Letting the dust settle

1 Jul 2014Feature

McGregror v Genco (FC) Ltd shows the importance of assessing standards at the time of the alleged breach of duty in mesothelioma claims, say Simon Morrow and Malcolm Keen

Notwithstanding that the claimant’s mesothelioma in McGregor was caused by exposure to asbestos during her employment with the defendant in 1976, the defendant was not in breach of duty.

Based on official guidance and standards at the time, the claimant’s exposure to asbestos over several months did not give rise to a foreseeable risk of injury. McGregor shows the importance of assessing levels of knowledge at the time of the alleged breach of duty without the benefit of hindsight. It has significant implications for low exposure mesothelioma claims.

An employer owes a duty of care to his employees at common law. But deciding whether the duty has been breached may be far less obvious. Developments in personal injury and disease law are often generated by asbestos-related illness litigation, particularly relating to mesothelioma – a malignant tumour of the
linings of the lungs or abdomen associated with exposure to asbestos. Two of the principal reasons for this are:

The historic element. Exposure to asbestos is likely to have taken place many years ago, so the standards and duties in issue are those in place at that time.
Causation. Unusual features of mesothelioma led the House of Lords to create a special rule governing proof of causation. Asbestos-related illness cases have examined the role of epidemiology in the law of causation.

At common law, the employer’s duty is to protect against a foreseeable risk. The court must decide if the risk of harm in question was reasonably foreseeable to the defendant employer at the time of the alleged breach. What did the employer know? What ought the employer to have known? What should the employer have done? As knowledge of a particular agent (such as asbestos) develops over time, knowledge of the risk of injury associated with particular work and exposure to the agent also develops.

The reasonable employer

Guidance in respect of the employer’s duty of care in an area of developing knowledge is found in Stokes v Guest Keen and Nettlefold [1968] 1 WLR 1776, as modified in Thompson v Smiths Shiprepairers [1984] QB 405, and approved in Baker v Quantum Clothing Group [2011] UKSC 17.

The test is the conduct of the reasonable and prudent employer, taking positive thought for the safety of their workers in light of what they know or ought to know. The employer must keep up to date, but the standard of what is or is not negligent will be influenced by practice in the industry as a whole. A number of recent mesothelioma cases have considered the correct approach.

In Williams v University of Birmingham [2011] EWCA Civ 1242, the Court of Appeal found that the defendant was not in breach of duty in relation to exposure to asbestos for a period in 1974. The best guide to what was an acceptable and what was an unacceptable level of exposure to asbestos was that found in found in the Factory Inspectorate’s 1970 guidance document TDN 13. The defendant was entitled to rely on recognised and established guidelines such as those in TDN 13.

The well-informed employer

In Hill v John Barnsley & Sons Ltd [2013] EWHC 520 (QB), the deceased was exposed to asbestos while employed at a power station for approximately a three month period in 1968/69 to 1969/70. Bean J found that the deceased worked in an area where dust containing asbestos had been allowed to settle in substantial quantities.

Bean J noted that Aikens LJ in Williams approved Simon J’s observations in Asmussen v Filtona United Kingdom Ltd [2011] EWHC 1734 (QB), that foreseeability of injury is to be tested against the standard of the well-informed employer who keeps abreast of the developing knowledge and applies his understanding without delay, and not by the standard of omniscient hindsight. Bean J considered that Williams was correctly decided, and binding on him. Williams meant that: “… if an employer or occupier in 1970-74 had no reason to think that the TDN 13 levels of exposure would be exceeded, then injury from asbestos fibres was not reasonably foreseeable.”

In Hill, the defendant was liable because the level of asbestos fibres to which the deceased was foreseeably exposed was far more than the levels in TDN 13.

Breach of duty in mesothelioma cases was considered by the High Court in Manchester last month in McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB). McGregor provides practical guidance on the correct approach. It also addresses the wider issue of the relationship between time, knowledge and duty in personal injury and
disease litigation.

