Low dose asbestos exposure from the 1960s: when it is found to be enough

Judgment in the case of Ness v Carillion Capita Projects [2023] EWHC 1219 (KB) gave consideration to the state of knowledge and foreseeability of risk of injury in a case involving both an early period of exposure from the 1960s and a very low dose.

Background

The personal representative of the estate of Mr Harrison, Sharon Ness, pursued a claim against his former employer Bovis alleging that he had been exposed to asbestos for a short period in the 1960s causing him to develop mesothelioma.

It was alleged by the claimant that Mr Harrison was exposed to asbestos whilst working for Bovis as a junior joiner on the Guardian Insurance Building in Blackpool for some period during the tax years 1966/67 and 1967/8, although the precise dates were not capable of being determined with any certainty. His exposure was said to have been as a consequence of cutting and fitting asbestos cement panels. The total period of his employment on that contract was agreed to be 10 – 14 days.

The issues at trial

The key issues at trial were the degree and extent of exposure, whether or not that exposure constituted a breach of duty and whether that exposure constituted a material increase to Mr Harrison’s risk of contracting mesothelioma.

The decision

In his judgment. HHJ Lickley KC, highlighted some of the inconsistencies in the claimant’s evidence provided in witness statements, expert evidence and at the Evidence on Commission hearing by Mr Harrison.   HHJ Lickley commented that the inconsistencies were not surprising given that Mr Harrison had been asked to recall events and working practices some 50 years before.  He said that he also took into account that at the time Mr Harrison answered questions at the Commission hearing he was gravely ill. 

HHJ Lickley made the following findings:

• In relation to the work that Mr Harrison carried out installing asbestos cement panels the Judge found that he did this work for up to 14 days in the period 1967 to 1968.
• In 1967/8 there was sufficient information for Bovis to have been aware of the risk of exposure to asbestos that Mr Harrison’s work with asbestos cement entailed, even at low levels.
• Bovis should have assessed and taken steps to prevent exposure if appropriate, but they did not.  They ought to have reasonably foreseen that Mr Harrison would be exposed to a risk of asbestos related injury and accordingly they were negligent in and in breach of their duty of care.

On the question of whether the work carried out by Mr Harrison materially increased the risk of mesothelioma, HHJ Lickley found that whilst the precise level of exposure was impossible to determine with any certainty given the wide range of exposure levels proposed by the experts, it was measurable, albeit at a low level. He said “I am satisfied, on the balance of probabilities, that the exposure suffered by Mr Harrison as a result of his working with asbestos cement was not so insignificant that it can be disregarded as de minimis.”  Judgment was entered for the claimant.

Comment

There is no safe level of exposure to asbestos. Even very low levels of exposure can lead to the development of mesothelioma. Proving exposure is not in itself sufficient to establish liability. The question is whether the defendant ought to have known at the time that exposure at the levels determined by the court were foreseeably likely to result in injury and, if so, whether all reasonable steps were taken to reduce that risk by the defendant. HHJ Lickley’s judgment provides a helpful summary of the developing state of knowledge in relation to asbestos risk during, in particular, the 1960s and the approach to the assessment of a defendant’s duty of care at that time, in particular in circumstances where the exposure was low.  

This case illustrates that very low levels of exposure to asbestos may be sufficient to allow a claimant to succeed even where there are discrepancies in the evidence adduced, where the defendant is unable to adduce evidence demonstrating that they had taken reasonable steps to reduce the risk. In this case, the judge found that would have included simple measures such as the provision of a face mask and/or mandating that the panels be cut outdoors. 

We anticipate that the decision would have been different if the exposure had taken place before 1965, which is considered to be the watershed date for employers in cases involving low levels of exposure.