Looking back in time: the duty of employers to protect their employees from the dangers of asbestos

Over the years, the Court of Appeal has been asked on more than one occasion to consider to what extent, and when, employers ought to have taken action to protect their employees from the dangers of asbestos.

This is understandable as this is a difficult task. As highlighted in the judgment on this conjoined appeal, there are now no witnesses with direct personal experience either as to medical knowledge at the time, or standards which could reasonably be applied to employers. So, the court has the difficult task of considering what a reasonable employer in the 1950s and early 1960s (some 60+ years ago) ought to have done, based only on available literature from the era.

In both cases, the first instance courts found that there was some exposure to asbestos, but at a comparatively low level. The question was whether such low-level exposure was sufficient to impose liability on an employer from that era.

White – first instance

The deceased was exposed to asbestos when working at the Sefton General Hospital, Liverpool between 1948 and 1960 as a lab technician.

Mr Jeremy Hyam KC, (sitting as a Deputy Judge at the High Court) found that there was some exposure to asbestos, albeit intermittent and in very low quantities.

The sole occupational hygienist evidence was used to assess the degree of exposure, with documents provided as to knowledge.

The judge found that mats used in the labs were made of asbestos millboard. These were relatively soft and friable. Normal usage, and occasional breakages, would result in small amounts of asbestos dust being emitted. Exposure was intermittent rather than continuous and probably at low levels for no more than 12 minutes per day. This was, though, a medically significant increase in the risk of mesothelioma.

The judge considered whether the defendants ought to have been aware that there was a significant (not fanciful) risk. Any real risk (even statistically small) of a fatal illness is significant. Further, he considered whether the defendants took proper precautions to reduce or eliminate the risk, or take advice whether to do so.

The judge noted that the expert’s view was that throughout the 1950s and into the 1960s, the prevailing view was that occasional and relatively low-level exposure to asbestos was not thought to be hazardous and would not have warranted precautions. The judge further found that such expert advice would not have identified a concern for the defendants about the use of the mats in the labs.

The judge found that the defendants did not know, and could not have known, that such low-level exposure to asbestos was a risk against which they ought to guard.

Cuthbert – first instance

The deceased had been exposed to asbestos during construction work at Queenswood School, Cheshunt, between 1956 and 1959.

The judge (HHJ Freedman, sitting as a Judge at the High Court) found that the deceased’s exposure to asbestos had been ‘irregular and intermittent’ through contact with carpenters who would cut up asbestos material. There was sweeping up ‘from time to time’. The overall exposure was found to be ‘of a low order, light and intermittent and, in the main, as a bystander’.

The judge noted inconsistencies between the two witness statements which the deceased had provided and rejected some of the evidence.

The judge found that the deceased had sporadic contact with the carpenters who would sometimes have cut asbestos board for soffits. The judge accepted that there would be some sweeping up by the deceased, but this was a very small part of his working day, perhaps 10 minutes daily. The judge accepted that the expert evidence as to exposure was necessarily imprecise, involving a large degree of speculation.

A review of the literature was undertaken. The judge found that a reasonable employer, keeping abreast of the available knowledge, could not reasonably have foreseen that there was a significant (more than fanciful) risk of injury at the level of exposure found.

This case was appealed on the grounds that the judge could not reasonably have found that the exposure was ‘light and intermittent’ and also that there was no breach of duty.

Issues for the appeal

Accordingly, the court noted that the appeal in each case related to whether the correct test of foreseeability had been applied. In Cuthbert, there was also an appeal in relation to the findings of fact made.

Literature review

The court noted that it had been provided with some 70 publications, a total of five volumes. The parties determined the most important 28 for the court to consider. The court noted that this exercise was well-trodden ground. The court also considered previous reviews including by Swift J in Abraham v G Ireson & Son (Properties) Ltd & Anor [2009] EWHC 1958 (QB), Simon J in Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB), Hale LJ in Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 101 and Judge LJ in Maguire v Harland & Wolff Plc & Anor [2005] EWCA Civ 1.

The review started with the Merewether and Price paper 1930, which identified an increase in fibrosis relative to the length of employment for asbestos workers. This led to the Asbestos Industry (Asbestosis) Scheme 1931 and the Asbestos Industry Regulations 1931.

Consideration was given to: Section 47 of the Factories Act 1937 (a general provision in relation to dust); annual reports by the Chief Inspector of Factories; a 1955 Professor Doll paper noting a link between asbestosis and lung cancer; and a Ministry of Labour booklet entitled ‘Toxic Substances in Factory Atmospheres’ 1960, which included maximum permissible concentrations for asbestos.

Wagner’s paper ‘Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province’ began a sea change in relation to knowledge of the risk of mesothelioma during the 1960s.

Between 1960 and 1965 research continued, with a ‘watershed’ moment in 1965 being the publication of Newhouse and Thompson’s paper ‘Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area’, leading to a major article in the Sunday Times on 31 October 1965.

