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Willmore v Knowsley Metropolitan Borough Council, Court of Appeal, 19 November 2009

18 December 2009
The issues

Mesothelioma – asbestos – risk of exposure – alternative sources of exposure.

The facts

The Claimant, who died aged 49, the day after the Appeal was heard, brought a claim in respect of her alleged exposure to asbestos when for approximately 7 years she had been a pupil at the Local Authority’s school in a building which contained asbestos. Her damages were agreed, in the event that liability was established, at £240,000.00. At Trial, the Council was found liable on the grounds that it, or its predecessor Authority, had by failing to take precautions contributed materially to the Claimant’s exposure to airborne asbestos fibre whilst she was a pupil.

The Judge found that she had been exposed to a risk from asbestos fibres in three particular circumstances and concluded that the three matters materially contributed to her risk of contracting mesothelioma. The Defendant Appealed on the basis that the Judge had thought, mistakenly, that he was deciding whether there had been exposure to a risk of asbestos, rather than to a risk of harm and, moreover, that the Judge had failed to find more than minimal exposure and that his findings of fact were not supported by the evidence.

The decision

In Fairchild the House of Lords had decided that it was sufficient, in order to establish liability in mesothelioma cases, to show that the asbestos exposure for which any one Defendant was responsible, had contributed materially to the risk that had now materialised. The Judge therefore had to decide whether such exposure as the Claimant had been able to establish had been significant or material in the sense that it was more than minimal. Culpable exposure has to be at a level which materially enhances the background risk. In the context of mesothelioma, what is material is not measured or measurable. It must however be more than minimal or trivial or inconsequential.

There was no discernable error, either in the Judge’s approach to the question whether the Claimant’s exposure had been minimal or material or in his resolution of the question. The suggestion that the Judge had substituted risk of exposure for risk of harm was unreal. It had to be remembered that where asbestos was involved, a risk of exposure was a risk of harm. So long as there was evidence capable of justifying his findings, the conclusion that avoidable exposure in the school had made a material contribution to the risk and therefore to the eventual materialisation of the Claimant’s illness was an entirely reasonable one. Of the sources of exposure, the Defendant had successfully persuaded the Court of Appeal that the evidence was insufficient to support it being a source of exposure, as found by the Judge. However, the Judge had been entitled to find a likelihood of significant exposure from the other two sources that he had identified. It was not however enough to eliminate one source of exposure if others or another remained in place because there was no safe dose of asbestos. He was entitled to find a likelihood of significant exposure from two of the three sources he identified.

Appeal dismissed.

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