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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Revenue & Customs v Silcock [2009] EWHC 3025 (QB) (23 November 2009) URL: http://www.bailii.org/ew/cases/EWHC/QB/2009/3025.html Cite as: [2009] EWHC 3025 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ON APPEAL FROM DEPUTY MASTER EASTMAN
FATAL MESOTHELIOMA CLAIM

		QB/2009/PTA0202 Royal Courts of Justice Strand, London, WC2A 2LL
		23/11/2009

Mr Justice Sweeney:

Introduction.

1. This case was listed before me as an application for permission to appeal, with any appeal to follow on. In the event, I heard both sides, in full, on the merits. I grant permission. This is thus now an appeal against an order made by Deputy Master Eastman (as he then was) at a telephone show cause hearing on 26^th March 2009, when he entered judgment for the Claimant on the issue of liability in a fatal mesothelioma claim brought by the Claimant/Respondent Rita Silcock (the widow and executrix of the late Robert Silcock) against the Defendant/Appellant H M Revenue & Customs. Hereafter, for the sake of simplicity, I propose to refer to the parties as the Claimant and the Defendant.
2. In the period from 1970 to 2005 Mr Silcock worked first for the DHSS, and then the Inland Revenue. The Defendant is the successor to the Inland Revenue, and accepts legal responsibility as Mr Silcock's employer throughout. Mr Silcock died in November 2005.
3. The background to the hearing before the Deputy Master was as follows:-

i) On 2 June 2006 a pre-action letter was sent to the Defendant. It asserted that the circumstances leading to the development of Mr Silcock's mesothelioma were that, as part of his job, he was required to travel to various DHSS offices in the Yorkshire region, and to the premises of various companies in the Leeds area, and that in both instances he had been exposed to asbestos.

ii) The claim was begun in October 2008. The Particulars of Claim asserted that exposure to asbestos was likely to have occurred in the various Government buildings in which Mr Silcock worked over the years, and/or whilst he was working at the premises of customers.

iii) In December 2008 a Defence was filed which pointed to the lack of particularity in the claim, and denied any liability.

iv) Thereafter the Defendant sought further information pursuant to CPR Part 18 as to precisely where, when and how Mr Silcock had been exposed to asbestos. The Response made clear that the Claimant was unable to provide such detail.

v) By an order made on 2 February 2009 the Deputy Master required the Defendant to show cause in writing why judgment on the issue of liability should not be entered.

vi) On 12 March 2009 the Defendant duly served a document setting out its case on the issue of liability. Thereafter, the Deputy Master ordered a show cause hearing.

The show cause hearing.

4. The hearing before the Deputy Master took place under the provisions of the Practice Direction in relation to Mesothelioma Claims (Practice Direction D CPR Part 3), which came into force on April 6 2008.
5. The relevant part of the Practice Direction is as follows:-

"6.1 The show cause procedure is a requirement by the court, of its initiative and usually on a costs in the case basis, for the defendant to identify the evidence and legal arguments that give the defendant a real prospect of success on any or all issues of liability. The court will use this procedure for the resolution of mesothelioma claims.

6.2 At the first case management conference, unless there is good reason not to do so, the defendant should be prepared to show cause why –

(1) a judgment on liability should not be entered against the defendant; and

(2) a standard interim payment on account of damages and (if appropriate) costs and disbursements should not be made by the defendant by a specified date."

6. The Deputy Master was provided with a bundle containing, inter alia, the evidence served by the Claimant. No evidence had been served by the Defendant, but it had disclosed some material. The transcript of the hearing shows that the arguments advanced on each side were, in summary, as follows:-

i) The Claimant.

a) There was no doubt the Mr Silcock's death in November 2005 was caused by mesothelioma, and thus it was clear beyond doubt that at some point he had been exposed to significant respirable asbestos fibres.

b) Within his lifetime Mr Silcock had identified possible exposures whilst employed by the Defendant, and had confirmed that there had been no exposures elsewhere.

c) In addition, evidence from three former work colleagues of Mr Silcock showed the existence of asbestos problems at three of the buildings where Mr Silcock had been employed – Hume House in Leeds (1979 – 1982/3), Century House in Pudsey (1990 – mid 1990s), and Crown House in Wakefield (mid 1990s onwards).

