Appeal resolves asbestos uncertainty

White v Secretary of State for Health and Social Care and Cuthbert v Taylor Woodrow Construction Holdings (2024) EWCA Civ 244

By way of a judgment handed down on 14 March 2024, the Court of Appeal have, in two conjoined appeals, provided definitive guidance to practitioners upon the duties owed by employers who exposed their employees to asbestos prior to 1966.

Factual background

Mr. White, who died in April 2022 aged 87 years, contracted mesothelioma because of exposure to asbestos whilst working at Sefton Hospital in Liverpool between 1949 and 1960. A later period of exposure between 1973 and 1991 was dismissed by the trial judge, Mr. Hyam KC, as insignificant in causal terms. Mr. Hyam KC, held that the employer had not acted in breach of duty in respect of the exposure during the first period of employment.

Mr. Cuthbert, who died in March 2021 aged 82 years, contracted mesothelioma by reason of his exposure to asbestos dust and fibres when employed in construction work between 1956 and 1959. The trial judge, His Honour Judge Freedman, found that Mr. Cuthbert’s exposure was “of a low order, light and intermittent and in the main as a bystander”.

The judge dismissed the claimant’s claim, holding “there was no breach of duty where the exposure was light and intermittent” and going on to say:

“I consider a reasonable employer keeping abreast of the available knowledge could not

reasonably have foreseen that there was a significant (i.e. more than fanciful) risk of injury

as a result of the exposure to asbestos at the level to which I have found……..”.

The conjoined appeals 

The central contention on each appeal was that the judge failed to apply the right test of foreseeability when deciding whether or not the employers owed a duty to their employees. The appellants submitted that the employer owed a duty to take precautions against the risk of injury created by the exposure of their employees to asbestos.

The appellants’ submissions were based primarily but not wholly on the dicta of the Court of Appeal in Jeromson v Shell Tankers UK Limited (2001), Maguire v Harland and Wolff Plc [2015] and Buxton J, in Owen v IMI Yorkshire Copper Tube [1995] unreported.

The factual findings were not challenged in the White appeal, but it was submitted in Mr. Cuthbert’s appeal that the judge ought to have found that his exposure was “substantial and intermittent”.  

The approach of the Court of Appeal

The appeal court was provided with 28 publications relevant to arguments referred to in skeleton arguments or oral submissions. They described two as “essential material”: Wagner’s 1960 paper on Diffuse Pleural Mesothelioma and Newhouse and Thompson’s 1965 paper on “Mesothelioma …….following exposure to asbestos in the London area”.

The leading judgment was given by Stuart-Smith LJ who reviewed the available literature, carefully referring at length in his judgment to the developing knowledge of the risk associated with asbestos exposure over time (paragraphs 44 to 100 inclusive).

The literature review 

Describing the 1960’s as “witnessing a sea-change in the appreciation in the dangers of exposure to asbestos, specifically to the risk of mesothelioma”, Stuart-Smith LJ referred to the 1960 paper:

“The (Other) significant feature of the paper was that a number of cases (of mesothelioma)

 had not been exposed to asbestos whilst working in Cape asbestos mines; they

 included housewives, domestic servants, farmers an Insurance Agent and an Accountant”.

Moving forward, reference was made to a letter in the British Medical Journal in 1962 where Dr Wagner wrote that a number of mesothelioma cases appeared to follow minimal exposure to asbestos. Later, in July 1964, a leading article in the same publication highlighted mesothelioma developing from “slight” exposure with little correlation between the degree of severity of asbestosis and the occurrence of “pleural or peritoneal tumors”.

“The watershed” was said to have come in 1965, with the publication of the Newhouse and Thompson paper – A Study of 83 patients, some of whom provided a history of domestic exposure (living in the same house as an asbestos worker), but some of neighbourhood exposure only – a significant proportion were noted to have lived within half a mile of an asbestos factory.

Of importance, at paragraph 87 of the judgment:

“Until the publication of Newhouse and Thompson’s paper, the prospect of mesothelioma might be caused by light exposure was largely if not completely to be found in medical publications. That changed with their paper. The significance of their findings was immediately appreciated and was widely publicised by a major article on the 31 October 1965 (The Sunday Times).

