Court of Appeal’s Stance on Employer Liability for Asbestos Exposure in the 1950s and 1960s
Over the years, the Court of Appeal has frequently been tasked with determining the extent to which employers should have protected their employees from asbestos dangers. This is a challenging endeavor, as highlighted in a recent conjoined appeal, due to the absence of witnesses with direct personal experience or knowledge of the medical standards and employer practices from that era. Consequently, the court must rely on the literature available from the 1950s and early 1960s to assess what a reasonable employer should have done.
Case Summaries
White – First Instance
The deceased worked as a lab technician at Sefton General Hospital, Liverpool, from 1948 to 1960 and was intermittently exposed to asbestos. Mr. Jeremy Hyam KC, sitting as a Deputy Judge at the High Court, found that while the exposure was low and intermittent, it still posed a medically significant risk of mesothelioma. The judge concluded that during the 1950s and early 1960s, occasional low-level asbestos exposure was not considered hazardous by prevailing standards, and thus, the defendants could not have known to take precautions against such risks.
Cuthbert – First Instance
The deceased was exposed to asbestos during construction work at Queenswood School, Cheshunt, between 1956 and 1959. HHJ Freedman, sitting as a Judge at the High Court, found that the exposure was irregular and intermittent, mainly through contact with carpenters cutting asbestos material. The judge noted inconsistencies in the deceased’s witness statements and concluded that a reasonable employer at the time could not have foreseen a significant risk of injury from such low-level exposure.
Appeal Issues
The appeals in both cases centered on whether the correct test of foreseeability had been applied. In Cuthbert, there was also an appeal regarding the factual findings.
Literature Review
The court reviewed approximately 70 publications, focusing on 28 key documents. This review included historical papers and regulations from the 1930s to the 1970s, highlighting a shift in understanding the risks associated with asbestos exposure. Key milestones included:
– The Merewether and Price paper (1930) linking asbestos exposure to fibrosis.
– The Asbestos Industry Regulations (1931).
– Professor Doll’s paper (1955) linking asbestosis to lung cancer.
– Wagner’s paper (1960) and Newhouse and Thompson’s paper (1965), which significantly changed perceptions of mesothelioma risks.
The literature indicated that until the 1960s, only substantial asbestos exposure was considered risky. It wasn’t until Wagner’s and Newhouse/Thompson’s papers that lower-level exposures were recognized as hazardous.
Legal Principles
The judgment reiterated established legal principles from notable cases such as:
– 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
– Maguire v Harland and Wolff PLC [2005] EWCA Civ 1
The court emphasized that employers are not required to take all possible steps to prevent unforeseeable risks. The correct question was whether a reasonable employer in the 1950s should have foreseen a risk of personal injury from the levels of asbestos exposure found by the judges.
Appeal Resolutions
In Cuthbert, the court upheld the first instance judge’s factual findings. Both appeals were dismissed as the judges had correctly identified the issues and applied the right questions. The evidence indicated that low-level exposure would not have prompted recommendations for precautionary measures at that time.
Conclusions
The case provides several key takeaways:
– Employers in the 1950s and early 1960s were not expected to foresee risks from low-level asbestos exposure.
– A person is not obliged to prevent risks that are not reasonably foreseeable.
– Prior to Wagner’s paper (1960), asbestos risks were limited to high-level exposures causing asbestosis and lung cancer.
– The two-stage test from Bussey v Anglia Heating [2018] EWCA Civ 243 remains valid: (1) Should the defendant have been aware of a significant risk of asbestos-related injury? (2) If so, did they