma claim, breach of duty and causation remain distinct. The claimant must prove that wrongful asbestos exposure materially increased the risk of mesothelioma.

Materiality is fact-sensitive. The court should assess the actual exposure, although cumulative-dose estimates may be rough and illustrative. Exposure is de minimis where the increase in risk is so insignificant that it can properly be disregarded, having regard to the overall exposure. Epidemiological and medical evidence may assist, but should not be treated as providing false precision. A claim fails where material increase in risk is not proved on the balance of probabilities.

The claimant, the widow and executrix of the deceased's estate, alleged that the deceased contracted mesothelioma after exposure to asbestos dust at the defendant's premises during works removing asbestos-containing infill panels from office partitions.

Quantum was agreed, but liability was disputed. The issues were whether exposure occurred, the extent of any exposure, and whether it materially increased the risk of mesothelioma. The defendant conceded the relevant duty and breach if visible asbestos dust had remained after the works. The court found that exposure was not proved and alternatively that any exposure was de minimis.

Judgment for the defendant. The claim failed on two alternative grounds. The court was not satisfied that the deceased had been exposed to asbestos dust. Even assuming exposure, it had not materially increased the risk of mesothelioma.

1. Applicable law. A mesothelioma claimant must prove duty, breach, a material increase in risk caused by the breach, and loss and damage subject to remoteness. The modified causation approach in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32 and its current form in Sienkiewicz v Grief (UK) Ltd [2011] 2 AC 229 do not eliminate the need to prove a material increase in risk. Section 3 of the Compensation Act 2006 governs the consequences of common-law liability; it does not itself create tortious liability.
2. Exposure. The court accepted that a memorandum had warned of asbestos-containing infill panels and that those panels were removed. However, specialist contractors were probably used and likely took appropriate precautions. The dust recalled by the witnesses was more probably produced when replacement, non-asbestos materials were installed. The claimant therefore failed to prove asbestos exposure. The court applied caution concerning historical recollection, including the guidance in Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB) and Gestmin SPGS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm). No adverse inference was drawn from the absence of records which it would not reasonably have been expected that the defendant retained.
3. Alternative causation analysis. The court held that material increase in risk is a fact-sensitive question for the trial judge. There is no doubling-the-risk threshold. The court must assess whether the exposure was too insignificant to take into account, having regard to the overall exposure. It should make some assessment of actual exposure, even if imprecise. The preferred estimate was a cumulative dose of no more than about 0.0004 fibre/ml years. Applying the de minimis approach considered in Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB), and relying cautiously on epidemiological and medical evidence, the court found that the annual risk was about 1 in 50 million and was de minimis. Breach of duty therefore did not establish causation.
4. The court declined to determine an additional argument concerning natural causes because it was unnecessary. Any ancillary applications were to be dealt with by written submissions.