Setting the record straight: High Court overturns coroner’s conclusion

R (Wandsworth Borough Council) v HM Senior Coroner for Inner West London [31.03.21]

Data de publicação

27 abr 2021

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The High Court overturned a decision of the Senior Coroner of Inner West London finding that there was insufficient evidence to prove that the deceased had been exposed to asbestos in her council owned home.

Background

Mrs Johns died from a mesothelioma in 2018 and had lived in her council flat from 1996 which was known to contain asbestos. The Senior Coroner held an inquest at which a short narrative verdict was entered giving the conclusion that Mrs Johns had died from “exposure to asbestos whilst resident in 8 Eliot Court, causing malignant mesothelioma”. The local authority sought to quash the finding and substitute a conclusion that Mrs John died of a mesothelioma but omitting any reference to asbestos.

The High Court considered if the Senior Coroner was entitled to conclude that it was probable that, as opposed to merely possible, that Mrs Johns had been exposed to asbestos. The facts were not in dispute and are as follows:

  • Asbestos was detected in the flat 12 years prior to Mrs John’s taking up the tenancy in the form of amosite boards within the entrance hall cupboard, heater cupboard ducts, corner ducts and in partition walls.
  • Towards the end of 2003, the local authority instructed contractors to remove the asbestos boards. Mrs John vacated the flat during the removal work which took a total of three or four days.
  • During the removal work, a vacuum cleaner used by the contactors malfunctioned and exploded spreading a fine dust around her living room damaging soft furnishings.
  • A pathologist found most, but not all, mesotheliomas are caused by asbestos exposure. However, there was no assessment of likely airborne levels of exposure or consideration of the level of asbestos seen in the atmosphere generally.


The Senior Coroner found based on the available medical evidence, asbestos records documenting the presence of asbestos within the flat, and the logical inference that the removal works raised the dust levels that Mrs Johns was exposed to asbestos in her home which had caused her mesothelioma.

Decision

The causation test applied in civil claims as set out in the case of Fairchild v Glenhaven Funeral Services Limited and others [2003] did not apply. The court therefore considered if the relevant event made a material contribution to the death of Mrs Johns as set out in the case of R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016]. In applying this test, the court overturned the coroner’s verdict.

The salient points from the judgment are as follows:

  • Even with the statistical association between asbestos and mesothelioma being extremely strong, it was by no means absolute and it could not safely be assumed that the mesothelioma was caused by exposure to asbestos in the property.
  • The documents confirming the presence of asbestos did not confirm that asbestos was freely circulating within the flat and living in close proximity to asbestos did not necessarily entail an exposure.
  • Mrs John was not in the flat at the time the removal work was undertaken and the composition of the dust spread by the malfunctioning vacuum cleaner was unknown with the only evidence suggesting a contamination by polymeric dust (a mixture of polymer binders and fine stone) which was not causative of mesothelioma.
  • The coroner could not have safely assumed that Mrs Johns was not exposed to asbestos dust elsewhere during her life.


The court found that the evidence available was insufficient to sustain a finding that Mrs Johns had contracted mesothelioma as a result of an exposure to asbestos in her home.

Comment

Despite a different causation test applying, the appeal serves as a further example that exposure cannot be assumed and must be proven. Such an approach is in keeping with the comments of Lord Roger in Sienkiewicz v Greif UK (Ltd) [2011] and with Lugay v London Borough of Hammersmith and Fulham [2017]. In Lugay, the court declined to find an exposure to quantities of asbestos above background levels when asbestos was present in a council house. It follows that practitioners should closely assess the evidence to ensure that exposure can be proven and should not make assumptions based on the mere presence of asbestos.

Secondly, we recommend careful review of any exposure to establish if the overall dose to asbestos is more than de minimis. Bannister v Freedmans Plc [2020] imposes a high hurdle where the exposure to asbestos is extremely low and the corresponding risks of contracting mesothelioma are particularly limited.

Finally, the decision serves as an example of a defendant seeking to set the record straight to protect their reputation even where there is limited financial incentive to do so. Local authorities, charities and companies should carefully consider the reputational effects of an adverse finding when deciding whether to participate in coronial proceedings.