The decision in Sloper v Lloyds Bank this week is a stark reminder of the type of challenges faced by some mesothelioma victims when they have not worked directly with asbestos and are seeking to bring a successful legal action.
Carole Sloper was only 54 years old when she was diagnosed with mesothelioma in November 2014. Her claim against her former employer, Lloyds Bank, centred around her belief that she was exposed to asbestos whilst working at two Lloyds Bank branches on the Isle of Wight over 30 years ago. She believed that in the two branches where she had worked the banks had suspended ceilings which had asbestos tiles and that during maintenance when tiles were removed and when strip lights were changed she was exposed to asbestos dust being disturbed.
The judge, Mr Justice Spencer, found there to be serious doubts over the reliability of the evidence given by Mrs Sloper and her witnesses, due to contradictions he considered there to be in that evidence and that defence witnesses and documentary evidence produced pointed to there not being suspended ceilings in the branches and there being no asbestos tiles present. Ultimately he considered that Mrs Sloper had failed to show on the balance of probabilities that there was either a suspended ceiling in the branches or that they had asbestos tiles.
During submissions, defence barrister, David Platt QC, referred the judge to comments made by Lord Pentland, in deciding the Scottish mesothelioma case, Prescott v The University of St Andrews, earlier in the year. Lord Pentland had stated, The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. The Prescott case as with the Sloper case concerned whether a mesothelioma victim who had not worked directly with asbestos would be able to show that they had been negligently exposed to asbestos sufficient for liability to be established. Robert Prescott was a lecturer at the University of St Andrews, when over 35 years ago he believed he had been negligently exposed whilst renovation work was being carried out on the University library. The judge concluded that Mr Prescott’s recollection of events was unreliable and alongside inconsistencies in his evidence led to a finding that he had not proved that he was exposed in the words of the judge to dangerous quantities of asbestos.
It is without doubt that mesothelioma victims, especially those who have not worked with asbestos, are severely hampered by having to try to remember events 30-40 years previously, which will lead to the almost inevitable inaccuracies and potential contradictions in the evidence they provide. Many such victims will have little awareness of asbestos and where it may have been present in the places they worked.
Perhaps there was no asbestos present in the places Mrs Sloper worked, we will never know. But we do know that she has mesothelioma. She is another victim of the invidious nature of asbestos. It might have been that she was exposed at school, but of course it is even less likely that as children we would be able to 30-40 years later remember the necessary details that might lead to a successful legal action. Clearly Mrs Sloper was not appropriately protected as she was exposed to asbestos at some point in her life, and she is paying the ultimate price for that failure.
Again it must be asked how can we be sure that in 30-40 years time there will not be victims of asbestos who have been exposed in situations where the asbestos in situ has been supposedly safely managed by being sealed in?