Legal Test for Causation in Mesothelioma Cases Challenged in Johnstone v Fawcett’s Garage Ruling

Citation: [2023] EWHC 3010 (KB)
Judgment on

Introduction

The High Court’s judgment in Alexander Joseph Johnstone v Fawcett’s Garage (Newbury) Limited [2023] EWHC 3010 (KB) concerns a compensation claim for the death of Mrs. Elaine Johnstone (EJ) from malignant mesothelioma of the pleura (MMP), a condition strongly associated with asbestos exposure. The Claimant, Mr. Alexander Johnstone, representing EJ’s estate, sought to establish that EJ’s employment with the Defendant, a vehicle garage in Newbury, materially increased her risk of developing MMP. This article analyzes the legal principles underpinning the judgment and how they were applied to the facts of the case.

Key Facts

EJ was employed at Fawcett’s Garage from the early 1980s to 1990, primarily working in the office. The Defendant admitted to employing unsafe work practices with asbestos-containing materials in the garage’s workshop during EJ’s employment. Notably, this included using an air-line to blow out asbestos dust from brake shoes and clutch plates, which allegedly resulted in EJ’s exposure to asbestos fibers.

The case centers around the test for causation specific to mesothelioma claims, as established in Fairchild v Glenhaven Funeral Services Ltd & Ors [2002] UKHL 22 and Sienkiewicz v Greif (UK) Limited [2011] UKSC 10. This test requires the Claimant to demonstrate on the balance of probabilities that the Defendant’s breach of duty materially increased the risk of the Claimant contracting an asbestos-related disease.

The court was also concerned with the application of an appropriate methodology for calculating asbestos exposure and risk. The chosen method needed to establish whether the breach caused a ‘material’ increase in the risk of developing MMP, taking into account uncertainties surrounding the latency and pathogenesis of the disease.

Furthermore, the judgment touched upon the relevance of epidemiological and occupational hygiene evidence in establishing causation, with expert opinions diverging significantly on the appropriate use of such evidence.

Lastly, the court deliberated on an adverse inference against the Defendant’s failure to monitor asbestos levels, as per the principles detailed in Keefe v Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683.

Outcomes

The court found that the increase in risk attributable to the Defendant’s breach of duty was no more than 0.1% and therefore not material within the meaning of the mesothelioma test for causation. Despite the concession of unsafe working practices and presence of asbestos dust, the court dismissed the claim due to the insufficiency of evidence to meet the threshold of a material increase in risk—centered on the interpretation of expert evidence on exposure and risk assessment.

The judgment underscores the court’s reliance on Mr. Stear’s estimates of asbestos exposure and Professor Jones’s insights on the risks associated with low-level exposure. Their views, favoring a more conservative approach, were pivotal in concluding that the Claimant’s alleged increase in risk was insubstantial.

Conclusion

The Johnstone v Fawcett’s Garage decision underscores the complexity of proving causation in mesothelioma cases. The judgment restates and applies the special rule for causation in mesothelioma cases, which affirms the necessity of a material increase in risk attributable to the Defendant’s conduct as opposed to mere exposure to asbestos. It illustrates the challenges in quantifying asbestos exposure and the interplay between factual findings and expert evidence in litigation involving latent diseases with long latency periods. The outcome indicates not a change in the legal standard, but a rigorous application of existing principles to the facts at hand, demonstrating the court’s demand for robust and precise expert analysis in establishing causation in asbestos-related cases.