Last month, the Court of Appeal handed down its judgment in the case Alexander Johnstone (Personal Representative of the Estate of Elaine Johnstone, Deceased) v Fawcett’s Garage (Newbury) Limited [2025] EWCA Civ 467

Background to the decision

This was a claim for damages for personal injury brought by Alexander Johnstone, the personal representative of his late mother, Elaine Johnstone, who died from malignant mesothelioma in August 2019. Mesothelioma is a cancer strongly associated with asbestos exposure. The claim was made against Fawcett’s Garage (Newbury) Limited, which had employed Mrs Johnstone between 1982 and 1989, primarily in the office. The defendant admitted to using unsafe working practices involving asbestos-containing materials in the garage workshop during her employment. These practices included using an airline to blow out asbestos dust from brake shoes and clutch plates, which, it was alleged, resulted in Mrs Johnstone’s exposure to asbestos and her developing mesothelioma.

Whilst the defendant admitted there had been a breach of duty, it denied this breach had caused a material increase in the risk of Mrs Johnstone developing mesothelioma.

The legal framework

In mesothelioma claims, a special rule of causation is applied. Where a claimant has developed mesothelioma and it is known that they were exposed to the risk of inhaling asbestos dust as a result of the negligence of the defendant, the defendant is liable if the defendant’s breach has materially increased the risk of the claimant contracting the disease (Lord Philips in Sienkiewicz v Greif (UK) Limited [2011] UKSC 10). This test is applied on the balance of probabilities, considering the nature and extent of the exposure.

High Court Judgment – June 2023

In the High Court, HHJ Simon ruled that while the defendant’s unsafe working practices and the presence of asbestos dust were established, the claimant had failed to prove that the defendant’s breach materially increased the risk of Mrs Johnstone developing mesothelioma. The court found that the estimated increase in risk attributable to the defendant’s actions was no more than 0.1%, which was deemed insufficient to meet the ‘material increase in risk’ threshold required for causation in mesothelioma cases. Consequently, the claim was dismissed.

Court of Appeal Decision

The Claimant appealed the decision of HHJ Simon on five grounds, four of which went to the calculation of the increased risk of mesothelioma to Mrs Johnstone caused by her exposure at the garage and whether or not it was material.

The case involved very low-level asbestos exposure. The Court considered the Hodgson & Darnton study relied upon by one of the experts, which concluded that, at very low levels of exposure, the risk of developing mesothelioma from chrysotile (white) asbestos was ‘probably insignificant’.

In making their decision, the Court of Appeal also considered the ‘absolute risk’ approach, which involves assessing whether the risk is medically significant in absolute terms by deferring to a medical expert. The Court of Appeal concluded that such an approach would be inappropriate in cases where the court is required to assess the material risk of a claimant contracting mesothelioma. The Court of Appeal had the benefit of extensive epidemiological evidence before it and so disagreed with the absolute risk approach.

The Court of Appeal upheld the High Court decision, affirming that the claimant did not meet the necessary threshold to establish causation. The court emphasized the importance of robust and precise expert analysis in establishing causation in asbestos-related cases. It reiterated that a mere increase in risk is insufficient; the increase must be material to the claimant’s condition.

Commentary

This decision will be welcomed by defendants and underscores the challenges in proving causation in mesothelioma claims in cases involving low-level asbestos exposure. It highlights the necessity for claimants to provide compelling expert evidence quantifying the extent of the risk increase attributable to the defendant’s breach.

If you wish to seek advice regarding a public liability or employer liability claim for asbestos exposure, please contact Donna Makin in our Corporate Claims team.