McGregor

The claimant, McGregor, worked in the shoe concession at a department store in Liverpool in the 1970s and early 1980s. For a period in 1976, work was undertaken at the store to remove old escalators and install new ones. The demolition and installation work took place about ten feet from the shoe concession, during the day when the shop was open to the public.

The engineering experts agreed that an asbestos insulating board was used in the old and the new escalators. The claimant described her place of work as extremely dusty. White dust settled on the shoes on display. The claimant was diagnosed with mesothelioma in August 2012. She sought damages from the successor to her employer, who operated the shoe concession.

Patterson J found that the claimant was exposed to asbestos for “a matter of months” in 1976, during the escalator works. Patterson J accepted the claimant’s evidence on the presence of dust in the shoe concession. The works were protected by a floor to ceiling enclosure. For the duration of the works in 1976 a dusty atmosphere became part of the claimant’s working environment. Workmen on the project wore paper masks as they dismantled the escalators.

Patterson J accepted that the claimant’s exposure to asbestos here probably caused
her mesothelioma.

Development of knowledge

Patterson J examined the documents showing the development of knowledge of the harmful effects of asbestos. These included legislation, official government guidance and articles in medical and scientific journals. What should the defendant
have concluded from the relevant literature at the time? For Patterson J the answer was found in Abraham v Ireson [2009] EWHC 1958.

In Abraham, Swift J stated: “The question is whether it should have alerted an employer whose employee’s only exposure to asbestos was light and intermittent (as I have found the claimant’s exposure to have been) to the possibility that he might be at risk of contracting an asbestos-related injury.”

In McGregor, Patterson J was clear that exposure was light, and for “a relatively short period, a matter of months.”

The experts agreed that while it was possible that the claimant was exposed to asbestos in excess of the relevant standard at the time (Technical Data Note 13, Standards for asbestos dust concentration for use with the Asbestos Regulations 1969, HM Factory Inspectorate, March 1970), on the balance of probabilities, it was unlikely.

It was common ground that at the time the floor to ceiling enclosure would have been regarded as adequate protection, albeit one that would not be acceptable by current standards. However, Patterson J was clear that: “It is important … not to look back with the rose tinted glasses of hindsight and consider the position by the standards operative in 1976.”

Patterson J then considered whether there was a further duty to make risk enquiries as the works progressed. The works were of short duration. Absent any particular circumstance to alert the defendant to an enhanced or different risk as the work progressed, there was not. The protection provided by the enclosure was not “clearly bad.”

For Patterson J, there was nothing which ought to have alerted the defendant that the precautions were inadequate and required alteration. The fact that some workmen wore masks would not have been sufficient to put a duty on the defendant to make enquiries.

Dismissing the claim, Patterson J concluded that: “In the circumstances I am unable to accept that during 1976 when the escalator work was being carried out that the defendant should have appreciated that the claimant was at risk of an asbestos related injury, and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent.”

Implications

The date of knowledge is the date when the reasonable and prudent employer (whose knowledge the defendant will be held to) would have known (or ought to have known) of the risks of respiratory illness caused by asbestos dust, and would have taken steps to protect its employees.

Official guidance and scientific papers show the historic development of knowledge of the harmful effects of asbestos. They have assisted the courts in establishing the date when a particular employer ought to have been aware of a foreseeable risk of injury. McGregor shows the importance of official guidance documents at the time of the alleged breach of duty.

Patterson J’s comment “rose tinted glasses of hindsight” is reminiscent of Denning LJ’s comment in Roe v Minister of Health [1954] 2 QB 66 in respect of developing medical knowledge (in a case decided by the Court of Appeal in 1954, concerning events in 1947): “We must not look at the 1947 accident with 1954 spectacles.”

Adapted for McGregor this could translate to: “We must not look at the 1976 asbestos exposure with 2014 spectacles.”

McGregor illustrates that it is knowledge and guidance at the time of the alleged breach of duty which the defendant must be held to, and his conduct, measured against. SJ

Simon Morrow, pictured, is a partner and Malcolm Keen a solicitor at Berrymans Lace Mewer

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