In this article Cressida Mawdesley-Thomas considers the judgment of HHJ Lickley KC in Ness v Carillion Capital Projects Ltd & Ors [2023] EWHC 1219 (KB). Ness was a successful fatal mesothelioma claim.
The Issues
The central issues were: (1) did the deceased work with asbestos millboard? (2) even if he did not work with asbestos millboard was his exposure from asbestos cement sufficient to establish breach of duty where the exposure was over 10 to 14 days between 1966 and 1968?
The defendant’s case was that Mr Harrison’s (‘the deceased’) exposure from asbestos cement was de minimis and the guidance at the time did not mandate precautions where exposure was limited and sporadic. However, the defendant accepted that they would have difficulty defending liability if the court found that the deceased also worked with asbestos-containing millboard for 10-14 days in 1966-1968.
Background
The deceased worked for Bovis on the construction of the Guardian Insurance building in Blackpool as a specialist joiner, installing insulation and panels beneath windows. He used a handsaw to cut the insulation and paneling to size and only worked inside. It was not disputed that he used asbestos cement for around 10-14 days to do this work between 1966 and 1968. However, it was disputed that he also used asbestos containing millboard. It was agreed that at the relevant time some millboard contained asbestos, and some did not.
Did the millboard contain asbestos?
The court was not persuaded that the millboard contained asbestos. The Claimant faced a number of difficulties:
- The Claimant’s occupational hygienist, Laura Martin, based her view that the millboard contained asbestos on the fact that when she interviewed the deceased, she showed him photographs of products and he had identified to her asbestos containing millboard as that which he worked with. However, those photos were not indexed and exhibited to her report and there were no agreed photos before the court.
- The second report of Laura Martin, wherein it was stated that the deceased was exposed when working for Bovis with asbestos millboard was produced when she only had the deceased’s first statement (which did not mention working with asbestos-containing millboard) and when she had not undertaken a further interview with the deceased.
- Neither the first statement of the deceased (July 2017) nor the first report of Laura Marin (also July 2017) mentioned the deceased being exposed to asbestos during the course of his employment with Bovis. Nor was Bovis mentioned as an employer who exposed the deceased to asbestos in his applications to the DWP. Further, it was only in the deceased’s November 2018 statement that the millboard was prefixed with ‘asbestos’.
- The deceased described the millboard in contradictory terms which often better aligned with non-asbestos containing millboard (Martin Stear’s evidence was that brown millboard that could be broken very easily was likely to be non-asbestos containing). For example, in the July 2018 engineering report and his second statement dated August 2018 the deceased described the Millboard as being “brownie”. However, when he gave evidence by deposition in July 2019 he variously described the asbestos millboard as: “pretty hard stuff”; “quite hard but could be cut with a saw” and at other times as “very soft”. In April 2019, in response to the defendant’s part 18 questions he said that the asbestos millboard was light grey in colour, quite hard but could be cut with a saw.
Conclusion – Not Asbestos Millboard
The judge concluded that he could not be satisfied on the balance of probabilities that the millboard contained asbestos for 10 reasons, in summary: initially there was no suggestion that Bovis exposed the deceased to asbestos; there is no explanation where the information came from to suggest exposure to asbestos millboard in the second engineering report; the deceased’s august 2018 witness statement describing the millboard was at odds with the description in Laura Martin’s report; the millboard was first described as browney which suggests it did not contain asbestos; the part 18 responses and evidence on commission gave confused descriptions about the millboard; there were no contemporary records; overall the evidence was contradictory and unpersuasive.
The Legal issues
What Was Known
It was found as fact that the deceased would have to handle, then cut the asbestos cement panels to size with a saw and fit them to the building under construction. The dust and debris that his work produced was brushed to one side by him to be removed. He did that work for 10-14 days between 1966/67 and 1967/68.
To determine whether this work was in breach of duty the court examined the degree of knowledge and understanding of the risks in 1966/67.
It was noted that regulation 63 of the Factories Act 1961 required all practicable measures to be taken to protect employed persons against the inhalation of injurious dust, following the Chief Inspector of Factories’s Annual Reports of 1949 and 1956. The Judge also noted:
“It is clear that by the mid 1960s, there was an increased awareness of the risks to health posed by exposure to asbestos.”
