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.
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 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.
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’ .
- It was highly debatable that Mr Cuthbert was a ‘trainee supervisor’ and far more likely that he was in fact a ‘general labourer’ .
- 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 .
- Mr Cuthbert had irregular and intermittent contact with the carpenters .
- Subject to weather, the cutting of asbestos boards took place outside .
- 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” . In the court’s view, “perhaps, he spent in the order of ten minutes per day sweeping up .
- There were clouds of dust when the Abestolux was cut up .
- 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 .
- Mr Cuthbert’s exposure was “of a low order, light and intermittent, and in the main, as a bystander” 
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” 
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” 
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 remains helpful .
- 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.
- The judge rejected the Claimant’s reliance on the higher authorities Maguire v Harland and Wolff Plc  EWCA Civ 1 (“Maguire”) and Shell Tankers (UK) Limited v Jeromson  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  EWHC 1958 (QB) (“Abraham”), 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.
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  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  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  and that he helped them with sweeping on more than an intermittent basis . 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  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 . However, it does suggest a steer towards the kind of approach that the Court of Appeal explicitly rejected in Bussey v Anglia Heating Limited  EWCA Civ 243.
Permission to appeal is outstanding so watch this space!
 Stokes v Guest, Keen and Nettlefold  1 WLR 1776
. HHJ Freedman further placed reliance on Owen v IMI Yorkshire Copper Tube, 15 June 1995; and Shell Tankers (UK) Limited v Jeromson  EWCA Civ 101