In this blog post, John-Paul Swoboda considers the recent case of Cuthbert, in which Michael Rawlinson KC, Max Archer and Jessica Franklin acted for the Appellant, the widow of Mr Derek Barry Cuthbert and executrix of his estate.
As I settled down last Saturday evening to read the judgments in this case I did not think I’d be up until 1am. But I was. That is not only because of the length of the judgment but also because of its content. The Court of Appeal has re-cast/re-stated (depending on your point of view) the foreseeability requirements for pre 1965 exposure and may also have re-ignited a foreseeability debate for post 1965 exposure. If there is a silver lining for claimants perhaps it is this: the decision may make it harder for Defendants to successfully run the causation arguments which are a la mode.
The context
The central issue in the case was whether the Judges in Cuthbert and White had applied the right test of foreseeability in deciding whether or not the employers owed a duty. Stuart-Smith LJ gave the lead judgment with whom Newey LJ and Underhill LJ agreed (with Underhill LJ giving a short concurring judgment).
To put the Court’s findings in context it is worth considering what the exposure (as found by the trial judges) was in White and Cuthbert. Mr White was exposed to asbestos in Sefton General Hospital in Liverpool. He was exposed from 1949 to 1960 and from 1973/74 to 1991/92 with the first period being said to be “intermittent and in very low quantities” and “de minimis”; as a junior lab technician he used asbestos millboard Bunsen burner mats which were soft and friable. The second period was found at trial (and not appealed) “to be insignificant in causal terms”. Mr Cuthbert’s exposure occurred between 1956 to 1959 and, as the trial judge found, arose from “irregular and intermittent contact” with carpenters on site sawing Asbestolux such that his exposure was “of a low order, light and intermittent.”
What risk could be foreseen from exposure to asbestos (1928 to 1985)?
Against this context Stuart-Smith LJ undertook a 77 paragraph review of the contemporaneous literature as to what was known about the risks of asbestos between 1928 and 1985, but with a focus on the pre-1965 period. He set out 8 propositions which he said could be drawn from the literature. He found, the known risks from the inhalation of asbestos until the 1960’s were asbestosis and (post 1955) lung cancer and that the risk “was thought to arise on what would now be regarded as substantial exposure to asbestos”. He found there was believed to be a level of exposure “below which there was no real risk of contracting disabling asbestosis” (the threshold or “dust datum”). There was a “sea-change” after 1960 and the perception of risk dramatically changed post 1965. The repeated reference to “MCPs, TLVs, and enforcement levels, while not providing a bright line, general yardstick or universal test for determining the issue of foreseeability, are evidence that there had been and continued to be an understanding that exposure to asbestos below certain levels was safe.” In other words, if the claimant cannot prove the exposure was greater than a subsequent enforcement level (think TDN 13) this would (or may) be evidence that the exposure level would not have been deemed unsafe which judged by the standards of the day.
What level of exposure posed a foreseeable risk pre-1960’s?
Stuart-Smith’s found 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…”. In other words, context is everything and the pre1960/65 context is that the risk of mesothelioma arising from slight exposures was unknown.
On this basis, Buxton J’s dictum in Owen v ICI (High Court) that an employer in 1951 was “under a duty to reduce exposure to the greatest extent possible” was “ill-founded” in so far as went beyond the risk which were reasonably foreseeable at the time (asbestosis). It should not, said Stuart-Smith LJ “be accepted as creating any form of precedent”. Further Hale LJ (as she then was) in Jeromson did not rely upon this finding to justify low or intermittent exposure as constituting a breach (as in both Owen and Jeromson the exposure was heavy or substantial exposure) and neither did Hale LJ unequivocally endorse Buxton’s J finding. Further Stuart-Smith LJ found that Jeromson was not a test case so as to bind the decision on this case. Finally if Jeromson was decided only on the basis of the literature cited it was not comprehensive (or not as comprehensive as Stuart-Smith’s consideration of the literature).
However, as Stuart-Smith LJ noted, in Maguire Longmore LJ considered himself bound by Jeromson to proceed on the basis that as between employer and employee, the employer will be in breach of duty if he fails to reduce his employee’s exposure “to the greatest extent possible” (i.e. the finding in Owen which on one reading Hale LJ endorsed in Jermoson). On this basis Longmore’s judgment had treated the decision in Jermonson to accept Buxton’s dictum in Owen as binding. However, Stuart-Smith LJ noted Longmore LJ did not identify the date from which that conclusion must apply. In any event Stuart-Smith (and the other members of the Court) found Judge’s LJ findings (that there could be no foreseeability of overalls exposure pre 1965) was “inconsistent with any blanket acceptance of Buxton J’s dictum in Owen.” Ergo Maguire could not confirm Buxton’s dictum as binding precent as the decision in Maguire was incompatible with it. This does not however resolve the apparent tension with Longmore’s position as stated above.
