The way personal injury law is developing seems to be sacrificing justice for proportionality. In my area of mesothelioma litigation, justice seems to be a worn-out and scratched record. High-dose/long-term exposure mesothelioma claims remain viable (Hill & Billingham v John Barnsley & Son & Others [2013] EWHC 520). But the recent judgment in McGregor v Genco (FC) Ltd EWHC 1376 (QB) is extremely disappointing for claimants.

In 1976, John Lewis carried out major renovation, apparently involving asbestos removal. Some shielding from asbestos dust for employees and customers was in place. However, staff from the shoe department complained that they had to brush off ‘white dust’ repeatedly from displays and in the storeroom.

Was this always asbestos or other building dust? Apparently, no one complained at the time, and an electrician commented he would not give the situation a second thought. So, no asbestos monitoring took place or, if it did, we do not know the results. Clearly, the dust protection measures did not work, but this judgment finds them acceptable at the time and ‘not clearly bad’.

The judgment states that portable dust extraction units for £100 were available from 1968, so this could have all been prevented by a modest outlay. Proportionality with hindsight?

What is surprising is that apparently workers wearing only dust masks (not respirators) were power-sawing boarding for the escalators. Was this asbestos boarding? If it was then using power saws can cause massive asbestos exposure. I recall discussing power-sawing with Professor Julian Peto – the leading epidemiologist who first reported upon the ‘asbestos epidemic’.

He said that power-sawing of this type was probably a major factor for the epidemic.

Would four-foot high boarding – used mainly for the purpose of preventing staff and customers falling into the work area – not be ‘clearly bad’ in these circumstances? However, experts agreed it was ‘unlikely’ that asbestos levels to shop staff exceeded government TDN13 limits (paragraphs 45 and 126 of the judgment). So perhaps the court had nowhere to go?

The single-fibre theory – where one single asbestos fibre could cause mesothelioma – exploded into the public consciousness in the 1970s. This has since been discredited. In US courts, the judge acts as a ‘gatekeeper,’ ruling as to the acceptable expert opinion to put before a jury and throwing out ‘junk science’ – see Daubert and Frye decisions.

According to Michael Hoenig (‘Courts shoot down asbestos causation theory,’), ‘good science should trump glib hypothesis,’ and an expert relying on ‘any asbestos exposure’ (that is, any dose) can no longer expect an easy ride, especially as to the single-fibre theory.

When did the public and employers (without specialist knowledge) become worried about even single asbestos fibres? They still are. In 1965, the seminal Sunday Times article ‘Scientists track down a killer dust disease’ was published and lower non-‘high’ occupational exposures were considered of major concern. We know teachers are now developing mesothelioma, said by some to be derived from using drawing pins. We are now in a new era of low-dose exposure.

A settlement/case report by myself (APIL PI Focus Case Notes – BS v David Morris Int. 9/2011) concerned a jeweller snapping off small pieces from a four-inch piece of asbestos board which he then wetted and used to hold his jewellery for soldering – an exquisitely low dose.

From my 30 years of ‘toxic tort’ claims, including asbestos litigation, I am convinced that susceptibility is the key to understanding causation. How can one explain otherwise ‘shake down’ asbestos claims by family members who develop mesothelioma having washed or been exposed to work clothing contaminated with asbestos, whereas the men who worked with asbestos and were undoubtedly heavily exposed were not?

To put things further into perspective, asbestos was used ubiquitously as the ‘magic mineral’ in just about every building construction, often being mandatory for compliance with fire regulations. The amounts of asbestos used was staggering.

The major contributors for world production of asbestos (in tonnes as at August 1978) were the USSR (2,650,000) and Canada (1,572,000). The rest of the world, including southern Africa, Europe, China, US, central America and Australia, added to the total of 6,018,450 tonnes (1979 Asbestos Vol 1: final report of the advisory committee, HMSO).

UK imports of all types of asbestos were: 1946, 54,362; 1955, 142,095; 1965, 173,350; and 1975, 139,185.

But as Dr Robin Rudd, the leading medical expert in mesothelioma, has stated in The medical viewpoint (asbestos related conditions) from Occupational Illness (September 2002), just the presence of asbestos in a building is insufficient to prove causation: ‘It is sometimes assumed by claimants and their solicitors that the mere fact of a diagnosis of mesothelioma implies that there must be a basis for a claim.

‘This is not so… Often there is some vague suggestion that the claimant worked in a building where it is believed there may have been some asbestos present somewhere in its construction. This is not sufficient and is always necessary to demonstrate that there is a probability that the sufferer inhaled significant quantities of asbestos dust.’

The defendant position, as it is today, is set out amply and argued by Charles Feeny, counsel for the defendant in McGregor, in his article ‘The dust settles? Fairchild to Williams 2013’, 21 Tort Rev 87, where he referred to recent judgments and the TDN 13 (1969) issue well known to asbestos practitioners: ‘Conclusion. It appears we have reached a situation in which it will be much more difficult, in particular in the context of claims now presenting, for a claimant to prove breach than prove causation…

‘However, it is inevitable there will be further claims, with the prediction being mesothelioma will peak in about 2020 and more and more of these claims will involve exposures of a very slight nature, in particular that any exposure will amount to a breach of duty. It is inevitable that the courts will have to address, again, the question of materiality.’

McGregor will be heralded by defendants and often cited, I am sure, to deny many low-dose mesothelioma claims. Mrs Justice Patterson (pictured) concluded: ‘While I have enormous sympathy for the claimant, who clearly contracted mesothelioma as a result of asbestos exposure at work, it is with regret, but without any hesitation, that I find her claim against the defendant must fail.’

So where is the justice in McGregor? Is it now for parliament to introduce a compensation scheme that truly compensates these particular claimants, rather than the meagre sums awarded by the Department for Work and Pensions?

Alan Care is senior litigation executive at Thomson Snell & Passmore

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