Johnstone v Fawcett's Garage (Newbury) Ltd

Factual and Procedural Background

The Plaintiff's spouse died from malignant mesothelioma in August 2019, having been diagnosed in November 2018. The Plaintiff brought proceedings against the Defendant garage, where the deceased had worked in an office for about seven and a half years during the 1980s. The Plaintiff alleged that the deceased’s employment exposed her to asbestos, materially increasing her risk of developing mesothelioma. The Defendant admitted unsafe asbestos-related working practices in its workshop during that period but denied that these caused a material increase in risk to the deceased. The trial focused principally on the issue of causation.

The trial was held over five days in April 2023 before Judge Simon sitting in the High Court. Evidence included statements from a mechanic who worked at the garage at the relevant time and oral evidence from six experts presented in pairs representing both parties. The judgment was delivered in December 2023, concluding that the increase in risk to the deceased was 0.1% or less, which was not material, resulting in the claim’s failure.

Legal Issues Presented

1. Whether the judge erred in his treatment of the Plaintiff’s expert epidemiological evidence (Ground 1).
2. Whether the judge miscalculated the background risk of mesothelioma (Ground 2).
3. Whether the judge erred in law by endorsing the Defendant’s methodology for assessing causation and failing to properly consider the Plaintiff’s preferred methodology (Grounds 3 and 4).
4. Whether the judge should have drawn an adverse inference against the Defendant for failure to keep air monitoring records (Ground 5).

Arguments of the Parties

Appellant's Arguments

• The judge misunderstood and improperly discounted the Plaintiff’s epidemiological expert’s evidence regarding the reliability of extrapolating risk at low exposure levels.
• The judge misapplied the background risk figure, failing to account for changes in the expert’s evidence during trial.
• The judge erred by endorsing the Defendant’s direct risk assessment methodology over the Plaintiff’s exposure/risk approach without adequate reasoning.
• The judge should have drawn an adverse inference against the Defendant for failing to keep legally required air monitoring records, which would have supported the Plaintiff’s higher exposure estimates.

Respondent's Arguments

• The judge correctly interpreted and balanced expert evidence, properly preferring the Defendant’s experts on exposure and risk assessment.
• The background risk figure used was reasonable and even if adjusted would not affect the conclusion of no material increase in risk.
• The direct risk assessment approach is a valid and appropriate methodology for determining causation in mesothelioma cases.
• The failure to keep air monitoring records did not justify an adverse inference as the evidence was sufficient to make findings on exposure without such records, and the adverse inference sought would contradict the judge’s factual findings.
• The alternative "absolute risk" approach, relying on medical opinion of insignificance, supports the conclusion of no material increase in risk.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed multi-stage analysis of causation consistent with the special rule applicable to mesothelioma claims. First, the court assessed the asbestos exposure of the mechanic at the garage, finding the Defendant’s expert’s lower exposure estimate more consistent with the factual matrix. Second, the court calculated the deceased’s exposure relative to the mechanic’s, again preferring the Defendant’s expert’s lower estimate. Third, the court assessed whether this exposure caused a material increase in mesothelioma risk.

The court carefully considered competing methodologies for assessing causation: the Plaintiff’s "exposure/risk approach" linking increased exposure to increased risk, the Defendant’s "direct risk assessment approach" estimating risk increase directly from epidemiological data, and an "absolute risk approach" relying on medical opinion of insignificance.

The court found that the direct risk assessment approach, as adopted by the trial judge, was supported by expert evidence and consistent with current legal principles. The Plaintiff’s criticisms of the epidemiological model (Hodgson & Darnton Study) relied upon by the Defendant were considered but ultimately rejected, with the court accepting the trial judge’s balanced view that the model could be cautiously applied at low exposures.

Regarding the background risk calculation, the court acknowledged some uncertainty but found that even adjusting the figures would not produce a material increase in risk. The court rejected the Plaintiff’s argument that the judge failed to adequately reason his preference for the direct risk assessment approach, noting that the judge had given clear reasons for preferring the Defendant’s expert evidence.

The court also rejected the Plaintiff’s contention that an adverse inference should be drawn for failure to keep air monitoring records. It found that the absence of records did not undermine the factual findings, that the records would have been limited in scope and duration, and that the adverse inference sought would contradict the judge’s detailed fact-finding.

The court further rejected the "absolute risk approach" as inconsistent with the special causation rule in mesothelioma cases and potentially detrimental to claimants exposed to low doses.

Overall, the court affirmed the trial judge’s findings that the Defendant’s breach did not cause a material increase in the deceased’s mesothelioma risk.

Holding and Implications

The appeal is DISMISSED, affirming the trial judge’s conclusion that the Defendant’s breach of duty did not materially increase the deceased’s risk of developing mesothelioma.

The direct effect is that the Plaintiff’s claim fails. No new legal precedent is established; rather, the decision confirms the application of established principles concerning causation in mesothelioma claims and the cautious use of epidemiological evidence. The court’s reasoning underscores the necessity of detailed factual findings and expert evidence in assessing material risk increases and affirms the limited circumstances in which adverse inferences may be drawn for missing evidence.