Crown Office Chambers CoA success, concerning the correct legal test for the establishing of a duty of care in circumstances where the deceased parties had been exposed to asbestos up to 1960.

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Background

1. On 14 March 2024 the Court of Appeal handed down its judgment dismissing the appeals in two conjoined appeals, Executors of the Estate of Thomas Albert White v Secretary of State for Health and Social Care (”White”) and Executrix of the Estate of Derek Barry Cuthbert v Taylor Woodrow Construction Holdings [2024] EWCA Civ 244 (“Cuthbert”).
2. Each appeal raised the question whether the trial Judge applied the correct legal test for the establishing of a duty of care in circumstances where the deceased parties had been exposed to asbestos up to 1960; Mr White between 1949 and 1960 as a Lab Technician, and Mr Cuthbert between 1956 and 1959 whilst engaged in construction work on a building site.
3. In White there was no appeal against the Judge’s findings of fact. In Cuthbert, the claimant criticised the Judge’s findings of fact where the deceased had produced two witness statements describing his exposure to asbestos dust and the defendant had no evidence with which to challenge those statements. The claimant also criticised the defendant for failing to apply for evidence on commission during the deceased’s lifetime, on the basis that this step would have addressed any inconsistencies in his evidence.

Findings of fact 

4. Both claims were dismissed at first instance on the basis that the defendants had not acted in breach of duty. The trial Judge in White held that there had been some exposure to asbestos that was intermittent and in very low quantities, which elsewhere he described as de minimis.
5. The trial Judge in Cuthbert found that he had had “irregular and intermittent contact” with carpenters at the site and that, at times, they were engaged in cutting up asbestos materials when he was in their vicinity. Furthermore, that “from time to time” he undertook sweeping up debris and on occasions this would be “a number of times per day”, but only for a very small portion of his working day. The Judge accepted the defendant’s suggestion “that, perhaps, he spent in the order of ten minutes per day sweeping up”. Overall he found Mr Cuthbert’s account in his witness statements to be implausible. He concluded that “his exposure to asbestos when employed by the defendant was of a low order, light and intermittent and, in the main, as a bystander”.
6. The Court of Appeal upheld the Judge’s findings of fact and held that it was open to the defendant to put Mr Cuthbert to proof and then to take the points that were properly open to it in criticism of the case and the evidence advanced by his estate. The touchstone is fairness and the mere fact that the defendant could have applied to cross-examine Mr Cuthbert or could have submitted a Part 18 request did not demonstrate unfairness in the conduct of the defence case either before or at trial.

The literature

7. In each action, the trial Judge was referred to some of the extensive literature evidencing the state of knowledge about the risks of inhaling asbestos during the periods of exposure in question. Submissions on that literature were central to the issue of foreseeability of injury when deciding whether or not the defendants owed a duty to their employees.
8. The parties provided the Court with an agreed list of 28 references that were considered to be material to the issues in the appeal and the judgment provides a comprehensive analysis of the development of the literature at [44] – [111].
9. The Court then stated a number of propositions as arising from the literature; in summary:
   • The risks that were appreciated to arise from the inhalation of asbestos were, until the 1960s, the risk of asbestosis and (later) the risk of lung cancer.
   • Appreciation of those dangers was not limited to those working in the Asbestos Industry. As the use of asbestos expanded (for example, with increased use on board ships and in buildings), so an appreciation of the risks of injury through asbestosis spread.
   • The risk of asbestosis (and subsequently lung cancer) was a risk that was thought to arise on what would now be regarded as substantial exposure to asbestos.
   • The 1960s saw a sea-change in the perception of risk after 1960 (by reason of Wagner’s paper) and, dramatically, after the publication of Newhouse and Thompson’s report in 1965.
   • There is no evidence to support the proposition that employers before 1960 should have appreciated that exposure to asbestos at levels below what were thought necessary to create a risk of asbestosis (and, subsequently, lung cancer) would give rise to a foreseeable risk of pulmonary or other personal injury.
   • There is no evidence that any body of employers (or, for the avoidance of doubt, any significant body of medical expertise, government or HM Factory Inspectorate) appreciated before the 1960s 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.
   • The emergence of an appreciation that exposure to lower levels of exposure than were thought to be necessary for the contraction of asbestosis or lung cancer can clearly be traced in the literature in and from the 1960s but not before.
   • The repeated references to MCPs, TLVs, and enforcement levels, while not providing a bright line, general yardstick or universal test for determining the issue of foreseeability, are evidence that there had been and continued to be an understanding that exposure to asbestos below certain levels was safe. These references are relevant evidence to support the proposition that, in the period up to 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.

Jeromson, Maguire and Owen

10. The central contention on each appeal was that the Judge failed to apply the correct test of foreseeability and that the defendants’ owed a duty to take precautions against the risk of injury created by the exposure of their employees to asbestos. Those submissions were based primarily upon the observations of the Court of Appeal in the cases of Jeromson v Shell Tankers (UK) Ltd [2001] ICR 1223 (“Jeromson”) and Maguire v Harland and Wolff plc [2005] EWCA Civ 1 (“Maguire”) and of Buxton J in Owen v IMI Yorkshire Copper Tubes Ltd (1995) (“Owen”), namely that from at least 1951 the risks of asbestos “were sufficiently well known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible”.
11. The claimants contended that because there was no means by which to measure asbestos exposure during this period and uncertainty about exactly what level of exposure could be regarded as safe, this meant that there was a duty to eliminate all exposure so far as possible.
12. The Court held that Jeromson cannot be read as endorsing what Buxton J had said in Owen and that his proposition did not form part of the reasoning in that case. Hale LJ had clearly proceeded on the basis of the facts of that case, which involved levels of exposure far in excess of what Mr White and Mr Cuthbert were found to have encountered.
13. If and to the extent that Jeromson was decided on the basis of the literature review as set out in the judgment, that review was not comprehensive and omitted important aspects that should have been brought into account. Specifically, it omitted any reference to (a) the fact that the risks in contemplation before the 1960s were asbestosis and lung cancer and not mesothelioma; (b) the prevalent belief throughout the relevant period that there was a lower threshold that was relevant to the risk of injury; (c) the absence of support in the literature for a suggestion that reasonably prudent employers should during the relevant period reasonably have foreseen some other personal injury caused by lower levels of exposure; and (d) the evidence that even as the 1960s progressed there was ample material supporting a continued belief that there were safe levels of exposure, which was also material to the question of reasonable belief in the relevant period. The Court also confirmed that Buxton J’s approach would be inconsistent with the reasoning in Maguire.
14. In respect of the claimants’ reliance on Buxton J’s dictum in Owen, which was set out at [51] of Jeromson, the Court stated at [135] that:

“It is not, and never has been, the law that a person is obliged to take all possible steps to prevent the occurrence of a risk that is not reasonably foreseeable. A risk does not become foreseeable simply because hindsight shows that it has not been excluded; and the mere fact that a certain level of exposure to asbestos is recognised to be dangerous does not necessarily give rise to a foreseeable risk of injury in the event of different levels of exposure or different contexts”.

15. The question was therefore whether both employers should have been aware that the exposure to asbestos dust which the work of Mr White and Mr Cuthbert entailed gave rise to a significant risk of injury. That required the Judge in each case to make findings of fact about the level and frequency of exposure – based, inevitably, on very unspecific evidence.
16. The Court also reviewed the established legal principles and authorities at [112] – [141].

For access to the judgment, please click here.

Article written by Catherine Foster.