A recent judgment from the Court of Appeal ([2025] EWCA Civ 467) has considered the issue of how the issue of material increase in risk of causation of mesothelioma. The case, Johnstone v Fawcett’s Garage (Newbury) Limited, centred on a claim brought by the estate of Elaine Johnstone, who died from mesothelioma in 2019. Mrs. Johnstone had worked in an office near a garage workshop where asbestos-containing friction materials were handled and worked with.
The garage admitted to unsafe practices during Mrs. Johnstone’s employment, including the use of an airline to blow out asbestos dust. However, the garage disputed that these practices materially increased Mrs. Johnstone’s risk of developing mesothelioma. The core issue at trial was therefore causation.
The High Court judge concluded that the increase in risk to Mrs. Johnstone was 0.1% or less, which was deemed not to satisfy the test of materiality, leading to the dismissal of the claim. This decision was subsequently appealed in February 2025.
The Court of Appeal considered various approaches to assessing the increased risk of mesothelioma, including:
The Court of Appeal upheld the High Court’s decision, focusing on the direct risk assessment approach. This involved detailed expert evidence and the use of studies, in particular Hodgson & Darnton 2000 study “The Quantitative Risk of Mesothelioma and Lung Cancer in Relation to Asbestos Exposure” and the 2009 report of Peto “Occupational, domestic and environmental risks in Britain”, to estimate the risk. The judgment highlighted the importance of expert evidence and the careful consideration of different methodologies for assessing risk in mesothelioma cases.