Further literature was considered: the Department of Education and Science’s Administrative Memorandum 20/67 in relation to asbestos products, including mats, in schools; a report into asbestos use on a building site in Glasgow 1967; further annual reports by the Chief Inspector of Factories; the Factory Inspectorate’s Memorandum by the Senior Medical Inspector’s Advisory Panel called ‘Problems arising from the use of Asbestos’; standards published by the Committee on Hygiene Standards in 1968; the Asbestos Regulations 1969; ‘Asbestos Health Precautions in Industry’ by the Department for Employment and Productivity, 1970; Technical Data Note 13 (TDN13) by the Department for Employment and Productivity on ‘Standards for Asbestos Dust Concentration for Use with the Asbestos Regulations 1969’; TDN 35 by the Department of Employment in 1972 entitled the ‘Control of Asbestos Dust’; and the Luxon paper of 1973 explaining the development and application of threshold limit values.

It is noted that there was a ‘collapse’ in acceptable exposure levels between 1960 and 1970, given the growing appreciation of the dangers of low-level asbestos exposure.

Overview of the literature

Whilst the present cases were not test cases, they were all decided on the literature, taking into account previous case law. Any further relevant information was unlikely to materialise. Certain propositions became clear:

1. Until the 1960s, the risks appreciated were of asbestosis (and later lung cancer). The risks were, or should have been, appreciated by employers whose business involved the use of asbestos.
2. Appreciation of those risks was not limited to those working in the asbestos industry. As the use of asbestos expanded, so an appreciation of the risks of injury through asbestos spread.
3. The risk of asbestosis (and subsequently lung cancer) was thought to arise on what now would be regarded as substantial exposure to asbestos. There was thought to be a ‘dust datum’ below which there was no real risk of contracting disabling asbestosis.
4. The 1960s saw a sea change in the perception of risk after 1960 (Wagner’s paper) and especially in 1965 (the Newhouse/Thompson paper). It was only from the 1960s onwards that mesothelioma was appreciated as a foreseeable risk from asbestos inhalation at all, or that there was a foreseeable risk of mesothelioma after asbestos exposure at lower levels.
5. There is no evidence to support the proposition that employees before 1960 should have appreciated that asbestos exposure at low levels would create a risk of asbestosis or other pulmonary, or personal, injury.
6. There is no evidence that any body of employers (or other significant body) appreciated before the 1960s that there was a foreseeable risk of injury after exposure to an asbestos level significantly below those thought necessary to cause asbestosis or lung cancer.
7. The emergence of an appreciation of the risks associated with lower levels of exposure can be traced back in literature from the 1960s, but not before.
8. Repeated references to exposure limits during this period give further evidence that in the period up to the end of the 1950s, it was not reasonably foreseeable that this exposure to asbestos at significantly lower levels gave rise to a significant foreseeable risk of injury.

Legal principles

The judgment then sets out ‘established principles’ and proceeds to traverse what might be considered to be something of a ‘Greatest Hits’ of industrial disease case law, including:

• Bourhill v Young [1943] AC 92;
• Baker v Quantum Clothing [2011] 1 WLR 1003;
• Stokes v Guest, Keen and Nettolfold [1968] 1 WLR 1776;
• Thompson v Smiths Shiprepairers [1984] QB 405;
• Margereson v J W Roberts Ltd [1996] PIQR P358;
• Page v Smith [1996] AC 155;
• Williams v University of Birmingham [2012] EWCA Civ 1242;
• Jeromson v Shell Tankers [2001] EWCA Civ 101; and
• Maguire v Harland and Wolff PLC [2005] EWCA Civ 1.

The court set out that:

‘It is not, and never has been, the law that a person is obliged to take all possible steps to prevent the occurrence of a risk that is not reasonably foreseeable. A risk does not become foreseeable simply because hindsight shows that it has not been excluded; and the mere fact that a certain level of exposure to asbestos is recognised to be dangerous does not necessarily give rise to a foreseeable risk of injury in the event of different levels of exposure or different contexts.’

The court found that the correct question it should be asking was:

‘The issue in each appeal is whether during the 1950s a reasonable and prudent employer, taking positive thought for the safety of his employees in the light of what he knew or ought to have known, should have appreciated that there was a foreseeable risk of personal injury if their employee was exposed to the levels of asbestos found by the respective judges (subject, of course, to the challenge to the Judge’s findings of fact in the Cuthbert case).’

Resolution of the appeals

In Cuthbert, the court found the first instance judge’s factual findings to be sound.

In each case, it was found that the judges had identified the correct issues and asked themselves the right questions. The evidence was that exposure was at low levels. If advice had been sought, no steps to reduce exposure would have been recommended. Consideration that the exposure was lower than levels in later guidance was relevant, although not determinative.

Each appeal was dismissed.

Conclusions

This case sets out some useful points:

• knowledge of the risks of ‘low level’ asbestos for employers in the 1950s and early 1960s is described, as above;
• a reminder that a person is not obliged to take all possible steps to prevent the occurrence of a risk that is not reasonably foreseeable;
• prior to Wagner’s paper in 1960, the risk from asbestos was limited to asbestosis and lung cancer. Whilst a duty of care would arise if any kind of personal injury were foreseeable, since only asbestosis and lung cancer were foreseeable, and since these were thought to arise only from high levels of exposure, there was no known risk at lower levels; and
• the 2-stage test set out in Bussey v Anglia Heating [2018] EWCA Civ 243, per Underhill LJ (at 63) remains intact: (1) should the defendant have been aware that the exposure to asbestos dust which the work involved gave rise to a significant risk of asbestos-related injury?; and (2) if so, did the defendant take proper precautions to reduce or eliminate that risk?