In this article, pupil Jake Loomes looks at the recent case of Cuthbert in which Max Archer acted for the Claimant, Jennifer Cuthbert, the widow of Mr Derek Barry Cuthbert and executrix of his estate.

Background

Mr Cuthbert was employed by the defendant between 1956 and 1959 over which period he was engaged in the construction of the Queenswood School in Hertfordshire. Through this work he was exposed to asbestos dust from the cutting of asbestos insulation boards in his vicinity and from his sweeping up of the said dust. Sadly, on the 5 April 2022, Mr Cuthbert died as a result of his mesothelioma.

The claim against the defendant was brought by Mrs Cuthbert as the executrix of Mr Cuthbert’s estate under the Law Reform (Miscellaneous Provisions) Act 1934 and also as his dependent under the Fatal Accidents Act 1976. The claim was brought both in common law negligence and under the Building (Safety, Health and Welfare) Regulations 1948.

The Issues

The court was required to determine the following issues. Firstly, the extent, the degree, and frequency of Mr Cuthbert’s exposure to asbestos dust. Secondly, whether that exposure amounted to a breach of duty by reference to what the defendant knew, or ought to have known as to the risk of injury from exposure to asbestos dust. The judge did not deal with quantum.

The Facts

Mr Cuthbert provided two witness statements prior to his death. The defendant did not put any Part 18 questions to him, nor was there a deposition of him prior to his death. Accordingly, the only evidence of fact was his. Against that backdrop, the court made the following findings of fact:

• The type of material being cut was Asbestolux (asbestos insulation boards), which generates concentrations between 5-10 fibres/ml [14, 21].
• Mr Cuthbert would have struggled to remember events from some 60 years ago, and was trying to remember them while ‘acutely unwell’ and in a ‘state of shock’ [31].
• It was highly debatable that Mr Cuthbert was a ‘trainee supervisor’ and far more likely that he was in fact a ‘general labourer’ [32].
• Mr Cuthbert had “no more than sporadic contact with the carpenters – perhaps, he did see them every day or most days”.
• The carpenters which Mr Cuthbert was working around were not engaged every day with cutting up asbestos materials [36].
• Mr Cuthbert had irregular and intermittent contact with the carpenters [36].
• Subject to weather, the cutting of asbestos boards took place outside [36].
• Mr Cuthbert did sweep up, however he was not always the person to sweep up after the carpenters once they had cut up their asbestos materials. “Experience would suggest that they probably did some of their own sweeping” [37]. In the court’s view, “perhaps, he spent in the order of ten minutes per day sweeping up [38].
• There were clouds of dust when the Abestolux was cut up [39].
• If there were clouds of asbestos dust, he would have expected Mr Cuthbert to keep his distance. There was no good reason for him to be standing so close to the carpenters so that he became covered in dust [39].
• Mr Cuthbert’s exposure was “of a low order, light and intermittent, and in the main, as a bystander” [40]

Expert evidence

In addition to written reports, the court heard oral evidence from the two occupational hygienists, Ms Conroy for the Claimant and Dr Phillips for the Defendant. The court held that:

“Assuming that the deceased was indirectly exposed to asbestos dust for one and a half hours per day as a result of the carpenters cutting up AIBs (and I have already found this to be inherently improbable) and, assuming that he spent approximately ten minutes per day sweeping up asbestos dust, Ms Conroy agreed with Dr Philips that his average daily exposure was in the order of two fibres/ml” [43]

The judgment went on to state that:

“It needs to be seen in the context that, whilst, at the time of his employment, there were no threshold limits in place, as at 1960, the threshold limit equated to 30 fibres/ml (see “Toxic Substances in Factory Atmospheres” published by HMSO in March 1960). It can be seen, therefore, on any view of the evidence, that the deceased’s exposure was very substantially below the limits set by the 1960 publication, both in the short term and over the daily average levels which have to be calculated to make meaningful comparison with the 1960 limits” [44]

Knowledge of risk and breach of duty

Having heard submissions from both counsel, the court made the following findings:

• At the heart of the case was the issue of knowledge of risk. The test set out in Swanwick J’s judgment in Stokes v Guest[1] remains helpful [74].
• The “recognised and general practice at the material time is of relevance and importance, although it may not be the sole test.”. Further, foreseeability should not be referenced by hindsight and should be by reference to standards at the time[75].
• The judge rejected the Claimant’s reliance on the higher authorities Maguire v Harland and Wolff Plc [2005] EWCA Civ 1 (“Maguire”) and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101 (“Jeromson”). It is not clear why he felt Maguire was of no application, Jeromson was distinguished on the basis that he felt that its dicta should be confined to cases where exposure was very heavy. In so doing the judge placed reliance on Abraham v G Ireson & Sons (Properties) Limited [2009] EWHC 1958 (QB) (“Abraham”)[2], the message taken from the literature from the mid to late 1950’s was that asbestos dust was highly dangerous and that its inhalation was highly dangerous. However, that was only delivered in the “context of the known risk of asbestosis and of occupational exposure to significant quantities of asbestos dust” The question that should be asked is “whether the information then available should have alerted an employer to the possibility that an employee whose exposure to asbestos was light and intermittent might have been at risk of contracting an asbestos related injury” [76, 77].
• The judge rejected the suggestion that when viewed in the context of the higher authorities Bussey, Jeromson and Maguire. It was suggested at trial that Maguire, in which the dicta of Hale LJ in Jeromson was approved and said to be binding in relation to lower exposure cases, was not cited in Abraham. The judge held that it was inconceivable that Swift J in Abraham would not have been familiar with Maguire even though it is not cited in the judgment.
• Accordingly, the court concluded that a “reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e more than fanciful) risk of injury as a result of the exposure to asbestos at the [levels Mr Cuthbert was exposed to]”. The court went on to state that whilst there was no safe level of exposure in 1956-1959, the fact that the levels Mr Cuthbert were exposed to fell below those levels set in 1970 was highly relevant (but not conclusive). They pointed strongly to the defendant not having the requisite knowledge of a foreseeable risk of injury.
• Accordingly, the court concluded that there was no breach of duty in the circumstances where the exposure was light and intermittent.

