EWJ June 2024 web - Journal - Page 33
Bringing Down the Curtain on
a Class of Mesothelioma Claims
In delivering its judgment in the conjoined appeals of White & Others v Secretary of State for
Health and Social Care [2024] EWCA Civ 244 and Cuthbert v Taylor Woodrow [2022]
EWHC 3036 (KB) the Court of Appeal has effectively drawn a line in the regarding low level,
pre-1965 exposure cases. In this alert we consider these decisions and their implications for
mesothelioma claims.
the primary issue was whether the trial judges had applied the correct test of foreseeability when determining whether or not a duty was owed by the defendants
to their employees.
Background: The White case
W was in reasonably good health until, at the age of 86
he was diagnosed as suffering from mesothelioma: he
died about 7 months later. It was alleged that his
mesothelioma resulted from exposure to asbestos
while working in a hospital during two periods, the
first from about 1949 to 1960 when working as a junior lab technician and the second between 1973/1974
and 1991/1992 when employed as a senior biochemist. At trial the judge held that there had been
some intermittent exposure at very low quantities
during the first period, the level of this exposure also
being described as de minimis. As far as the second
period was concerned, the judge viewed the level of
exposure as likely to be insignificant in causal terms.
The judge went on to find that there had been no
breach of duty by the employer in respect of either
period. An appeal was pursued in respect of the first
period only (1949 to 1960).
The appellants' position
The argument advanced was that the judges should
have determined that the employers owed a duty to
take precautions against the risk of injury created by
the exposure of their employees to asbestos, that contention being based upon observations made in Shell
Tankers UK Ltd v Jeromson [2001] EWCA Civ 101 and
Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 to
the effect that from the mid-1950s the threats posed
by asbestos were well known and that exposure
should have been kept to the lowest level possible.
The Court of Appeal's decision
The parties had produced an agreed list of 28
publications considered as being material to the issues
before the court and, having reviewed that same, the
Court of Appeal determined that they provided clear
evidence of the following propositions.
Background: The Cuthbert case
C was diagnosed with mesothelioma at the age of 82
and died just over a year later. It was alleged that he
was exposed to asbestos dust and fibres while employed by D in construction work at a school between
about 1956 and 1959. At trial the judge found that C
had “irregular and intermittent contact” with on-site
carpenters who, at times, cut up asbestos materials
when he was in their vicinity. Occasionally, weather
permitting, the cutting took place outside. “From time
to time” C undertook sweeping up and occasionally
this would be “a number of times per day”. The judge
considered that even if he concluded that C swept up
on a fairly regular basis, it probably only took up a very
small portion of his working day, concluding that C's
“exposure to asbestos when employed by the defendant was of a low order, light and intermittent and, in
the main, as a bystander". Ruling that “I consider that
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 that [C] was exposed.” The
judge found that “there was no breach of duty where
the exposure was light and intermittent.”
l Until the 1960s the risks understood to arise from
the inhalation of asbestos were asbestosis and lung
cancer and employers whose businesses involved the
use of asbestos should have appreciated those risks.
l Such appreciation of risk was not restricted to those
working in the asbestos industry and as asbestos use
spread the appreciation of risks spread also.
l Prior to 1965, it was thought that there was a "dust
datum" below which there was no real risk of contracting disabling asbestosis during a normal working
life, the risks being thought to arise due to what would
now be considered as substantial levels of exposure.
l Following the publication of Newhouse and
Thomson in 1965 there was a sea-change in risk
perception. Only in and from 1965 was mesothelioma
appreciated as a foreseeable risk at all and that there
was a foreseeable risk of it at exposure levels below
that previously considered to give rise to a risk of
asbestosis or lung cancer.
l The proposition that pre-1965 employers should
have appreciated that exposure to asbestos at levels
below what were thought necessary to create a risk of
asbestosis and lung cancer would give rise to a foreseeable risk of pulmonary or other personal injury was
unsupported by any evidence.
The issues before the Court of Appeal
While there were certain other issues for the appeal
court to consider, such as C's challenge to the trial
judge's findings in relation to their level of exposure,
EXPERT WITNESS JOURNAL
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JUNE 2024