Court of Appeal Clarifies Foreseeability in Asbestos Exposure Cases

Introduction

In the recent judgments of “Emma Jane White & Ors v Secretary of State for Health and Social Care” and “Jennifer Ann Cuthbert (Executrix of the estate of DEREK BARRY CUTHBERT, deceased) v Taylor Woodrow Construction Holdings,” the Court of Appeal has provided clarification on the foreseeability aspects in tort law with direct implications for industrial disease claims linked to asbestos exposure. This article analyses the legal principles applied in these judgments and their impact on determining an employer’s duty of care regarding the risks associated with asbestos exposure.

Key Facts

In both cases, the appellants sought damages for deaths caused by exposure to asbestos. The central legal issue revolved around whether the employers had or should have had the foresight of a significant risk of asbestos-related injury during the 1950s when the respective decedents were exposed. The White appeal focused on lab work exposure, whereas the Cuthbert appeal considered construction-related asbestos exposure. Both appeals questioned how, historically, the duty of care should be interpreted, specifically asking whether the defendants were negligent for not acting to eliminate or reduce asbestos exposure to the fullest extent possible.

Legal Principals

The legal principles revisited in these appeals center on the established tortious concepts of foreseeability, duty of care, and negligence.

Foreseeability and Duty of Care: It was reiterated that the foreseeability of the type of injury, and not specifically mesothelioma, is the determining factor for establishing an employer’s duty of care. This duty is relative to the level of knowledge that a reasonable and prudent employer had, or ought to have had, at the relevant time. This means the employers should have been aware of the grand risks linked to the inhalation of asbestos dust, reflective of the standards of the mid-20th-century (see Lord Wright in Bourhill v Young).

Buxton J’s Dictum: The Court critically considered Buxton J’s dictum in Owen concerning the foreseeability of asbestos risks and the duty on employers to reduce exposure to the greatest extent. The Court clarified that low-level risk that was not appreciated in the 1950s does not retrospectively constitute negligence (see Maguire v Harland and Wolff PLC).

Objective Test and Reasonableness: The Court applied an objective test, considering what a reasonable employer during the 1950s should have foreseen concerning asbestos exposure, with reliance on scientific knowledge and industry standards of the time.

Jeromson and Owen: The Court distinguished these cases on their facts, stating they involved significantly higher levels of exposure.

Outcomes

In the White appeal, the Court dismissed the appeal, affirming the original decision that the exposure to asbestos was de minimis (insignificant), intermittent, and not enough to create a reasonably foreseeable risk of asbestos-related injury.

In the Cuthbert appeal, the Court upheld the original judgment, concluding that the deceased’s employer did not owe a duty to protect him because the risks of the “light and intermittent” level of exposure were not considered significant or foreseeable at the relevant time.

Conclusion

The Court of Appeal has clarified the application of the principles of foreseeability and duty of care in the context of historical asbestos exposure claims. The key takeaway from these cases is the essentiality of contemporaneous knowledge at the time of exposure to establish a foreseeability benchmark. The judgments reject the application of current understandings retroactively, aligning legal responsibility with the standards of duty of care through the prism of the knowledge available at the time. Thus, the Court has delineated a threshold for when historical employer liability for asbestos exposure may attach, grounded firmly in the objective standard of the reasonably prudent employer informed by the then-prevailing scientific knowledge and industrial practice. The decisions stand as a notable guide for legal professionals navigating similar industrial disease claims sparked by historical events.