Show cause for concern

Scarborough College Ltd v Winter [2021] 4 WLUK 352 and its impact on the show cause procedure

Facts of the case

The deceased was diagnosed with mesothelioma in April 2019 and passed away in December 2020.

He had been a pupil at the defendant school from September 1969 to July 1973, and it was alleged that he had been exposed to asbestos when hanging wet sports kit on asbestos-lagged pipes in the basement boiler room. It was alleged that the lagging was damaged, releasing asbestos dust into the boiler room, which accumulated on the pipes themselves and the floor around them. It was further alleged that he and his fellow pupils would have to shake asbestos dust from their clothes before putting them on.

Show cause procedure

At the show cause hearing, the defendant accepted that the pipes in question were likely to have been lagged with asbestos, but argued that there was no foreseeable risk of injury.

The claimant relied upon the warnings of the dangers of asbestos contained in the well-known 1965 Sunday Times article and also Administrative Memorandum 20/67, published by the Department of Education and Science on 18 July 1967. Both parties also relied upon preliminary expert liability evidence.

The Master held that the defendant had no real prospect of defending the claim and entered judgment on liability on the basis that the school knew or ought to have known of the pupils’ use of the room and of the risk of exposure to asbestos posed by the lagging, and that there was therefore a foreseeable risk of injury.

Appeal

The defendant argued that the standard applied by the Master had been too high. It again argued that the deceased’s injury was not foreseeable but further contended that asbestos insulation had been in use until 1975, that contemporary publications suggested it did not pose a health risk, and that the issue of foreseeability was properly a matter for trial.

Cavanagh J accepted that the show cause test was whether the defendant had a prospect of success which was more than merely fanciful (Revenue and Customs Commissioners v Silcock [2009] EWHC 3025 (QB) applied). This was a “low bar”.

The judge also accepted that the show cause procedure was something of a “rough and ready” process and would often be conducted without the benefit of full experts’ reports.

Relying on memo 20/67 and The Sunday Times article, Cavanagh J held that the Master had been correct to find that the defendant had actual or constructive knowledge of the risks so that there was established  a reasonably foreseeable risk of injury.  He thus dismissed the appeal.

Administrative Memorandum 20/67

This was intended to provide advice to local authorities, schools and colleges about the dangers of asbestos in buildings. It warns of the risk of mesothelioma and specifically states that “exposure to even low concentrations of dust may be hazardous.”

It also invited local education authorities and other responsible bodies to “ensure the most careful regulation of the use of asbestos products within all types of educational establishments” whilst emphasising a particular association between crocidolite (blue asbestos) and mesothelioma, to the extent of suggesting that mesothelioma derived from forms of asbestos other than crocidolite was exceptional and encouraging the use of chrysotile asbestos where an asbestos product was considered necessary. Significantly, AM67 states that inhalation of any form of asbestos dust by pupils and teachers should be reduced to a minimum.

What this means to you

Firstly, it is important to note that this judgment does not affect the show cause procedure generally, subject to the acceptance that expert evidence can be “rough and ready” at this stage.

However, this judgment may warrant a change in the approach taken by a defendant to the show cause procedure specifically and to defending mesothelioma claims more generally. This is because it seems that the chances of schools, colleges or local authorities defending such claims in light of the weight attached to the memo, even at the show cause stage, are likely to be greatly reduced.  

The particular importance attributed to The Sunday Times article in this case and others remains somewhat surprising.  Granted, the piece did highlight the risk of both occupational and domestic exposure to asbestos but, as was recognised by Judge LJ in Maguire v Harland & Wolff plc [2005] EWCA Civ 1, “The subsequent literature does not suggest an immediate rush to face up to the implications of the Newhouse and Thompson papers, and perhaps more important, to the issues of environmental and familial exposure.” 

As to the significance placed upon the contents of AM20/67, there were concerns specifically raised (and dismissed by the judge) regarding the memo being directed to asbestos products being used in schools rather than asbestos used in the fabric of the building and also to the Master applying 2020 standards to the late 1960s and early 1970s.  This has potential ramifications to similar guidance in other sectors.  Workers exposed to asbestos from building works at a similar time frequently rely upon Recommended Code of Practice for Handling, Working & Fixing Asbestos & Asbestos Cement Products in the Building & Construction Industries published by the Asbestosis Research Council in 1967, notwithstanding that its contents were not in accordance with the weight of the advice and recommendations available before (and after) that time and the extent of distribution of this code seems to have been haphazard.

A further question that arises from the judgment is regarding a possible defence where the asbestos in question was chrysotile, or at least unlikely to be crocidolite. Although the judgment makes it clear that only “rough and ready” expert evidence will be expected at show cause hearings, in these types of cases it would be worth asking an engineer to specifically address the issue of whether products in question were likely to be crocidolite or not ahead of the show cause procedure.

This is complicated by the memo’s advice that steps should be taken to reduce dust to a minimum, even where the asbestos in question was chrysotile, and that the relevant bodies should ensure the “most careful regulation” of asbestos products generally. Accordingly, if in any given case the asbestos was likely to have been chrysotile, it will also be necessary to show that steps were taken to reduce dust levels. An early, thorough search for any relevant documents and/or potential witnesses who can speak to this is therefore strongly recommended. Again, it would be worth asking an expert to address the issue of what steps should reasonably have been taken by the defendant and what “most careful regulation” would have constituted at the material time. A more detailed preliminary report than previously required may be now required in these claims.

*This content was written by BLM prior to its merger with Clyde & Co*