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Keoghs Secures Mesothelioma Trial Win


Keoghs has successfully defended a mesothelioma claim based on alleged asbestos exposure in the 1980s and 1990s.

The claim was brought by the family of the deceased. She was exposed to asbestos, they said, by washing the overalls of her husband and son. Both worked for a construction company engaged in piling work on building foundations.

The claimant had witnesses of fact and expert evidence. The witnesses said that work was carried out in a variety of buildings and settings. These had been stripped out by others before the piling began. It was very dusty work and at the end of each week the overalls were so dusty that they had to be beaten against a wall before being washed. The employer hadn’t carried out any asbestos risk assessments until well into the current century and was generally slow to adopt other safety measures such as COSHH training.

The claimant’s expert said that many of the buildings were of an age where asbestos-containing materials (ACMs) would be present. Unless the stripping out had been done with great care, asbestos fibres would inevitably have been present. As many of the sites had shared and confined means of access it was also inevitable that asbestos dust would have contaminated all workers’ clothing.

It was accepted by the defendant that at such a stage in the development of knowledge of asbestos risks and legal duties, any meaningful asbestos exposure would have been in breach of duty. The employer had been dissolved many years before, so there was no witness evidence to contradict the claimant’s. The defendant had expert evidence, but didn’t call it at trial.

The claimant’s witnesses were cross-examined. Each conceded that they hadn’t seen the stripping out and couldn’t say how this had been done. None had any recollection of ACMs or could describe any material like it. The claimant’s expert witness conceded that ultimately her opinion was based on speculation.

The Decision

In an oral judgment, HHJ Freedman agreed with the defendant that he was being asked to draw too many inferences for the claimant to succeed. He could accept that some of the buildings may have contained ACMs. He could also accept that there was a likelihood that some asbestos fibres may have got onto workers’ overalls. He couldn’t go any further and accept that this was meaningful contamination, still less that the deceased herself had experienced any exposure. The claim failed.

The Implications

This case shows the importance of testing the evidence in the right claims. A lot of asbestos cases are based on an inference of exposure. Sometimes that is reasonable and sometimes it isn’t. Each case has to be carefully weighed up. Defendants should have the courage of their convictions to fight those cases where the evidence is too weak.

Keoghs acted on behalf of Pro Global for one of their insurer clients and instructed Jayne Adams QC

David Pugh

David Pugh


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