McGowan v Amec Buildings Limited

The claim of McGowan v AMEC Buildings Limited was heard in the High Court before Mrs Justice Andrews DBE in March 2017. Mrs Gertrude McGowan: widow and executrix of Mr John James McGowan, alleged that her husband, a bricklayer who had a specialist skill set in the erection of structures made of reinforced concrete, contracted an asbestos-related disease due to occupational exposure between 1949 and 1973. This claim was run without direct evidence from the deceased on his alleged exposure to asbestos. Instead the court was asked to find that exposure could be imputed from the nature of an individual’s job in the absence of other evidence.

This was originally pleaded as a fatal asbestosis claim and was quantified at approximately £150,000.

It was established and agreed between the parties that Mr McGowan's death was, on the balance of probabilities, attributable to cardiac arrest and that his respiratory condition made no material contribution to his death.

It was also agreed by the experts, including histopathologists, that the claimant did not have asbestosis and that on balance, it appeared the claimant had non-fatal bilateral diffuse pleural thickening and bilateral folded lung. This had the effect that the claim was worth at most somewhere in the region of £20,000.

Mrs Justice Andrews was critical of both claimant and defendant that the case proceeded in the multitrack and was dealt with at a four-day trial, when the revision to the diagnosis had the effect that the claim fell squarely within the parameters of the fast track.

The issues in dispute were breach of duty on the basis there was no evidence of the deceased’s exposure to asbestos and issue of the defendant’s the date of knowledge. The case turned on the experts’ opinions following extensive lung biopsies which the deceased underwent. After much investigation into the deceased's lung tissue, it was agreed by the histopathologists that there was no evidence of asbestos by light microscopic or mineral fibre analysis criteria and in fact there was only one asbestos body discovered on several H&E stain sections of lung parenchyma. The judge commented that electron microscopic mineral fibre analysis detected no asbestos in what was described as a “well-sampled” lung.

The claimant's case was that the absence of fibres in the lung was a neutral factor in terms of establishing causation of bilateral diffuse pleural thickening. It was suggested that the fibres may have degraded overtime or else been cleared from the lung.

Mr David Platt QC for the defendant sought to argue that, even taking into account the passage of time, one would have expected some fibres to have been picked up in the lungs, if the deceased had occupational levels of asbestos exposure. Mr Platt QC referred to the decision of Sabin v BRB, which was a case about asbestosis in which the court found that, in order for somebody to suffer from asbestosis, the fibres that would be found on a post-mortem histological examination would have been likely to have been in the millions. The judge was not moved by this argument, stating that this was not a case about asbestosis and that it would be dangerous to try and draw analogies from cases relating to a different medical condition. Mrs Justice Andrews was guided by the approach taken in Williams v University of Birmingham in which it was held the best guide to acceptable and unacceptable levels of exposure to asbestos was that found in the Factory Inspectorate’s 1970 guidance document Technical Data Note 13. It was unfortunate that no evidence had been taken from the deceased and the evidence his wife was able to provide the court with was limited in detail.

An argument which the claimant sought to run, was that the court may draw inference from the fact the claimant worked on a construction site, in an area where there was likely to be elevated background levels of asbestos fibres in the air during the relevant period. These levels would suffice to put a person at risk of being exposed to concentrations of asbestos which would have been foreseeable by the claimant's employer as causative of harm.

Mrs Justice Andrews did not accept this submission and drew support from the fact that the health and safety executive's mesothelioma occupation statistics, for male and female deaths aged 16 to 74 in Great Britain in the period from 2002 to 2010, indicated that male bricklayers and masons have a lower proportional mortality ratio for mesothelioma than the average mortality ratio for mesothelioma across all male occupations.

Accordingly, the court found that on the balance of probabilities, the claimant could not satisfy the burden required to show what level of exposure to asbestos, if any, the deceased had and further that there was no reason to depart from the accepted date of knowledge set out on TDN13.

The Judge commented that it seemed plain, on the balance of probabilities, that the diffuse pleural thickening was due to some form of exposure to asbestos, but that there was no evidence as to when that happened, what level of exposure there was or over what period he was exposed to it. The judge expressly stated that no adverse inference could be drawn against the defendant simply because the deceased spent a very lengthy period working for them. The court was sympathetic to the claimant, but without the evidence of what the deceased did and where he did it, the court could not be satisfied that the civil standard of proof was met.

What this means for you

The claimant failed to come up to proof on exposure to asbestos. The court was not prepared to infer exposure from the claimant’s job. In the past the court has been more permissive with claims relating to asbestos and deceased claimants, it seems possibly following the guidance from the Court of Appeal in Sienkiewicz v Greif (UK) Ltd [2011] UKSC the courts are holding claimants to the same standard of proof that all civil claims are expected to meet.