What this means, to use Underhill LJ’s language, pre-1965 low or occasional levels of exposure to asbestos will probably not have given rise to foreseeable injury. Of course, what amounts to low or occasional exposure remains up for debate but clearly the closer one can get to the exposure in Jermonson or Owenthe more likely it is to be viewed as exposure giving rise to foreseeable injury (as there was endorsement that Jermonson was correctly decided and no suggestion Owen was not correctly decided).
Analysis of the decision
The arguments which may be made against this decision are as follows.
- The Court ran roughshod over binding authority from a Court of coordinate jurisdiction. To find that Jeromson proceeded only on the facts of that case ignores that Buxton J’s findings was endorsed by the trial judge and there was no criticism or reversal of that finding by Hale LJ. To find the reasoning in Maguire (no overalls claim pre 1965) is inconsistent with Buxton J’s finding is to ignore that Longmore LJ considered himself bound, viz-a-vie employer/employee and to say that the decision in Maguire was incompatible with Buxton’s dictum is to ignore that Maguire was concerned with an overalls exposure (i.e. not an employer/employee situation).
- The Court did not deal with the argument accepted by Hale LJ in Jeromson that an employer cannot assume future employers will not expose a claimant to asbestos so one period of exposure cannot be taken in isolation. This may be said to undermine the dust datum or threshold reasoning in the judgment. Taken further it may be said to undermine the very premise that there was a safe level of exposure; it might be safe in isolation but not cumulatively and no reasonable employer could assume the employee had not been or would not in the future be exposed to asbestos.
- The Court has assumed that there was with the passage of time an increasing level of awareness of the dangers of asbestos such that later threshold levels may inform whether there was an earlier breach. This fails to acknowledge the stochastic nature of the development of knowledge. Knowledge of risk was not a smooth gradient, arguably not even always in one direction (i.e. greater perception of risk), because of a) industry lobbying (think of the concerted campaigns by the asbestos industry) or b) scientific development (think of the differentiation between different fibre types and the ongoing debate).
Post-1965 exposure
In the context of pre-1965 exposure Stuart-Smith LJ found that what comes after the date of exposure “is relevant to any consideration of what … levels of exposure were or had been considered to be acceptable” and also that it was ok to draw some support between the disparity between subsequent enforcement levels and the actual levels of exposure found. That is exactly the argument which was regularly ran, pre Bussey, in respect of post 1965 exposure and the TDN13 enforcement levels. The decision in Bussey appeared to disapprove of this approach, but the practice was (and is) still commonly adopted by Defendants. In my view the decision in White and Cuthbert is likely to encourage further arguments about enforcement levels in the period post 1965. Whether such arguments have merit or not is likely to be a battleground.
Causation – the silver lining
It is clear from the Stuart-Smith’s judgment that to establish breach (whether in negligence or a statutory duty which incorporates foreseeability) once must prove the employer ought reasonably to have foreseen the risk of (in post 1960/5 exposures) mesothelioma. This highlights the link between the question of breach and causation. If one proves breach, it ought to be easier to prove causation: if the employer should have foreseen risk of mesothelioma (post 1960/5) it may be said to be implicit that the exposure must materially increase the risk of mesothelioma. The apogee of this reasoning was expressed by Stuart-Smith LJ who stated, “it is now generally recognised any exposure to asbestos carries with it a significant risk of personal injury.” If Stuart-Smith’s comment is correct the increasingly prevalent argument that the exposure (in any given case) was so small as to constitute a de minimis risk is wrong: any exposure to asbestos carries with it a significant risk. However, one can easily imagine contextual arguments against such a proposition (Stuart-Smith was not determining a case on causation; the proposition fails to take into account relative risk which is important as causation is proved by demonstrating an increase in risk; in White it was accepted that there was a non-causal period of exposure). In other words, the above comment by Stuart-Smith may be helpful but is unlikely to be a silver bullet in respect of the causation arguments which are a la mode.
The final word
For pre-1960/5 claimants to succeed in negligence or for a breach of statutory duty which does not incorporate foreseeability, it will be necessary to show the exposure was more than low or occasional. Those are terms of art and there is likely to be argument around those terms. However, on the basis of Stuart-Smith’s judgment later enforcement levels may be taken as evidence on the issue of whether the exposure was low of occasional.
It is worth noting, neither White nor Cuthbert concerned a statutory duty where foreseeability was not incorporated (such as the s47 of the FA 1947 – “substantial/ offensive quantity of dust”). The importance of such duties in a pre 1965 context is, in my view, heightened.
ASBESTOS LAW 