Wandsworth Borough Council v HM Senior Coroner for Inner West London

Hearing date: 17 March 2021

Approved Judgment

His Honour JudgeTeagueQC, Chief Coroner of England and Wales:

Introduction

On 27 August 2018, Mrs Linda Johns died of bronchopneumonia at St George's Hospital in Tooting. She had previously lived for many years at a council-owned property, 8 Eliot Court, which was known to have contained asbestos during the early years of her tenancy. A consultant pathologist, Dr A. Coumbe, carried out a post-mortem examination which disclosed that the bronchopneumonia that led to Mrs Johns' death had resulted from malignant mesothelioma, a form of cancer that affects the lining of the lungs.

The senior coroner for Inner West London (“the coroner”) held an inquest at which, having found that Mrs Johns had been exposed to asbestos while resident as the claimant's tenant at 8 Eliot Court, and that such exposure had led to and caused the mesothelioma from which she died, she recorded a short narrative conclusion that Mrs Johns had died from “exposure to asbestos whilst resident at 8 Eliot Court, causing malignant mesothelioma”.

The claimant council, as the owner and landlord of 8 Eliot Court, now challenges the coroner's conclusion that the mesothelioma from which Mrs Johns died had resulted from exposure to asbestos at that address or, indeed, at all. The claimant seeks an order quashing the coroner's findings and conclusion and substituting a conclusion that Mrs Johns died of malignant mesothelioma, omitting any reference to asbestos. In summary, therefore, the issue to which this case gives rise is whether the coroner was entitled to conclude that it was probable, as opposed to merely possible, that Mrs Johns developed the mesothelioma that caused and led to her death as a result of exposure to asbestos while living in the council's property at 8 Eliot Court.

The coroner has adopted a neutral position and has not actively participated in these proceedings.

The facts

Mrs Johns was born on 25 May 1967. She was 51 years old when she died. She has a daughter, Kerri Matthews, who was born on 8 January 1984. From June 1989 until her death in 2018, Mrs Johns was a tenant of the claimant authority. In July 1996, she and her daughter moved into a flat at 8 Eliot Court.

As with many buildings of the time, asbestos had been used in the construction of the flats. In August 1984, twelve years before Mrs Johns took up residence at 8 Eliot Court, a firm of public analysts had detected a form of asbestos known as amosite inside the flat, specifically in an entrance hall cupboard, a heater cupboard duct, corner ducts in the two bedrooms and a kitchen wall partition.

Towards the end of 2003, the council instructed contractors to remove asbestos boards from 8 Eliot Court and, in addition, to replace the existing radiators with a new central heating system. At the request of the contractors, Mrs Johns and her daughter agreed to vacate the flat while the asbestos was removed. During that operation, an item of equipment malfunctioned, staining and damaging some of Mrs Johns' possessions.

There is no dispute as to what happened. In summary, the work, which was expected to take a total of three or four days, began on 17 October 2003 with the removal of asbestos. The contractors entered the flat that morning to remove boards from the meter cupboard, the riser between the lounge and kitchen, some boarding over the toilet and four boards in the bedrooms. In view of the likely presence of asbestos in the boards, the contractors asked Mrs Johns to vacate the property while they carried out that task, and she and her daughter did so. In the course of the work on 17 October, a vacuum cleaner operated by the contractors “exploded”, to use their expression, soaking the carpet, sofa, coffee table and video unit, as well as a mobile telephone, with a water-based polymeric substance.

In a witness statement dated 12 August 2019, Mrs Johns' daughter Kerri Matthews described the scene that faced them when they returned to the flat at the end of the day:

“My recollection is that we came home together. We opened the door. I had my own key… We walked in. Our green sofa had this talcum powder stuff on it. There was a hoover-looking vacuum thing that was sitting there… I have no precise memory of my mother clearing up the mess, but she must have done… It did not look like there was any damage to the machine – it looked intact. It looked as if something had happened whereby what it was meant to do was to vacuum dust up but what it had in fact done is blown it out… There were bits of what looked like talcum powder. It was white. It was not distributed evenly. There was a patch on the sofa – it was not the entire sofa that was covered. The majority of the dust fell within a radius of about 1 metre of the hoover but there were bits of dust scattered around the room.”

