The case of Valerie Bannister (Widow and Executrix of the Estate of Dennis Charles Bannister, Deceased) v Freemans PLC was dismissed at first instance for factual reasons related to exposure. Even if proven, the alleged exposure was found to have been de minimis.
I drafted an Update in relation to that Judgment. In addition I have placed a copy of the Judgment itself is in this website’s Asbestos Library. Very briefly, it was alleged that the Deceased had been exposed to asbestos following removal of a partition which contained asbestos.
The Claimant subsequently made an Application for Permission to Appeal the decision. Leading counsel for each party drafted submissions in writing alone. Judgment has now been handed down on that Application.
In short – the Judge refused the Application. Permission to Appeal was refused on each Ground.
A link to the Judgment on the Application is also contained within the Asbestos Library.
Grounds of Appeal
The Grounds of Appeal, as set out in the Judgment, were:
[i] Ground 1: the court failed to consider the witness evidence on its own merits and erred in taking a different approach to the consideration of ‘historical lay evidence’ and thus effectively applied a special and more onerous standard of proof to evidence of the Claimant.
[ii] Ground 2: there was no evidence to support the court’s inference that the Defendant engaged a specialist contractor to remove the asbestos boards.
[iii] Ground 3: the court made a serious procedural error in finding that the Deceased’s complaint about the dust was on another occasion. Such a case was not put to the Deceased and there was no evidence to support such a finding.
[iv] Ground 4: the court’s finding that the Deceased’s exposure would have been reduced was on the basis of a case which was not put to the Deceased.
[v] Ground 5: the court erred in concluding that it was bound by Williams v University of Birmingham to make a precise finding of the dose to which the Deceased was exposed.
[vi] Ground 6: the court’s approach to medical causation was wrong in principle and unworkable.
[vii] Ground 7: the court misunderstood the evidence in relation to risk, placed excessive weight on epidemiological evidence and failed to take into account the effect of individual susceptibility.
[vii] Ground 8: the causation test applied by the court meant that the Claimant was not able to establish the cause on the basis of current medical science, contrary to Fairchild v Glenhaven Funeral Services.
The Judge started by reminding himself of the test set out in CPR52.6 when considering Applications for permission to appeal. He rehearsed caselaw concerning when Courts might allow appeals on decisions of fact.
This Ground might be of most general application to practitioners. This was in relation to the analysis of ‘historical lay evidence’. The Judge had, in the original Judgment, noted difficulties with the same as set out in previous caselaw.
He stated, though, that he expressly set out that such observations were not binding. He noted they were simply a ‘helpful and cautionary’ guide to evaluating oral evidence and the accuracy or reliability of memories. The Judge was mindful of the risk of elevating such principles to ‘the first line of defence’ for defendants.
The case of Keefe v Isle of Man Steam Packet did not assist the Claimant in this case. There had been no duty on this defendant to retain any relevant documentation from that era.
This was in relation to the Court drawing an inference that ‘reputable and specialist contractors’ were engaged to undertake the work removing asbestos at the Defendant’s premises.
The Judge noted that although there was no direct evidence of this, it was reasonable to make such an inference given that a memo had been sent to employees in advance of the works. The memo set out that there was asbestos in the materials contained. The Judge said it was a reasonable inference that having undertaken that step, the Defendant would then not ignore any risk of asbestos and engage non-reputable contractors.
This Ground really related to the finding when the ‘dust taste’ in the Deceased’s mouth occurred. The court found that was made after replacement of the non-asbestos containing panels. It was argued that this finding was untenable and unsupported by evidence of fact.
For reasons which are fact specific, the Judge found that this was a reasonable finding for him to make.
This again was a complaint regarding the court’s finding of fact. This was regarding the period of time that the Deceased may have been exposed to asbestos. This was after the work removing the asbestos had been undertaken. Again it is a finding of fact, without being of general application.
This Ground was that the court had erred in concluding that it was bound by Williams v the University of Birmingham. That is that it had to make a precise finding as to the dose to which the Deceased was exposed.
The Judge noted that Rolls Royce v Cox had set out that the quantitative terms of what is de minimis is a question for a Judge to apply on the facts of the case.
The Judge, therefore, reasonably found that he should make findings as to such a level. The Judge acknowledged that such findings might imprecise, although he noted that the estimates given by the experts for each party were similar in this case.
This was in relation to whether the court’s approach to medical causation was wrong in principle and ‘unworkable’. In short, the Judge found that he had to determine whether the level of exposure gave rise to a material increase in the risk of mesothelioma.
He said that for the reasons set out in his judgment he concluded that any such exposure would not have given rise to a material increase. It was, therefore, de minimis. The Judge noted that the Claimant’s expert had said that such exposure created a ‘very small risk’.
This was a complaint that the court had placed excessive weight on epidemiological evidence. It was said that the court failed to take into account the effect of individual susceptibility.
However, the Judge said that in this Judgment he had heeded caution expressed about reliance on epidemiological evidence. He said that it was reasonable to find that such evidence had a part to play, albeit that it was limited.
This Ground was that the causation test applied by the court meant that the Claimant was not able to establish the cause of the injury on the basis of current medical science, contrary to Fairchild v Glenhaven Funeral Services.
However, the Judge noted that Fairchild required that there to be a material increase in risk. This was different from simply any exposure to asbestos. The Judge reiterated that a material risk would satisfy the Fairchild test of causation, but a de minimis risk does not.
Cumulative Effect/ Other Compelling Reasons
The Judge went on to consider the cumulative effect of the grounds of appeal. He also considered whether there was any other compelling reason, including the wider impact on mesothelioma litigation. However, the Judge concluded that neither of these gave rise to allowing Permission to Appeal.
Clearly this does not alter any of the findings of the Judge since the original decision. It is not known whether the Application will be renewed at the Court of Appeal.
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