EWJ June 61 2025 web - Flipbook - Page 80
exposure to asbestos, although nothing he can clearly identify”.
Secondly, the Defendant relied upon the unlikelihood
of the insulation on the boiler being unprotected and
containing asbestos while being exposed to the elements; the Defendant suggested that it was more likely
that the insulation was encapsulated in a plaster coating such that any dustiness came simply from that
and/or general ambient dust.
Evans v Secretary of State for Health and Social Care
This was a decision of Andrew Kinnier KC, sitting as
a Deputy High Court Judge.
The case was brought by Mrs Teresa Evans, the
daughter of Mrs Maria Drinkwater who died on 1
May 2019 after contracting mesothelioma. Mrs
Drinkwater had been employed by the Defendant’s
predecessor as a carer at Bradwell Grove Hospital in
Burford between 1974/75 and 1986. It was alleged
that she had been exposed to asbestos during the
course of several months in 1975/76 when works were
being carried out on the hospital building. It was alleged that she had been exposed to “visible clouds of
dust floating around in the corridor along which I had to walk
every day for months whilst the building was demolished” and
that such dust contained asbestos from the works. A
statement from Mrs Drinkwater had been obtained
before she passed away.
The judge analysed the reliability of Mr Dean’s
recollection in the context of the medical records at
[51-61]. As to the law, she noted that “while I was referred to the case of Gestmin v Credit Suisse [2013] EWHC
3560, I do not find that it is helpful in terms of any general
principle in this case, which is not a commercial case with a
large volume of documents going to liability”. She analysed
the facts as follows:
l She considered it important that the medical
records be viewed in their context: they are “clinical
notes and do not constitute the sort of detailed exploration of
work history that would be taken by a solicitor” and “Mr
Dean’s diagnosis would obviously have come as something of
a shock and he may not therefore have been concentrating on
his employment history”;
l She considered that the records which followed the
first in January 2019 were likely a case of repetition
from the first, rather than a statement from Mr Dean
on each occasion;
As to the issue of the reliability of Mrs Drinkwater’s
evidence, the Defendant raised four key points. Firstly,
in Mrs Drinkwater’s application for compensation
under the Pneumoconiosis etc (Workers’ Compensation) Act 1979 on 19 March 2018 she denied any
occupational asbestos exposure. Secondly, Mrs
Drinkwater had accepted unrelated secondary asbestos exposure when laundering her husband’s work
overalls such that the Defendant asserted that that exposure was the more likely explanation for the development of mesothelioma. Thirdly, the Defendant’s
case was that it was inherently implausible that the
presence of “clouds of dust” as described by Mrs
Drinkwater would have been tolerated in a hospital
for several months. Fourthly, some of Mrs Drinkwater’s evidence about the presence of asbestos in the
hospital was considered by the experts to have been
incorrect.
l She found that there were some errors in the
records, where Mr Dean had been noted as working
in the Navy when he had not;
Before turning to an analysis of the facts, the judge
outlined seven helpful factors in assessing lay witness
evidence in historic cases [37]:
l She considered that once Mr Dean had been
diagnosed with mesothelioma, and was aware that it is
almost always caused by exposure to asbestos, he was
able to consider and identify the boiler as a possible
cause; and
“(a) The burden rests at all times on the Claimant to prove
that there was exposure to asbestos dust and that such exposure
was caused by the Defendant’s breach of duty: Brett v. Reading University [2007] EWCA Civ 88, para. 19 (per Sedley
LJ) and para. 26 (per Maurice Kay LJ).
l She accordingly concluded that, in the circumstances and context of the records, Mr Dean’s evidence and recollection followed an “unremarkable
pattern” such that she found his account “reliable” and
“convincing”.
(b) The usual standard of proof applies with the same rigour
in mesothelioma claims as in any other. In that regard, it is
important that judges should bear in mind that the Fairchild
exception itself represents what the House of Lords considered
to be the proper balance between the interests of claimants and
defendants in mesothelioma cases. Having regard to the harrowing nature of the illness, judges must resist any temptation
to give the claimant’s case an additional boost by taking a lax
approach to the proof of the essential elements. That could only
result in the balance struck by the Fairchild exception being
distorted: Sienkiewicz [2011] 2 AC 229 at 288E-F, para.
166 (per Lord Rodger).
l She noted that the medico-legal evidence from Dr
Beckles outlined that “Patients often do not recall exposure
when asked, particularly if the question is whether or not they
worked with asbestos”;
l She noted that it was not known what precisely Mr
Dean was asked when he first went to his GP in January 2019 and any questions would not have been
“particularly probing at that stage”;
The issue in respect of the insulation on the boiler
being unprotected and containing asbestos was also
found in the Claimant’s favour – the judge, again, accepted Mr Dean’s evidence. She provided a detailed
analysis of all the evidence in the case at [62-84] and it
was most notable in her determination on this issue
that Mr Dean’s account was supported by the expert
evidence (which the judge evaluated in some detail
and with the benefit of cross-examination).
(c) It is not the duty of fact-finders to reach conclusions of fact,
one way or the other, in every case. There are cases where, as
a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove
The Claimant ultimately went on to succeed in her
claim overall.
EXPERT WITNESS JOURNAL
78
JUNE 2025
