In a stark illustration of the difficulties faced in establishing liability in asbestos cases so many years after an alleged causative event, a middle-aged woman who was said to have contracted mesothelioma due to exposure to asbestos in a primary school playground when she was aged 10 has had her compensation hopes dashed.
The 45-year-old woman was in her final year at primary school when work started on the demolition of an adjoining Edwardian swimming pool in the late 1970s. Her lawyers submitted that those works threw up clouds of dust that settled in the playground and that that was the likely cause of the devastating illness with which the woman was diagnosed in 2011.
The woman sued Salford City Council, as owners of the school, and the contractor who had carried out the demolition project. However, whilst expressing ‘considerable sympathy’ for her, the High Court dismissed her damages claim on the basis that her lawyers had failed to prove any causative link between her illness and the works.
The woman had told the court that she recalled dust on the ground at the time and her brother testified that he 'vividly remembered' the swimming pool's demolition and dust 'blowing all over the place' in the playground and surrounding streets. Her case was supported by local residents and other former pupils at the school.
However, the contractors insisted that precautions had been taken to prevent dust escaping from the site and the court ruled that the chances of asbestos fibres being released into the atmosphere during the project were ‘minimal’. The whole area was being redeveloped at the time, with many houses being demolished, and the woman had acknowledged that dust on her clothes was ‘a fact of life’.
The court accepted that there was no evidence that the woman had been exposed to asbestos in the course of her various jobs since leaving school and that no other possible source of the exposure has been identified. However, it noted that asbestos was very widely used in Britain during the 1950s, 1960s and 1970s, and that it was well known that ambient levels of the substance in the atmosphere are capable of causing mesothelioma over time.
The court observed that, if it found in the woman’s favour, it would be ‘falling into the trap of adopting Sherlock Holmes' aphorism that once you have eliminated the impossible, whatever remains, however improbable, must be the truth’.