Mesothelioma claim defeated

Reynolds v Secretary of State for Energy and Climate Change (Queen’s Bench Division â 24 May 2010)

This case represents a rare example of a successfully repudiated mesothelioma claim. It is particularly noteworthy as the defendant had no lay evidence upon which to rely.

The late Mr Reynolds died as a result of mesothelioma caused by asbestos exposure. For several years he had worked as a blacksmith in a hangar, the roof of which had been insulated with blue asbestos. After a Factory Inspectorate visit in the 1970s, the asbestos was removed and purl board installed to encapsulate any dust residues.

At trial, six witnesses gave evidence for the claimant to the effect that, even after the asbestos had been removed, there were frequent showers of asbestos dust falling from the roof.

However, having analysed the results of numerous tests carried out after the completion of the works, a jointly instructed engineer concluded these were irreconcilable with the claimant’s witnesses’ accounts and that the defend-ant had followed recognised good practice in the steps it had taken to make the workplace safe.

The judge agreed. Although the test results would have been unacceptable by today’s standards, they did not exceed the threshold limits prevailing at the time. And, importantly, the defendant had done everything required to reduce the release of asbestos fibres to the lowest reasonably practicable level. He also believed that if the conditions were really as described by the claimant’s witnesses, there would have been vociferous complaints, and that generally the witnesses were influenced by a desire to secure compensation for the claimant.

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The judgment injects a welcome dose of reality into the assessment of culpability in mesothelioma claims.

The defendant’s duties were tested not against today’s standards, but with reference to contemporary guidance and threshold limit values. As is frequently the case, the presence of asbestos fibres could not have been eliminated altogether, and so some exposure was unavoidable.

The judge’s analysis of the evidence was just as encouraging as his analysis of the law. Without well-kept records, the claim would surely have succeeded â a classic example of why it is important to retain health and safety documents indefinitely.

Brian Goodwin, BLM Liverpool

Original article: Post