Asbestos and the state of knowledge

The recent High Court decision in McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB) is the latest in a run of cases pushing the boundaries on date of knowledge in legacy asbestos claims. It underlines the importance of scrutinising the nature and extent of the exposure on a case by case basis, as there might be no legal right to compensation.

In Genco, the court found that Marie McGregor, a shop assistant, had been exposed to asbestos for a relatively short period of time over a matter of months in 1976 during renovation works to the store. The precise level of exposure could not be gauged, but would have been light. There was a floor to ceiling enclosure around the area of the renovation works, but it did not stop dust escaping. Nevertheless, the court held that “at the material time that would be regarded as adequate protection albeit one that would not be acceptable by current day standards”.

The judge found that the department store continued trading throughout all of the works and there was nothing to indicate that it ought to have understood the risk that was caused by the operations. The judge was “unable to accept that during 1976… the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent”.

What does this mean for insurers and businesses facing legacy claims? Given the body of case law we now have where exposure was not negligent, it is essential that the point is explored in every case – particularly in Scotland, where fatal claims are much more expensive than in England.

Here is a quick summary of relevant cases.

Starting points

The first notable case was Shell Tankers UK Ltd v Jeromson [2001] ICR 1223, an English Court of Appeal decision. Shell appealed against a decision at first instance that it ought to have taken precautions against heavy and regular asbestos exposure encountered by its employees. The court found that a prudent employer would have made enquiries about what precautions were necessary to prevent risk of injury from regular and heavy exposure. Shell was also privy to advice that respirators ought to be provided.

The decision at first instance in Jeromson is an interesting starting point, because the judge confirmed that a different conclusion might have been reached if the exposure was “limited, intermittent or occasional”.

After Jeromson, the case of Maguire v Harland & Wolff plc [2005] EWCA Civ 1 confirmed that there was no medical or general industrial literature before 1965 that linked mesothelioma to secondary exposure. That case set the benchmark for date of knowledge in secondary exposure cases.

However, since Maguire there have been four cases which have opened the doors to date of knowledge arguments in primary exposure cases.

Inconsistent evidence

The first case is Harrington v Department for Business, Enterprise & Regulatory Reform [2008] EWHC 2658. In that case, a National Coal Board employee worked in a boiler house for about 12 months during the course of his employment between 1956 and 1958. In his pleadings he said that he de-lagged and re-lagged pipes with asbestos. However, his statement confirmed that fitters removed asbestos lagging. He said that he had to remove and replace asbestos on parts of the boiler he was working on. He did that task around half a dozen times a year and would be working in a confined space where dust could not escape.

His statement suggested a reasonable level of exposure. However, much was made at the trial of differing accounts of his exposure made at different times throughout the history of his case. His evidence was inconsistent. In addition, the National Coal Board was able to produce evidence to show that he was not always working in the boiler house, which added further doubt to the reliability of his evidence. The High Court commented that where there was “inconsistent evidence which was contradicted by contemporaneous documents, or was incomprehensible”, the evidence could not be accepted.

The High Court found as a matter of fact that the claimant would not have been exposed to sufficient quantities of asbestos for the National Coal Board to have breached its obligations.

Foreseeable risk?

We then had the case of Abraham v G Ireson & Son (Properties) Ltd [2009] EWHC 1958. In that mesothelioma claim, the claimant was well enough to give oral evidence. He was employed by two defendant companies, both of which were small businesses, one a general builder and the other a general plumbing firm. His first period of employment was from August 1956 until 1961 and then he was employed by the second defendant from 1962-63 until the later part of 1965.

He gave evidence of using asbestos scorch pads whilst soldering pipes and using asbestos string. There was evidence that he might have used Asbestolux board but he was not sure, and whilst he had previously indicated in pleadings that he had cut asbestos flues, in his oral evidence he said that he had cut cast iron flues but couldn’t remember cutting asbestos ones.

The judge commented that the claimant was an honest and scrupulously fair witness. Having heard all the evidence, the judge concluded that exposure with the first defendant was very light and occurred intermittently. With the second defendant, exposure was modest and infrequent. Exposure with both could have been avoided because asbestos-free materials were available at the time. Both defendants and the claimant produced expert evidence regarding the levels of exposure the claimant would have encountered.

As far as causation was concerned, notwithstanding the fairly light exposure, the judge found that it had caused his mesothelioma.

However, when applying the law to the facts, the judge confirmed that in common law the test was whether or not a risk of injury could have been foreseen by a reasonable and prudent employer based on knowledge he would have been expected to have at that time. He concluded that neither defendant business could have foreseen a risk of injury from the level of exposure described. He queried whether a report from the Factory Inspectorate in 1930 (and other booklets circulated to industry) ought to have alerted the defendant companies to the need to investigate whether or not precautions were required. The judge commented that if reference was had to Jeromson the answer might be that they should have done something. However, in Jeromson there was significant exposure. In Abraham, there was light exposure. As mentioned above, the judge at first instance in Jeromson said that a different conclusion might have been reached if exposure was “limited, intermittent or occasional”.

The judge concluded there was no failure at common law because there was no foreseeable risk of injury from the low levels of exposure. He also concluded that there was no breach of s 20 of the Factories Act 1961 because there was no activity “likely to be injurious” to health.

More on foreseeability

In Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 the female claimant worked in a factory that manufactured cigarette filters and crepe paper. She alleged exposure to asbestos from lagging around pipes located 20ft above the factory floor.

Medical evidence confirmed that her mesothelioma had been caused by exposure to asbestos. Her periods of employment were 1955-1960 and then from 1962-1972.

The court decided that the question was whether the risk of injury was one that ought reasonably to have been foreseen by a careful employer. Even by the second period of her employment, the dire consequences of exposure to small quantities of asbestos had not generally been recognised. The issue of foreseeability involved a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time. On the evidence, the judge concluded that if the defendant had sought authoritative advice as to the risk from asbestos lagging in factory pipes, it was unlikely that it would have been advised to take any particular precautions. The claimant failed.

The next case is Williams v University of Birmingham [2011] EWCA Civ 1242. In this case, the deceased was a student at the defendant’s university between 1970 and 1974. He conducted experiments in equipment located in an unventilated tunnel which had pipes lagged with asbestos. The judge at first instance found the university liable. The Court of Appeal overturned that decision. The Court of Appeal decided there was nothing to highlight a risk of asbestos related injury at the level of exposure to asbestos fibres encountered by the claimant. Accordingly, the defendant could not have foreseen that the deceased would have been exposed to an unacceptable risk of asbestos related injury.

Finally, last year the case of Hill & Billingham v John Barnsley & Son [2013] EWHC 520 was decided. That case underlined the law that has been developing over the last few years. It is now settled law that if there is more than de minimis exposure to asbestos it is important to ask a further question – given the degree of exposure, should it have been reasonably foreseeable to the defendant company that the claimant would likely be exposed to a risk of injury? To determine that question we need to explore:

• the claimant’s actual level of exposure to asbestos;
• what knowledge the defendant ought to have had at that time about the risk imposed by that level of exposure;
• whether, with that knowledge, it had been (or should have been) reasonably foreseeable to the defendant that, with that level of exposure, the claimant had been likely to be exposed to the risk of asbestos related injury;
• the reasonable steps that the defendant ought to have taken in light of the claimant’s exposure to asbestos;
• whether the defendant had negligently failed to take the necessary reasonable steps.

As mentioned above, the body of case law is overwhelming and as the type of typical exposure in mesothelioma cases is now changing, it is vital to investigate thoroughly whether or not the claimant’s exposure to asbestos was in fact negligent.