In delivering its judgment in the conjoined appeals of White & Others v Secretary of State for Health and Social Care [2024] EWCA Civ 244 and Cuthbert v Taylor Woodrow [2022] EWHC 3036 (KB) the Court of Appeal has effectively drawn a line in the sand regarding low level, pre-1965 exposure cases. In this alert we consider these decisions and their implications for mesothelioma claims.
Background: The White case
W was in reasonably good health until, at the age of 86 he was diagnosed as suffering from mesothelioma: he died about 7 months later. It was alleged that his mesothelioma resulted from exposure to asbestos while working in a hospital during two periods, the first from about 1949 to 1960 when working as a junior lab technician and the second between 1973/1974 and 1991/1992 when employed as a senior biochemist. At trial the judge held that there had been some intermittent exposure at very low quantities during the first period, the level of this exposure also being described as de minimis. As far as the second period was concerned, the judge viewed the level of exposure as likely to be insignificant in causal terms. The judge went on to find that there had been no breach of duty by the employer in respect of either period. An appeal was pursued in respect of the first period only (1949 to 1960).
Background: The Cuthbert case
C was diagnosed with mesothelioma at the age of 82 and died just over a year later. It was alleged that he was exposed to asbestos dust and fibres while employed by D in construction work at a school between about 1956 and 1959. At trial the judge found that C had “irregular and intermittent contact” with on-site carpenters who, at times, cut up asbestos materials when he was in their vicinity. Occasionally, weather permitting, the cutting took place outside. “From time to time” C undertook sweeping up and occasionally this would be “a number of times per day”. The judge considered that even if he concluded that C swept up on a fairly regular basis, it probably only took up a very small portion of his working day, concluding that C's “exposure to asbestos when employed by the defendant was of a low order, light and intermittent and, in the main, as a bystander". Ruling that “I consider that a reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e. more than fanciful) risk of injury as a result of the exposure to asbestos at the level to which I have found that [C] was exposed.” The judge found that “there was no breach of duty where the exposure was light and intermittent.”
The issues before the Court of Appeal
While there were certain other issues for the appeal court to consider, such as C's challenge to the trial judge's findings in relation to their level of exposure, the primary issue was whether the trial judges had applied the correct test of foreseeability when determining whether or not a duty was owed by the defendants to their employees.
The appellants' position
The argument advanced was that the judges should have determined that the employers owed a duty to take precautions against the risk of injury created by the exposure of their employees to asbestos, that contention being based upon observations made in Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101 and Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 to the effect that from the mid-1950s the threats posed by asbestos were well known and that exposure should have been kept to the lowest level possible.
The Court of Appeal's decision
The parties had produced an agreed list of 28 publications considered as being material to the issues before the court and, having reviewed that same, the Court of Appeal determined that they provided clear evidence of the following propositions.
- Until the 1960s the risks understood to arise from the inhalation of asbestos were asbestosis and lung cancer and employers whose businesses involved the use of asbestos should have appreciated those risks.
- Such appreciation of risk was not restricted to those working in the asbestos industry and as asbestos use spread the appreciation of risks spread also.
- Prior to 1965, it was thought that there was a "dust datum" below which there was no real risk of contracting disabling asbestosis during a normal working life, the risks being thought to arise due to what would now be considered as substantial levels of exposure.
- Following the publication of Newhouse and Thomson in 1965 there was a sea-change in risk perception. Only in and from 1965 was mesothelioma appreciated as a foreseeable risk at all and that there was a foreseeable risk of it at exposure levels below that previously considered to give rise to a risk of asbestosis or lung cancer.
- The proposition that pre-1965 employers should have appreciated that exposure to asbestos at levels below what were thought necessary to create a risk of asbestosis and lung cancer would give rise to a foreseeable risk of pulmonary or other personal injury was unsupported by any evidence.
- Evidence that any body of employers appreciated 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 was lacking.
- The wide appreciation that lower levels of exposure than that considered necessary to cause asbestosis or lung cancer started to appear in literature in and from the 1960s but was not confirmed until Thompson and Newhouse's paper in 1965.
- The repeated references in the literature to "maximum permissible concentrations", "threshold limit values", and enforcement levels evidenced a continuing understanding that exposure below certain levels was safe and supported the proposition that until 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.
The Court of Appeal, the judgment being delivered by Lord Justice Stuart-Smith, confirmed the two-stage approach set out in Bussey v Anglia Heating [2018] EWCA Civ 243, namely:
- Ought the employer to have been aware that the exposure to asbestos dust to which the employee was subject gave rise to a significant risk of them suffering an asbestos-related injury; and
- Did the employer take proper precautions to reduce or eradicate that risk.
He ruled that it was not the law, and never had been, that a person was obliged to take all possible steps to prevent the occurrence of a risk that was not reasonably foreseeable. The mere fact that hindsight showed that a risk had not been excluded did not make it foreseeable.
The question in these conjoined appeals was whether, at any time during the relevant employments, the employers ought to have been aware that the exposure to asbestos dust which their work involved gave rise to a significant risk of asbestos-related injury. The fact that the risks from lower levels of exposure had not been excluded was neither determinative nor even particularly relevant: what mattered was whether there was a foreseeable risk of injury against which the employers should have protected their employees.
The judge in the trials of both these cases had not erred in law or approach and their findings as to the levels of frequency and levels of exposure could not be impugned, the exposure levels being very low or trivial. The conclusions, in both cases, that there had been no breach of duty, were upheld and the appeals refused.
Where does this leave mesothelioma claims?
The findings of the Court of Appeal leaves the two-stage test in Bussey untouched, but where exposure took place prior to 1965 it now appears that a substantial level of exposure at levels significant enough to cause asbestosis or lung cancer will have to be established in order for a claimant to have any prospects of establishing liability: lower levels of exposure will not suffice.
This decision is, without doubt, one which will be welcomed by insurers, and ought to have the effect of drawing a line in the sand in relation to claims in relation to alleged pre-1965 exposure where the exposure is other than at a level so significant that it could have given risen to a risk of asbestosis or lung cancer. Lower levels of exposure prior to that date will be inadequate to support a claim.