Mrs Johns was understandably angry when she discovered the damage to her possessions. The contractors did their best to clean the carpet, without success, and agreed to bear the cost of having the carpet and sofa covers professionally cleaned and repairing her damaged mobile telephone.

Three days later, on 20 October, plumbers attended 8 Eliot Court in order to remove the old radiators and install the new central heating system. This time, Mrs Johns was present. Again, some boards were removed from the cylinder cupboard, but it is not clear whether those particular boards were thought to contain asbestos.

On 3 November, Mrs Johns wrote to the claimant's housing department seeking compensation for the damage caused to her possessions. On 4 March 2004, following some further correspondence and negotiations, the contractors agreed to settle her claim by paying a modest sum in damages.

Thereafter, Mrs Johns continued to reside at 8 Eliot Court until 5 June 2017, when she moved to a new address. Twelve months later, on 29 June 2018, she attended her family doctor's surgery complaining of pain in her lower back. Her symptoms deteriorated rapidly. In July, she was admitted to St George's Hospital where her clinicians diagnosed a metastatic adenocarcinoma. Mrs Johns was too unwell for chemotherapy but received palliative care until her death in hospital on 27 August 2018. Upon being told by her family that Mrs Johns had lived for many years at a council-owned property which had once contained asbestos, the hospital reported her death to the coroner.

The consultant pathologist, Dr A. Coumbe, who conducted the post-mortem examination for the coroner, reported that the cause of death was bronchopneumonia resulting from malignant mesothelioma.

The coroner opened and adjourned the inquest on 5 September 2018. On 20 August 2019, she held a pre-inquest review hearing pursuant to rule 6 of the Coroners (Inquests) Rules 2013. At that hearing, no doubt having regard to her statutory obligation to conduct the investigation “as soon as practicable” (Coroners and Justice Act 2009, section 1), the coroner decided to receive oral evidence from the pathologist, Dr Coumbe. She appears to have done so with the concurrence of the interested persons, who agreed that it would not then be necessary for Dr Coumbe to re-attend the inquest proper. Even so, it was an irregular way of proceeding, if only because it did not comply with the guidance on pre-inquest reviews, which states that no evidence should be called at a pre-inquest review and no witness should be asked or required to attend: Chief Coroner's Guidance No. 22, 18 January 2016, §16.

Although the hearing on 20 August was recorded, the recording later turned out to be irretrievable for technical reasons. The coroner, however, took her own note of Dr Coumbe's evidence.

The transcript of the inquest hearing proper, which took place on 5 November, shows that Kerri Matthews was personally present and was represented by counsel, as indeed was the claimant. Having adduced from her coroner's officer the usual formal evidence of identification and the time and place of death, the coroner admitted a number of documents in evidence pursuant to rule 23 of the Coroners (Inquests) Rules 2013, namely Dr Coumbe's post-mortem report, a short report from Mrs Johns' family doctor summarising her medical history, a report from Professor Emma Baker dated 17 April 2019 describing the diagnosis and treatment of Mrs Johns' final illness in hospital, a letter from HM Revenue and Customs confirming that Mrs Johns had no history of paid employment (from which it followed that her mesothelioma could not have had an industrial origin), a witness statement from Kerri Matthews prepared by solicitors for the purpose of civil proceedings against the council, and a small bundle of correspondence and other documents concerning the work carried out on behalf of the council in 2003 at 8 Eliot Court and the resulting damage to Mrs Johns' possessions.

The small bundle to which I have just referred included the public analysts' report certifying the presence of asbestos in 8 Eliot Court in August 1984, Mrs...