William Walter Howell v Pile Construction (Southern) Limited & Anor

In a mesothelioma claim, the claimant bears the burden of proving exposure to asbestos on the balance of probabilities. The court must assess the whole of the evidence, including the reliability and development of recollections, contemporaneous documents where available, independent evidence, inherent plausibility and expert evidence. Honest and confident recollection is not necessarily accurate, particularly after a long period. Where the pleaded case identifies a location only as a belief, the claimant may be able to advance an alternative location without being confined by a more specific case. But the court cannot fill evidential gaps by treating an unproved alternative as probable. If the essential exposure case remains too weak, the claim fails.

The claimant sought damages after developing epithelioid malignant mesothelioma. He alleged that, during a summer labouring job with the first defendant in 1972, he handled and swept asbestos-containing boards while working at a school hall. The second defendant accepted that it was the relevant insurer and conceded liability if the alleged exposure was proved.

The claimant initially believed the school was Great Ballard School, but shortly before trial argued that he could succeed even if the work had occurred at another school. The court considered whether that change was impermissible and whether the evidence established asbestos exposure by the first defendant on the balance of probabilities.

1. The claim was dismissed. The claimant did not establish, on the balance of probabilities, that he had been exposed to asbestos dust while working for the first defendant in 1972.
2. The court rejected the defendants’ preliminary argument that the claim had to fail because the claimant’s case had evolved. The pleaded case said that he worked at a school which he believed to have been Great Ballard School. It therefore did not make the school’s identity an absolute assertion. The decision in Al-Medenni v Mars UK Ltd [2005] EWCA Civ 1041 did not require dismissal on these facts, although the starting point remained the pleadings and the parties had to have a fair opportunity to meet the case.
3. The claimant’s evidence was assessed in accordance with the guidance on memory in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2020] 1 CLC 428. Confidence and honesty did not establish accuracy. The court considered the development of the claimant’s accounts, the absence of contemporaneous documents, the evidence concerning Great Ballard School, and the inherent plausibility of the alleged work.
4. The claimant’s evidence that the material had a distinctive asbestos smell was inconsistent with the expert evidence. His evidence that pieces were used as a food-heating plate was also inconsistent with the material being asbestos insulating board. Those matters materially undermined the alleged exposure account.
5. The independent evidence did not establish asbestos-containing board in the Great Ballard School hall. Nor did it provide a sufficient basis for finding that the work had occurred at another school. The expert evidence did not establish that work on a school theatre was more likely than not to involve asbestos fire-proofing materials.
6. The possibility of exposure during the claimant’s later employment with FW Brackett was not disproved, but the claimant did not need to establish that this was his only exposure. That conclusion did not establish exposure by the first defendant. The court applied the ordinary civil burden and declined to give the claimant’s case an additional evidential boost because of the severity of mesothelioma.

First-instance decision. No earlier appellate decision is stated in the judgment.