Comment

This case provides an insight into the possible judicial approach to uncontested factual evidence in asbestos cases and pre-1965 exposure. Claimant practitioners will need to be alive to the risk that although Abraham may seem an outlier, it has not been examined by the higher courts in detail and may continue to inform the approach to some cases pre-1965. Further, simply because the defendant has not adduced their own evidence of fact, it does not follow that the court will adopt the claimant’s evidence without scrutiny.

That notwithstanding, some of the findings of fact are difficult to square away with one another. The view that the reliability of Mr Cuthberts evidence was in question, partially because he was ‘acutely unwell’ and in a ‘state of shock’ seems odd [31] in light of the absence of any evidence to that effect. The conclusion that Mr Cuthbert was in all likelihood a ‘labourer’ rather than a ‘trainee supervisor’ is perhaps understandable [32] and open to the judge. However, the judgment went on to reject the evidence that Mr Cuthbert spent 1-2 hours a day assisting carpenters [34] and that he helped them with sweeping on more than an intermittent basis [37]. Such seems strange given that these might be jobs that a labourer would be doing on a regular basis- further there was no evidence to base these conclusions on, the factual findings arose out of skepticism alone. Finally, it is worth noting that it was accepted by the court that there were clouds of dust when the Asbestolux was cut up and that the claimant might have been sweeping up for 10 minutes a day.

Perhaps more problematic though is the analysis of knowledge of risk. The judgment places significant reliance on the case of Abraham. This is problematic for two reasons. Firstly, the case of Maguire was not cited in Abraham. In Maguire, a case also concerning mid-1950’s exposure, the court held that exposure should have been kept to the lowest possible level. Secondly, the judgment in Abraham is at odds with the dicta of Jeromson and Maguire. Neither, in this author’s view, explicitly restrict the duty to instances where there is substantial or prolonged exposure or where there is ‘frequent, heavy and regular exposure’.

Finally, the judgment seems to drift into the ‘bright-line’ approach that was seen to TDN13 in Williams v University of Birmingham [2011] EWCA Civ 1242. That ‘bright-line’ approach in this case relates to the 1960 publication ‘Toxic Fumes in Factory Atmospheres’ which set out a 30 fibres/ml limit and to which the court made several comparisons against [44, 55, 56]. This is tempered slightly by comments that it was ‘not conclusive’ of the issue [83]. However, it does suggest a steer towards the kind of approach that the Court of Appeal explicitly rejected in Bussey v Anglia Heating Limited [2018] EWCA Civ 243.

Permission to appeal is outstanding so watch this space!

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[1] Stokes v Guest, Keen and Nettlefold [1968] 1 WLR 1776

[2]. HHJ Freedman further placed reliance on Owen v IMI Yorkshire Copper Tube, 15 June 1995; and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101

This blog post was written by Dr David Sharpe KC and Corinne Novell.

Introduction

The decision concerns an unsuccessful claim for secondary exposure to asbestos, which the plaintiff alleges occurred in his family home for the period of 1951 to 1974, during which the plaintiff’s father worked as a pipe lagger for the defendants on a Belfast shipyard. The plaintiff alleges that this exposure caused him to develop bilateral pleural plaques, a dose related condition dependent on cumulative exposure. By the time of trial, the claim was only being pursued against the first and third defendants.

In essence, the claim failed because the plaintiff had not adduced sufficiently cogent evidence as to the duration, intensity and timing of the alleged exposure. Specifically, he had failed to establish that the level of exposure post-1965, following whichsecondary exposure was reasonably foreseeable and thus could accrue liability (as per Maguire v Harland and Wolff plc and another [2005] EWCA Civ 1), was high enough to have materially contributed to development of the plaintiff’s condition. This failure to establish ‘culpable’ exposure led to dismissal of the case.  

The Evidence

The plaintiff alleged that exposure came from two key sources. Firstly, the plaintiff’s father’s ‘great coat’ which he wore over his overalls on his way to and from work. Once the father came home, this was always placed over the bannister at the bottom of the stairs, which the plaintiff would frequently pass by. Both the plaintiff and his brother adduced evidence to the effect that they would play and hide under this coat and that this coat was sometimes placed over their bed for extra warmth.

