In this blog Cressida Mawdesley-Thomas considers the decision of HHJ Lickley KC in Bae Systems Marine Ltd v Alfa Laval Ltd [2022] EWHC 2686 (KB).

Introduction

The decision concerns an unsuccessful claim for contribution under s. 1(1) of The Civil Liability Act 1978, following the settlement of a claim for mesothelioma (‘the substantive action’), by the owners and operators of a dockyard. It is a salutary reminder of what any claimant in asbestos litigation must prove to succeed in a claim, particularly in the context of naval dockyard exposure.

Summary

The contribution claim was for £190,696.12, being the costs and damages incurred in settling the substantive claim for mesothelioma that was brought against Bae Systems as the owners and operators of the Barrow-in-Furness Dockyard between 1970-1975. To be successful in the claim for contribution, Bae Systems (‘the Cliamant’) needed to prove, on the balance of probabilities, that when the deceased was employed by the Defendant, Alfa Laval Ltd, which was between 1974 and 1975, he was exposed to asbestos. However, the claimant failed to prove their case.

The Judge was unimpressed by the lack of evidence and the fact that the claimant’s case in the contribution claim was directly contrary to their Defence in the substantive action (they never admitted liability and the settlement was recorded in a Tomlin order). The claimant in the contribution claim adopted the allegations made by the Claimant in the substantive action: that the Deceased was exposed to asbestos at the Barrow-in-Furness Dockyard when working on the design and installation of filtration systems, which included the application of asbestos lagging, on HMS Sheffield (a type 42 Destroyer) and a nuclear submarine.

Substantive Action

In the substantive claim the Defence made the following points:

(i) Denied that the deceased was exposed to such levels of asbestos dust that there was a foreseeable risk of injury at that time [5].

(ii) Averred that ‘it is highly unlikely that the filtration system which the deceased was charged with designing and overseeing would have been assembled inside the hull as late as 1974’ [6.5(a)].

(iii) Averred, in any event, that any filtration system and/or pipework servicing such a system would not require insulation [6.5(b)].

(iv) Relied upon the survey of HMS Cardiff of 14th January 2008 to show the lack of asbestos used in lagging [6.6].

(v) Relied upon the research by Geoffrey Slee of 28th February 2005 who reported that the only asbestos used at the Dockyard in the 1970s was compressed asbestos fibre used in gaskets between sections of pipe [6.9].

(vi) Averred the deceased would not have been employed to design the filtration system at the Dockyard at the time alleged [7.1].

(vii) If the deceased was at the Dockyard at the date alleged, he would not have been present when the filtration system was designed [7.2].

The above summarised position was adopted by the Defendant to the contribution claim.

The Evidence

This was a case where there was very little evidence. There was a witness statement from the Deceased and from two others who were not called to give live evidence. The Judge found that the Deceased’s evidence was of limited value, noting that there were factual errors relating to his “age, date of birth and daily commuting.” The statement was also made shortly before the Deceased’s death when he was very unwell and was trying to describe events that occurred more than 40 years before.

It was also noted that the other evidence from Mr Armstrong and Mr Carruthers did not support the claimant’s case on the time of the Deceased’s exposure, i.e., that it was from 1974 during the installation of a filtration system on HMS Sheffield and/or a submarine.  It was also noted that their evidence did not detail asbestos being used on a filtration system.

The Judge noted that the following, which would have been of assistance, was not before the Court:

• Evidence from a naval architect commenting on ‘when during construction a filtration system was or would be installed’.
• Diagrams, plans, or build specifications for a Type 42 Destroyer / submarines demonstrating where the filtration system was and how it was lagged.
• Asbestos surveys of HMS Sheffield or any submarine under construction at the time.
• Evidence that HMS Sheffield was fitted with a filtration system and that such a system involved a ‘hot’ component that required insulation which included asbestos.
• Evidence as to when during the process of the building of a ship or submarine, any filtration system is installed and operational: The same points apply to any nuclear submarine under construction at the relevant time.
• Build specifications, design or drawing for a Type 42 Destroyer or submarines built at the relevant time.

Occupational Hygiene Evidence

The court had the benefit of written occupational hygiene evidence (the experts were not called to give live evidence), however, the evidence of Martin Steer for the Defendant was preferred to that of Mr Glendenning for the Claimant.

It was noted that Mr. Steer’s conclusion [which assumed the filtration system was installed before the ship’s launch in 1971]; the deceased was employed by the Defendant in the tax year 1974-1975) whereas “Mr Glendenning has no knowledge of when such a system would be installed and, despite that, says that installation and further work ‘is likely to have occurred during the commissioning period which extended to 1975′.”

Takeaway Points

Whilst this was a claim for contribution made by the Defendant in the substantive mesothelioma action against one of the Deceased’s former employers there are a number of useful practice points for Claimant practitioners in asbetos disease litigation.

It should always be remembered what must be proved. In this case it needed to be proved that there was (i) a filtration system on the relevant ships (ii) that required insulation, i.e. because it contained a hot component (iii) that insulation contained asbestos (iv) that the claimant was exposed to it, i.e. when was the insultation installed. Evidence was needed on all of these issues but was distinctly lacking: the deceased’s evidence contained limited detail and contained a number of errors and other ‘supporting’ statements did not provide evidence of (i-iv) above. Taking care to avoid simple factual errors in witness statements will help prevent a Defendant taking easy points on credibility.

Dockyard / Naval Construction

There are a number of points particularly pertinent to dockyard / naval construction claims:

• Gather as much publicly available information on the ship(s) as possible (or the same class of ship built in the same year). The type of evidence that will be helpful includes: build-specifications, diagrams and asbestos surveys. Consider instructing an expert naval architect and rely on this case in support of any application.
• Test the evidence of your occupational hygienist / experts against the known facts of when the ship was launched and commissioned.
• Try and obtain details regarding the colour of the asbestos used. In this case the deceased’s statement contained no such details and Mr. Stear noted: “The Royal Navy instruction issued in 1969 referred to the discontinued use of crocidolite (blue) and amosite asbestos at that time and trials were then in hand to reduce the use of chrysotile (white) asbestos.”
• The Slee report on ‘The Study of the Historical Use of Insulation Materials’ dated 28th February 2005 may be helpful in cases concerning naval vessels which were built between 1943 and 1970: ‘the vulnerable period’.

Finally, it must be acknowledged that Defendants such as Bae Systems Marine Ltd, the owners and operators of the dockyard, are likely to be more reluctant to settle claims following this decision. It is therefore more important than ever to build a strong case and success will require the best evidence possible. As asbestos practitioners will be acutely aware, the days of heroic findings of fact are long since over. However, this case will be of assistance if seeking to rely on expert evidence from say, a naval architect and a different outcome may have been secured had evidence been placed before the court regarding filtration systems lagged with asbestos on other similar vessels.