Taylor v Fascia Future  EWHC 3049 QB is the only reported case in which Keefe v The Isle of Man Steam Packet  EWCA Civ 263 has been applied in an asbestos case.
Harry Steinberg QC and Max Archer appeared for the Claimant.
The Claimant had contracted lung cancer. He alleged that he was exposed to asbestos whilst working for the Defendant between 1994 and 2006 in the roofing trade.
The Claimant’s case was that he removed asbestos soffits, fascias and guttering from residential properties in the Northampton area. He alleged that he encountered asbestos on the majority of jobs he undertook. He alleged that in order to remove the materials he would have to cut them with handsaws and sometimes with an angle grinder, he would then break the materials up on the ground and place them in a van for disposal. The materials would be taken to the tip, however, in the late 1990s the tip refused asbestos materials and the Claimant was instructed to take them to his employer’s mother in law’s garage. He alleged that he smashed up the asbestos materials in this garage.
The Defendant’s case was starkly different. It was alleged that only a very small percentage of the Claimant’s jobs involved asbestos and that these would typically involve asbestos cement guttering and sometimes soffits. It was said that the materials came off in one piece and would be placed in the van. It was flatly denied that asbestos materials were stored in the garage.
The matter was listed for a preliminary issues trial on the facts only. Breach of duty was admitted two days before the trial. The preliminary issues trial was concerned with such findings of fact necessary to determine causation.
At trial the Claimant maintained that he was exposed in the majority of jobs. The Defendant called the Claimant’s employer as a witness. He made a large number of concessions, conceding a greater frequency of exposure than had previously been alleged. He conceded that asbestos was stored in the garage and that it may have been broken up there. He also conceded that he had not taken any steps to comply with the Control of Asbestos at Work Regulations 1987, crucially he had not undertaken any testing on the materials, any training as to how to recognise asbestos or safely dispose of it.
There nonetheless was a conflict in the evidence as to the frequency of exposure, the materials that the Claimant was exposed to and the processes of removing and disposing of the materials. The Claimant sought to rely upon Keefe v The Isle of Man Steam Packet Company Ltd  EWCA Civ 683 a case in which the Court of Appeal had held that:
“in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant’s breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor.” (paragraph 18).
“If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not in fact excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. … [A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.” (paragraph 19):
The judge was asked to accept that had the Claimant’s employer complied with the relevant regulatory regime at the time (The Control of Asbestos at Work Regulations 1987 SI 1987/2115, and 2002 SI 2002/2675) then, to put it at its lowest, the task of establishing the extent of his exposure would have been very much easier because there would have been relevant records. The Defendant argued that Keefe had no application as it was concerned with breach of duty, which had been admitted.
The judge found as follows:
‘I do, however, accept the relevance of Keefe to the present case to this extent. The Court was clearly focused in that case on the specifically factual component of liability, and even more specifically on the particular factual issue of frequency of exposure to a potentially causative hazard. In my view it would be fair to conclude that the Defendant in this case should not benefit from the absence of records by expecting me to do other than take the upper end of Mr Walpole’s accepted range of frequency – 60% – as the lowest point of the credible range.
The judge largely accepted the Claimant’s evidence. It was found that the Claimant’s evidence was ‘consistent with a factual situation in which asbestos was encountered frequently, more often than not…I am satisfied that it would be fair to say, as a very general average, Mr Taylor encountered asbestos in as many as three quarters of the jobs he did.’ Further, it was accepted that the materials were broken up on removal and that they were disposed of in the garage and smashed up by the Claimant.
This decision demonstrates the importance of Keefe for asbestos litigators. The 1987 Regs. impose a great number of duties on defendants, most importantly in the context of Keefe, duties to test and keep records. Keefe is therefore exceptionally potent in these circumstances and may come to the aid of many claimants whose evidence is impaired by the passage of time where the defendant has not complied with the duties under the Regs.