The Claimant issued a claim for alleged negligent environmental exposure to asbestos, resulting in her mesothelioma diagnosis. The trial date was set for December 2019. In August 2019, the Defendant applied for permission to rely on further expert evidence in defence of a mesothelioma claim by a former employee. The application was refused.
The court had previously approved the provision of expert reports for both Claimant and Defendant. The Claimant's expert (A) estimated the Claimant's life expectancy, at most, to be September 2020. The expert also commented that the exposure to asbestos resulted in a 3-5% material increase in developing mesothelioma. The Claimant was granted permission to rely upon A's report. The Defendant reserved the right to obtain their own evidence.
Each party served evidence on the Claimant's lifetime exposure to asbestos in June 2019, and a joint report on this issue was agreed in July 2019, stating that the estimate of the Claimant's exposure to asbestos was a matter of medical opinion. In August 2019 the Defendant stated that exposure levels remained in dispute, and applied to the court to rely on a second doctor's evidence.
On refusal of the application, the court noted that a balance had to be struck between injustice of a refusal to the Defendant and injustice to the Claimant with the loss of the trial date. Time was an important factor. The Claimant's health was worsening. The reliance on experts in the claim meant that expert witness flexibility made organising a trial date much more difficult.
The Defendant had elected to focus on the diagnosis and not causation. The Defendant failed to raise Part 35 questions to A or issue the application in May 2019, when it had been aware of the opinion of both the second doctor and A. The court held that the Defendant should have managed their time more efficiently based on the evidence and chronology which clearly showed causation to be an issue. The approach taken by the Defendant was wholly inappropriate particularly when lacking a proper explanation for the late application.