d) The Claimant's expert forensic engineer had concluded that it was probable that any exposure must have occurred during Mr Silcock's employment by the Defendant.

e) It was thus a legitimate inference from all the evidence that inhalation had indeed occurred in the course of Mr Silcock's employment by the Defendant.

f) Given that such exposure must have taken place after 1970, when the dangers of asbestos were well known, any significant exposure must thus plainly have resulted from the Defendant's negligence or breach of statutory duty.

ii) The Defendant.

a) The Claimant was unable to plead one instance of exposure of the deceased to asbestos as a consequence of breach of duty by the Defendant, and was thus unlikely to establish liability.

b) Therefore the Defendant had a real prospect of succeeding on liability for the simple reason that the Claimant faced a real prospect of being unable to prove negligence, or breach of statutory duty, on the evidence as it stood.

c) There was simply no worthwhile evidence on which a court could reliably conclude on the balance of probabilities that Mr Silcock was exposed to harmful asbestos in the course of his employment.

d) Even if there was an inference of exposure in the course of his employment, it was for the Claimant to establish evidence of lack of proper precautions, and the evidence of one of Mr Silcock's former colleagues Mr Harrison, in particular, gave rise to the inference of proper measures by the Defendant rather than the reverse.

e) Whilst, given the available evidence, it was possible for the court to infer exposure in the course of employment, it would not be right for the court to go on to find that the exposure was probably, or even inferentially, culpable – particularly absent any evidence dealing with lack of precautions or preventative measures.

f) Thus the Defendant had a real prospect of success, and it would not be right to enter summary judgment.

7. The relevant part of the Deputy Master's judgment is as follows:-

"2. This is a show cause hearing in this matter and as Mr Hilton quite rightly points out, the test for me is whether or not I think that the Defendant has a real prospect of establishing either that there had not been exposure and/or that there has not been a neglectful negligent breach of duty on the Defendant's part. This is an unusual procedure within the British or English legal system in that at this stage to some extent the burden of proof appears to be put the other way round and, although it is not, it is incumbent upon a Defendant to satisfy me that, on the material before me today, they have an arguable and runnable defence which is something better than fanciful, and has realistic prospects of succeeding.

3. Mr Cowan concedes that there is not any direct evidence to concretely establish exposure to asbestos against this Defendant in respect of alleged exposure in relation to the deceased's employment in these various premises, but he says that, bearing in mind the levels found post-mortem of fibres in the deceased and the inferential evidence, if I can put it that way, about the buildings he worked in, from both him, the deceased, and colleagues, it is a legitimate inference that I should and could bring to conclude (sic) that there was exposure in breach of duty.

4. In the context of this sort of litigation, with the life of a deceased being under the microscope post-mortem, both literally and metaphorically, and over twenty years after the events complained of, direct evidence is frequently unavailable. I have no problem in satisfying myself that in the circumstances of this case I am able at this stage to properly draw a legitimate inference from the material which is put before me that there was exposure as alleged. The totality of the evidence before me is sufficient for me to be able to do that, both from the lay witnesses and, for want of a better expression, putting two and two together and making four, when one combines that with the post-mortem medical evidence, and nothing from the Defendant is sufficient to mount a realistic challenge to that.

