Private School Loses ‘Show Cause’ Proceeding Concerning Mesothelioma Claim
06/24/2021
Mesothelioma claimants often pass away before their case concludes. This is what happened in the recent decision of Scarborough College v Winter [2021] 4 WLUK 352, which provides a useful summary of the law concerning ‘show cause’ trials.
Background to the decision
The deceased Respondent (his wife had continued the claim), had been a border at the Appellant boarding school between 1969 and 1973. He stated that six days a week he and other pupils dried their sports kit on pipes in the basement boiler room. The lagging was frayed, damaged, and lined with asbestos. The Respondent asserted that his asbestos exposure resulted in him contracting Mesothelioma, which claimed his life in December 2020. It was argued that the Respondent’s exposure to the lethal substance was due to the Appellant’s negligence and breach of statutory duty.
Under CPR PD 3D para.6.1, a Defendant in Mesothelioma proceedings must identify the evidence and legal arguments which give it a real prospect of success regarding liability and to ‘show cause’ why a judgment on liability should not be entered.
The Appellant accepted it was likely that the pipe lagging contained asbestos. Therefore, the Master in the ‘show cause’ proceedings had to decide whether or not the risk of the Respondent being harmed by the asbestos was foreseeable, and if so, had it taken steps to avoid the Respondent suffering the harm?
The respondent relied upon a memorandum (Administrative Memorandum 20/67) circulated by the Department of Education & Science on 18 July 1967 warning of the risks of asbestos inhalation. The respondent also relied upon a front page Sunday Times article from 1965 warning of the risks of asbestos. It was therefore argued that the risk was foreseeable.
The Master ruled that it would be “fanciful” to suggest, in light of the memo and article, that the Appellant would not have had concerns about the pipe lagging. It should have curtailed access to the boiler room. Therefore, the Master concluded the school had no realistic prospect of defending liability and that a breach of statutory duty was irrefutable.
The school appealed on grounds that the Master had applied too higher standard to the ‘show cause’ threshold. Although it accepted there was asbestos in the pipe lagging, it argued that the amount of information available in the late 1960s early 1970s did not lead to the conclusion that it knew or ought to have known that the Respondent’s health was at risk. Furthermore, there were other articles published at the time which stated there were no health concerns linked with asbestos and that the substance was used right up to 1975.
The Queen’s Bench decision
Mr Justice Cavanagh dismissed the appeal stating the test in a show cause hearing was not whether the Defendant's case was likely to succeed at trial but whether it had some chance of success and that the prospect was not fanciful. The bar was set low, and the hearing was often conducted without expert evidence being presented. The Department of Education memo should have put the Appellant on notice that the frayed pipe lagging posed a risk to pupils’ health.
The Master's conclusion was strengthened by the Sunday Times article, and he had been correct in finding that the school ought to have taken reasonable steps to prevent exposure to the lagging and dust. Even if the Appellant was unaware at the time that the dust in the basement was chrysotile, there was undoubtedly a foreseeable risk of injury.
It was correct for the Master to conclude that the Appellant had no chance of successfully defending the claim.
Comment
This case provides a timely reminder of the low threshold for ‘show cause’ proceedings. With litigation becoming increasingly more expensive and delayed, a reminder of how low the bar is set in Mesothelioma claims can save all parties the time, stress, and money of a trial and instead encourage Claimants and Defendants to settle the matter through alternative dispute resolution methods.
