The mesothelioma claims landscape is changing. Previously, claims had predominantly been brought by claimants employed in ‘heavy’ industries associated with substantial and routine exposure to asbestos dust. However, we are now in a new era of ‘low dose’ exposure. This article looks at how the court’s approach to liability has developed in response.
Mesothelioma - a special case?
Due to the often painful and debilitating nature of the disease and invariable short life expectancy of the sufferer following diagnosis (usually between 10 and 24 months), mesothelioma cases are essentially treated differently by the courts in terms of the way in which they are managed.
However, as Dr Robin Rudd, a leading expert in claims of this type, states in his publication ‘The Medical Viewpoint’ (Occupational Illness, September 2002):
‘It is sometimes assumed by claimants and their solicitors that the mere fact of a diagnosis of mesothelioma implies that there must be a basis for a claim. This is not so… often there is some vague suggestion that the claimant worked in a building where it is believed there may have been some asbestos present somewhere in its construction. This is not sufficient and it is always necessary to demonstrate that there is a probability that the sufferer inhaled significant quantities of asbestos dust.’
While the unique nature of claims of this type dictates that they must be treated with a certain degree of sensitivity, as Dr Rudd avers, it is not the case that the mere presence of asbestos within the fabric of a building will suffice to establish breach of duty.
Breach of duty at common law
The common law principles in mesothelioma claims are the same as those applicable in any other type of personal injury action founded in negligence. The employer’s duty is to take reasonable care to protect its employees from a foreseeable risk of injury.
In asbestos litigation, the relevant test to be applied can be found in Stokes –v- Guest, Keen and Nettlefold (Bolts and Nuts) Ltd  1 WLR 177 namely, that of the reasonable and prudent employer taking positive thought for the safety of his workers in the light of what he knows or ought to know.
Foreseeability of injury
In applying the principles in Hughes –v- Lord Advocate AC 837 to claims of this type, foresight of specific pulmonary injury is not necessary, providing some injury of the same kind can be shown to be foreseeable.
In the case of exposure pre-1965, when the risk of mesothelioma became known and therefore foreseeable, in order to succeed a claimant must establish that the exposure was sufficient to create a foreseeable risk of him suffering from asbestosis.
The developing state of knowledge
In general, a defendant is to be judged by ‘the imperfect standards of the time’ and not with hindsight. (Asmussen –v- Filtrona United Kingdom Limited EWHC 1734).
In determining when an employer will be fixed with culpable ‘knowledge’, the courts have been guided by various historical articles and publications. Some key dates in this regard are as follows:
1930- The Merewether and Price Report established a link between chronic exposure to asbestos dust and the onset of asbestosis. The conclusions of the report led to the enactment of the Asbestos Industry Regulations 1931.
1938- The Annual Report of the Chief Inspector for Factories 1938 which led to the establishment of ‘safe’ dust levels.
1945- Letter from Sir A.W. Garrett, HM Chief Inspector of Factories, to shipbuilders highlighting the dangers of working with asbestos.
1949- Letter from HM Deputy Chief Inspector of Factories to firms engaged in insulating power stations highlighting the hazards associated with asbestos exposure.
1951- The Annual Report of the Chief Inspector of Factories advised manufacturers of asbestos of the importance of preventing as far as possible the inhalation of asbestos fibre and dust.
1955- The link between lung cancer and asbestos exposure was established in the article Mortality from Lung Cancer in Asbestos Workers (Doll, BMJ, 1955.)
1956- The Annual Report of HM Chief Inspector of Factories highlighted the risks posed by those undertaking removal of asbestos lagging.
1959- The Report of HM Chief Inspector of Factories 1960, Toxic Substances in Factory Atmospheres, described practical measures which should be taken by employers to prevent the inhalation of toxic dust.
1965- On 31 October 1965, The Sunday Times published a front page article from its medical correspondent referring to mesothelioma as a ‘killer dust disease.’ The article was based upon a report by Newhouse and Thompson which was published in the British Journal of Industrial Medicine that year. The report demonstrated definitively that even low levels of exposure to respirable asbestos dust could lead to the development of mesothelioma.
Case law on date of knowledge
Shell Tankers –v- Jeromson  EWCA Civ 101 involved exposure of an engineer between 1950 and 1961. The Court of Appeal concluded that where an employer cannot know the extent of the employee’s exposure, the potential maximum exposure must be considered.
However, it should be noted that in this case, the deceased was exposed to significant levels of asbestos dust and, at first instance, the judge confirmed that a different conclusion might have been reached if the exposure was ‘limited, intermittent or occasional.’
