Asbestos exposure prior to 1965 — foreseeability is determined by “the standards of the day”

Facts of the case

The deceased was employed by the defendant and engaged in construction work at Oakwood School in Cheshunt – broadly between 1956 and 1959. During that employment, the claimant alleged that the deceased had been exposed to asbestos in two ways: firstly, exposed as a “bystander” to carpenters cutting Asbestolux board and secondly, when he swept up the debris.

Two “lifetime” statements were served by the claimant and the court heard evidence from two occupational hygienists – Ms Conroy (for the claimant) and Dr Philips (for the defendant). Causation of the deceased’s mesothelioma was not disputed. No factual evidence was served by the defendant – over 60 years had passed from the dates of exposure to the hearing before His Honour Judge Freedman.

The claimant alleged that the defendant was negligent at common law and had breached The Building (Health, Safety and Welfare) Regulations of 1948, though it was accepted that the latter did not impose a duty that was higher than that owed at common law.

The judge’s factual findings   

The deceased’s evidence as to exposure was challenged through Dr Philip’s evidence and by submissions made by the defendant’s counsel. Despite the absence of counter-factual lay evidence, His Honour Judge Freedman concluded that the deceased had “irregular and intermittent contact with the carpenters” but carried out some sweeping “perhaps in the order of 10 minutes a day”. The judge regarded some of the account of the deceased (particularly in relation to his second statement) to be “implausible”.

Once the judge had reached his conclusions on the factual elements of exposure – that it was “of low order, light and intermittent and in the main as a bystander” - the differences between the occupational hygienists had narrowed. This allowed the judge to conclude that the deceased’s average daily exposure was of the order of 2 fibres/ml.

Legal liability 

His Honour Judge Freedman was invited to consider a range of relevant authorities which included Abrahams v Ireson [2009] EWHC 1958 [QB], Shell Tankers UK v Jeromson [2001] EWCA Civ 101 Shell Tankers UK v Jeromson, Owen v IMI Yorkshire Copper Tube [1995], Maguire v Harland & Wolff Plc & Anor [2005] EWCA

Civ 1 and Baker v Quantum Clothing Group [UK Supreme Court 2011].

The judge was asked to conclude that at the time of the deceased’s exposure, his employer ought to have (but did not), keep his exposure to the lowest level possible.

Distinguishing the instant case from both Owen and Jeromson which the judge said involved exposure considered to be “substantial”, the judge concluded that foreseeability of injury should be judged by the standards of the time (as per Baker v Quantum Clothing Group).

He accepted the evidence of Dr Philips for the defendant that an employer at the time in the light of the developing knowledge about the risks associated with asbestos would not have considered this level of exposure to pose a risk to its workforce. The claim was dismissed and judgment entered for the defendant.

Discussion

This is the first asbestos case of note following the Court of Appeal’s Judgment in Bussey v Anglia Heating Limited [2018] WCA Civ 243. The Court of Appeal in Bussey ruled that levels of exposure below relevant hygiene standards did not necessarily permit a liability defence. 

It suggested instead a two-fold approach: firstly to consider whether the defendant should at any time during Mr Bussey’s employment have been aware that exposure to asbestos dust (which his work involved) gave rise to a significant risk of asbestos-related injury and secondly, if so, whether the defendants took proper precautions to reduce or eliminate that risk?

At the time of the deceased’s exposure, there were no occupational hygiene thresholds in place for asbestos though in March 1960 (“Toxic Substances in Factory Atmospheres”) a limit was set at 30 fibres/ml.

Several years later, lower limits were set out in Technical Data Note 13 [TDN13], distinguishing between crocidolite, amosite and chrysotile asbestos.

Whilst the judge referred to subsequent threshold limits in the context of the deceased’s exposure (of the order of 2 fibres/ml), there is no suggestion that he adopted a mechanistic approach or that his dismissal of the claimant’s case was heavily influenced by the much higher limits set by The Ministry of Labour in 1960.

Primarily, judged by the standards of the day and in the context that knowledge of the risks associated with low level exposure did not materialize until 1965 – in the form of the Newhouse and Thompson paper and the Sunday Times article (“Killer Dust” [31 October 1965]) - an employer would not have considered the deceased’s low exposure to pose a foreseeable risk of injury.

In order to comply with the two-stage test propounded by the Court of Appeal in Bussey, many defendants felt  disadvantaged by their inability to serve evidence due to the passage of time and an absence of live witnesses to testify what the employer had appreciated at the time.

This judgment is significant in two ways: firstly, in allowing the challenge to the deceased’s evidence as to the circumstances and heaviness of his exposure to asbestos – despite an absence of lay witness evidence served by the defendant. Secondly, in concluding that foreseeability of injury ought to be judged by the “standards of the day” and not by a duty to reduce exposure to the lowest possible level.

It is noted that permission to appeal is sought.

Although the number of cases involving pre-1965 exposure diminishes as time passes, this case is a reminder that, in appropriate circumstances, a defence can indeed be mounted despite an absence of live lay witnesses to counter a claimant’s allegations.