Garner v Salford City Council and P McGuiness and Company Ltd [13.06.13]
 
Claimant’s claim fails; the chance of dust containing asbestos fibres being released into the atmosphere was minimal.
 
Implications

In Sienkiewicz v Greif (UK) Ltd [2011]  the Supreme Court considered two appeals involving cases where the Defendant was the sole known cause of exposure to asbestos dust. The extent of the exposure was very small. However, the Supreme Court found the Defendant liable in each case, on the basis that any exposure greater than de minimis constituted negligent exposure.

In this latest decision, Mr Justice Keith distinguished the facts on the basis that the Claimant's exposure to asbestos dust by the Defendants was at the most very fleeting, if at all. In addition, unlike one of the cases considered in Sienkiewicz, the exposure was not in the course of her work.

Whilst having sympathy for the Claimant, defendants and insurers will be reassured to see that, on the facts of this case at least, it has been accepted that a potential fleeting exposure to asbestos is not sufficient to establish liability.

Background

In May 2011 the Claimant, who at the time of the judgment was aged 45, was diagnosed as suffering from mesothelioma. The only time she recalled that she might have been exposed to asbestos was when she was at school and the swimming baths next to her school were demolished. The demolition generated an enormous amount of dust to which she and other children would have been exposed when they played in the school playground.

The Council owned the baths, and the demolition was carried out by the Second Defendant. The exact date of the demolition was not known, but was likely to have been between 1978 and 1979.

Decision

Keith J held as follows:

  • The most likely location of any asbestos was the boiler house. The strong likelihood was that there was some lagging containing asbestos. Lagging on pipework was removed while it was still in the boiler house. The process of removing it lasted perhaps a day or two.
  • The probability was that water was used to prevent the liberation of dust when the lagging was removed and that it was hosed down, and not just sprayed, before being removed. The effect of that was that the chance of dust containing asbestos fibres being released into the atmosphere was minimal. On this basis, the claim failed.
  • Had the lagging been removed without being soaked or sprayed beforehand, on balance it was likely that some asbestos fibres would have drifted into the playground. However, if this were the case, there was no certainty that the level of the Claimant's exposure would have exceeded the relevant control limit at the time.
  • There was no basis for saying that the Claimant had any occupational exposure to asbestos and no other possible source of the exposure had been identified. However, that did not change the outcome. It could not be said, with the degree of likelihood which the law required, that the Claimant was exposed to asbestos when the baths were demolished.