Harrington –v- Department for Business, Enterprise and Regulatory Reform  EWHC 2658 involved exposure of a National Coal Board employee between 1956 and1958. It was accepted that in order to succeed, the claimant would need to establish that he was exposed to significant quantities of asbestos dust.
In Abraham –v- G. Ireson & Son (Properties) Limited & Another  EWHC 1958, the claimant had been exposed between 1956 and 1961 when he was employed by two small businesses - one a general builder and the other a general plumbing firm.
It was found by the court that the claimant’s exposure had been ‘light.’ Neither defendant employer was held liable on the basis that not until after publication of the Newhouse and Thompson papers in 1965, at the earliest, could they have been aware that asbestos exposure at the levels to which the claimant was subjected gave rise to a risk of injury.
In the recent case of McDonald –v- National Grid Electricity Transmission PLC  UKSC 53, while the claimant ultimately succeeded on breach of statutory duty (see below), the case is helpful to defendants in terms of what was said in the context of common law negligence.
The case concerned low-dose exposure in the 1950s. Between 1954 and 1959, the deceased was required to visit a power station occupied by the second defendant. He alleged that his condition was caused by exposure to asbestos which had occurred while visiting the power station during the course of his duties.
He brought claims for negligence against his employer and the occupier of the power station. He also brought claims for breach of statutory duty pursuant to Regulation 2(a) of the Asbestos Industry Regulations 1931 and Section 47(1) of the Factories Act 1937 against the occupier alone.
On the claim in negligence, the trial judge found that the exposure to asbestos was ‘modest’ and that consequently, no-one could have foreseen the harm ultimately experienced by the claimant. This aspect of the claim failed accordingly.
Breach of statutory duty
The Asbestos Industry Regulations 1931
The Regulations were initially intended to apply to factories engaged in asbestos manufacture. However, they have subsequently been construed to apply broadly beyond the asbestos industry (see the reasoning of Hale LJ in the Cherrytree case  ICR 1223.)
In McDonald, (see above) the claimant alleged a breach of Regulation 2(a) of the 1931 Regulations, which prohibited the mixing or blending by hand of asbestos unless there was an ‘exhaust draft effected by mechanical means so designed and maintained as to ensure as far as practicable the suppression of dust.’
The Supreme Court rejected the defendant’s argument that the Regulations applied only to the ‘asbestos industry’ and as such were confined to factories and workshops where asbestos was manufactured. The claimant succeeded in terms of breach of duty. Notably, the duty here was imposed on the defendant as occupier of the premises where the alleged exposure took place.
This judgment is particularly significant in terms of low-dose exposures, as the 1931 Regulations apply to all levels of asbestos exposure and would therefore potentially apply to these cases whereas, previously, it would have been argued that such was not foreseeable at common law. However, in order for the Regulations to ‘bite’, the claimant must have been employed in factory premises pursuant to the definition detailed in the Act (but not necessarily by the occupier.)
The Factories Act 1937
This statute applied to a wide variety of premises and imposed duties on employers which included the provision of ventilation and the protection of employees from exposure to harmful dust.
The relevant part of the Act is Section 47 which required practicable measures to be taken in relation to dust ‘of such a character and such an extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind.’
To establish liability a claimant is, in practical terms, in the same position as with the common law duty in relation to exposure prior to 1965 – namely, that substantial exposure sufficient to create a risk of asbestosis must be proven.
In McDonald, (see above) the Court of Appeal held that the claimant had to establish that: a) the asbestos dust was given off ‘in connection with a process’ at the power station; b) the claimant was a ‘person employed’ within the meaning of the section; c) the quantity of asbestos had been substantial; d) the claimant had inhaled dust given off by the relevant process.
As McDonald involved low-level exposure, he could not meet condition c) and demonstrate that he had been exposed to a ‘substantial’ level of dust.
In mesothelioma claims, the question of foreseeability will be determined by the level and extent of exposure. While it is difficult to say with any degree of precision, (the case of Abraham suggests that there is no one standardised rule in terms of foreseeability in mesothelioma cases) one can reasonably conclude that, where exposure is low, particularly in industries not typically associated with heavy exposure, defendants will be able to argue that the appropriate date of knowledge is 1965.
Prior to that date, for the risk of mesothelioma to be considered to be reasonably foreseeable, a claimant will need to demonstrate exposure to substantial significant quantities of asbestos dust. Whether this standard is met will, of course, turn upon the facts of the case. It is therefore important when assessing breach of duty, to carefully consider the claimant’s case on exposure in each individual case.