Defendant successfully defends occupational mesothelioma claim; exposure to asbestos was minimised so far as was reasonably practicable according to the standards at the time - Reynolds v Secretary of State for Energy and Climate Change 24.5.10

Mr Reynolds died in February 2009 as a result of a malignant pleural mesothelioma that was caused by exposure to asbestos. His widow alleged that he was exposed to asbestos whilst employed by the National Coal Board as a blacksmith from February 1977 to November 1986. In particular, it was alleged that the deceased was exposed to blue asbestos dust, which fell from the roof cavity of his workshop throughout the period of his employment. Such exposure occurred despite the Defendant having instructed specialist asbestos removal instructors to remove a significant amount of blue asbestos from the roof cavity in 1976 and to encapsulate any residual asbestos materials using purl board cladding. A smaller residual amount of asbestos materials were removed in 1983 after asbestos dust was found to have permeated cracks in the purl board ceiling. The evidence in a written statement from the deceased and from several of his former work colleagues was that at all times before and after work was done to the roof area there were frequent showers of blue asbestos dust. However, according to the parties’ joint expert engineer, the lay evidence was inconsistent with (a) the results of contemporaneous air tests, which had been taken in the workshop in 1976 and 1982-3 and (b) the minutes of the consultative committee, which discussed the work that needed to be carried out in March 1976.

Held

Responsibility for exposure to the risk of harm turned on whether or not the Defendant was negligent and/or in breach of statutory duty in failing to take all reasonable practicable measures to prevent or minimise the exposure of its workforce to respirable asbestos fibres. This had to be seen in the light of prevailing standards at the material time. The deceased’s former work colleagues were influenced by an understandable desire to secure compensation for the widow and exaggerated the extent of the asbestos pollution. Further, the Defendant did minimise the deceased’s exposure to asbestos so far as was reasonably practicable according to the standards of the time. On this basis, the claim failed.

Comment

The Judge seems to have placed heavy reliance on the results of air samples taken in 1976 and in 1982-83. However, defendants and their insurers should not as a result of this case rely solely on the results of occasional air samples as conclusive proof of the asbestos levels over a period of years. An air sample is a mere “snapshot” of the air quality during the period the air test was carried out, and so one cannot assume that the asbestos content in a working environment remains constant between air tests taken months or years apart.

It should also be noted that this decision rather bucks the trend, which tends to be that any occupational exposure that occurred after the Asbestos Regulations 1969 came into force constitutes culpable exposure.