Legal Focus: In pursuit of trivial exposure: pre-1965 low-dose exposure asbestos disease claims
Two recent cases involving alleged exposure to asbestos while at work highlight the importance of the degree and extent of exposure and whether or not that exposure constituted a breach of duty
Two recent judgments have given fresh consideration to the state of knowledge and foreseeability of risk of injury in claims involving exposure to asbestos prior to October 31, 1965
In Cuthbert v Taylor Woodrow Construction Holdings (2022), the widow of the deceased pursued a claim against his former employer, alleging he had been exposed to asbestos during construction work on a school in the 1950s, which caused him to develop mesothelioma.
The key issues at trial were the degree and extent of exposure and whether or not that exposure constituted a breach of duty.
Judge Freedman found the deceased’s account of his exposure, given in two witness statements before his death, to be implausible. In particular, he did not accept the deceased, at 17 years of age, fulfilled the role of a “trainee supervisor”, watching over carpenters for a couple of hours a day while they sawed asbestos sheeting, but then was also tasked with sweeping up after them. Freedman J said there were further inconsistencies.
He also pointed out the deceased had worked in the construction industry throughout his life and had identified two other former employers that had exposed him to asbestos.
Liability not established
With the assistance of the occupational hygienists, Freedman J estimated exposure was around two fibres/ml per day. Given a year after the alleged exposure had ceased the threshold limit equated to 30 fibres/ml in factories, he unsurprisingly concluded liability was not established, while expressing his overwhelming sympathy for the family of the deceased.
In White and others v Secretary of State for Health & Social Care (2022), the deceased died from mesothelioma in April 2020. It was alleged he had negligently been exposed to asbestos while working at Sefton General Hospital in Liverpool as a junior lab technician in the 1940s and 1960s, as well as as a senior biochemist in the 1970s and 1990s.
These cases illustrate the mere fact there has been exposure to asbestos is insufficient to discharge the claimant’s burden of proof. Cogent evidence of the extent of the exposure is required
Judge Hyam said both parties had been granted permission to obtain occupational hygiene evidence. While the claimant’s expert had also drafted a report, it had never been served. Nor had the claimant posed Part 35 questions to the defendant’s occupational hygienist, Graeme Hughson, nor had they sought a direction he be cross-examined. Instead, the claimants argued if there was a conflict between the account of the deceased and Hughson, the former should be preferred. Notably, Hyam J’s judgment includes reference to being “greatly assisted” by Hughson and says his evidence “is helpful”.
No breach of duty
When considering the alleged exposure from 1949 to 1960, Hyam J rejected the deceased’s account of benches being covered in asbestos dust and there being a constant flow of asbestos dust and fibres from boards. Instead, he considered the deceased’s exposure was “very low” from the intermittent use of Bunsen burners and asbestos mats, estimating there was exposure for no more than 12 minutes a day. Such was the level and extent of the exposure it would, by the standard of the day, be considered “trivial”.
As regards the second alleged period of exposure after 1973, Hyam J indicated he did not have sufficient evidence to conclude on balance the asbestos mats that had previously been in use were still in use, referring to publications from the Department of Education and Science issued in 1967 and 1976. Accordingly, the claim turned on the earlier period of exposure. Consequently, Hyam J found the defendant was not in breach of duty.
These cases illustrate the mere fact there has been exposure to asbestos is insufficient to discharge the claimant’s burden of proof. Cogent evidence of the extent of the exposure is required. Furthermore, alleged exposure to asbestos needs to be analysed in the context of the standards of the time and, in asbestos-related disease claims, the most problematic period for claimants is pre-October 31,1965. Trivial exposure during this period will not be sufficient to establish breach of duty.
Gregor Woods is a partner and Jeremy Fletcher is of counsel at CMS
