This post was written by Mike Brace.

A recent decision which demonstrates the dangers inherent in attempting to undermine an opponent’s expert evidence without serving your own or even requiring that the opposing expert attend  for cross examination.

The Case.

The claim was brought under the Law Reform (Miscellaneous Provisions) Act 1934 in respect of the death of  Mr White from mesothelioma.  The Claimants, Mr White’s executors, alleged that he was exposed to asbestos whilst working at Sefton General Hospital Liverpool during 2 discrete periods:

• 1949 – 1960 (as a junior lab technician); and
• 1973/74 – 1991/92 (as a senior biochemist)

The Defendant was the successor body upon which any liability of the Hospital had devolved.

The Lay Evidence and the Medical Evidence.

The Claimants served 2 statements: one by Mr White a few weeks before his death and one from his daughter (one of the Claimants).  The Defendant served no witness evidence and did not require Mr White’s daughter to give evidence.

The medical experts were not required to give evidence. A joint statement had been provided in which there were no areas of disagreement.   The medical experts agreed that:

“if the information available to us is found by the Court to be broadly correct, then there was probably a medically significant increase in risk of mesothelioma attributable to his work with the Defendant”

The potential sources of asbestos exposure in both the discrete periods were protective asbestos mats placed under “Bunsen” burners in the laboratories.

The Defendant’s position was:

“..the Claimant’s evidence establishes low level exposure during the course of his employment during the first period of his employment, up to 1960, and not the second from 1973, at a time when the risk of injury in the form of mesothelioma from low levels of exposure was not generally known”

Central issues in the claim were thus the amount of asbestos dust which Mr White was exposed to in each period and whether that level of exposure posed a foreseeable risk of injury when judged against the “standards of the day”

Occupational Hygiene Evidence

The parties had each been given permission to obtain and rely upon expert evidence from an engineer/occupational hygienist.

However, at trial the only expert occupational hygienist evidence before the court  consisted of the written report of the Defendant’s expert Mr Graeme Hughson which was “accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time”

The Claimants having:

• not served any expert occupational hygiene evidence of their own;
• not put Part 35 questions to the Defendant’s expert; and
• not sought an order permitting the Defendant’s expert to be cross-examined

nonetheless sought to “impugn the evidence or expertise of the Defendant’s expert on the matters in his report” and in particular argued that:

(a)        where Mr Hughson’s evidence of fact was in conflict with that of Mr White the latter should be preferred; and

(b)        insofar as Mr Hughson’s evidence of opinion was no more than an unreasoned assertion, or based on assumptions other than those accepted by the Court, it should be rejected and

(c)        where Mr Hughson gave a reasoned opinion on a matter within his expertise the Court could accept it but was under no obligation to do so.

The Judge noted that in Griffiths v TUI [2022] 1 WLR 973 the majority of the Court of Appeal  held “that there was no strict rule that the court was bound in all circumstances to accept the uncontroverted evidence of an expert witness which complied with the formal requirements of CPR Pt 35; that, rather, such evidence fell to be evaluated and assessed by the court in the usual way, and the approach to be taken, and weight to be given, to such evidence would depend on the circumstances of the individual case, the nature of the report itself and the purposes for which it was being used in the claim.”

The Judge stated that he intended to take the approach indicated in Griffiths.  He observed that whilst he was “not bound to reach conclusions which accord with the views of Mr Hughson, any departure from a properly reasoned opinion of his on matters of expert assessment which are within his expertise would require cogent explanation”.  Further, in his view the decision of the Claimants not to serve evidence of their own, not to pose Part 35 questions, and not to seek to cross examine Mr Hughson were relevant to a proper evaluation of Mr Hughson’s evidence and weight that may be given to it as part of all the circumstances.

The Result

Unfortunately, the Claimants tactical approach failed and Mr Hughson’s evidence proved decisive.

In approaching his factual findings, the Judge observed:

“Mr Hughson is not a witness of fact, but does have very considerable expertise in assessing likely exposure to asbestos dust in claims of this type. He has previously been employed as a scientific technician and a senior scientist by the Institute of Occupational Medicine advising clients on management of asbestos in buildings routine air monitoring for verification of asbestos containment, and assessment of operator exposures.”

The Judge expressed himself  “greatly assisted by  Mr Hughson’s report” when reaching conclusions as to the likely level of exposure in the first period of employment.  The Judge observed that  “although use of the mats, abrasion of their surfaces by moving them, or dropping such mats is likely to have caused asbestos dust to be emitted into the air in the locality where the deceased was working such emissions were not constant but intermittent, and probably at very low levels. In terms of actual periods of emission Mr Hughson who himself has worked in scientific labs, estimated a period as probably for no more than for 12 minutes in an 8-hour working day.  Although not a witness of fact, this estimate seemed a reasonable estimate from a highly experienced expert who had relevant experience of working in and advising on, similar environments. There was no expert evidence from the Claimants to suggest to the contrary.”

 In relation to the second period of employment the Judge agreed with Mr Hughson that friable forms of “Bunsen” burner  mats would not have been used but rather  harder, less dusty ones and also agreed that any exposure of Mr White to asbestos from the harder mats in the second period would have been insignificant/de minimis and not sufficient to give rise to a material increase in the risk of development of asbestos related injury.

In relation to the issue of breach of duty and applicable “standards of the day” the Judge also found  Mr Hughson’s evidence compelling.  He contrasted this with  the position of the Claimants:

“In the absence of any expert evidence to support their case, ….driven to rely in submissions on propositions of general applicability as to the state of knowledge in respect of asbestos which it was argued could be taken from the relevant case-law and read directly across to the present situation”

The Judge concluded “….having regard to the evidence of Mr Hughson, and in the absence of any expert evidence from the Claimants to the contrary, my answers to the questions derived from Jeromson and Bussey are as follows:

(i)         Should Sefton Hospital in either the first period of employment (1949-1960) or the second period of employment (1973 to 1990) have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? No: in respect of both the first and second period. I have found that the exposure to dust was not more than minimal and certainly not at a level which would have triggered a duty on the Defendant to take precautions or seek advice on what precautions to take.

(ii)        If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take. Not applicable.  There was insufficient exposure to trigger the duty to take precautions or seek advice.”

The claim was dismissed.