Christine Devall & Ors v English Electric Company Limited

In a historic asbestos-exposure claim, the claimant must prove exposure on the balance of probabilities. The special causation rule in Fairchild v Glenhaven Funeral Services Ltd [20031 AC 32 does not relax the evidential burden for proving the primary fact of exposure.

Particular caution is required when assessing recollections of events many decades earlier. Witness evidence must be tested against contemporaneous documents and objective evidence. Evidence from work at another site cannot support an inference of exposure where the sites, layouts, work stages and tasks materially differ. A possibility of exposure is insufficient. The claim was dismissed because exposure to asbestos dust from mixing asbestos paste at the relevant site was not established.

The claim was brought by the deceased’s widow and executors following his death from mesothelioma. It sought damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 for alleged asbestos exposure during the deceased’s industrial placement with the defendant at Sizewell A nuclear power station in 1965.

The defendant admitted the employment relationship but denied exposure and breach of duty. Quantum was agreed subject to liability. The central issues were whether the deceased was exposed to asbestos, the nature and extent of any exposure, foreseeability, precautions and breach of duty.

1. Claim dismissed. The claimants failed to establish on the balance of probabilities that the deceased was exposed to asbestos at Sizewell A through the mixing of asbestos paste.
2. The court applied the ordinary evidential threshold to the primary fact of historic exposure. The special causation rule recognised in Fairchild v Glenhaven Funeral Services Ltd [20031 AC 32 did not relax that requirement.
3. Particular caution was required because the alleged events occurred about 60 years earlier. The reliability of witnesses’ memories had to be assessed against contemporaneous documents and objective evidence, having regard to the recognised risks of reconstructive memory and litigation-related influence. The court adopted the relevant principles summarised in Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB), drawing on Gestmin SGPS S.A. v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm).
4. The court accepted that asbestos insulation had been used at Sizewell A during construction and commissioning. That established only a possibility of exposure. There was insufficient evidence of the type of insulation, whether dry asbestos had been mixed in the turbine hall, the creation of dust, or the deceased’s proximity to any such activity.
5. The evidence of work at Hinkley Point could not properly support an inference about Sizewell A. The sites differed in configuration, turbine and alternator arrangements, construction and commissioning stages, timing and the tasks performed. Treating the evidence as equivalent would have been conjecture.
6. Because exposure itself was not proved, it was unnecessary to determine foreseeability or breach of duty. The claim was dismissed despite the court’s sympathy for the deceased’s family.