Philip Turton, counsel for the Defendant in the case, offers an appraisal of the recent judgment of Jeremy Hyam KC, sitting as a Deputy Judge of the High Court, in White v Secretary of State for Health and Social Care [2022] EWHC 3082 (KB). The judgment can be read here.

Thomas White was yet another victim of mesothelioma, who died, aged 86, in 2020. In proceedings brought by his executors he was alleged to have worked at Sefton General Hospital in Liverpool for two periods, the first in the 1950s, as a junior lab technician and then from 1973 as a senior biochemist. It was alleged that he was exposed to asbestos dust through the use of asbestos mats in the hospital laboratory – the sort of mats which were placed under Bunsen burners and would be familiar to any chemistry student of the 1970s.

On any basis exposure was at a low level and the Defendant argued that, by the standards of the time would not have given rise to foreseeable risk. Applying Bussey v 00654701 Ltd (formerly Anglia Heating) [2018] ICR 1242 the Defendant argued that this was a case where, at the time, it was not reasonably aware that such limited exposure to asbestos dust gave rise to a significant risk.

In order to assess the merit of that defence it was essential that the court could form a view as to the level of any exposure which had occurred. This was less than easy, since there were contradictions in the deceased’s evidence (which was never able to be tested by the taking of evidence on commission under para. 8 of Practice Direction 49B) and which was equivocal as to the nature of the mats, the degree of exposure and when it had occurred.

On the foregoing basis the Defendant was able to show cause at the first case management conference when Directions were given to trial, to include permission for each party to obtain expert evidence from an engineer or occupational hygienist, whose name was to be provided to the Court in advance of the evidence being obtained.

Both parties identified their chosen expert by name. Exchange of reports was scheduled for 10 June 2022. In the event only the Defendant served a report from an expert occupational hygienist, Dr Graeme Hughson of the Institute of Occupational Medicine. Upon enquiry the Claimant’s solicitor indicated in correspondence that no expert evidence had been obtained.

That this was not entirely correct became apparent the night before the trial, following service of the Claimant’s costs schedule. That document sought costs for a conference held with a different expert to the one identified on the day before exchange was due to take place. It was apparent the Claimant had obtained, but chosen not to rely upon, expert evidence in that discipline.

The Defendant’s expert undertook an assessment of the likely exposure which would have arisen from working with Bunsen burner mats in the 1950s and 1970s, considering the nature of the board which was likely to have been used and the degree of dust which would have been generated. Concluding that, in the 1970s the mats were likely to be made from asbestos cement, he expressed the view that any exposure after 1973 would have been insignificant.

That left the period prior to 1960, when the deceased was likely to have been using mats made from asbestos board, which were more friable. That such employment came to an end five years before the mesothelioma “watershed date” of 1965 presented an obvious hurdle to the Claimant.  Even assuming use of the softer mats, Dr Hughson’s opinion was that the level of dust likely to have been produced would have been, at worst, at a marginally increased level above the background (albeit still medically significant in terms of causation).

The Claimant attacked the evidence of the Defendant’s expert arguing that the matter was not simply one of back calculation (which, so far as it went, was correct) but also that the evidence should be rejected, either as unreasoned assertion or by being based upon assumptions which fell outside those which could be accepted by the Court. Further, citing Griffiths v TUI [2022] 1 WLR 973, there was no strict rule that the court had to accept expert evidence which was uncontroverted, and which complied with CPR Part 35. Such evidence fell to be evaluated and assessed by the court in the usual way.

This was a bold submission to make in the particular circumstances and, whilst accepting that such evidence was for the Court to evaluate, nonetheless the judge, Jeremy Hyam KC, considered the evidence of Dr Hughson to be helpful and important. In a careful judgment, he found that Dr Hughson’s evidence, when considered alongside the deceased’s witness statement, made it unlikely that the level of exposure in either period was at a level where the Defendant could foreseeably have concluded that the deceased was at risk of developing a malignant disease from exposure to asbestos. Prior to 1960 this was based, in part, upon the absence of knowledge of mesothelioma at that time, and from 1973 on the basis that the level of exposure from cement mats was so low that a reasonable employer would not, in the circumstances, have perceived that any risk arose. In drawing those conclusions, the judge expressed his caution about comparing back calculations of exposure against published figures, but felt that the estimates of likely dust levels which had been provided by Dr Hughson added to the picture, and the approach was consistent with that taken by the court in other cases, notable Abraham v Ireson and Reynolds [2009] EWHC 1958 (QB). Thus the judge concluded that the Defendant was not in breach of duty and dismissed the claim.

This is a decision confined largely to its facts and it is not difficult to see why the Claimant encountered difficulty. Whilst Bussey is clear that back estimations of exposure have limitations, it is ever likely to be the case that an appraisal of exposure, based upon proper experience and expertise, may add to the overall picture and enable the court to draw conclusions as to the level of risk which arose. From that point the court can address the two-stage test established by Bussey, starting with a consideration of whether, by the standards of the time, exposure would be perceived to give rise to significant risk (significant, in that context, amounting to “more than fanciful”). If that hurdle is overcome the focus shifts to the Defendant to show what steps it took to guard against the risk, but if it is not reached any claim must fail. There is thus a moral to be drawn for both Defendants and Claimants from the reasoning applied. From the Defendant’s perspective, expert evidence can be vital in providing a full picture of the levels of exposure and considering whether or not a “low exposure” defence can be advanced, in line with, for instance, Williams v University of Birmingham [2011] EWCA Civ 1242. On the Claimant’s side, challenging such evidence will always be an uphill struggle in the absence of expert evidence in the same discipline addressing the point. Inevitably that position was made harder in White by the clear inference from the facts that the Claimant had obtained expert evidence but determined not to rely upon it, implicitly because it did not support the claim.