Two judgments in late November and early December 2022 reconsidered the state of knowledge and foreseeability of the risk of injury in claims involving asbestos exposure prior to October 31, 1965.
Cuthbert v. Taylor Woodrow Construction Holdings [2022] EWHC 3036 (KB)
The deceased’s widow filed a lawsuit against his former employer, alleging that he had been exposed to asbestos while working on a school building in the 1950s, which caused him to develop mesothelioma. The key issues in the process were the degree and extent of the exposure and whether or not that exposure constituted a breach of duty.
HHJ Freedman found the deceased’s account of his exposure, given in two testimonies before his death, implausible. In particular, he did not accept that the deceased, at 17, was fulfilling the role of a “trainee supervisor,” supervising carpenters sawing sheets of asbestos for a few hours a day, but then also being tasked with sweeping up after them. He found that there were other inconsistencies such as the type of panels used, the duration of the project, and the location of the work. He also noted that the deceased had worked in the construction industry all his life and identified two other former employers who exposed him to asbestos.
With the support of occupational hygienists, HHJ Freedman estimated exposure to be in the order of 2 fibres/ml per day. Not surprisingly, given that a year after the alleged exposure had ended, the threshold in factories was 30 fibers/ml, he concluded that no liability was established, while HHJ Freedman expressed his overwhelming sympathy to the family of the deceased.
White & Ors v Secretary of State for Health and Social Care [2022] EWHC 3082
The deceased died of mesothelioma in April 2020. It has been alleged that he was negligently exposed to asbestos while working at Sefton General Hospital, Liverpool, as a junior laboratory technician in the 1940s and 1960s and as chief biochemist in the 1970s and 1990s.
HHJ Hyam noted that both parties had been given permission to obtain industrial hygiene certificates. The plaintiff’s expert also wrote an expert opinion, but this was never sent to him. Nor had the plaintiff asked the defendant’s occupational hygienist, Mr. Hughson, any questions under Part 35, nor had they sought orders to cross-examine him. Instead, plaintiffs argued that in the event of a conflict between the deceased’s account and Mr Hughson’s, preference should be given to the former. Notably, HHJ Hyam’s ruling notes that he was “strongly supported by Mr Hughson” and that “Mr Hughson’s evidence is helpful”.
In looking at the alleged exposure from 1949 to 1960, HHJ Hyam dismissed the deceased’s account that benches were covered with asbestos dust and that there was a constant flow of asbestos dust and fibers from planks. Instead, he considered that the deceased’s exposure from intermittent use of Bunsen burners and asbestos mats was “very low” (ie 0.2 to 0.4 fibres/ml years) and estimated that exposure lasted no more than 12 minutes per day existed. The level and extent of the exposure was such that it would be considered “trivial” by the standards of the time.
Regarding the second alleged exposure period after 1973, HHJ Hyam stated that he had insufficient evidence to conclude overall that the asbestos mats previously used were still in use, citing published Department of Education and Science publications in 1967 and 1976. Accordingly, the claim related to the earlier exposure period. Consequently, HHJ Hyam found that the defendant had committed no breach of duty.
comment
These cases illustrate that the mere fact of exposure to asbestos is not sufficient to satisfy the applicant’s burden of proof. Solid evidence of the extent of exposure is required. In addition, the alleged exposure to asbestos must be analyzed in the context of the standards of the time, and for asbestos-related disease claims, the most problematic period for claimants is before October 31, 1965. Minor exposure during this period is not sufficient to establish a breach of duty.
