Testing the boundaries of causation in mesothelioma deaths
22 April 2021
Wandsworth BC v HMC for Inner West London  EWHC 801 (Admin) — read judgment
Mesothelioma deaths arising from asbestos regularly come before coroners. This case, though, is of particular interest because it tests the boundaries of causation in relation to mesothelioma deaths – what evidence is needed to show that asbestos exposure led to that specific death?
The issue before the court was whether the coroner was entitled to conclude that it was probable, as opposed to merely possible, that the deceased had developed the mesothelioma that caused and led to her death as a result of exposure to asbestos while living in the council’s property.
It was concluded that in the circumstances, the evidence had been insufficient and the relevant findings in the Record of Inquest were altered.
Mrs Johns and her daughter moved into the council’s flat at 8 Eliot Court in July 1996. Twelve years previously, in 1984, asbestos had been detected in the flat. In October 2003 the council instructed contractors to remove the asbestos. While the work was being done, Mrs Johns and her daughter moved out. However, during the works a vacuum cleaner used by the contractors ‘exploded’, soaking a number of pieces of furniture, the carpet and personal possessions with a polymeric substance. On their return to the flat, they discovered the scene, as described by her daughter: “It looked as if something had happened whereby what [the vacuum] was meant to do was to vacuum dust up but what it had in fact done is blown it out…”. She could not recall whether her mother cleaned up the mess, but assumed she had. The contractors and council settled her claim for the damage to her possessions.
Mrs Johns lived at 8 Eliot Court until June 2017 before moving to a new address. In June 2018 she attended her GP, complaining of backache. Her condition deteriorated rapidly, and in July 2018 she was diagnosed with metastatic adenocarcinoma. She died on 27 August 2018 aged 51. The consultant pathologist concluded that she had died of bronchopneumonia, which had resulted from malignant mesothelioma, a form of cancer that affects the lining of the lungs.
An inquest was opened into her death because she had lived for many years in a council-owned property that had contained asbestos. The pathologist, Dr Coumbe, was called to give evidence at the pre-inquest review hearing – itself “an irregular way of proceeding”, given that the Chief Coroner’s Guidance on pre-inquest reviews states that no evidence should be called or witness asked to attend [para 15]. He gave evidence that there was “an extremely strong association” between asbestos dust exposure and malignant mesothelioma”. Further, he was “entirely satisfied on the balance of probabilities” that exposure to asbestos while Mrs Johns was living at 8 Eliot Court had led to and caused the malignant mesothelioma from which she had died [paras 20-21]. However, he did not consider that the vacuum cleaner dust explosion could have caused or contributed to the death.
The coroner found that Mrs Johns had, on the balance of probabilities, been exposed to asbestos at her flat. She also stated that “I am also entirely satisfied that malignant mesothelioma virtually never arises without exposure to asbestos and therefore Linda’s malignant mesothelioma was caused by exposure to asbestos and that this occurred whilst she was resident at number 8 Eliot Court and that this exposure to asbestos has led to and caused her death by causing her to develop malignant mesothelioma.” [para 25]. She recorded a short narrative conclusion that Mrs Johns had died from “exposure to asbestos whilst resident at 8 Eliot Court, causing malignant mesothelioma”.
The claimant council did not raise concerns at the time, but challenged the coroner’s findings and conclusions after the inquest. They argued that the totality of the evidence was not sufficient to justify a conclusion on the balance of probabilities that Mrs Johns had developed malignant mesothelioma as a result of exposure to asbestos at 8 Eliot Court. Peter Skelton QC, of 1 Crown Office Row, appeared for the council in the High Court. The council gave six reasons in support of their position [para 35]:
(i) as a matter of generality, living in a property that contains asbestos does not constitute exposure to asbestos;
(ii) there was no positive evidence that Mrs Johns had ever been exposed to freely circulating asbestos fibres at any time during her tenancy at 8 Eliot Court;
(iii) although malignant mesothelioma is often caused by exposure to asbestos, there are other possible causes which the evidence did not adequately exclude or address;
(iv) even if Mrs Johns had developed malignant mesothelioma as a result of such exposure, it could have occurred elsewhere than at 8 Eliot Court;
(v) the coroner was wrong to rely upon Dr Coumbe’s evidence that it was “reasonable to assume” that exposure to asbestos at 8 Eliot Court had caused Mrs Johns’s malignant mesothelioma, because that was not a matter on which Dr Coumbe was qualified or entitled to express an opinion; and
(vi) the coroner failed to apply the ‘Galbraith plus’ test by asking herself, first, whether there was sufficient evidence upon which to conclude that Mrs Johns developed malignant mesothelioma as a result of exposure to asbestos at 8 Eliot Court and, second, whether such a finding or conclusion was safe.
