Mesothelioma mishmash

Simon Morrow and Malcolm Keen discuss the patchwork approach taken by the courts when giving judgment in asbestos cases

The asbestos-related cancer mesothelioma has recently been the subject of government intervention, parliamentary scrutiny and judicial review. The Health and Safety Executive (HSE) statistics published in October 2014 suggest that deaths from mesothelioma have not yet peaked. A unique feature of mesothelioma is the exception to the normal rules of causation which applies to it. 

However, there is no such exception to the rules governing breach of duty at common law or under statute. A recent mesothelioma case illustrates this. Another recent case, however, suggests a strict interpretation of certain historic duties relating to asbestos in specific circumstances.

Duty and knowledge

In Macarthy v Marks & Spencer plc and Another [2014] EWHC 383 (QB), the deceased’s only known exposure to asbestos occurred while working at stores operated by the defendant. He worked for the third party in the claim, a shop-fitting company. He started off as an employee, was then a director, and latterly was managing director. There were two periods of asbestos exposure: 

(i) A few weeks in the summer of 1967 at the defendant’s York store while working as a joiner; and

(ii) From 1967 to 1990 while carrying out surveys and inspections at the defendant’s stores. In 1984, the defendant issued guidance regarding working with asbestos. This required contractors (such as the deceased) to wear personal protective equipment.

Relevant official guidance documents included:

• 1960: Toxic Substances in Factory Atmospheres (Ministry of Labour);

• 1966: Dust and Fumes in Factory Atmospheres (Ministry of Labour);

• 1970: Technical Data Note 13 (HM Factory Inspectorate); 

• 1976: EH10 (HSE);

• 1983: EH10 (Reissue)

The above guidance documents set out, among other things, threshold limit values (TLVs) or standards in relation to control and exposure between 1960 and 1984. These TLVs developed over time. These guidance documents proved vital in deciding whether the defendant was in breach of duty.

The 1966 guidance document set a TLV of five million particles per cubic foot (mppcf) of air. 

The 1970 guidance document set TLVs of two fibres/cc (2 fibres/ml) for chrysotile and amosite asbestos, and 0.2 fibres/cc for crocidolite. The document indicated that HM Factories Inspectorate would not seek to enforce the substantive provisions of the 1969 Asbestos Regulations for exposures below these levels. 

The TLV in the 1976 guidance document was 0.2 fibres/ml for crocidolite and two fibres/ml for other types of asbestos. However, an extra duty was added: exposure to all forms of asbestos dust should be reduced to the minimum that is reasonably practicable.

In the 1983 guidance document the TLVs were: chrysotile - 1 fibre/ml, amosite – 0.5 fibres/ml, crocidolite – 0.2 fibres/ml.

Expert evidence 

The claimant’s engineer considered that while the deceased’s exposure would not have exceeded the TLV in the relevant guidance document at the time, precautions should have been taken. In their joint statement, the experts agreed the deceased was likely to have been exposed to asbestos dust during the work he described in his witness statement. They agreed that the exposures were unlikely to have exceeded the TLVs at the time. But they disagreed about the implications of the deceased’s exposure, and the implications of comparisons to the occupational exposure limits.

The defendant’s expert (an occupational hygienist) considered that the term “as low as reasonably practicable” was not absolute. It should be viewed as relative to the knowledge at the time. The deceased’s exposure would not have been at a level likely to have caused injury by the standards of the day. In contrast, the claimant’s expert considered that where reasonably practical, reductions in exposure could be made to exposure that was below the TLV.

Key findings

The judge was satisfied the deceased’s mesothelioma was caused by exposure to asbestos at work. The judge was clear that the deceased contracted mesothelioma while he was carrying out work for the third party at the defendant’s stores sometime between 1967 and 1984 (when he began to wear protective respiratory equipment and clothing). 

The judge accepted the defendant’s expert’s evidence where it differed from that of the claimant’s expert. The claimant’s expert was applying an unrealistic standard either to the circumstances in which the deceased was carrying out his work at the York store in 1967, or considering the nature of his work, when he was subsequently carrying out inspections. 

Applying the test in Williams v University of Birmingham [2011] EWCA Civ 1242, the judge did not consider that, assessed by the standards of the time, it was reasonably foreseeable that the defendant should have appreciated that the presence of asbestos dust was likely to be injurious to the health of other contractors on site who came into contact with asbestos dust – certainly not in the quantities which the experts agreed were involved here. 

By July 1984, the risks of asbestos were firmly recognised, leading to the implementation by the defendant of guidance for contractors working at the premises.

The judge noted the experts agreed that the levels of asbestos dust to which the deceased would have been exposed while surveying and inspecting would have been less than the TLV at the time. The judge concluded that the phrase “so far as is reasonably practicable” contained in EH10 in 1976 did not extend, by the standards of the time, to requiring protective respiratory equipment and clothing to be used while the deceased was carrying out inspections. 

