White v Secretary of State for Healthcare and Cuthbert v Taylor Woodrow Construction Holdings [2024] EWCA Civ 244

The Court of Appeal heard the Claimant’s appeals in both of these claims for mesothelioma jointly in December 2023 with judgement being handed down on 14th March 2024.

In both cases the respective trial judges had found that due to the low level of alleged exposure to asbestos in each case the risk of injury would have been unforeseeable to the defendants’ at the relevant time and therefore both defendants were found not to be in breach of duty. As a result of the similarities of the issues in relation to foreseeability the Court of Appeal decided to hear the appeals together and the case provides a useful summary of the case law in relation to this issue.

There was no dispute that the deceased in either case had died of mesothelioma.

Mr White born in 1932 had died on 8th April 2020 aged 87. He had alleged that he had been exposed to asbestos when working at the Sefton General Hospital in Liverpool during two periods of employment. The first period was between 1949 and 1960 when he was employed by the Defendant’s predecessor as a junior lab technician and the second was between 1973/74 and 1991/92 when he worked as a senior biochemist.

In the first period of employment, it was alleged that he had been exposed to asbestos when using Bunsen burner boards which were fragile and prone to breaking. The case was heard at first instance by Mr Jeremy KC sitting as a Deputy Judge of the High Court who in his judgment held that there had been some exposure to asbestos during the first period of employment that was intermittent and in very low quantities which he described as de minimis in light of evidence from the occupational hygienist, Dr Hughson who estimated the average asbestos concentration to be 0.02 to 0.05 f/ml (8 hour time weighted average). He found that any exposure during the second period of employment was likely to be irrelevant. The Claimant accepted the decision in respect of the second period of employment but not the first and appealed on the basis that the trial judge had failed to properly apply the approach to foreseeability adopted by the Court of Appeal in previous cases.

Mr Cuthbert, born in 1938, died on 5th April 2022 aged 83. It was alleged that he had been exposed to asbestos between 1956 and 1959 when he was engaged in construction work at Queenswood School in Cheshunt. The trial was heard at first instance by HHJ Freedman sitting as a Judge of the High Court. The Judge found that Mr Cuthbert had had “irregular and intermittent contact” with carpenters at the site and that, at times, they were engaged in cutting up asbestos materials when he was in their vicinity. If the weather was good they would cut the asbestos boards outside. From time to time Mr Cuthbert would sweep up debris. The Judge accepted the Defendant’s counsel’s suggestion that this would have been in the order of ten minutes per day.

Overall the judge found that Mr Cuthbert had had “irregular and intermittent contact” with carpenters at the site and from time to time he swept up asbestos dust. He concluded that “his exposure to asbestos when employed by the defendant was of low order, light and intermittent and, in the main, as a bystander.” After a review of the literature and the relevant authorities the judge gave the following conclusion:

“I consider that a reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (ie more than fanciful) risk of injury as a result of the exposure to asbestos at the level to which I have found that Mr Cuthbert was exposed. “

In light of this conclusion he found that “there was no breach of duty where the exposure was light and intermittent.” The Claimant appealed on the basis that the Judge was wrong to describe the exposure as light and intermittent as Mr Cuthbert’s evidence was that were visible clouds of dust when he swept up.

In regard to White the Court of Appeal found that the Judge had placed particular emphasis upon the two stage approach suggested in the case of Bussey and asked himself:

1. Should Sefton Hospital have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos related injury.

2. If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take.

Given the very low level of exposure calculate by Dr Hughson the trial Judge found that the first limb of the Bussey test had not been met. The Court of Appeal found that the trial Judge was correct in this approach and had made reasoned findings based upon his review of documentary evidence and the authorities and the occupational hygienist evidence. The appeal was dismissed.

In Cuthbert the Court of Appeal considered the publications that dealt with date of knowledge and found that the trial Judge correctly identified that “it was not until the mid 1960s that it was appreciated that even light exposure to asbestos dust could cause mesothelioma.” They did however say that he should have found that the exposure was “substantial but intermittent” rather than light and intermittent”. As the exposure took place in the 1950s before the sea change in knowledge on asbestos exposure in the 1960s the Court of Appeal found that such exposure would not carry a foreseeable risk of injury and the appeal was dismissed.

Forbes Comment

The outcome of these appeals confirm that light exposure cases should be carefully considered in respect of the issue as to whether there was a foreseeable risk of injury in asbestos exposure cases particularly if the alleged exposure occurred before the 1960s when much more was known about the risks of exposure to asbestos. Prior to that it was only thought that heavy exposure carried a foreseeable risk of injury which could result in developing asbestosis. The 1960s saw a sea change in perception to the risk of mesothelioma through asbestos exposure.