Valerie Bannister (Widow and Executrix of the Estate of Dennis Charles Bannister, Deceased) v Freemans Plc
| Jurisdiction | England & Wales |
| Judge | Geoffrey Tattersall |
| Judgment Date | 19 May 2020 |
| Neutral Citation | [2020] EWHC 1256 (QB) |
| Date | 19 May 2020 |
| Docket Number | Case No: QB-2018-00444 |
| Court | Queen's Bench Division |
[2020] EWHC 1256 (QB)
Geoffrey Tattersall QC
(Sitting as a Deputy Judge of the High Court)
Case No: QB-2018-00444
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Harry Steinberg QC and Gemma Scott (instructed by Fieldfisher LLP) for the Claimant
David Platt QC (instructed by BLM LLP) for the Defendant
Hearing dates: 16–18 March 2020
Judgment Approved by the court for handing down
Geoffrey Tattersall QC:
Introduction
Valerie Ann Bannister [‘the Claimant’] is the widow and executrix of the estate of Dennis Charles Bannister [‘the Deceased’] who contracted malignant mesothelioma and, after a prolonged illness, died on 12 March 2019, aged 73 years. It is alleged that the Deceased was exposed to asbestos, negligently and/or in breach of statutory duty, probably more than 35 years ago in the course of his employment by Freemans plc [‘the Defendant’] at its premises on Clapham Road London.
Two matters should be noted at the outset of this judgment.
Firstly, such exposure did not involve the Deceased working with asbestos or being regularly exposed to the clothes of a person who had worked with asbestos. He had been employed by the Defendant as a Manager in its Accounts Department. He alleged that, following the removal of a partition wall containing asbestos in his office at the weekend, on the following Monday he was exposed to a residue of asbestos dust on his desk and on the floor which was gradually removed over the course of the following days by the Defendant's cleaners who came into the office every evening.
Secondly, the Defendant contends that asbestos fibres are found in the lungs of every adult, largely as a consequence of the past presence of asbestos in buildings, vehicles and in commerce, particularly in an urban environment and that a significant percentage of both male, and particularly female, mesothelioma cases cannot positively be attributed to occupational or domestic asbestos exposure.
The quantum of recoverable damages has been agreed at £ 320,000 subject to breach of duty and causation. Accordingly, it was unnecessary to consider the witness statement of the Claimant dealing with expenses during the Deceased's illness and the levels of care provided for him; the witness statement of Mr Mike Horne, the Deceased's accountant, as to the Deceased's current and future remuneration as a self-employed recovery auditor; or the parties' respective Schedule and Counter-Schedule of Loss.
However, liability is very much in dispute and in order to be able to establish liability against the Defendant I have to resolve a number of issues which may be summarised as follows:
Firstly, to what degree, if at all, was the Deceased exposed to asbestos dust during the course of his employment by the Defendant? There is a dispute as to whether or not the Deceased was exposed to any asbestos dust.
Secondly, whether such exposure was caused by the Defendant's negligence and/or breach of statutory duty? On this issue the Defendant concedes that it owed a duty to reduce the Deceased's exposure to asbestos to the lowest level reasonably practicable and that it would have been in breach of such duty if there was, as the Deceased contends, visible residues of asbestos dust in his office after works in relation to the partitions of the Deceased's office.
Thirdly, what was the extent of that exposure to asbestos dust?
Fourthly, whether any such exposure constituted a ‘material increase in risk’ of the Deceased developing mesothelioma which is the modified test of causation in mesothelioma cases following the judgments of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd & Others [2003] 1 AC 32 and of the Supreme Court in Sienkiewicz v Grief (UK) Ltd [2011] 2 AC 229.
After addressing some preliminary matters, I will address each of the first, third and fourth issues in turn below.
Proceedings were issued on 11 December 2018 and the Particulars of Claim and Defence were filed on 13 December 2018 and 11 January 2019 respectively. After the Deceased's death, the pleadings were amended so that the Claimant brought the proceedings as Widow and Executrix of the Deceased. The Deceased's evidence was taken on commission on 19 February 2019, some three weeks before he died. Witness statements were exchanged by mid February 2019. There was provision for evidence from medical and engineering evidence experts and for Joint Statements by such experts.
