Bannister v Freemans Public Ltd Co.

Permission to appeal is granted only where the proposed appeal has a real prospect of success or there is another compelling reason for it to be heard. An appellate court should not interfere with findings of fact, including evaluative findings and inferences, unless no reasonable trial judge could have reached them, ordinarily because there was no supporting evidence or the evidence was plainly misunderstood.

In an asbestos-related mesothelioma claim, causation requires proof that the exposure materially increased the risk of disease. A de minimis exposure or risk does not satisfy that requirement. Dose evidence may be considered even if imprecise, and epidemiological evidence may have a limited role when assessed alongside medical and factual evidence.

The claimant, acting as widow and executrix of the deceased’s estate, applied for permission to appeal the dismissal of her mesothelioma claim against his former employer. The underlying judgment found that exposure to asbestos dust on the alleged occasion had not been proved. Alternatively, any exposure in the defendant’s employment was de minimis and had not materially increased the risk of mesothelioma.

The proposed appeal challenged factual findings, procedural matters, the assessment of asbestos dose and risk, the use of epidemiological evidence, and the legal approach to causation. The central questions were whether any ground had a real prospect of success or whether another compelling reason justified an appeal.

1. Application dismissed. The court refused permission to appeal because none of the eight grounds had a real prospect of success and there was no other compelling reason for an appeal.
2. The first four grounds challenged factual findings. The court was entitled to use judicial observations concerning historical lay evidence and memory as a helpful and cautionary guide, without treating them as binding or imposing a heightened standard of proof. The authorities concerning appellate restraint supported the principle that findings of fact, evaluations and inferences should not be disturbed unless no reasonable judge could have reached them, ordinarily because there was no evidence or the evidence had been plainly misunderstood.
3. The inference that specialist contractors had been used for asbestos removal was properly drawn from the defendant’s contemporaneous memorandum. In any event, that inference was immaterial because the court independently found that the deceased had not been exposed to asbestos dust on the alleged occasion. The findings concerning the deceased’s complaint about dust and the time spent in the office were also open on the evidence.
4. The court was not required to reject dose evidence merely because it was imprecise. It was appropriate to make a factual assessment of exposure and to treat the expert estimates as rough indications rather than defined measurements.
5. Medical causation required consideration of whether the exposure produced a material increase in the risk of mesothelioma. The court was entitled to conclude that an estimated annual risk of approximately one in 50 million, or one in 64 million on an alternative assessment, was very small and de minimis.
6. Epidemiological evidence was used cautiously and only as a limited aid, alongside cumulative-dose evidence and medical evidence. The court was entitled to reject the claimant’s expert evidence where, after cross-examination, it was considered unsatisfactory.
7. Fairchild v Glenhaven Funeral Services did not make any exposure sufficient to establish causation. The applicable requirement remained a material increase in risk; a de minimis risk did not satisfy it.
8. The two independent bases for dismissing the claim remained valid. The claimant was ordered to pay the defendant’s costs on the standard basis, subject to detailed assessment if not agreed.

• High Court (Queen’s Bench Division): The claimant’s substantive claim was dismissed on 19 May 2020 because exposure to asbestos dust was not proved and, alternatively, any exposure was de minimis and did not materially increase the risk of mesothelioma.
• High Court (Queen’s Bench Division): Permission to appeal was refused. The claim remained dismissed, with costs payable by the claimant.