Key Facts
- •Two appeals against dismissal of mesothelioma claims were heard together.
- •Both cases involved asbestos exposure in the 1950s, before mesothelioma was widely recognized as a foreseeable risk.
- •The White appeal concerned exposure at Sefton General Hospital, while the Cuthbert appeal involved exposure at Queenswood School.
- •The central issue in both appeals was whether the trial judges applied the correct legal test for establishing a duty of care.
- •The White appeal did not challenge the factual findings, while the Cuthbert appeal challenged both the factual and legal findings.
Legal Principles
The test for an employer's liability is the conduct of a reasonable and prudent employer, taking positive thought for worker safety in light of what they know or ought to know.
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776; Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405
Foreseeability of damage in a personal injury claim means only that the risk of some personal injury must have been foreseeable, not necessarily the specific injury suffered.
Margereson v J W Roberts Ltd [1996] PIQR P358; Abraham v Ireson and Reynolds [2009] EWHC 1958 (QB)
A reasonable employer must keep reasonably abreast of developing knowledge about risks and not be too slow to apply it.
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776
The foreseeability of risk of injury must be assessed by reference to the standards of the time, not with the benefit of hindsight.
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776
An employer is liable for any type of damage which is reasonably foreseeable as liable to happen, even in the most unusual case, unless the risk is so small that a reasonable man would neglect it.
Czarnikow Ltd v Koufos [1969] 1 AC 350
The question of foreseeability involves a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time.
Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB)
Outcomes
Both appeals dismissed.
The trial judges correctly applied the legal test for foreseeability, considering the state of knowledge in the 1950s. The level of asbestos exposure in both cases was not sufficient to trigger a duty of care based on the knowledge available at the time. The court found no errors in the trial judges' approach to the evidence or their factual findings.