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John Carey v Vauxhall Motors Limited [2019] EWHC 238 (QB)

On 11th February 2019, HHJ Walden-Smith, sitting as a judge of the High Court, found in favour of the Claimant, Mr Carey, whose wife had died of mesothelioma as a consequence of exposure to asbestos brought home on Mr Carey’s works overalls.

The Claimant worked in the Vauxhall Motors Dunstable plant between 1973 and 1979. For the first 4 years he was an apprentice and then, in 1977, became a maintenance electrician. He married Mrs Carey in the summer of 1976. The Claimant alleged that whilst not working directly with asbestos himself, he regularly came into contact with asbestos in the course of his work. He wore overalls at work which he sometimes took home and that his wife laundered them.

The Defendant “properly admitted” that it owed a duty of care to Mrs Carey. HHJ Walden-Smith set out that nature and scope of that duty by reference to Magereson v JW Roberts Ltd [1996] PIQR 358, Maguire v Harland & Wolff Plc [2005] EWCA Civ 01, recently reiterated in the Scottish decision of Gibson v Babcock International Ltd [2018] CSOH 78. The duty did not end at the factory wall. The judge cited Lady Carmichael’s Opinion in Gibson: “I consider that from 31st October 1965 at latest, the defenders out reasonably to have foreseen that a risk of injury arose to persons in the position of the deceased by reason of their employees transporting asbestos dust home on their clothing”. The judge also cited Bussey v Anglian Windows [2018] EWCA Civ 243 about the 1965 date knowledge in employee cases “when it began to be appreciated that there could be no safe or permissible level of exposure”. The Defendant accepted that it had knowledge at the time of the Claimant’s employment between 1976 and 1979 that exposure to more than de minimis or trivial amounts of asbestos gave rise to a risk of injury in the position of Mrs Carey.

The Defendant argued that the exposure of the Claimant, if any, to asbestos was trivial and did not give rise to a foreseeable risk of injury to either the Claimant or Mrs Carey. Mrs Carey had potentially been exposed to asbestos from other sources: her father’s employers in the 1960s and a subsequent employer of the Claimant, which explained her mesothelioma.

HHJ Walden-Smith stated at paragraph 18:

There would be no dispute in this case if Mrs Carey could only have been exposed to asbestos through her husband for the period he was working at Vauxhall between 1976 and 1979. However, as it is currently impossible to identify the ‘guilty’ fibre or fibres, all employers are subject to a duty to take reasonable care to prevent exposure of its employees, and members of their families, from inhaling the asbestos that might cause mesothelioma. The court has to consider whether Vauxhall fulfilled its duty to take reasonable care by taking all practicable measures to prevent Lydia Carey, in the light of the known risk that asbestos dust, in inhaled, might cause mesothelioma. That is the case regardless of any potential exposure attributable [to the other employers].”

There was a stark conflict of evidence between the parties’ witnesses as to the levels of asbestos in the Defendant’s factory, but the Court, in essence, accepted the evidence called by the Claimant that his exposure to dust was “significant and not de minimis”. Between 1976 and 1979 “there was still a considerable amount of asbestos in the Dunstable factory” with one witness describing it as “held together” with asbestos.

On the basis of the concession of the Defendant that it had knowledge at the relevant time that exposure to more than de minimis or trivial amounts of asbestos gave rise to a risk of injury in the position of Mrs Carey, liability was established.

There appears, from the judgment, to have been no argument based upon the TDN 13 / Williams v University of Birmingham [2011] EWCA Civ 1241 line of authority, notwithstanding the refusal of the Court in Bussey to agree that it was wrongly decided, possibly based upon the Defendant’s aforementioned concession, or possibly based upon the relevant dates of exposure, Environmental Hygiene Note 10 having been published in December 1976.

To view the judgment, please click here.

Written by Robert O’Leary

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