September 17, 2020

Bannister v Freemans Plc: What does it mean for mesothelioma claimants?

Historically, the bulk of cases in industrial illness litigation have been for claimants who worked with asbestos in trades and industry – perhaps they manufactured asbestos, used it to insulate boilers or pipes or worked ‘hands on’ with asbestos in some other way.

As time moved on and asbestos became less heavily used in industry though, people were not exposed to it to the same extent. So we’re now seeing different types of cases emerge, where people have come into contact with asbestos indirectly, to a much lesser extent or even at such a low level that they were unaware they were being exposed at all. These cases have become known as “low exposure cases” and can sometimes pose several problems for claimant lawyers to overcome.

Bannister v Freemans Plc is one such “low exposure” case.

What you need to know about the case

Mr Bannister worked as a manager in the accounts department of Freemans, a retailer well known for its catalogues before online shopping became the norm.

During one weekend in either 1983 or 1984, when Mr Bannister was not working, work was carried out in his office to remove asbestos sheet partitioning. His case was that asbestos dust and residue from the removal works was left on his desk, and around the office, when he returned to work after the weekend. The dust from the works was not cleaned up until the office cleaning staff attended that evening.

Sadly, Mr Bannister went on to develop mesothelioma and passed away before his case reached trial. Mr Bannister’s claim was taken on by his wife as the representative of his Estate.

Mr Bannister’s legal team argued that he was exposed to airborne asbestos dust and fibres throughout that day, and to a lesser extent throughout the following days as there had been no deep clean to remove all traces of asbestos dust, meaning fibres were likely still circulating in the air.

The court was asked to consider whether this one day of exposure to asbestos could find the defendant employer negligent, and if so, could such a low dose of exposure have caused Mr Bannister’s mesothelioma.

What was the court’s decision?

The defendant argued that any dust residue in Mr Bannister’s office would have been general construction dust and would not have contained any asbestos fibres. This was the first issue considered by the court, and it was found that there was insufficient evidence to conclude that the dust in Mr Bannister’s office contained asbestos fibres. The court also decided it was unlikely that the asbestos removal contractor would have left visible asbestos dust lying around, having taken other precautions to ensure the work was completed safely. This was despite the company not having any witnesses to give evidence about what happened or any documents about the removal works to show a specialist contractor was used. Therefore the claim failed on the facts.

In most cases that would have been the end of the matter. But here the judge went on to consider some of the wider points raised in the case. These comments were made ‘obiter dicta’, which means they are not legally binding in future cases, but will no doubt be considered by other judges and may be persuasive in their decision making in other cases.

What were the issues with Mr Bannister’s case?

By way of explanation, the law requires a claimant to prove that they have been exposed to asbestos in breach of the law in place at the time or negligently, and that the exposure caused their illness.

Causation principles were established in the case of Fairchild, and require no set level of exposure to establish causation but that the asbestos exposure creates a ‘material contribution’ to the increase in risk. If a claimant could establish exposure to asbestos which was considered in breach of the law or negligent, it automatically followed that the exposure was also considered to be sufficient to have caused the disease.

Here though the judge suggested that the claim would have failed in any event on the issue of causation because, even if the court had found the dust contained asbestos, the judge would not have considered the exposure to have materially increased the risk of Mr Bannister developing mesothelioma.

To reach this conclusion, the judge considered evidence of occupational hygienists regarding the likely level of exposure to asbestos Mr Bannister would have had. The experts agreed the level of exposure would have been very small.

Medical experts had also given evidence as to whether such a low dose of asbestos exposure could have materially increased Mr Bannister’s risk of developing mesothelioma. The medical experts were asked to give their opinion on the incidence (and therefore risk) of people developing mesothelioma without exposure to asbestos and exposure at this level. The evidence of the medics therefore strayed into epidemiology and consideration of the risk based on statistics.

Further, the judge in Mr Bannister’s case accepted the defendant’s assertion that the level of risk should be considered on whether it was a risk that “the average patient should be concerned about” and would a doctor have reassured their patient about the exposure if they came to them worried about it.

Mr Bannister’s widow has applied for permission to appeal the judgment and, if granted, the appeal will scrutinise these issues in greater detail. In the meantime, there are lots of concerns for mesothelioma claimants arising from this case; some of which are outlined below.

What does this mean if you are considering a mesothelioma claim?

Could low levels of exposure escape liability?

