Nicholas Paul Brett (personal representative of Bernard Brett, Deceased) v Reading University 2007
A claim was brought by the personal representative of Nicholas Paul Brett under the Law Reform Act 1934 and the Fatal Accidents 1976. Mr Brett died of a malignant mesothelioma at the age of 75 in October 2001. Mesothelioma is a fatal lung disease associated with asbestos exposure.
Mr Brett’s working life had been spent within construction and engineering. During the Second World War, Mr Brett worked within various power stations. From 1953-1967 he worked for the London Electricity Board. Thereafter, from 1973 to 1982 he was employed by Surrey University and finally between 1983 to 1988 by Reading University.
The Claim at First Instance
The claim was brought against Reading University alone. Representatives of the deceased claimed that he was culpably exposed to respirable asbestos fibres during the period he oversaw the dismantling of the university’s old library. The other employers were not implicated in the action due to an apparent lack of evidence. At first instance HH Judge Elly found that the Defendant was not liable because there was insufficient evidence of culpable exposure or to show that the deceased had acquired his disease as a result of working for the Defendant as opposed to one of his other employers.
The fact that there had been a real risk of exposure from each of the deceased’s former employers is an important factor in this case because the joint medical opinion was to the effect that all exposures the deceased had materially increased the risk of the deceased contracting mesothelioma.
The Fairchild Test
In coming to the decision he did, the judge was obliged to consider the 2002 House of Lords ruling in Fairchild (Fairchild v Glenhaven Funeral Services Ltd UKHL 22, (2002) IRLR 533).. Under the Fairchild test an employer is liable if he has materially or tortiously contributed to the increased risk of his employee contracting mesothelioma. In a case where a Claimant has been exposed by more than one employer, it is unnecessary for the Claimant to establish which employer caused his material exposure. In order to succeed against either employer the Claimant need only establish that the employer was guilty of a breach of duty and that the breach materially increased the risk of him contracting the injury.
But for the recent intervention of Parliament, the trial judge in Brett would have had to consider the effects of the House of Lords decision in the case of Barker (Barker v Corus UK (Ltd  UKHL 20) in which it was held that where there were exposures from different employments, liability should be attributed on a several (rather than joint and several) basis and that a Defendant’s liability should only be in proportion to his contribution towards the increased risk of injury.
By section 3 of the Compensation Act 2006 Parliament negated the finding in Barker insofar as it relates to mesothelioma. Now each contributory wrongdoer in a mesothelioma claim is liable for the entirety of a Claimant’s damages, but this is without prejudice to the right of recovery against other tortfeasors.
Sedley, LJ found that Judge Elly had correctly applied Fairchild but criticised the Judge for having compared one potential source of exposure with another and forgetting that it does not affect one defendant’s liability who contributed to the material risk that another party, whether a defendant or not, may also have contributed to it.
Where there was only one employment in which the exposure could have occurred, it would be an ‘irresistible inference’ to assume that was where the unlawful exposure occurred. However, “where there are two or more employments the inference that the exposure occurred in at least one of them will be equally irresistible, but it becomes a possibility that in one or more of them no such exposure occurred.”
Sedley LJ went on to find that it was often possible to find clear evidence against one of the employers that there was an unlawful asbestosis exposure coupled with a failure to provide, for example adequate respiratory and clothing protection. Accordingly, the decision of the court rests upon what evidence is available.
In Brett, the evidence “was at lowest sufficient” to show that the work carried out in the library would have released asbestos particles and that Mr Brett would have inspected the area from time to time. There was also evidence to show that reputable contractors had been employed to carry out the work and moreover that they had been fully briefed on the necessary precautions required before undertaking such work. There was, however, no direct evidence that the recommended precautions were put in place. Equally, there was no evidence to suggest that the precautions, if put in place, had been breached.
The burden of proof?
The “critical question” was whether Reading University had failed to take all necessary precautions to ensure that Mr Brett did not inhale asbestos fibres? In Sedley LJ’s view it was for the Claimant to establish that all necessary precautions had not been taken either on the basis of his own or the Defendant’s evidence, but that it did not fall to the Defendant to show that all precautions had been taken.
Despite the Court of Appeal finding that there was sufficient evidence to conclude that Mr Brett had come into contact with asbestos during the course of his employment at Reading University, there remained insufficient evidence to show that the University had failed to take all necessary steps to protect him from inhaling asbestos fibres. Therefore, in a case where the evidence of culpable exposure is inconclusive or where a Claimant is unable to establish on a balance of probabilities that the Defendant failed to take all necessary precautions to protect him from inhaling respirable asbestos fibres, it would appear that an employer may still be able to successfully defend a mesothelioma claim.