Asmussen v Filtrona United Kingdom Ltd [06.07.11]

High Court confirms liability depends on the state of public knowledge at the time.

The Claimant, aged 78, alleged that she was exposed by the Defendant to asbestos dust in the course of her employment at the Bede Industrial Estate in Jarrow and that this caused the development of mesothelioma. She worked for the Defendant from 1955 to 1960 and from 1962 to 1972. At the time the Defendant manufactured cigarette filters and, for some of the time, crepe paper. She worked mainly at factory one in the first period and factory four in the second period. Factual witnesses gave evidence that works to pipes were carried out in factory one in 1963 or 1964, which created asbestos dust. It was also clear from the evidence that the manufacturing process generated large amounts of dust, although there was a system of cleaning in place. In addition, the Claimant recalled an occasion where she walked past a man who was lagging pipes, although it was unclear whether this was during the first or the second period. The medical experts differed in their view as to the level of asbestos exposure.

Held

Mr Justice Simon carried out a detailed review of the history of the publicly available material in relation to the dangers of asbestos exposure. He confirmed that the test for liability "is whether the risk of personal injury arising from an employee’s exposure to asbestos ought reasonably to have been foreseen by a careful employer, to the extent that the employer should have taken precautions or at the very least sought advice as to what (if any) precautions he should take."

The issue of foreseeability involves a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time. The Claimant had been exposed to low levels of asbestos dust and this exposure was more likely to have been during the first period. The Defendant was entitled to rely on the recognised and established practices of the time, and on this basis the exposure was not negligent. In addition, there was no breach of the provisions of the Factories Acts 1937 and 1961. The wording of these statutes involves an understanding of what should have been known and understood at the time.

Comment

In his judgment, Simon J commented that, no matter how sympathetic a court is towards the plight of a mesothelioma victim, there are clear lines in place which distinguish whether a claim should succeed or fail. The periods of exposure alleged in this claim coincided with the general development of knowledge of the risk of harm from exposure to asbestos. The issue of foreseeability of risk was one that could only be considered when having proper regard to the state of knowledge of those risks as they were known at the relevant time, or if it could be shown that a particular employer had acquired greater than average knowledge of those risks, an issue also considered in Baker v Quantum Clothing Group Ltd [2011].

This is a useful decision in serving to remind that hindsight cannot be used in cases where, on proper consideration of the facts and the applicable legislation and knowledge at the material time, there cannot have been knowledge and so no liability attaches.