Causation: A Recent Case Lays Bare the Different Approaches at Inquest and Trial

In this post, Helen Waller discusses the case of R (on the application of Wandsworth BC) -v- HM Senior Coroner for Inner West London [2021] EWHC 801 (Admin)

The High Court recently dealt with a question that will be of interest to anyone handling cases in the Coronial Courts, but particularly those handling cases of fatal asbestos-related disease. The question was what evidence is required to show that asbestos exposure led to a specific death? The Court made clear that the answer to that question differs depending on whether the question is being asked in the context of a coronial investigation or a civil trial.

Background

The Deceased, who died of bronchopneumonia as a result of malignant mesothelioma, had lived for many years in a council flat known to contain asbestos. The Coroner held an inquest at which it was concluded that the Deceased had died from “exposure to asbestos while resident at 8 Eliot Court, causing malignant mesothelioma”. In other words, causation of mesothelioma as a result of the particular exposure in the council flat was established. The council challenged the conclusion on causation. There was no dispute that the Deceased had had mesothelioma, but the conclusion that that mesothelioma resulted from asbestos exposure in the particular flat was disputed.

Was the Coroner entitled to conclude that it was probable, as opposed to merely possible, that the Deceased developed the mesothelioma that caused and led to her death as a result of exposure to asbestos while living in the council’s flat?

The Deceased had lived in the council’s flat since 1996. It had been known since 1984 that the flat contained amosite in the form of asbestos boards in a cupboard, a wall partition and a number of ducts. In late 2003 the Deceased and her daughter, with whom she lived, vacated the flat to allow the asbestos to be removed. During the course of the removal works, a vacuum cleaner operated by the contractors “exploded”, soaking much of the flat and furniture with a water-based polymeric substance. The Deceased’s daughter’s recollection is that there was a deal of talcum-powder-like dust over the sofa, carpet etc. She presumed her mother must have then cleared it up, although had no precise memory of this. The Deceased continued to reside at the flat until 2017, when she moved to a new address. In June 2018 she attended her GP complaining of pain in her lower back. Her symptoms deteriorated rapidly and she was diagnosed with a metastatic adenocarcinoma before dying on 27 August 2018.

Somewhat unusually, the Coroner heard oral evidence at the Pre-Inquest Review from the consultant pathologist, Dr Coumbe, who conducted the post-mortem examination for the Coroner. Dr Coumbe expressed the view that “it was reasonable to assume” that exposure to asbestos while the Deceased was living at the council’s flat had led to and caused the malignant mesothelioma from which she later died. As noted at paragraph 21 of the Court’s judgment, Dr Coumbe, “went on to say that he was “entirely satisfied on the balance of probabilities that living in accommodation where asbestos exposure has occurred has led to and caused this death”, a comment which strayed far beyond the sphere of his medical expertise.”

The Coroner, at the re-opened inquest proper, went on to conclude that:

“The court is entirely satisfied that the only reasonable place that Linda can have been exposed to asbestos was whilst she was resident in Flat 8 of Eliot Court. … 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.

Judicial Review

The Court, in considering the challenge to the Coroner’s above conclusion, set out the respective approaches in inquest and civil proceedings. At paragraphs 32 and 33 of the judgment it stated:

32. “For causation of death to be established, the threshold to be reached is that the event or conduct said to have caused the death must have more than minimally, negligibly or trivially contributed to it.  That question is to be determined on the balance of probabilities.  Combining the threshold for causation and the standard to which it must be established, “the question is 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 [2016] EWHC 1396 (Admin), at §41.”

33. In civil proceedings, where it may not be necessary to establish that a particular exposure to asbestos was responsible for causing mesothelioma, a different test applies. In such cases, liability “falls on anyone who has materially increased the risk of the victim contracting the disease”: Fairchild v Glenhaven Funeral Services Ltd and Others [2003] 1 AC 32. However, 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 [2016] EWHC 1396 (Admin), at §62.

The Coroner appeared to rely on Dr Coumbe’s evidence that the strong statistical association between mesothelioma and exposure to asbestos fibres equated to a safe conclusion that there was a causal link between the Deceased’s mesothelioma and exposure to asbestos in the flat. As the Court rightly pointed out, that confuses a statistical probability with the balance of probabilities: “A causal link cannot properly be inferred without some evidence specific to the index case” (at paragraph 39).

Indeed, when asbestos was identified in the Deceased’s flat, the report referred only to amosite. It did not specify that there were fibres freely circulating. The mere fact of living near to asbestos does not necessarily mean that there was exposure to asbestos fibres. The only known event that was before the Coroner that could have conceivably exposed the Deceased to asbestos was its removal in 2003. The Deceased was away from the flat when the removal was undertaken and the dust left by the exploding vacuum cleaner was never tested, so its composition was unknown. There was, therefore, no evidence that it contained asbestos.

The Court found that the evidence before the Coroner “could establish no more than a possibility that Mrs John’s mesothelioma was the result of exposure to asbestos fibres at 8 Eliot Court” (at paragraph 42). It was held that the Coroner had fallen into “uncharacteristic error” in placing greater weight on limited evidence than it could properly bear. The Court, therefore, quashed the Box 3 and 4 conclusions, replacing them without any reference to asbestos exposure or the flat at 8 Eliot Court.

Comment

This case offers an interesting reminder of the different causation tests in civil and coronial proceedings. When dealing with a civil claim for mesothelioma, a claimant must only show that the defendant materially increased the risk of the disease. In coronial proceedings, by contrast, it must be shown on the balance of probabilities that the event made a more than minimal, or an actual, contribution to the death and that any such conclusion must be supported by evidence.

The case also shows the limits of the investigation carried out at an inquest. Coroners are restricted by their role, as well as by time and resources, in the depth of investigation that they can and should undertake. An “exhaustive, forensic enquiry” (paragraph 29) falls within the realm of civil litigation, not an inquest.

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