In pursuit of trivial exposure: pre-1965 low dose exposure asbestos disease claims

Two judgments in late November and early December 2022 gave fresh consideration to the state of knowledge and foreseeability of risk of injury in claims involving exposure to asbestos prior to 31 October 1965.

Cuthbert v Taylor Woodrow Construction Holdings [2022] EWHC 3036 (KB)

The widow of the deceased pursued a claim against his former employer, alleging that he had been exposed to asbestos during construction work on a school in the 1950s, causing 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.

HHJ Freedman found the deceased’s account of his exposure, given in two witness statements prior to his death, to be implausible. In particular, he did not accept it that the deceased, at 17 years of age, fulfilled the role of a “trainee supervisor” watching over carpenters for a couple of hours per day whilst they sawed asbestos sheeting, but then was also tasked with sweeping up after them. He noted there were further inconsistencies such as the type of boards being used, how long the project took and where the work took place. He also noted the deceased had worked in the construction industry throughout his life and had identified two other former employers that had exposed him to asbestos.

With the assistance of the occupational hygienists, HHJ Freedman estimated exposure was in the order of 2 fibres/ml per day. Given that a year after the alleged exposure had ceased, the threshold limit equated to 30 fibres/ml in factories, he unsurprisingly concluded that liability was not established, whilst HHJ Freedman expressing his overwhelming sympathy for the family of the deceased.

White & Ors v Secretary of State for Health & Social Care [2022] EWHC 3082

The deceased died from mesothelioma in April 2020. It was alleged that he had negligently been exposed to asbestos whilst working at Sefton General Hospital in Liverpool, as a junior lab technician in the 1940s and 1960s, and as a senior biochemist in the 1970s and 1990s.

HHJ Hyam noted that both parties had been granted permission to obtain occupational hygiene evidence. Whilst 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, Mr Hughson, and nor had they sought a direction that he be cross examined. Instead, the claimants argued that if there was a conflict between the account of the deceased and Mr Hughson, the former should be preferred. Notably, HHJ Hyam’s judgment includes reference to being “greatly assisted by Mr Hughson” and that “Mr Hughson’s evidence is helpful”.

When considering the alleged exposure from 1949 to 1960, HHJ Hyam 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 that the deceased’s exposure was “very low” (i.e. 0.2 to 0.4 fibre/ml years) from the intermittent use of Bunsen burners and asbestos mats, estimating that there was exposure for no more than 12 minutes per day. Such was the level and extent of the exposure that it would, by the standard of the day, be considered “trivial”. 

As regards the second alleged period of exposure after 1973, HHJ Hyam indicated he did not have sufficient evidence to conclude on balance that 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, HHJ Hyam found that the defendant was not in breach of duty.

Comment

These cases illustrate that the mere fact that 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. Further, 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-31 October 1965. Trivial exposure during this period will not be sufficient to establish breach of duty.