The second source of exposure was alleged to have come from the father’s work overalls, which he would wear whilst having dinner with the family. These would be washed in the kitchen sink and which the plaintiff’s mother would beat dust off of and dry indoors hanging from the kitchen ceiling when the weather was poor.

The problems with the evidence establishing that these sources amounted to sufficiently intense culpable exposure such as to have materially contributed to the plaintiff’s condition were as follows:

• The plaintiff admitted in evidence that in his teenage years following 1965, it was possible that his risk of exposure was lower than in his childhood years during which he would have been playing under the coat and would have been in the house more often [26, 22].
• The plaintiff had given an account to his respiratory expert, Professor McGarvey, that exposure continued ‘until he was 12 or 13 years of age’, which entailed exposure ending in early 1965 [23]. If this account was correct, all exposure would have been non-culpable exposure.
• In cross-examination, the plaintiff accepted that he was unclear on the dates of exposure but stated of the period following 1965: “I was still in the same house where the same things were still happening, so you have to assume that I was still exposed” [26].
• The plaintiff and his brother gave different accounts of when the coat was placed over their bed, with the plaintiff stating that this occurred only on particularly ‘cold nights’ whilst his brother said this was done every evening during winter [79].

Further, the Judge was unimpressed with the difference in the two reports provided by Professor McGarvey. The first of these, written following a meeting with the plaintiff, set out that the plaintiff had said that exposure had occurred “for most of his childhood through the mid-1950s and early 1960s” [82]. The second report, apparently prepared without a second consultation with the plaintiff and without any justification or source being accredited for the change, said that the plaintiff was “likely to have been exposed [to asbestos dust] at home up until his father stopped working or Mr Moore left the family home” [83].

Mr Justice McAlinden determined that this shift from exposure prior to 1965 to exposure through to 1975 was due either to Professor McGarvey having read the pleadings or an attendance note from June 2016 which set out the chance of exposure following 1965. The Judge stated that he could not ignore the materially different histories and opinions on exposure between the report, particularly since the second report (in the Judge’s view, erroneously) set out that “the sources of all information” used had been indicated [90] and the plaintiff’s solicitors were adamant that they had not given the expert a history.

Commentary

This is an interesting judgment from the Northern Ireland High Court and it is noted that historically the Harland & Wolff Shipyard in Belfast was the largest in the world and that the Titanic was built there. The law in Northern Ireland relating to personal injury arising from asbestos exposure is essentially identical to that of England & Wales except to note that the devolved Assembly passed legislation to permit proceedings for asymptomatic pleural plaques ((the Damages (Asbestos-related Conditions) Act (Northern Ireland) 2011)) following the House of Lords judgment in Rothwell v Chemical & Insulating Co Ltd [2007] UKHL 39.

This case focusses upon the ruling in Maguire v Harland & Wolff Plc [2005] EWCA Civ 1 in which the deceased contracted mesothelioma from washing the overalls of her husband which were contaminated by asbestos dust as a result of his work in the defendant’s shipyard. The exposure occurred between 1961 and 1965, but, significantly, it ceased prior to the publication of Newhouse and Thompson’s article on the links between domestic exposure to asbestos and mesothelioma. The Court of Appeal determined that liability in such secondary-exposure cases could be established only for post-1965 exposure.

In Moore the case did not succeed due to the factual matrix relating to asbestos exposure becoming mired in confusion and the plaintiff having failed to satisfy the standard of proof in establishing a material contribution from the secondary exposure to the development of the pleural plaques. The plaintiff appears to have established a prima facie case of secondary exposure from his father’s overalls and great coat but failed in respect of the requirement that such exposure was post-1965. The genesis of the confusion and ultimate failure of the case was the medical reports – there were two reports containing a record of the plaintiff’s observations on exposure and the first suggested that exposure had effectively ended in 1965 whereas the second report concluded there had been post-1965 exposure without any explanation or justification. There were also differences between witness and concessions by the plaintiff and his brother.

This case failed on the basic premise that a Claimant must prove their case and serves as a reminder that evidence must always be directed to proving the core issues and satisfying the necessary legal requirements. In this instance that amounted to convincing the court that there was sufficient secondary exposure to asbestos post-1965 to materially contribute to the development of pleural plaques.

McAlinden J set out this conclusion fully at [96]:

“In relation to the issue at the heart of this case which is an issue of fact I find that the plaintiff has failed to satisfy me on the balance of probabilities that the exposure to asbestos dust and fibres in the domestic environment in the period subsequent to the end of 1965 made a material contribution to the risk of the plaintiff developing pleural plaques. There are just too many short-comings, deficits and contradictions in the plaintiff’s case for me to be able to simply sweep them all aside and conclude that because there was a period between 1965 and 1974 when the plaintiff probably experienced some exposure to asbestos dust and fibres then that exposure must have materially contributed to the risk of him developing pleural plaques, particularly when that period followed on from a 14 year period of what was in all likelihood a longer period of more intensive exposure.”