This blog post was written by Dr David Sharpe KC and Corinne Novell.

Introduction

The decision concerns an unsuccessful claim for secondary exposure to asbestos, which the plaintiff alleges occurred in his family home for the period of 1951 to 1974, during which the plaintiff’s father worked as a pipe lagger for the defendants on a Belfast shipyard. The plaintiff alleges that this exposure caused him to develop bilateral pleural plaques, a dose related condition dependent on cumulative exposure. By the time of trial, the claim was only being pursued against the first and third defendants.

In essence, the claim failed because the plaintiff had not adduced sufficiently cogent evidence as to the duration, intensity and timing of the alleged exposure. Specifically, he had failed to establish that the level of exposure post-1965, following whichsecondary exposure was reasonably foreseeable and thus could accrue liability (as per Maguire v Harland and Wolff plc and another [2005] EWCA Civ 1), was high enough to have materially contributed to development of the plaintiff’s condition. This failure to establish ‘culpable’ exposure led to dismissal of the case.  

The Evidence

The plaintiff alleged that exposure came from two key sources. Firstly, the plaintiff’s father’s ‘great coat’ which he wore over his overalls on his way to and from work. Once the father came home, this was always placed over the bannister at the bottom of the stairs, which the plaintiff would frequently pass by. Both the plaintiff and his brother adduced evidence to the effect that they would play and hide under this coat and that this coat was sometimes placed over their bed for extra warmth.

The second source of exposure was alleged to have come from the father’s work overalls, which he would wear whilst having dinner with the family. These would be washed in the kitchen sink and which the plaintiff’s mother would beat dust off of and dry indoors hanging from the kitchen ceiling when the weather was poor.

The problems with the evidence establishing that these sources amounted to sufficiently intense culpable exposure such as to have materially contributed to the plaintiff’s condition were as follows:

• The plaintiff admitted in evidence that in his teenage years following 1965, it was possible that his risk of exposure was lower than in his childhood years during which he would have been playing under the coat and would have been in the house more often [26, 22].
• The plaintiff had given an account to his respiratory expert, Professor McGarvey, that exposure continued ‘until he was 12 or 13 years of age’, which entailed exposure ending in early 1965 [23]. If this account was correct, all exposure would have been non-culpable exposure.
• In cross-examination, the plaintiff accepted that he was unclear on the dates of exposure but stated of the period following 1965: “I was still in the same house where the same things were still happening, so you have to assume that I was still exposed” [26].
• The plaintiff and his brother gave different accounts of when the coat was placed over their bed, with the plaintiff stating that this occurred only on particularly ‘cold nights’ whilst his brother said this was done every evening during winter [79].

Further, the Judge was unimpressed with the difference in the two reports provided by Professor McGarvey. The first of these, written following a meeting with the plaintiff, set out that the plaintiff had said that exposure had occurred “for most of his childhood through the mid-1950s and early 1960s” [82]. The second report, apparently prepared without a second consultation with the plaintiff and without any justification or source being accredited for the change, said that the plaintiff was “likely to have been exposed [to asbestos dust] at home up until his father stopped working or Mr Moore left the family home” [83].

Mr Justice McAlinden determined that this shift from exposure prior to 1965 to exposure through to 1975 was due either to Professor McGarvey having read the pleadings or an attendance note from June 2016 which set out the chance of exposure following 1965. The Judge stated that he could not ignore the materially different histories and opinions on exposure between the report, particularly since the second report (in the Judge’s view, erroneously) set out that “the sources of all information” used had been indicated [90] and the plaintiff’s solicitors were adamant that they had not given the expert a history.

Commentary

This is an interesting judgment from the Northern Ireland High Court and it is noted that historically the Harland & Wolff Shipyard in Belfast was the largest in the world and that the Titanic was built there. The law in Northern Ireland relating to personal injury arising from asbestos exposure is essentially identical to that of England & Wales except to note that the devolved Assembly passed legislation to permit proceedings for asymptomatic pleural plaques ((the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011)) following the House of Lords judgment in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39.

This case focusses upon the ruling in Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 in which the deceased contracted mesothelioma from washing the overalls of her husband which were contaminated by asbestos dust as a result of his work in the defendant’s shipyard. The exposure occurred between 1961 and 1965, but, significantly, it ceased prior to the publication of Newhouse and Thompson’s article on the links between domestic exposure to asbestos and mesothelioma. The Court of Appeal determined that liability in such secondary-exposure cases could be established only for post-1965 exposure.

In Moore the case did not succeed due to the factual matrix relating to asbestos exposure becoming mired in confusion and the plaintiff having failed to satisfy the standard of proof in establishing a material contribution from the secondary exposure to the development of the pleural plaques. The plaintiff appears to have established a prima facie case of secondary exposure from his father’s overalls and great coat but failed in respect of the requirement that such exposure was post-1965. The genesis of the confusion and ultimate failure of the case was the medical reports – there were two reports containing a record of the plaintiff’s observations on exposure and the first suggested that exposure had effectively ended in 1965 whereas the second report concluded there had been post-1965 exposure without any explanation or justification. There were also differences between witness and concessions by the plaintiff and his brother.

This case failed on the basic premise that a Claimant must prove their case and serves as a reminder that evidence must always be directed to proving the core issues and satisfying the necessary legal requirements. In this instance that amounted to convincing the court that there was sufficient secondary exposure to asbestos post-1965 to materially contribute to the development of pleural plaques.

McAlinden J set out this conclusion fully at [96]:

“In relation to the issue at the heart of this case which is an issue of fact I find that the plaintiff has failed to satisfy me on the balance of probabilities that the exposure to asbestos dust and fibres in the domestic environment in the period subsequent to the end of 1965 made a material contribution to the risk of the plaintiff developing pleural plaques. There are just too many short-comings, deficits and contradictions in the plaintiff’s case for me to be able to simply sweep them all aside and conclude that because there was a period between 1965 and 1974 when the plaintiff probably experienced some exposure to asbestos dust and fibres then that exposure must have materially contributed to the risk of him developing pleural plaques, particularly when that period followed on from a 14 year period of what was in all likelihood a longer period of more intensive exposure.”