At Asbestos Justice, we are regularly receiving arguments on material contribution to risk following the High Court’s controversial decision in Bannister v Freemans PLC from May 2019.

Fight fire with fire

In one case in particular, the argument was raised even in circumstances where the Claimant had regularly cut asbestolux sheets without being provided with breathing protection in the late 1960s. Despite returning to the Defendant with arguments showing how the circumstances in Bannister could be distinguished from our own client’s, the Defendant maintained their denial of liability.

As a result of the Defendant’s stance, we were left with no option but to fire with fire and sought an expert evidence report from a consultant engineer. This confirmed that the Claimant’s period of exposure to asbestos, in the ways described in his witness evidence, equated to 15% of his total dose of asbestos dust exposure. It is well established that sufferers need only establish that their exposure to asbestos at the hands of the Defendant exceeded 1% of their total does in order to establish a material contribution to the risk of the development of the disease and, therefore, medical causation.

Shortly after disclosing the expert evidence, the case settled for £400,000.00.

A carpenter’s story

By the same token, other specialist asbestos disease solicitors have succeeded in overcoming Bannister hurdles in the cases of Hemms v The Trustees of the Countess of Huntingdon’s Connexion and Bath and North East Somerset Council.

In Hemms is was considered by expert counsel, Mr Simon Kilvington QC, that the exposure was around half the relative potency of that in Bannister which failed at trial in May of this year.

Mr Hemms was a carpenter who sadly developed mesothelioma arising out of his exposure to asbestos dust when he worked on the renovation of a church in Bath in 1978. Tragically, Mr Hemms passed away at the age of 79, just 2 weeks before the debatable decision in Bannister was reached.

Debatable Decision in Bannister

In Bannister, the Claimant failed as the judge looked to adopt a statistical analysis approach to assessment of what amounts to a “material” contribution to risk.

Mr Bannister had worked in an office at the Defendant’s premises which was undergoing some renovation works. Both Mr Bannister and a colleague were able to remember some asbestos dust being left in his office following the renovation and the removal of a number of partitions. It was thought that the divides contained asbestos.

The judge at trial refused to accept the Claimant’s evidence on his exposure to brown asbestos dust, known as amosite, left behind in the 1980s by the work done earlier. He then went further and expressed the view that had the Claimant persuaded him to accept that he had been exposed over the course of a one week period, following the work, then the court would have found that would not have been sufficient to have “materially” contributed to the risk of the development of his mesothelioma.

Damned Statistics

When reaching this conclusion in passing, the judge seemed to accept the approach of the Defendant’s engineer and medical expert Dr J Moore-Gillon, who compared Mr Bannister’s exposure at work with figures set out in epidemiological tables prepared by Hodgson and Darnton (H&D).

These tables were predominantly referred to with a view to looking at the risk of populations exposed to specific levels of asbestos dust developing mesothelioma, not individuals as in the cited claims

In spite of the fact, Dr Moore-Gillon opined that Mr Bannister’s exposure was “significantly” below the dose level referred to in H&D and in essence was at acceptable levels. Therefore, it followed that he did not believe Mr Bannister’s exposure had materially contributed to the risk of the development of his condition and the trial judge preferred this interpretation.

Preposterous Position

This presented what specialist Claimant asbestos solicitors see as a preposterous position that if Mr Bannister had been exposed to deadly amphibole, brown asbestos dust in the mid-1980s, when the dangers of being exposed to minimal quantities of asbestos dust had been well known for 20 years, the Defendant would still have avoided a finding of blame.

If this approach had been adopted more widely in the field of asbestos disease litigation, it could have had devastating affects on the prospects of succeeding in so called “low-level exposure” mesothelioma claims for sufferers and their families. Examples would include cases involving exposure in schools and hospitals.

Hemms was due to be heard over the course of a four-day virtual trial at the High Court in London in June of 2020, in which Dr Rudd and Dr Moore-Gillon were instructed for the Claimant and the Defendant respectively.

The evidence from Mr Hemms confirmed that he had spent two days using a power tool to cut asbestos sheets. There was no evidence that he had been exposed with any other employer or outside of work.

The Defendant argued that Mr Hemm’s exposure was too light to have materially contributed to the risk of the development of his mesothelioma as the amount of white asbestos dust generated at the time of his work at the church was far too transient. The argument was made despite Mr Hemms being exposed in unprotected conditions, with both instructed expert engineers being in agreement that such exposure amounted to a breach of duty.

Victory for Mesothelioma Sufferers and their families

Following the decision in Bannister, further evidence was provided by Dr Moore-Gillon, in which he identified an increased risk from the exposure that was only half as much as in the unsuccessful Bannister decision. The case settled shortly before trial.

Leading counsel in Hemms has states that it is vital to resist any Defendant’s approach to rely on a statistical analysis towards assessing what amounts to a “material” contribution to risk and we agree. Thankfully, with the assistance of reliable experts we have been able to counter Bannister arguments, made by Defendants in our own mesothelioma claims.

If you require assistance in pursuing a mesothelioma claim, then please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the ‘Contact Us’ page, complete the form and we will be in touch.

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