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Law Bulletin - March 2007

MESOTHELIOMA CASES

You must prove proper precautions not taken

The claimant had worked at several places where he had come into contact with asbestos. He was suing just one employer, a University, where he had been clerk of works and supervised the tearing down of an old library.
It was agreed there had been asbestos sheets in the library, which had been removed in his presence.
Between 1983-1988 he had spent at least 2 years supervising this demolition.

The first instance judge rejected the claim on the grounds the evidence for the deceased claimant failed to prove that the demolition had liberated asbestos dust.
The Court Of Appeal said that it was inevitable dust would be liberated through stripping asbestos. The real breach of duty the Claimant had to prove was that insufficient precautions were taken to protect him in line with the Asbestos Regulations 1969.

There was no documentary evidence to show that the Asbestos Regulations 1969 had (or had not) been complied with and it was for the claimant to make out the case that there had been a failure to provide safe respiratory equipment and protective clothing. There were no lay witnesses on the point .

The fact he had developed mesothelioma could not fill the gap as he had been in jobs that were equally capable of bringing him in contact with airborne asbestos throughout his working life.

Had there been no such other employment, the implication that this work had caused the injury would have been strong.

If there had been adequate evidence of breach of duty his estate would have recovered agreed damages in full under the principles of Fairchild, notwithstanding the possible negligence of other employers.

But there was no direct evidence that the work had not been done safely and thus the claim failed.

Nicholas Brett -v- Reading University (2007) EWCA Civ 88