Claimant asbestos lawyers advised to resist approach that succeeded in Bannister v Freemans PLC
A Leigh Day lawyer has successfully concluded a claim which could have been unlikely to succeed had the court followed a controversial ruling in a similar case just weeks previously.
Posted on 16 June 2020
In the case of Hemms v the Trustees of the Countess of Huntingdon's Connexion and Bath and North East Somerset Council, Patrick Walsh, instructing Simon Kilvington QC, settled the claim despite the Defendants’ argument that the amount of asbestos involved was only half the relative potency of that in the Bannister claim which failed in May.
Now asbestos claims partner Mr Walsh, and Mr Kilvington have emphasised how important it is that lawyers are equipped to meet and resist the arguments and approach that succeeded in the case of Bannister v Freemans PLC.
They brought a case for late carpenter, Mr Gordon Hemms, of Bath, who contracted mesothelioma as a result of working on the renovation of a church building in Bath in 1978. The case of Mr Hemms, who died aged 79, was due in court just weeks after the controversial case of Bannister v Freemans PLC, 19 May, 2020.
The Bannister case failed and the judge advocated a statistical approach to whether asbestos exposure increases the risk of mesothelioma.
Mr Bannister brought a claim for compensation against his former employers, Freemans PLC, for mesothelioma.
He had worked in an office at Freemans which was renovated by contractors. Mr Bannister and his witness, a former colleague, both recalled dust being left in his office following the renovations and the removal of some partitions, which they believed contained asbestos.
The judge rejected the Claimant’s account of exposure to amosite (‘brown’ asbestos) dust left over from the removal of office partition materials in the mid-1980s. He went on though to express the view that, had the Claimant established his case of exposure over the course of a week following the work, then the court would have found that would not have been sufficient to have materially increased his risk of contracting mesothelioma.
The court in Bannister approved an approach which involved the defendants using an engineer to estimate the total asbestos dose of the exposure, and asked a medical expert, Dr John Moore-Gillon, to compare the exposure at work with figures set out in epidemiological tables prepared by Hodgson and Darnton.
The tables in question were designed to look at the risk of populations exposed to specific levels of asbestos dust contracting mesothelioma, not individuals.
Despite this, Dr John Moore-Gillon concluded that the exposure to asbestos dust suffered by Mr Bannister was significantly below the dose level Hodgson and Darnton had identified as unacceptable.
He concluded that the exposure was so low that it had not materially increased the risk of causing mesothelioma. The Judge agreed with this approach to what constitutes a material increase in risk.
This means that even if Mr Bannister was exposed to deadly brown asbestos in the mid-1980s, when the risks of low-level asbestos exposure had been known for over 20 years, the Defendant would have escaped liability.
Such an approach, if adopted more widely, has the potential to adversely affect a large number of mesothelioma cases where there has been low levels of exposure to asbestos dust in breach of duty. Cases such as exposure in schools, hospitals and offices might all be affected.
Hemms was the next case on this issue that was due to go to a four-day virtual trial in the High Court in June, 2020, in which the same medical experts (Drs Rudd and Moore-Gillon) were instructed.
Mr Hemms spent two days using a power tool to cut asbestos sheets. There was no evidence of exposure to asbestos dust in any other employment.
The defendants argued that this exposure had not materially increased his risk of contracting mesothelioma, as the amount of chrysotile dust generated in the work at the church was in absolute terms tiny. This was despite the fact that the defendants took no precautions to protect Mr Hemms from exposure to asbestos dust, and both sides’ engineering experts were in agreement that the exposure was in breach of duty.
Following the decision in Bannister, further evidence was served from Dr Moore-Gillon in which he identified an increased risk from the exposure that was only half as much as in that in the unsuccessful Bannister claim.
Despite that evidence, Hemms was successfully concluded shortly before trial.
Patrick Walsh said:
“The line the judge took in the Bannister case is disappointing and we think is open to challenge; Claimants can still successfully pursue claims where they have been negligently exposed to low doses of asbestos exposure.”
Simon Kilvington added:
"It is important that Claimant asbestos solicitors are aware of this argument and the steps they need to take to meet it.
“It is my firm opinion that the Court's use of statistics in Bannister to determine whether a risk is material is the wrong approach, as is the application of a retrospective test of whether a doctor would reassure the person exposed that he is not in danger.
“It is vital that such an approach is resisted and the matter be determined in the appeal courts, if necessary.”