5. What then of the question about a breach of duty? Mr Hilton for the Defendant says that I have seen no evidence about breach of duty whatsoever, and the only evidence that I have seen about it is in fact in his favour, namely the document at page 72 in the bundle, which shows that, when confronted with issues relating to exposure, this was a responsible employer. The document at page 72 is dated 1991 and relates to period of exposure in 1989. That is considerably later than when this gentleman was in fact working at the relevant premises, Hume House. Nothing has been shown to me to suggest that any particular precautions were taken at an earlier date. Indeed, while it is true to say that the lay witness evidence does not allude to a lack of precautions, it does not say anything about them either way. I am satisfied that properly at this stage were the Defendants wanting to establish or satisfy me that they had a real prospect of success in defending this claim, they would have to go a little bit further than they have in terms of establishing that this was an employer who did indeed take relevant precautions in the relevant premises at the relevant times. In fact, the evidence about each of these is completely silent. Looking at the type of work that this gentleman undertook in these various premises, one does not expect to see evidence of him being provided with appropriate masks whenever things were going on in the way that you might have done for somebody involved in the asbestos lagging or stripping industries or anything of that sort, but there is nothing to suggest that back at the time when the exposure is alleged to have taken place these Defendants were actually doing anything to avoid the risk of asbestos exposure to their employees in the relevant premises, or indeed to suggest that any suggestion that the premises had asbestos in them which was potentially going to affect those working in the premises was not in fact the case. If I had seen evidence to suggest that there had been sweeps of the buildings or tests done on the relevant buildings to say that actually there was not any asbestos at all, I would have found the position slightly more convincing on the Defendant's behalf, but in the absence of anything to that effect, I am satisfied that, so far as the test I am required to apply today is concerned, I do not think from what I have seen and heard that the Defendants do satisfy me that there is a real prospect of establishing that there was no breach of duty in this case, and in those circumstances, having concluded that the Defendant does not satisfy me that they have real prospects of defending this claim either as to exposure or indeed as to breach of duty, I have no hesitation in concluding that they have not shown cause and that a judgment should be entered against them. So, that is the end of my ruling on that issue."

The Law.

8. In Brett v Reading University [2007] EWCA Civ 88 the Court of Appeal ruled that in a mesothelioma case against an employer it is for the Claimant to prove:-

i) That he suffered exposure to airborne asbestos whilst in the employment of the defendant, and

ii) That such exposure was as a result of negligence and/or a breach of statutory duty – i.e. that the defendant had failed to take the necessary precautions to ensure that the claimant did not inhale asbestos fibres.

9. It is common ground between the parties in this appeal that at a show cause hearing it is for the Claimant to adduce credible evidence in support of his case, and it is only if he does so that the Defendant becomes subject to an evidential burden to show cause. It is further agreed that the correct test is not whether the Defendant's case is likely to succeed at trial, but only whether it has some chance of success, and that the prospects are not fanciful.
10. It follows that, at a show cause hearing, it is open to a Defendant to submit that the Claimant's evidence is such as to mean that the Claimant is unlikely to succeed, and thus that the Defendant has shown cause that he has a realistic prospect of success. Further or in the alternative, the Defendant may make submissions based on any evidence which he has served. Obviously, if the former course alone is chosen, the Defendant must bear the risk of having no evidence of his own to undermine any appropriate inferences to be drawn from the Claimant's evidence.

The Arguments.

11. On behalf of the Defendant, Mr Hilton argued that the Deputy Master erred in law in that he:-

i) Wrongly held that the burden of proof was on the Defendant to satisfy him that it had an arguable defence;

ii) Failed to have regard to the lack of evidence to prove essential elements of the Claimant's case, or alternatively to the Claimant's difficulties in proving those elements of her case, namely:-

a) That the deceased sustained significant exposure to asbestos during the course of his employment with the Defendant;

b) Under what circumstances such significant exposure occurred; and

c) That such exposure was attributable to the breach of duty or negligence of the Defendant.

iii) Accordingly failed to find that there were no grounds to believe that the Defendant had no real prospect of success on the issue of liability, that there were no grounds to enter summary judgment against the Defendant, and that there were no grounds to require the Defendant to establish that it had a real prospect of success on the issue of liability.

iv) Wrongly found that he could infer from the evidence that the deceased had suffered significant exposure to asbestos in particular buildings, and at particular times, such that the exposure could be causally related to breaches of duty by the Defendant.

v) Alternatively, having required the Defendant to establish that it did have a real prospect of success on the issue of liability, failed to find that it had established the same.

vi) Further in the alternative, failed to find that there were significant issues in relation to liability which the Defendant had a real prospect of successfully defending, and which ought to be tried.

vii) Required, in effect, the Defendant to establish a case on liability which would probably succeed at trial, rather than that it had a defence with a real, as opposed to fanciful, prospect of success.

viii) Failed to remind himself, and have regard to the fact, that the Claimant would have to discharge the burden of proof in relation to those issues at a trial on liability.

ix) Failed to have regard to the complexity of the case covering, as it did, work by the deceased over a 35 year period in very many different locations, in any one of which, as alleged, he may have been exposed to asbestos, and to the nature of the case - which rendered it unsuitable for summary disposal.

x) Failed to take into account that, given the lack of particularity of the Claimant's allegations of exposure, and the fact that the Claimant had made allegations in the Particulars of Claim different from those set out in the pre-action letter, the Defendant had not been afforded a reasonable opportunity to investigate the alleged circumstances of exposure. The extent of disclosure would have needed to be carefully considered by the Court to avoid it being unduly onerous on the Defendant. The Defendant had not yet been required to disclose witness evidence, and had not even been given permission for expert evidence. There was therefore some other compelling reason why the case should be disposed of at a trial, namely that it was reasonable to require full investigation of the facts.

