Legacy disease - market insights April 2025

Asbestos-related claims: de minimis defence

Kerr v Midlothian Council and Others [20.12.24]

The claim was brought against two local authorities in Scotland. It was alleged that the deceased had contracted a peritoneal mesothelioma from working with Bunsen burner mats comprised of asbestos cement. Exposure was found to be to chrysotile and amounted to 0.001 fibre/ml years or less.

The pursuer argued that the Fairchild rule of causation applied and therefore the threshold to be met was to establish that there was a material contribution to risk.

Epidemiology evidence obtained by the defenders showed no relationship between low chrysotile exposures and peritoneal mesothelioma. The court accepted there was no association between chrysotile exposure and peritoneal mesothelioma, and found that the Fairchild rule did not apply to the claim.

Fairchild imposes a relaxed test of causation removing the need for proof of factual causation and replacing it with proof of increased risk. Here, the pursuer could not prove that the mesothelioma was caused by asbestos.

We are likely to see increasing numbers of lower dose claims involving claimants in non-industrial roles. The courts have tended to accept arguments based on epidemiological assessment via Hodgson & Darnton coupled with medical opinion.

Court of Appeal judgment in Johnstone v Fawcett’s Garage awaited: what does the future hold?

Attention now turns to the outcome of the appeal heard by the Court of Appeal in Johnstone on 13 February 2025, and whether the approach accepted to assessing materiality in exposure to asbestos in Bannister and Kerr, will be approved.

If approved, it will seemingly do what Lord Phillips thought was impossible in Sienkiewicz v Greif [2011] by giving guidance on what is material and will give a clear route of challenge to low dose cases.