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Nicolas Brett (Personal Representative of Bernard Brett Deceased) v Reading University, Court of Appeal, 14 February 2007

5 April 2007
The issues

Mesothelioma – Asbestos Regulations 1969 – Breach of duty.

The facts

Mr Brett died of mesothelioma in October 2001 at the age of 75. There was no evidence to suggest that he had contracted mesothelioma other than through one of his employments. His working life had extended between 1940 and 1999, all of it involved in the engineering and construction industry. He had worked for numerous employers as an electrician, a charge hand, a site supervisor and a clerk of works. Although there was a real possibility that he had been exposed in many of these jobs to air borne asbestos, and although the joint medical opinion laid equal blame on all such exposures, no other employer was sued other than the University of Reading.

Mr Brett had worked as a clerk of works for the University from 1983 to 1988, for part of the time supervising the dismantling the old library of the University. He had told his wife that he had come into contact with asbestos when he had been supervising the tearing down of the old library. Engineering evidence called on the Claimant’s behalf was to the effect that the original library probably included a number of asbestos related materials in its structure. The Judge found that Mr Brett had worked in an environment where there was asbestos but had not proved, nor could it be inferred, that asbestos fibres were becoming air borne in that environment and so were likely to have been inhaled by Mr Brett. Whilst he might have been exposed to asbestos sheeting whilst at Reading he might equally have been exposed to it elsewhere and without any evidence that there was some damage to the sheeting then it seemed to the Judge that it was impossible to infer that he must have acquired his asbestosis from that exposure as opposed to one of the other possible exposures during the course of his earlier employment. There was no evidence the Judge found that suggested that either the main contractor or the sub-contractors or the University in any way failed to carry out their work properly.

The Claimant appealed.

The decision

Two questions needed to be asked in cases of this sort. The first question was whether the Defendant had in fact made any contribution to the risk. The second question was, if he did, that the Defendant was legally at fault. The two questions sometimes overlapped. That was not the case here however. Where there was only one employment in which asbestos exposure could have occurred, the inference that that was where it did occur would be practically irresistible. Where there were two or more such employments, the inference that exposure occurred in at least one of them would be equally irresistible but it became a possibility that in one or more of them no such exposure occurred.

The Judge had conflated the separate issues of contribution and fault.

The evidence of the Claimant’s expert was that Mr Brett would probably have encountered and / or disturbed asbestos based materials himself and would have been present whilst other tradesmen disturbed, disrupted and / or used asbestos based materials.

The question which remained was whether the exposure, to which it was likely that Mr Brett was subjected, was such as to put the University in breach of its common law or statutory duties. In other words, did the University fail to take the necessary precautions to ensure that he did not inhale asbestos fibres?

It was for the Claimant to establish the elements of his case, including the element that the injury was caused by a breach of duty on the Defendant’s part. The Defendant’s real case was that the Claimant had no direct evidence and no evidence from which it could be inferred that proper precautions were not taken.

The contractors had gone out of business and neither party had traced any of their former employees. No inference about lack of protection could be drawn from the bare fact that Mr Brett had developed mesothelioma. The Claimant argued that it was possible to establish breach by default by relying on the contemporaneous documents produced by the University showing a clear awareness of the need for the contractors to comply with the asbestos regulations, and the absence of any corresponding documents indicating compliance.

Where the rest of the evidence pointed neither way, a straw in the wind might be decisive. But if the absence of certain documents is to have this effect they ought to be documents which one would have expected to be present. The documents that had been produced were copies of letters from and to engineers; architects; specialist consultants; contactors, including asbestos specialists, and the University’s building officer. They included estimates from contractors specialising in asbestos removal, setting out the precautionary measures to be taken, and minutes of site meetings noting the progress of asbestos removal. In these circumstances the absence of any memoranda or other documents confirming compliance with the Asbestos Regulations was as consistent with compliance as with non-compliance. There were no eloquent or suspicious gaps in the University’s documentation. The evidence was sufficient to infer that the Claimant had come into contact with asbestos in the course of his work at the University but it was not sufficient to show that the University had failed to take necessary steps to protect him from inhaling it. The tragic fact that the Claimant had eventually developed mesothelioma could not fill the gap because for most of his working life he had been in jobs which were equally capable of bringing him into contact with air borne asbestos. There was no adequate evidence of breach of duty on the part of the University.

Appeal dismissed.

Comment.

As Lord Justice Morris Kay concisely noted, whilst the decision of the House of Lords in Fairchild exceptionally relieved a Claimant who had proved exposure and breach of duty from having to prove causation, it did not relieve him from proving the other elements, including breach of duty.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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