BAE Systems Marine Limited v Alfa Laval Limited

In a contribution claim arising from an asbestos-related mesothelioma action, the claimant had to prove, on the balance of probabilities, that the deceased was exposed to asbestos while employed by the defendant and that the exposure materially increased the risk of mesothelioma.

Where the evidence left the timing of employment and exposure uncertain, and did not establish when relevant equipment was installed, whether insulation was required, or whether it contained asbestos, the causation burden was not discharged. Evidence that exposure probably occurred during an earlier period of employment with another employer was insufficient to establish liability.

The claimant had settled an underlying personal injury claim brought by the personal representative of David Burry’s estate. It then sought a contribution from the defendant under section 1(1) of the Civil Liability Act 1978, alleging that the deceased had been exposed to asbestos while working for the defendant at the Vickers Dockyard.

The alleged exposure concerned filtration systems on HMS Sheffield and an unidentified nuclear submarine between 1974 and 1975. The central issue was whether the claimant could prove that the deceased was employed by the defendant when the relevant asbestos exposure occurred and that the exposure materially increased the risk of mesothelioma.

1. Claim dismissed. The claimant failed to prove causation and therefore failed to establish liability. The defendant was entitled to its costs.
2. The claimant had to prove, on the balance of probabilities, that the deceased was employed by the defendant at the dockyard, was exposed to asbestos during that employment, and that the exposure materially increased the risk of developing mesothelioma.
3. The evidence established that the deceased had worked on filtration systems at the dockyard and had been employed by the defendant during 1974–1975. It did not establish that the filtration system on HMS Sheffield was installed during that employment. The judge preferred the expert evidence that the system was likely installed before the ship’s launch in 1971.
4. There was also no reliable evidence that the relevant filtration systems were hot systems requiring insulation, or that any insulation used during the relevant period contained asbestos. The use of asbestos lagging had declined substantially, and the evidence indicated that most lagging installed in 1974–1975 was likely asbestos-free.
5. The deceased’s evidence was of limited weight because it could not be tested, concerned events more than 40 years earlier, contained factual errors, and was unsupported by independent evidence. The most likely period of asbestos exposure was the early 1970s, when the deceased was not employed by the defendant.
6. It was therefore unnecessary to determine any contribution under section 2(1) of the Civil Liability Act 1978.