Forseeability and breach of duty in mesothelioma claims: Lawton v The Boots Company PLC
HIGH COURT LONDON before Mr Vikram Sachdeva KC (sitting as a Deputy High Court Judge) on 5 & 6 June 2024
On 6 June 2024 Boots Company PLC secured a discontinuance mid-trial in a High Court fatal mesothelioma claim which raised issues regarding an employer’s liability at common law for both pre-1965 & post-1965 exposure to asbestos.
In recent cases (Bussey v 00654701 Limited [2018] EWCA Civ 243 (post -1965 exposure to asbestos) & the co-joined appeals of Cuthbert v Taylor Woodrow Construction Limited & White v Secretary of State for Health & Social Care [2024] EWCA Civ 244 (pre-1965 exposure to asbestos), claimants in mesothelioma cases have failed to persuade the Court of Appeal that knowledge available in the 1940s that there was no safe level of asbestos exposure should mean that employers were, from that time, under a duty to reduce all exposure to the lowest level reasonably practicable.
Mrs Anne Lawton died from mesothelioma on 19/02/20, aged 77. In proceedings brought by her Executor (represented by Leigh Day) against her former employer, Boots, it was alleged she had been exposed to asbestos: (1) between September 1957 – November 1958 during building works to refurbish the Boots store in Hanley & (2) between November 1958 – 1968/69 on occasions when she visited the store’s basement (on average twice a week on visits lasting c.10 minutes) from damaged pipe lagging disturbed when boxes were put on & taken off shelves.
The Deceased made a Witness Statement 2 weeks before her death, but this gave little detail as to the circumstances of exposure during the refurbishment works beyond general assertions that suspended ceilings had been fitted on some floors & her job was to help keep the store clean by regular sweeping. Mrs Lawton also described visits to the basement, but she was unable to recall the state of the pipe lagging. Later the Claimant’s solicitors served Witness Statements from 2 of Mrs Lawton’s former colleagues which (by reference to “library” photos of damaged lagging), gave more details of the pipework, lagging & work activities in the basement. Parts of these 2 Statements (which were admitted as hearsay evidence) were strikingly similar in wording – with consequent concerns as to what weight should be placed on this evidence.
Pre-1965 Exposure
The first period of alleged exposure pre-dated the so-called “watershed” of late 1965, when the Newhouse & Thompson research that mesothelioma might be caused by exposure to much lower levels of asbestos than had previously been considered harmful, was publicised in the Sunday Times.
In Cuthbert & White, Stuart-Smith LJ undertook an exhaustive review of the “knowledge” materials prior to 1960, concluding that the known asbestos diseases (asbestosis &, from c.1955, asbestos lung cancer) were diseases of dose that could occur only following “substantial” exposure i.e. prolonged exposure to high concentrations of asbestos. Exposure to lower levels of asbestos (referenced to the “Dust Datum” described by Dr Merewether) was not thought at the time to give rise to a risk of asbestos lung disease. Further, the analysis of “knowledge” materials undertaken by the Court of Appeal in the earlier case of Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 1 (on which the claimants in White & Cuthbert founded their submissions regarding “no safe level”) had omitted this important feature of the literature.
In both his report & in the Joint Statement, the Claimant’s liability expert (Mr Chris Chambers) avoided expressing any opinion on the extent to which Mrs Lawton was exposed to asbestos during the store refurbishment works. In cross examination however he agreed that, even taking the evidence of the Claimant’s witnesses at its highest, Mrs Lawton had not been exposed to enough asbestos such as to give rise to a foreseeable risk of asbestosis/asbestos lung cancer (when judged by the knowledge & the standards of the day).
Post-1965 Exposure
The application of the established principles of law to post-watershed common law liability for asbestos exposure is addressed in Williams v University of Birmingham [2011] Civ 1242; Bussey &, most recently (albeit obiter), Cuthbert & White. These authorities make it clear that liability at common law is not determined by reference only to whether the employer knew, or ought to have known, that mesothelioma might be caused by much lower exposures. As Underhill LJ stated in Bussey, the foreseeability /breach question includes consideration of whether it was reasonable for an employer who ought to have known of the general risk to believe that there was a level of exposure below which there was no significant risk & that the victim’s exposure was below that level (para 63).
In Bussey the Court of Appeal ruled that the published hygiene standards for asbestos in TDN 13 did not provide a “bright line” for determining liability at common law for asbestos exposure in the period between 1970-1976, or the period between 1966-1970. Instead (& on established principles), a more “nuanced” approach was needed which required examination of all the information which a reasonable employer in the defendant’s position should have acquired.
The important contribution which Cuthbert/White has made to the jurisprudence on post-1965 exposure is to recognise that, even as the 1960s progressed, there was “ample material supporting a continued belief that there were safe levels of exposure” (paras 111 & 139).
In his report in Lawton (written after the CA’s decision in Cuthbert/White), Mr Chambers advanced figures which he said represented Mrs Lawton’s potential exposure to asbestos during her visits to the basement. He did not however attempt any dose calculation & did not acknowledge that exposure during such visits would have been at very low levels.
Historically in cases such as Lawton, Mr Chambers has advanced the “no safe level” argument. However, with this argument closed off (but with the same objective), Mr Chambers advanced the view that the publication of the Sunday Times article on 31/10/65 was of itself sufficient to trigger a duty to take action to eliminate exposure e.g. by boxing in the areas of damaged lagging. However, he was unable to reference any contemporaneous standards, official or trade guidance, or industrial practice, that supported his view.
In contrast, Boots’ expert (Martin Stear) opined that Mrs Lawton’s exposure would have been very low & that, by reference to the limited published guidance available at the time, the risk presented by the damaged lagging would not have been of concern. He also referenced published guidance & standards that showed that it wasn’t until the mid-1970s that attention turned to the risks presented by in situ asbestos materials that were not sealed.
In cross examination, Mr Chambers maintained his view that Boots actual or constructive knowledge of the “general risk” of mesothelioma from low dose exposures to asbestos should have led it to recognise that the condition of the lagging might present a risk to those working in, or visiting, the basement. He explained that he disagreed with the Court of Appeal’s conclusion that published standards for asbestos were evidence that there had been & continued to be an understanding that exposure to asbestos below certain levels was safe. However, he was unable to give reasons for this view. He added that, in his view, contemporaneous official & trade guidance (which focused on those working with asbestos materials in certain industries/trades) was irrelevant to the question whether it was reasonable for Boots to consider that the very low levels of asbestos did not present a significant risk.
In the event & following the completion of Mr Chambers’ evidence, the Claimant elected to discontinue the claim & pay the Defendant’s costs.
Boots Company PLC was represented by A John Williams of Crown Office Chambers.