At the hearing I read the witness statements of the Deceased who had died almost exactly a year before the hearing. His evidence on commission was recorded on video and was played in court during the hearing. I also heard oral evidence from Mr Graham Ford, a fellow employee of the Defendant at the material time. The Defendant did not adduce any factual evidence.
As to expert evidence the following experts gave oral evidence before me and were cross-examined, namely:
i) Mr John Raper, a consultant forensic scientist, instructed by the Claimant;
ii) Mr Martin Stear, a chartered occupational hygienist, instructed by the Defendant;
iii) Dr Robin Rudd, the respiratory physician instructed by the Claimant; and
iv) Dr John Moore-Gillon, the respiratory physician instructed by the Defendant.
In addition, I was invited to have regard to the reports of Professor Charles Twort who had addressed issues relating to the Deceased's diagnosis and life expectancy in his reports dated 26 September 2018 and 16 August 2019. Neither of such reports was in dispute. I have read such reports but they add little, if anything, of relevance to the issues which I have to address.
At the hearing before me the Claimant was represented by Mr Harry Steinberg QC and Ms Gemma Scott and the Defendant was represented by Mr David Platt QC.
At the conclusion of the oral evidence on 18 March 2020, at the request of the parties I adjourned to enable the parties to obtain a transcript of the evidence given before me and to file and thereafter to serve closing written submissions. Although the parties were content to rely solely on such written closing submissions and any brief responses thereto without the necessity for an oral hearing, I kept open the possibility of an oral hearing, which in the light of current circumstances would have to be conducted by telephone or video-conferencing. I received all these closing written submissions and responses thereto on 7 April 2020. Such submissions were comprehensive and lengthy and ran to about 150 pages with very extensive citations of authority and other literature. Having considered them, in my judgment it is not necessary that there should be a further oral hearing.
I express my profound gratitude to all counsel for dealing with this difficult case expeditiously and efficiently in what were rapidly becoming difficult circumstances and particularly for their immensely helpful detailed closing written submissions.
At the outset of this judgment it is helpful to give an overview of mesothelioma and the current state of the law in relation thereto.
An overview of mesothelioma
In Fairchild Lord Bingham, at 43, stated:
“From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of developing a mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum. … It is a condition which may be latent for many years, usually for 30–40 years or more; development of the condition may take as short a period as ten years, but it is thought that this is the period which elapses between the mutation of the first cell and the manifestation of symptoms of the condition. It is invariably fatal, and death usually occurs within one to two years of the condition being diagnosed. … It is not known what level of exposure to asbestos dust and fibre can be tolerated without significant risk of developing a mesothelioma, but it is known that those living in urban environments (although without occupational exposure) inhale large numbers of asbestos fibres without developing a mesothelioma. It is accepted that the risk of developing a mesothelioma increases in proportion to the quantity of asbestos dust and fibres inhaled: the greater the quantity of dust and fibre inhaled, the greater the risk. But the condition may be caused by a single fibre, or a few fibres, or many fibres: medical opinion holds none of these possibilities to be more probably than any other, and the condition once caused is not aggravated by further exposure. … There is no way of identifying, even on a balance of probabilities, the source of the fibre or fibres which initiated the genetic process which culminated in the malignant tumour.”
Since that judgment the references to a 10 year “latency period” and to single fibre causation have been qualified by the judgments in the Employers' Liability Policy Trigger Litigation [2009] Lloyd's Law Reports 295 and Sienkiewicz. However, the core observations still apply.
In such circumstances it was probably inevitable that where a claim was brought by or on behalf of a person who had contracted mesothelioma and it was alleged that such was caused by exposure to asbestos in breach of a duty of care owed to such person, different principles as to causation would apply.
The current state of the law
The first problem to be addressed derived from what Burton J had described in Durham v BAI (Run Off) Ltd [2009] Lloyd's Law Reports 295 as the ‘unknowability and indescribability of the precise pathogenesis of mesothelioma and the impossibility of knowing...
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