It was also noted that in 1965 Newhouse and Thompson published their findings that established that mesothelioma could be caused by low level exposure and that might affect the families of workers and that this information was widely disseminated in the Sunday Times in the same year.
The judge was also referred to ‘The Asbestos Research Council Recommended Code of Practice’ (‘the code’) which was issued in April 1965. The code made specific reference to the handling, working and fixing of asbestos and asbestos cement products in the building and construction industries. The preamble stated (emphasis added):
“The use and manipulation of asbestos and asbestos cement products is very diverse […] special precautions are only necessary when there is a possibility that operatives may inhale asbestos dust as result of proximity to cutting grinding or similar operations.”
The code of practice also provided:
“3.2.1 where hand cutting and working has to take place regularly a dust exhaust system will often not be possible. Where any risk of inhaling asbestos dust is present operatives should wear approved type respirators.”
Other precautions are then set out in the code, including damping down etc. It was noted that there were steps Bovis could have taken, such as damping down, but that they did not take these steps.
The Legal Test
The Judge reminded himself of the test as formulated by Underhill LJ in Bussey v 0065401 Ltd (formerly Anglia Heating Ltd) [2018] EWCA Civ 243 and reformulated it for the present case as follows:
“…should Bovis at the time they employed Mr Harrison have been aware that the exposure to asbestos which his work involved gave rise to a significant risk of asbestos-related injury? I note significant means any real risk, albeit statistically small, rather than a fanciful risk.”
The judge also considered what was said by Lord Phillips at 108 of Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10 (emphasis added):
“…the only circumstances in which a court will be able to conclude that wrongful exposure of a mesothelioma victim to asbestos dust did not materially increase the victim’s risk of contracting the disease will be where that exposure was insignificant compared to the exposure from other sources.”
Findings on the Law
At the time Bovis, a large national building company engaged in large projects, ought to have been aware of the risk of exposure to asbestos that the deceased’s work with asbestos cement entailed even at low levels. In addition, given the size and nature of Bovis’s business they should, at the time they employed the deceased, have been aware that the exposure to asbestos which his work involved gave rise to a significant risk of asbestos-related injury being more than a fanciful risk. In particular, the ARC guidance did warn of the risks associated specifically with asbestos cement and recommended some precautions. Given the state of knowledge at the time, a reasonable and prudent employer in those circumstances should have taken steps to address the issue. There was no evidence Bovis did anything to assess and reduce the risks when simple measures such as a face mask could have been provided and/or the cutting of panels outdoors mandated. Such measures would have reduced the risk of inhalation of asbestos. Accordingly, Bovis ought to have reasonably foreseen that the deceased would be exposed to a risk of asbestos related injury and as such Bovis were negligent. He also answered, as part of the question on breach the question of whether the work undertaken by the deceased materially increased the risk of developing mesothelioma? In other words, was it reasonable for Bovis at the material time to believe that there was a level of exposure below which there was no significant risk, and that the deceased’s exposure was below that level? It was held that it was not reasonable for Bovis to believe that there was a level of exposure below which there was no significant risk. This was because the deceased was exposed to a measurable level of asbetsos (on Martin Stear’s calculations between 0.021 to 0.29 f/ml years; assuming 10-14 days of cutting and handling asbestos cement around 50% of the time). Further, as there is no known lower threshold of exposure that is capable of causing mesothelioma the deceased’s exposure could not reasonably be disregarded as de minimis.
Concluding comments
- This case is a good reminder that if your expert evidence changes – the factual basis for that change must be clearly set out in the report.
- If photographs are going to be shown by an occupational hygienist (which will often be very helpful), they should be indexed and exhibited to the report.
- Interestingly, it was found that the exposure was not de minimis even though there was no direct comparison with exposure from other sources.
- Causation was not formally in issue, however, the case makes clear that breach and causation will be in lockstep when only de minimis exposure can safely be ignored.
- The judgement seems to suggest (although there is a lack of reasoning on the point) that any small but measurable exposure will be sufficient to materially increase the risk such that a claim should succeed. In Ness, 10-14 days of exposure in the mid 1960s for what was assumed to be around 50% of the day was sufficient to establish breach.
ASBESTOS LAW 