Workplace Exposure To Asbestos Remains Unproven

• Law Firm: Weightmans
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Health & Safety, Employee Benefits & Compensation, Trials & Appeals & Compensation
• Author: Mr Jim Byard
• Published date: 14 April 2023

High Court rules in alleged workplace exposure to asbestos case during the period 1973 to 1979 in which the deceased was diagnosed with mesothelioma.

Recently, in Cuthbert v Taylor Woodrow Construction Limited [KB 2022], we saw how a defendant, despite an inability to adduce any lay witness evidence, was able to successfully rebut allegations of asbestos exposure in breach of duty. In the latest case to come before the High Court, Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB). Dexter Dias KC, sitting as a High Court judge, dismissed a claim brought for alleged workplace exposure to asbestos during the period 1973 to 1979.

Facts

The deceased was diagnosed with mesothelioma in late 2015 and died several months later in 2016. He was employed by the defendant between 1975 and 1979 as a "dryliner" - a plasterer who fitted (dry) plasterboards (indoors) to new build properties. His (lifetime) statement did not allege exposure from that source but via the activities of carpenters working on site whom it is alleged would cut soffit boards to size - inside when rain precluded work outdoors. The claimant alleged that the soffit boards contained asbestos.

The defendant denied exposure and served four statements which included one from a director of the defendant company and one from Mr Bruce Vine, the former site supervisor of the main site contractor - McLeans.

Each side served an expert report from an occupational hygienist, though the judgment makes it clear that Dexter Dias KC, found these to offer limited relevance - the judge noting that the claimant's expert had only been born at the time of the alleged exposure.

There was, however, an agreement that, at the time of exposure, some soffit boards contained asbestos - but some did not. This was broadly in the ratio of 40% - 60%. The hygienists accepted that if exposure had occurred as alleged by the claimant, the defendants had failed to take all reasonably practicable steps to limit exposure which would have placed the defendant in breach of duty.

The findings

The judge clearly found the testimony of the former site supervisor to be persuasive. Mr Bruce Vine's evidence was that if weather conditions precluded the carpenters' work outdoors, they would simply be sent home and would not be asked to work indoors.

The judge also concluded that on the balance of probabilities the soffit boards used on site at that time did not contain asbestos. Furthermore, elements of the deceased's lifetime...