12. In all the circumstances, Mr Hilton argued, the Deputy Master was therefore wrong to enter summary judgment on the issue of liability, and to make consequential directions.
13. In developing these submissions, Mr Hilton relied upon Brett v University of Reading (above), to which the Deputy Master's attention was not drawn, and pointed out that in that case although exposure was proved by inference, because there was no evidence which pointed one way or the other on the critical issue of whether the University had failed to take the necessary precautions to ensure that the Claimant did not inhale asbestos fibres, the Claimant failed because the onus was on him to establish that the University had so failed.
14. Mr Hilton then went on to examine the Claimant's evidence in this case in some detail, arguing that it was not sufficiently powerful to give rise to any shifting of an evidential burden onto the Defendant in relation to either the exposure or negligence/breach of duty issues. In particular, he argued that:-

i) Mr Silcock did not refer in his witness statements to any building works being carried out at any of the buildings where he was employed, and no specific instances of exposure were alleged in the Particulars of Claim.

ii) The Claimant had been unable to state when, or where, or how any exposures had taken place.

iii) Dr Rudd, the consultant physician instructed by the Claimant, had not concluded that there was sufficient evidence that Mr Silcock had sustained exposure as a result of his employment by the Defendant.

iv) The conclusions of the Claimant's expert Mr Browne that exposure probably took place in the course of Mr Silcock's employment, and in circumstances implying negligence on the part of the Defendant, were demonstrably flawed.

v) In reality, the evidence was as consistent with exposure being before 1970, or outside work, or, even if during employment by the Defendant, happening in a building visited by Mr Silcock and over which the Defendant had no control, as it was with being in the course of his employment at one of the Defendant's buildings.

vi) Unless the circumstances of exposure were known, the Court could not consider how such circumstances arose, or whether there were any breaches of duty by the Defendant.

vii) Absent identification by the Claimant of relevant premises and relevant times of alleged exposure, it was unreasonable for the Deputy Master to find that the Defendant had no realistic chance of establishing that it had not been guilty of a breach of duty.

15. On the Claimant's behalf Mr Bowley pointed out that the Defendant chose to conduct its case before the Deputy Master by attacking the Claimant's evidence, rather than by relying upon any evidence of its own. Against that background, he submitted that, on proper analysis, the Claimant's evidence did give rise to a credible case in relation to both exposure in the course of employment by the Defendant, and negligence/breach of duty. Thus, he submitted, the decision of the Deputy Master was clearly correct. In furtherance of that submission, he too took me through a detailed analysis of the evidence.
16. Mr Bowley further submitted that:-

i) By 1970 the dangers of exposure to even low levels of asbestos were well recognised, and any reasonably careful employer should have taken positive steps to ensure that its employees were not exposed. The Appellant had placed no evidence before the court at all of any warnings given or steps taken in this regard at any of the buildings where Mr Silcock was employed. Hence if exposure was proved, the inference of negligence and/or breach of statutory duty was clear.

ii) The real question in the case was therefore whether there was no real prospect of the Defendant successfully denying exposure to significant quantities of respirable asbestos fibres, as to which the Deputy Master's conclusion was correct.

iii) This is an appeal from a specialist tribunal, which the Court should be slow interfere with.

iv) The Deputy Master did not err in relation to the burden of proof, nor did he misapply it. His comments simply reflected that he had concluded that the Claimant's evidence was such as to cause the Defendant to become subject to an evidential burden of demonstrating a real prospect of success.

v) Unlike Mr Browne, Dr Rudd did not have the evidence of Mr Silcock's former work colleagues available to him when he made his report, and his conclusion needed to be seen in that light.

vi) On the evidence taken as a whole, as exposure elsewhere was excluded as a significant possibility, the elevated asbestos within the deceased's lungs pointed strongly to significant exposure in the course of his employment by the Defendant – a proposition which he argued was effectively conceded at one point in the arguments advanced by Mr Hilton before the Deputy Master.