The judgment then maps a subsequent raft of measures and hygiene standards leading to increasingly restrictive permissible levels of asbestos dust/fibre, the first of which was The Department of Education and Science’s Memo of 20/67 which stated in terms:

“Exposure to even low concentrations of dust may be hazardous”.

The conclusions on the literature

Having undertaken this exhaustive review, Stuart-Smith LJ, drew eight conclusions:

1.  The risks appreciated to arise from asbestos were, until the 1960’s, the risk of asbestosis and later lung cancer. The risks were known by the medical establishment, government and HM Factory Inspectorate and “were or should have been appreciated by employers whose business involved the use of asbestos”.
2. Appreciation of those dangers was not limited to those working in the asbestos industry.
3. The risk of asbestosis was a risk that was thought to arise on what would now be regarded as substantial exposure to asbestos.
4. The 1960’s saw a “sea change in the perception of risk and dramatically after the Newhouse and Thompson report of 1965”. Further, that “it was only in and from the 1960’s that mesothelioma was appreciated as a foreseeable risk of asbestos inhalation at all”
5. There is no evidence to support the proposition that the employers before 1960 should have appreciated that exposure to asbestos at levels below what were thought necessary to create a risk of asbestos would give rise to a foreseeable risk of pulmonary or other personal injury.
6. There is no evidence that any body of employers appreciated before the 1960’s that there was a foreseeable risk of injury after exposure to asbestos at levels significantly thought to cause asbestosis or lung cancer.
7. The emerging appreciation of exposure to low levels of asbestos dust/fibres can clearly be traced in the literature in and from the 1960’s, but not before.
8. The repeated references to MCP’s TLV’s and enforcement levels, whilst not providing a bright line for determining the issue of foreseeability, are evidence that there have been and continue to be an understanding that exposure to asbestos below certain levels was safe.

Court of Appeal conclusions

Stuart-Smith LJ confirmed the approach previously taken by the Court of Appeal in Bussey v Anglia Heating [2018] EWCA Civ 243, that the relevant approach should be firstly whether the employer should have been aware that the employees’ exposure to asbestos dust which their work involved gave rise to a significant risk of asbestos–related injury and secondly whether (the employer) took proper precautions to reduce or eliminate that risk.

The judgment distinguished the Judgment of Hale LJ in Jeromson v Shell Tankers (despite holding that the case was rightly decided), on the basis that the levels of exposure in Jeromson “fell comfortably within the sort of levels that were known to give rise to a risk of asbestosis”.

The Court of Appeal rejected the conclusions reached by Buxton J in Owen v IMI Yorkshire, holding:

“It is not and never has been the law that a person is obliged to take all reasonable

 steps to prevent the occurrence of a risk that is not reasonably foreseeable……with

 the benefit of hindsight, it is therefore trite to say that an employer is under a duty

 to reduce exposure to the greatest extent possible.  That proposition is dependent

 upon current (my underlining) understanding of the risk of mesothelioma”

Both appeals were dismissed with the Court of Appeal holding that the judge in Cuthbert’s appeal was entitled to reach the conclusions he did on the evidence he had and to describe Mr. Cuthbert’s exposure as he did.

Lords Justices Newey and Underhill delivered concurring judgments.

Commentary

Practitioners will welcome the clarity provided by the judgment given the uncertainty which had been fueled by previous seemingly conflicting authorities. The judgment of Buxton J in Owen is described here as “ill- founded” and Jeromson appears now to be effectively sidelined as a case where exposure was “substantial” and capable of causing asbestosis not just mesothelioma.

Whilst the two stage test set out by the Court of Appeal in Bussey still remains, it now appears reasonable to assume that in mesothelioma cases where exposure took place prior to the end of 1965, the claimant must establish that this exposure has been “substantial” and/or at levels significant enough to cause asbestosis or lung cancer.

As time marches on, the cohort of pre-1966 exposure cases obviously diminishes. Nonetheless, given the exhaustive review of relevant literature and legal authorities, this is likely to stand as a seminal judgment for all asbestos practitioners for many years to come.