The claimant also argued that the totality of the evidence was not sufficient to justify a conclusion on the balance of probabilities that Mrs Johns had developed malignant mesothelioma as a result of exposure to asbestos at 8 Eliot Court.
The court unanimously agreed with the claimant. In the judgment of the Chief Coroner, HHJ Teague QC (with whom Popplewell LJ and Cavanagh J agreed), the Tainton test for causation in the coroner’s court was initially cited, namely “… whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to death”: R (Tainton) v HM Senior Coroner for Preston and West Lancashire  EWHC 1396 (Admin), at §41.
Notably, the test in civil proceedings is different: it is not necessary to establish that a particular exposure to asbestos was responsible for causing mesothelioma: liability “falls on anyone who has materially increased the risk of the victim contracting the disease”: Fairchild v Glenhaven Funeral Services Ltd and Others  1 AC 32.
However, the court emphasised that “that principle has no application in coronial investigations, where it is clear that the relevant event “must make an actual and material contribution to the death of the deceased”: R (Tainton) v HM Senior Coroner for Preston and West Lancashire  EWHC 1396 (Admin), at §62.” [para 33].
The court posed two questions: first, whether there was evidence upon which the coroner could properly find, on the balance of probabilities, that the mesothelioma from which Mrs Johns died had resulted from exposure to asbestos fibres; and second, if so, whether there was evidence upon which the coroner could properly find, on the balance of probabilities, that such exposure had taken place while Mrs Johns was living at 8 Eliot Court [para 38].
The court concluded that it could not be inferred that Mrs Johns’ malignant mesothelioma was caused by exposure to asbestos fibres. Even though there is a statistical association, it is not absolute: specific evidence is required in each case. Further, living in close proximity to products or materials that happen to contain asbestos does not necessarily entail exposure to asbestos fibres. Mrs Johns and her daughter were not present when work was carried out to remove the asbestos. In addition, the pathologist ruled out that the vacuum cleaner dust explosion could have caused or contributed to her death. As such, the coroner rightly concluded that Mrs John’s exposure to asbestos whilst living in the flat was no more than a possibility. However, she erred in finding that Mrs Johns must have been exposed to free circulating asbestos fibres at some point during her occupancy of the flat [paras 39-41].
The court went on to say [para 42]:
Mrs Johns’ illness was certainly consistent with exposure to asbestos fibres. The time interval between 2003 and the diagnosis of metastatic adenocarcinoma in 2018 was consistent with the long latency period associated with such exposure. By reference to the fact that Mrs Johns had no history of paid employment, it was possible to exclude an industrial origin for her illness. But those factors, even taken together, could establish no more than a possibility that Mrs Johns’ mesothelioma was the result of exposure to asbestos fibres at 8 Eliot Court. They could not support a finding on the balance of probabilities that such exposure had in fact taken place or, if it had, that it had caused her malignant mesothelioma.
In addition, even if she had been exposed to freely circulating asbestos fibres in October 2003, it was not safe to assume that Mrs Johns had never been exposed to another source of such a commonplace material between 2003 and her diagnosis. As such, the evidence did not support a conclusion that Mrs Johns had contracted malignant mesothelioma as a result of exposure to asbestos fibres while she was living at 8 Eliot Court.
Therefore, the court quashed the findings and the finding in box 3 was substituted with the words “Linda was diagnosed with malignant mesothelioma in July 2018 and despite treatment this led to and caused her death on 27 August 2018 at St George’s Hospital”.
Two points are relevant. First, it is interesting to note the difference in the causation tests between civil and coronial proceedings. In a civil claim in relation to mesothelioma, it is only necessary to show that the defendant materially increased the risk of the victim contracting the disease, whereas the test is stricter in coronial proceedings: it must be shown on the balance of probabilities that the event made an actual and material contribution to the death.
Second, the court stated that it was not necessary for the coroners’ court to carry out an “exhaustive forensic enquiry” [para 29] that would be undertaken during adversarial litigation. It is not the coroner’s role to look at all issues – nor indeed do they have the time or resources. That should be left to civil proceedings. But this case does highlight the limitations of a coronial investigation, in particular that conclusions must be supported by the evidence.
Caroline Cross is a barrister at 1 Crown Office Row.
Peter Skelton QC, also of 1 Crown Office Row, appeared for the claimant at the High Court in this matter. He was not involved in the writing of this article.
 Chief Coroner’s Guidance No. 22, 18 January 2016, §16.
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