Conclusions.

17. I accept that:-

i) There are significant differences between the content of the pre-action letter and the way in which the case is pleaded.

ii) The Claimant has not been able to help with any detail of precisely when, where or how exposure took place.

iii) After the Claimant's response to the Part 18 request, there was only a relatively short time for the Defendant to obtain evidence in relation to the various buildings in which Mr Silcock was employed, and as to any precautions taken.

iv) By the time of the show cause hearing the Defendant had not yet been required to disclose witness evidence, nor given permission for expert evidence.

18. However, as Mr Hilton realistically accepted, the Defendant could have sought an adjournment to obtain evidence, but chose not to do so. Instead, the Defendant chose to show cause solely by arguing that the Claimant's evidence in relation to the issues of exposure and negligence/breach of statutory duty was so weak as to mean that the Claimant faced a real prospect of being unable to prove her case on the evidence as it stood, and thus that the Defendant had a realistic prospect of success. To the extent that they have been made, complaints about lack of opportunity to serve evidence thus have no part to play in this appeal. It is the correctness or otherwise of the Deputy Master's conclusions in response to the arguments as to the factual merits, together with the question of whether he applied the law correctly, which lie at the heart of this appeal. That said the differences between the content of the pre-action letter and the case as pleaded, together with the Claimant's inability to provide specific detail, are clearly relevant when considering the merits of the Claimant's factual case.
19. It follows that the result of this appeal turns, in significant part, on the correct analysis of the evidence on behalf of the Claimant that was in the file before the Deputy Master. As I have touched on all ready, each side has taken me through that evidence in detail, and each has invited me to reach radically different conclusions as to what it amounted to. To that extent, I have had more time and assistance than the Deputy Master did in deciding what the correct analysis is. Nevertheless, I remind myself that this is an appeal by way of a review, not a rehearing.
20. I propose to deal with each of the principal issues in turn.

Exposure.

21. It was not in dispute that Mr Silcock was employed by the Defendant from 1970 – 2005, that he died because of mesothelioma, and that thus (at some point or points) he must have inhaled a significant quantity of respirable asbestos. There was no evidence of any particular occasion on which such inhalation had taken place. Nevertheless, there was some evidence from which the inference could be drawn that exposure had not taken place in Mr Silcock's private life, nor during his first employment (by a firm of accountants) in the period 1965-1970.
22. As to Mr Silcock's employment by the Defendant, and the various buildings in which he worked, there was evidence from Mr and Mrs Silcock, and also from Mr Eason, Mr Harrison and Mrs Grinstead (all former work colleagues of Mr Silcock). This evidence showed that, over the years, Mr Silcock was frequently involved in work requiring him to go into cellars, basements and attics in old buildings in order to search out records.
23. As to the buildings in which Mr Silcock was employed over the years the evidence amounted to the following:-

Accommodation Road, Leeds (1970 – 1974).

i) This was an old building with a lot of overhead pipe work. Mr Silcock would sometimes go to the basement which was very dusty and housed boilers and pipe work. He could not recall whether the pipes were lagged. Mrs Silcock recalled him saying that there were overhead exposed lagged pipes, and that the area where he worked was dusty. Mr Eason recalled that in the 1970's walls and ceilings were often knocked down during refurbishments, and he believed that lagged pipes may have been disturbed.

Lawnswood (1974 – 1979/1980)

ii) These were prefabricated buildings. Mr Silcock could not recall any pipe work, suspended ceilings or building works. Whilst at Lawnswood he travelled to, and worked at, all the DSS (as it had become) offices in Yorkshire – some old, some modern. Mrs Silcock recalls her husband saying that his area at Lawnswood was dusty. Mr Harrison recalled the existence of lagged pipes, and of works being carried out. Mr Eason recalled that at some of the DSS offices in Yorkshire there were storage facilities with lagged pipes, and that some of the buildings contained asbestos.

