Key Facts
- •Mrs. Elaine Johnstone (EJ) died from malignant mesothelioma of the pleura (MMP).
- •EJ worked at Fawcett's Garage (Newbury) Limited (D) from 1982/3 to 1989/90 in the office.
- •D admitted to unsafe asbestos practices in the workshop during EJ's employment, involving the use of an air-line to blow out dust and asbestos fibres.
- •Claimant (C) argued that EJ's exposure to asbestos at D materially increased her risk of developing mesothelioma.
- •D denied causation.
- •C applied to adduce late evidence from Iain Johnstone (IJ), EJ's son, who also worked at D's premises.
- •The court considered various expert evidence on occupational hygiene, epidemiology, and toxicology, including the impact of chrysotile asbestos exposure.
- •The court assessed the conflicting expert opinions on EJ's exposure levels and the material increase in risk.
Legal Principles
In mesothelioma claims, the claimant must prove on the balance of probabilities that there was a material increase in the risk of contracting the asbestos-related disease.
Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 and Sienkiewicz v Greif (UK) Limited [2011] UKSC 10
The special causation test for mesothelioma does not alter the normal rules of evidence and proof in civil proceedings.
This judgment
Courts may draw adverse inferences from a defendant's failure to produce potentially useful evidence.
Keefe v Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683
A court should not allow a defendant to benefit from their breach of duty by ignoring the absence of potentially useful evidence.
Mackenzie v Alcoa Manufacturing (GB) Ltd [2019] EWCA Civ 2110
Outcomes
The claim was dismissed.
The court found that the increase in risk of EJ developing mesothelioma due to her exposure at D was in the order of 0.1% or less, which did not satisfy the test of materiality.