• Robert Spicer

Health and safety: asbestos

Leading cases on this issue include the following:

Fairchild and Others v Glenhaven Funeral Services and Others (200) The Times, 21 June, House of Lords

The claimants sought compensation in common law negligence from a number of their previous employers for mesothelioma contracted as a result of their exposure to asbestos at work. The Court of Appeal made the following points:

  • Mesothelioma arises when a single cell in the lung lining is damaged and undergoes malignant transformation.

  • Ninety per cent of mesothelioma cases in the UK are known to follow asbestos exposure.

  • The risk of mesothelioma increases with increased exposure to asbestos. The degree of severity of the condition does not.

  • If there has been more than one employment involving exposure to asbestos, there is no means of determining from which employment was derived the fibre or fibres which caused the malignant transformation.

  • The disease is almost always fatal within two years of its appearance.

  • The claimants could not prove, on the balance of probabilities, which period of exposure caused or materially contributed to the cause of the mesothelioma.

  • There was not a basis for claiming that since each exposure increased the risk of mesothelioma, the claimants could be compensated for the increased risk of contracting the disease.

  • Until the disease had developed, the employee did not know that he had an injury giving rise to a cause of action. Once it had developed, he had to establish on the balance of probabilities that a particular employer caused the disease.

On appeal to the House of Lords, the decision of the Court of Appeal was reversed. The Lords made the following points:

  • The injustice of denying an industrially injured employee a remedy outweighed any unfairness to successive employers who failed to protect the employee from such injury but who could not be proved to have caused the damage complained of.

  • In such a case, proof on a balance of probabilities that each employer’s wrongdoing had materially increased the risk of the employee contracting the disease, was to be treated as proof that each employer had materially contributed to it.

  • The mechanism which initiated the genetic changes culminating in mesothelioma was unknown. The trigger might have been a single asbestos fibre or a few or many fibres. Once caused, the condition was not aggravated by further exposure but the greater the quantity of fibres inhaled, the greater the risk of developing the condition.

  • If C was employed at different times and for different periods by both A and B, and both A and B were under a duty to take reasonable care to prevent C inhaling asbestos dust because of the known risk that such inhalation might cause mesothelioma, and both A and B were in breach of that duty, and C was found to be suffering from mesothelioma; and any cause for the mesothelioma other than the inhalation of asbestos dust could be discounted; but C could not prove which employment had resulted in mesothelioma because of the current limits of human science, then C could recover compensation from either A or B or both.

  • The case raised an obvious and inescapable clash of policy considerations. There might be unfairness to an employer where he might be found liable for damage which he had not caused. On the other hand, there was a strong policy argument in favour of compensating those who had suffered grave harm at the expense of their employers who had failed to protect them against that harm.

Barker v Saint Gobain Pipelines plc [2004] EWCA Civ 543, Court of Appeal

B died of mesothelioma in 1996, aged 57. He had been employed by Summers Ltd at its Shotton steelworks from 1960 until 1968. He was exposed to asbestos during this period. During one six-month period his work involved the regular stripping out of asbestos blankets, boards and wool which had ben used for insulation. B and his workmates were required to sweep up asbestos which had settled on the floor. Expert evidence confirmed that exposure to asbestos was heavy, frequent, regular and of long duration. In 1958 B worked for Graessers Ltd, mixing asbestos for pipe laggers. His exposure to asbestos during this period was described as heavy, regular, frequent and of medium duration. Between 1968 and 1969 B was a self-employed plasterer. He had contact with asbestos dust on three occasions. This involved heavy exposure for a short period.

B’s widow claimed compensation from Saint Gobain, the successor company of Summers Ltd. Saint Gobain was responsible for discharging the liabilities of Summers Ltd.

The High Court found in favour of B’s widow and made the following points:

  • It was impossible to attribute precise responsibility for B’s mesothelioma.

  • The law imposed liability on those who were responsible for materially increasing a risk which later materialised, even though others were also responsible for increasing the risk.

  • In relation to apportionment of liability, mesothelioma must be considered to be n indivisible injury. The general principle was that, where it is impossible to prove which of a number of tortfeasors singly or together caused an indivisible injury, then each tortfeasor is jointly and severally liable to pay full damages for the injury. This applied in the present case.

Saint Gobain appealed to the Court of Appeal which dismissed the appeal. It stated the following:

  • It would be unjust to impose liability on a party who had not been shown to have caused the damage complained of. On the other hand, there was a strong policy argument in favour of compensating, at the expense of their employers, those who had suffered grave harm. Their employers owed them a duty to protect them against that very harm and failed to do so, when the harm could only have been caused by that breach of duty.

  • Science did not allow accurate attribution, as between several employers, of precise responsibility for the harm suffered.

  • The injustice which might be involved in imposing liability on an employer in breach of duty in such circumstances was heavily outweighed by the injustice of denying redress to the victim.

Durie v Wyvern Structures Ltd 2000 Rep.L.R., Scottish Outer House

D, employed as a plumber’s mate, had been employed by W from 1942 until 1946, and by Y at various dates between 1946 and 1965. He died in 1975 and his daughter claimed compensation from W and Y, alleging that her father had died from asbestosis. The main issue in the case was the cause of death. The Scottish court dismissed the case and made the following points:

  • D had suffered significant exposure to asbestos during his employment with W and with Y.

  • His daughter had failed to prove that D had suffered from asbestosis. All experts accepted that in order to support a diagnosis of asbestosis they would have to find features consistent with the condition which might remain constant or would deteriorate. There was no evidence to satisfy this requirement. There was nothing in the radiographs or hospital records which could not be explained by other factors, given D’s smoking and history of bronchitis, obstructive airways disease and emphysema.

  • D had died before his disease could be fully investigated. In the absence of a postmortem, no firm diagnosis of bronchial carcinoma had been made.

  • There was no evidence to prove that this was the cause of death, given that the preponderance of medical opinion was that D had died from pneumonia, which was more likely to have been caused by smoking than by exposure to asbestos.

Gunn v Wallsend Slipway and Engineering Co Ltd (1989) The Times, January 23, High Court

Between 1948 and 1965 G’s working clothes were frequently impregnated with asbestos dust. G’s wife washed his clothes. Before washing the clothes she shook them and them washed them in a tub. This practice continued until 1960 when G bought a washing machine. In 1986 G’s wife died of mesothelioma. It was common ground between the parties that the link between asbestos and mesothelioma was securely established. The court accepted medical evidence that increase asbestos fibres found in the deceased’ lungs indicated that the mesothelioma was asbestos-related and it was reasonable to assume that the washing of the contaminated clothes was the source of the fibres. The period between the first exposure to asbestos fibre and the development of mesothelioma was on average between 25 and 30 years. This fitted in with the facts of the case.

It was accepted by G that a precondition of the existence of a duty of care by the employer to the deceased would be acceptable evidence that a prudent employer ought reasonably to have foreseen that there was a risk of some physical injury to the deceased as a result of the exposure.

The High Court dismissed G’s claim for compensation and made the following points:

  • The employer owed no duty of care to the deceased.

  • Before 1965, no employer bore in mind the risk of physical injury from domestic exposure to asbestos.

  • There was no medical literature on the subject, no warnings or guidance in industrial or official publications even hinting at the problem and no approved practice in relation to the storage and washing of working clothes.

  • Even if the employer had employed appropriate medical and safety personnel, it was most unlikely that it would have become aware of the risk from domestic exposure until about the end of 1965.

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