Hume House, Leeds (1979/1980 – 1982/3)

iii) Mr Eason recalled that there were secure rooms which contained asbestos lagged pipes that were open to the air. On occasion, there were modifications to the walls which required specialist contractors who sheeted up the relevant area, and who wore full masks. There were occasions when asbestos was disturbed before specialists were called in, and there was asbestos in various parts of the building. On later occasions when Mr Silcock was working at Tower House in Leeds (1982/3 – 1988) he would visit Hume House when building alterations were going on. Mr Harrison (who worked at Hume House from 1983 to 1990) recalled that there was asbestos in various parts of the building, and that maintenance and alteration works took place which necessitated special procedures – though he could not recall there being any disturbance before specialists were called in. There was undoubtedly asbestos exposure in the atmosphere in part of Hume House in the period of approximately July 1989 to October 1989(by which time Mr Silcock was working at Southern House – below). This exposure was confirmed by an official letter which was received by both Mr Eason and Mr Harrison in about 1991.

Tower House, Leeds (1982/3 – 1988).

iv) Mr Silcock used the underground car park which had lagged pipes. For most of the time he was visiting companies in the Leeds area, and was often required to work in attics, cellars, and small rooms at their premises. Mrs Silcock recalled her husband saying that at such companies documents were often located in cellars and attics where lagged pipes were present. In her view it was perfectly possible that activities at such locations would cause dust to flake from the surface of the lagging.

Southern House, Leeds (1998 - @ 1990)

v) This was a new office building, with no asbestos problems.

Century House, Pudsey (@ 1990 – mid 1990's)

vi) Mrs Grinstead recalled that in about 1992 polystyrene ceiling tiles were taken off and revealed asbestos lagged pipes which were disturbed. In the result, staff were not allowed to go into the relevant room for three days, and later received a letter to say that they had been exposed to airborne asbestos.

Crown House, Wakefield (mid 1990's onwards.)

vii) It is clear from documents disclosed by the Defendant that as early as 1984 it was known that there was asbestos in this building, and that various surveys and remedial works were undertaken over the years. Mrs Grinstead recalls asbestos being found in lagged pipes in about 2004. It is however important to note, in relation to this building, that the Claimant's expert Mr Browne concluded that given the likely lead in time in relation to mesothelioma, it was perhaps unlikely that it had been caused by any exposure at this location.

24. More generally as to the Claimant's experts:-

i) The consultant physician Dr Rudd pointed out that Mr Silcock was unable to positively identify any circumstances in which he definitely suffered exposure to airborne dust, and postulated that if further evidence of exposure emerged, and the Court was thus satisfied that Mr Silcock sustained significant exposure in the course of his employment, it would be appropriate for the Court to conclude that such exposure materially increased the risk that he would develop mesothelioma.

ii) The consultant Forensic Engineer Mr Browne (who, unlike Dr Rudd had the advantage of considering all of the Claimant's evidence) concluded that ".. Mr Silcock's mesothelioma was, on the balance of probabilities, caused by asbestos exposure, and in my opinion it is equally probable that the exposures occurred during the years of his employment with the DHSS."

25. As is obvious, there are differences of recollection amongst the factual witnesses. That is hardly surprising. Mr Hilton nevertheless relies on those differences, together with the differences between the pre-action letter and the Particulars of Claim, and the Claimant's inability to specify any detail, to support his argument that the Deputy Master erred in concluding that the evidence as a whole was such that it gave rise to the inference that there was exposure as alleged (i.e. in the course of employment by the Defendant), and that nothing from the Defendant was sufficient to mount a realistic challenge to that.
26. I reject Mr Hilton's argument. Although the incident at Hume House was obviously some years after Mr Silcock left, the evidence as a whole was, in my view, plainly sufficient to give rise to the general conclusion that the Claimant would win on the exposure issue at trial, and that thus the Defendant had no realistic prospect of success. Therefore the Deputy Master's factual decision on this issue cannot be faulted.
27. As to whether the Deputy Master applied the correct burden of proof on this issue, it will be recalled that he said "..at this stage to some extent the burden of proof appears to be put the other way round and, although it is not (my emphasis), it is incumbent upon a defendant to satisfy me that, on the material before me today, they have an arguable and runnable defence which is something better than fanciful, and has realistic prospects of succeeding."
28. It is clear that on this issue the Deputy Master first weighed the strength of the Claimant's evidence, and then considered (against the background of his conclusion as to the strength of the Claimant's evidence) whether there was anything from the Defendant which indicated an ability to mount a realistic challenge. Given that, in my view, the Claimant's evidence was clearly strong enough to result in an evidential burden being placed on the Defendant, and the Defendant had no evidence, it seems to me that the Deputy Master dealt with the burden of proof correctly on this issue. Even if he did not, a correct application of the burden could only have resulted in the same outcome.
29. Accordingly, the Deputy Master's ruling on the issue of exposure was neither wrong nor unjust, and the appeal on this issue fails.

