McGregor v Genco (FC) Ltd (2014)
In a case which employers will draw comfort from, the High Court has ruled that although an employee had contracted mesothelioma through exposure to asbestos in a department store where she worked, the employer had not been under a common law duty to appreciate that the employee had been at risk of an asbestos-related injury or to make enquiries about the nature of the dust generated by the works.
The claimant (Ms McGregor) was exposed to asbestos whilst working in a shop in the mid-1970s when the escalators were being replaced, causing dust to be released into the shop.
The High Court found that, even though the exposure had been modest and lasted for only a few months, this exposure had caused her to develop mesothelioma. However, the judge went on to find that the employer was not liable to Ms McGregor because the risk of injury had not been foreseen during the relevant period. A floor to ceiling enclosure had been set up and although that would not be acceptable by current day standards, at the time it had been regarded as adequate protection. The Court stated: “It is important though, as the various authorities make clear not to look back with the rose tinted glasses of hindsight and consider the position by the standards operative in 1976”.
The Court also considered whether there had been any duty to make enquiries as to risk as the work progressed. In relation to this issue, it commented that, “These were works of short duration. Absent any particular circumstance to alert the defendant to an enhanced or different risk as the work progressed I do not think that there was. The protection erected by the defendant was not “clearly bad.””
Moreover, the Court held that the mere fact that some of the workmen had worn masks was not sufficient in itself to place the employer under a duty to make enquiries. That was not a clear indication that it had been known that the dust being produced was hazardous. The Court remarked, in conclusion, that although it had had enormous sympathy for the claimant, who had “clearly contracted mesothelioma as a result of asbestos exposure at work, it is with regret, but without any hesitation, that I find that her claim against the defendant must fail.”