Robert Shiels -v- Newcastle Upon Tyne NHS Foundation Trust

This claim for mesothelioma was handled by Yvonne-Claire Bagnall at Hill Dickinson and was initially pursued ‘in-life’ by the deceased and later by the claimant in her capacity as widow and executrix.

The deceased was employed as a night shift telephonist at the Royal Victoria Infirmary in Newcastle between 1974 and 1998. It was alleged that he was exposed to asbestos dust from ceiling tiles in the switchboard room and contaminated workmen’s clothing when they visited the switchboard for work or social reasons.

The claimant obtained engineering evidence from Ian Glendenning, consulting engineer, who did not support the allegations relating to exposure from contaminated work clothes and they were abandoned after the proceedings were issued. The claim therefore proceeded solely on the allegation that the deceased had been exposed to asbestos dust from the ceiling tiles and asbestos containing materials in the roof void above the telephone exchange room.

It was alleged that workmen often disturbed the tiles to gain access to the ceiling void and in doing so caused the release of large amounts of dust containing asbestos fibres into the atmosphere. He also recalled the switchboard was replaced in the late 1970s / early 1980s which involved removing and replacing a large number of ceiling tiles releasing large amounts of dust.

A number of site maps dating from the 1950s were located, enabling us to establish the precise location of the exchange, which had long since been demolished. We also located a Type 2 asbestos survey dated 2004 which indicated that, at that time, the suspended ceiling was made of plasterboard. We were unable to locate any information either in relation to the content of the ceiling at the time of the deceased’s employment or the alleged alteration works.

Mr Glendenning opined that in light of the dates of exposure it was more likely than not that the ceiling tiles in the switchboard would have comprised of asbestos insulating board. Jane Tierney, senior consultant/asbestos specialist, was instructed for the defendant and she took the view that even if the tiles did contain asbestos, exposure levels would have been very low and insufficient to give rise to a foreseeable risk of injury in the context of the hygiene standards of the day.

On the issue of low level exposure, both of the claimant’s experts contended that if the deceased suffered significant exposure to asbestos, (where significant was defined in accordance with the definition adopted by the IIAC in their 1996 report as ‘merely being an elevation of asbestos levels to those above that commonly found in the air in buildings and the general outdoor environment’) it would be appropriate for the court to conclude that such exposure materially increased the risk that he would develop mesothelioma.

Dr. Moore-Gillon disagreed with the use of the IIAC definition stating that it was ‘insufficiently critical.’ He also highlighted the fact that, at the time of service of proceedings, Dr. Rudd’s report was over four years old and it was agreed that in the intervening period a common acceptance had been reached that the IIAC definition referred to cumulative exposure rather than the mere fact that there had been exposure to asbestos dust, however brief, at levels above background. In their joint statement, the medical experts agreed that it was the deceased’s cumulative exposure that was of relevance in determining whether any exposure to asbestos was of medical significance.

The deceased and claimant’s evidence of exposure was not cogent and was largely speculative. In the recent case of Carole Sloper –v- Lloyds Bank Plc [2016] EWCH 483 (QB) similar issues arose (dust from ceiling tiles leading to exposure at three branches of Lloyds Bank). The importance of the state of the evidence was noted by Mr Justice Spencer who recorded that the case turned on the composition of the ceilings at two of the branches. Witnesses were trying to recall events which had occurred 30-40 years previously. There were inconsistencies in the evidence and contemporaneous documents relating to renovation work undertaken indicated strongly in the defendant’s submission, that there were no suspended ceilings with tiles at either branch. The judge emphasised that witnesses were trying to call ‘what, at the time, would have been unremarkable details of these buildings’ 30 to 40 years later.

In Sienkiewicz –v- Greif UK 9Ltd) [2011] 2 AC 229, Lord Rodger said ‘judges, both at first instance and on appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements.

David Platt QC, for the defendant cited the recently decided Scottish case of Prescott -v- The University of St Andrew’s [2016] SCOH 3 in which Lord Pentland referred comments by Legatt J in the case of Gestmin SGPS S.A –V- Credit Suisse (UK) Ltd [2013] EWCH 3560 regarding the fallibility of witnesses attempting to recall events in the distant past which he remarked was a ‘process inherently susceptible to error and inaccuracy’. He went to state that the litigation process itself subjects those memories to powerful biases as witnesses have a stake in a particular version of events and / or ties of loyalty to one party or the other.

Mr Justice Spencer accepted that such observations were applicable to the claimant’s evidence in Sloper whilst accepting that none of the witnesses had deliberately set out to mislead the court.

We believe that the claimant’s legal representatives were mindful of these recent cases in the context of the deceased’s and claimant’s evidence in this case. There was insufficient evidence of exposure as had been alleged.

Shortly after service of the medical expert’s joint statement and the meeting of the engineering experts, the claimant made a ‘drop hands offer’ which was rejected. The claimant’s solicitor sought to ‘muddy the waters’ in relation to costs by advancing the argument that pre-action disclosure in 2012 had been inadequate and had it been properly provided the claim would have been abandoned at that stage. We maintained a robust defence to this allegation and ultimately the claimant filed a notice of discontinuance at court and agreed to pay the defendant’s costs to be agreed or assessed.

Damages were pleaded at about £260,000 and we expected that the claimant’s costs would have been in the region of £75 - £100,000 and so the robust stance taken has secured a substantial saving.

This case emphasises the importance of carefully considering the strength of a claimant’s evidence in asbestos related claims. Too often practitioners will make a decision concerning breach of duty based on the fact that a claimant worked in premises where there was asbestos and so, without more, exposure must have followed. This claim and the comments made in the above cases indicate the importance of testing the claimant’s knowledge where possible and of contemporaneous documentation, even in the absence of factual witness evidence from the defendant.