Negligence/Breach of Statutory Duty

30. Mr Silcock gave no evidence on this topic. The evidence in relation to it was limited. It amounted to the following:-

i) Mr Eason recalled that, although he was employed by the Defendant from the 1970s onwards, he had not been informed of the dangers of asbestos until the 1990s (by inference until he received the 1991 letter about exposure at Hume House in 1989).

ii) The disclosed material in relation to Crown House appeared, on its face, to show the Defendant dealing with asbestos related issues in an appropriate way at that location from 1984 onwards.

iii) When asbestos was found at Hume House, and at Century House, it appeared that specialist contractors were called in to deal with the issue appropriately – albeit that Mr Eason recalled occasions at Hume House when asbestos was discovered and disturbed before specialists were called in.

iv) The expert Mr Browne nevertheless concluded, against the background that the Defendant should have been aware of asbestos related risks throughout Mr Silcock's employment, that "..There is no indication that Mr Silcock, at any time during his years of employment, was given any advice or warnings about the dangers of asbestos or about the method of dealing with those dangers if he encountered them in the various buildings which he visited and if he was exposed to asbestos during the course of his work, which seems highly probable, then it is my opinion that those exposures would have occurred in circumstances implying negligence on the part of his employers."

31. It will be recalled that the Deputy Master reached his conclusion on this issue without placing any specific reliance on the evidence of Mr Eason, or on the opinion of Mr Browne. It appears that he reached his conclusion on this issue upon the basis that:-

i) The lay witness evidence did not allude to a lack of precautions, it did not say anything about precautions either way.

ii) The responsible conduct of the Defendant at Hume House was years after Mr Silcock had ceased working there, and nothing had been shown as to any particular precautions that were taken prior to the Hume House incident (in 1989/1991).

iii) The evidence was completely silent as to the existence of relevant precautions before that date.

iv) There was nothing to suggest that back at the time when exposure was said to have taken place, the Defendant was actually doing anything to avoid the risk of asbestos exposure to their employees in the relevant premises.

v) Had the Defendant provided evidence of sweeps or tests of the relevant buildings he would have found the position slightly more convincing.

vi) Accordingly, what he had seen and heard from the Defendant did not satisfy him that it had a realistic prospect of success on this issue.

32. Whilst, because of his particular expertise in this type of case, I have accorded considerable deference to the Deputy Master's view, I have nevertheless concluded that he was wrong to reach the conclusion that he did on this issue.
33. Putting aside the fact that there was also at least some evidence of apparently responsible conduct (albeit at Crown House) from as early as 1984, and also after the discovery at Century House in about 1992, and that it was alleged that it was likely that inhalation had taken place at some point before 1995 (not 1989/91), it seems to me that the Deputy Master's reasoning failed to recognise that the burden of proof was on the Claimant on this issue, and that the Defendant was thus entitled to point to the lack of evidence from the Claimant, as well as to the indications (such as they were) of its own responsible conduct. In the result, it seems to me that the Deputy Master was entitled not to place reliance on the evidence of Mr Eason or on the opinion of Mr Browne on this issue, and that his own conclusions as to the state of the Claimant's evidence demonstrated that the evidence was not so strong as to result in the shift of an evidential burden to the Defendant, that the Defendant was therefore right in asserting that it had shown that it had some realistic prospect of defending the case, and that therefore the Deputy Master was wrong to base his conclusion on the absence of evidence from the Defendant on this issue. It is perhaps unfortunate in this regard that the Deputy Master appears not have had the benefit of a clear reminder of the consequences of the agreed principles to be applied, as set out in paragraphs 9 and 10 above, and that he was not reminded of the decision of the Court of Appeal in Brett v Reading University (above).
34. In the result, the appeal therefore succeeds on the negligence/breach of statutory duty issue alone.