EWJ June 2024 web - Journal - Page 34
l Evidence that any body of employers appreciated
prospects of establishing liability: lower levels of
exposure will not suffice.
that there was a foreseeable risk of injury after exposure to asbestos at levels significantly below those
thought necessary to cause asbestosis or lung cancer
was lacking.
This decision is, without doubt, one which will be welcomed by insurers and ought to have the effect of
drawing a line in the sand in relation to claims relation to alleged pre-1965 exposure where the exposure is other than at a level so significant that it could
have given risen to a risk of asbestosis or lung cancer.
Lower levels of exposure prior to that date will be
inadequate to support a claim.
l The wide appreciation that lower levels of exposure
than that considered necessary to cause asbestosis or
lung cancer started to appear in literature in and from
the 1960s but was not confirmed until Thompson and
Newhouse's paper in 1965.
l The repeated references in the literature to "maxi-
mum permissible concentrations", "threshold limit values", and enforcement levels evidenced a continuing
understanding that exposure below certain levels was
safe and supported the proposition that until the end
of the 1950s it was not reasonably foreseeable by employers that exposure to asbestos at levels significantly
lower than those apparently endorsed thereafter gave
rise to a significant foreseeable risk of injury.
Authors
Thomas Jordan
Partner
Bristol
The Court of Appeal, the judgment being delivered
by Lord Justice Stuart-Smith, confirmed the two-stage
approach set out in Bussey v Anglia Heating [2018]
EWCA Civ 243, namely:
l Ought the employer to have been aware that the
exposure to asbestos dust to which the employee was
subject gave rise to a significant risk of them suffering
an asbestos-related injury; and
Jonathan Mitchell
Partner
London
l Did the employer take proper precautions to reduce
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or eradicate that risk.
He ruled that it was not the law, and never had been,
that a person was obliged to take all possible steps to
prevent the occurrence of a risk that was not reasonably foreseeable. The mere fact that hindsight showed
that a risk had not been excluded did not make it
foreseeable.
Prof Saul Myerson
Consultant Cardiologist
The question in these conjoined appeals was whether,
at any time during the relevant employments, the employers ought to have been aware that the exposure to
asbestos dust which their work involved gave rise to a
significant risk of asbestos-related injury. The fact that
the risks from lower levels of exposure had not been
excluded was neither determinative nor even particularly relevant: what mattered was whether there was
a foreseeable risk of injury against which the employers should have protected their employees.
MB ChB MD FRCP FESC
Consultant Cardiologist and Associate Professor of Cardiovascular
Medicine. I provide expert reports on all areas of cardiology including
cardiomyopathy, coronary disease, heart valve disease and aorc disease.
I am a specialist in diagnosc tesng, and was head of cardiac imaging and
physiology in Oxford for the past 10 years. I have a large research porolio
and am an editor of three Oxford Handbooks in Cardiology.
I produce 50‐70 expert reports a year, for both claimant and defence
teams (50:45 split), including many naonal solicitors firms, the Medical
Protecon Society and Medical Defence Union, and I am also an expert
The judge in the trials of both these cases had not
erred in law or approach and their findings as to the
levels of frequency and levels of exposure could not
be impugned, the exposure levels being very low or
trivial. The conclusions, in both cases, that there had
been no breach of duty, were upheld and the appeals
refused.
witness for the GMC. My experience includes many civil cases,
employment tribunals, criminal cases and the Court of Protecon. I also
hold Cardiff University Bond‐Solon expert witness cerficates in both civil
and criminal law. Client feedback is overwhelmingly posive, and I was
voted cardiology expert witness of the year in Lawyer Monthly magazine
for 2017 and 2019.
Contact: Professor Saul Myerson
Telephone: 01865 223160
Where does this leave mesothelioma claims?
The findings of the Court of Appeal leaves the
two-stage test in Bussey untouched, but where exposure took place prior to 1965 it now appears that a
substantial level of exposure at levels significant
enough to cause asbestosis or lung cancer will have to
be established in order for a claimant to have any
EXPERT WITNESS JOURNAL
Email: saulmyerson@oxfordcardiologist.com
Website: www.oxfordcardiologist.com
OCMR Department
John Radcliffe Hospital
Headley Way, Oxford OX3 9DU
32
JUNE 2024