The most worrying consideration that comes out of this case is that, if this approach is followed, claimants who can only recall exposure to a low level of asbestos could be unsuccessful in their claims; even if they can prove exposure to asbestos which was in breach of the law or negligent, they may not be able to establish the exposure caused their disease. This is despite the fact that the dangers of even small amounts of asbestos were well documented from the mid-1960s.

This approach would be grossly unjust for the claimants who will not succeed and may also slow cases down whilst defendants try to argue that the exposure was too low so they can avoid culpability. It would also impact on a much greater number of claimants, particularly those exposed to asbestos in schools and hospitals and the like, now that heavy industrial exposure to asbestos is less common.

The fallibility of the claimant’s memory

The judge also warned about the risks of unconscious bias and mistakes from witnesses who give evidence about events which took place a long time ago and are asked to rely on their memory, which may be shaped by context of the current situation and the litigation.

For the vast majority of claimants, the only evidence they have is their memories of historic events, and those of the witnesses they can find. The courts have traditionally accepted the memories of claimants and witnesses in statements signed by a “statement of truth” confirming that their evidence is factual to the best of their knowledge and recollection.

However, the judge in Mr Bannister’s case spent some time emphasising the difficulties in only relying on a claimant’s recollection, which is subject to bias because of all they have resting on the outcome. Again, this seems very unfair as suggests that claimants would risk perjuring themselves by giving evidence which was not true to the best of their knowledge and belief.

This kind of judicial concern will inevitably impact mesothelioma and asbestos claimants to a greater extent as the exposure which causes their diseases usually occurred many decades ago, not within the last three years as is seen in other types of personal injury litigation. The court failed to point out that the defendant’s evidence is also based on historic memories and is also subject to bias of avoiding liability.

The court made apparent that contemporaneous records would be preferable to the claimant’s memory. As an employer, the duty should remain with the defendant to keep contemporaneous records, rather than for the employee to make and keep for decades records relating to all parts of their employment on the off-chance that they may be penalised in the future for not having evidence if they are unfortunate enough to develop an asbestos disease. The reality though is that there are rarely any records still in existence, and those that are available do not tend to contain the type of information that would be needed. Witness testimony is usually all there is.

Will mesothelioma suffers be put off from making a claim if they fear their memories of things that happened many decades ago may not be robust enough or for fear they won’t be believed? As a claimant lawyer, I know already the pains my clients go to to be honest and truthful when giving their evidence and signing a statement. The judiciary should not create yet another difficulty for mesothelioma and asbestos disease claimant’s by creating this fear.

The accuracy of Government benefit applications

When considering the claimant’s evidence, the court also took into consideration the Government benefit application forms that were completed by Mr Bannister in the immediate aftermath of his diagnosis. The court found that some of the evidence contained in the application forms contradicted some of his later evidence, and this was a factor in favouring the defendant’s submissions.

Commonly, we find that in the immediate shock following such a devastating diagnosis claimants are understandably not able to remember things as clearly, either having forgotten a period of work they did or not realising how it could have led to asbestos exposure until questioned by solicitors with specialist knowledge. However, claimants will now need to be very mindful of the importance the content of these forms may have if they subsequently decide to make a legal claim.

Often charities and support groups kindly assist claimants to complete these forms and they too must be mindful of the comments in this case. I would recommend, where possible, collaboration between charities and support groups and the claimant’s legal team to ensure the forms contain the information which will be presented in the legal claim to ensure consistency.

However, benefits applications are not witness statements. They are not designed to give claimant’s the opportunity to give a comprehensive account of their history. In the longer term we need to try and change judicial perceptions of these forms in subsequent cases so the content is not given such weight.

Could liability be based on whether a medical practitioner would advise the average patient to be concerned or not?

This is a retrospective and subjective test on which all patients and doctors would form differing views.

As we know, there is no such thing as the average patient, and relying on a subjective test fails to take into consideration the individuality of each person, their personal susceptibility to asbestos and their unique circumstances. What one patient worries about is likely to be very different to what worries another.

Adopting this test would not lead to consistent results for claimants.

My final thought

Claimant lawyers will be hoping that the appeal is allowed as the obiter comments of the judge in this case are difficult to reconcile with precedents set in earlier cases.

I hope that we can provide reassurance to our mesothelioma clients in the coming months that the themes mentioned in this piece will not be potential issues in their claims. However, in the meantime the fight goes on and specialist claimant lawyers like me will continue to do our very best for our clients.

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