Accordingly, the defendant was not in breach of its common duty of care under section 2(2) of the Occupiers Liability Act 1957 to take such care as was reasonable to see that the visitor would be reasonably safe in the circumstances at the time.

The claim thus failed in relation to both exposure in 1967 and in relation to inspecting store premises up until 1984. 

Macarthy illustrates the importance of contemporary guidance documents in establishing the knowledge, and thus standard of care, required of a defendant in relation to asbestos. In addition, and perhaps more controversially, in Macarthy the judge imported the concept of foreseeability into the duty to reduce exposure to the minimum that is reasonably practicable. Macarthy illustrates that while the rules of causation are relaxed in mesothelioma claims, the requirement to prove breach of duty in the ordinary way remains. Another recent mesothelioma case involving exposure in factory premises evidences a different approach in relation to a statutory duty rather than common law.

Duty without knowledge

In McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53, between 1954 and 1959, the deceased, in the course of his employment as a lorry driver, was required to visit the power station occupied by the defendant in order to collect pulverised fuel ash for use by his employer. 

In July 2012, he was diagnosed with mesothelioma. He alleged that his condition was caused by exposure to asbestos at the defendant’s power station. He brought claims for negligence against his employer and the defendant occupier and for breach of statutory duty (regulation 2(a) of the Asbestos Industry Regulations 1931 and section 47(1) of the Factories Act 1937) against the defendant occupier only. At first instance, the claims failed. The Court of Appeal dismissed the claims in negligence but found in the claimant’s favour under the Asbestos Industry Regulations 1931. The deceased died in February 2014.

The defendant appealed against its liability under the Asbestos Industry Regulations 1931, to which the claimant (the deceased’s widow) cross-appealed against the dismissal of the claim under the Factories Act 1937; the negligence claim was then no longer pursued.

The issues for the Supreme Court were the defendant’s liability under:

(i) The 1931 Regulations; and 

(ii) Section 47(1) of the Factories Act 1937.

The deceased’s exposure to asbestos was low (such that it did not at the time give rise to a foreseeable risk of injury). 

The majority (Lord Kerr, Lady Hale, Lord Clarke) found that the 1931 Regulations applied here and the defendant was in breach of regulation 2(a), and dismissed the defendant’s appeal. By a majority (Lord Kerr, Lord Reed and Lord Neuberger), the claimant’s cross-appeal was dismissed (Lord Clarke was silent on section 47(1)).

Significance

McDonald shows that the Asbestos Industry Regulations (despite their title) are not confined to the asbestos industry. They can apply to factories in general. McDonald is significant for mesothelioma cases because liability under regulation 2(a) does not require knowledge of the risk of harm (ie foreseeability). So liability could potentially result from exposure to a level of asbestos not known to pose a risk of harm by the defendant at the time. However, the impact of regulation 2(a) on mesothelioma claims is likely to be restricted by three main elements:

(i) the Asbestos Industry Regulations 1931 came into force in 1932 and were repealed in 1970 when the Asbestos Regulations 1969 came into force. So the claim must relate to employment before 1970;

(ii) the claimant must have been employed in factory premises (but, as in McDonald, not necessarily by the occupier); and

(iii) the 1931 regulations apply to all levels of asbestos exposure. However, heavy exposure is likely to give rise to a known risk of respiratory injury and thus amount to a breach of duty at common law anyway. So McDonald is likely to impact on low-dose exposure cases – those which previously would have been limited by foreseeability (at common law and in respect of “injurious” in the Factories Acts 1937 and 1961).

McDonald suggests a liability and safety paradox: greater statutory protection (and thus a stricter approach) applying from 1932 to 1970 (under the 1931 Regulations) than from 1970 when the Asbestos Regulations 1969 came into force. 

Common law negligence

Common law negligence was not in issue in the Supreme Court in McDonald, therefore it is strongly arguable that the Court of Appeal’s view in McDonald remains extant. Despite some authorities suggesting that the duty at common law is to reduce exposure to the greatest extent possible, the Court of Appeal in McDonald fell on the side of the “guidance document approach” suggested by contemporary literature, which can permit some exposure to asbestos. 

Macarthy and McDonald show the plethora of issues thrown up by mesothelioma claims. They also show the arguably patchwork approach to these cases by the courts, which itself has led to a degree of intellectual incoherence. Some strands may be drawn together, however. Macarthy and McDonald suggest that common law negligence turns upon the general state of knowledge at the time in question. Guidance literature is relevant to knowledge. Despite some authorities suggesting that the duty at common law is to reduce exposure to the greatest extent possible, the “guidance document approach” suggested by contemporary literature which can permit some exposure to asbestos is likely to be correct. This view also accords with recent cases such as Hill v John Barnsley, Williams v University of Birmingham, and McGregor v Genco. SJ

Simon Morrow, pictured, is a partner and Malcolm Keen a solicitor at BLM