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The High Court dismissed a claim for asbestos-related lung cancer after declining to find evidence sufficient to cause a breach of duty or to double the risk of contracting a lung cancer.
Background
The claimant alleged exposure to asbestos whilst working as a fire security officer with Wellcome Foundation between 1969 and 1978/9 and as a fire officer with Harrods Limited between 1988 and 1995. The claimant alleged exposure from working around workmen stripping asbestos lagging, being close to those sweeping and in the case of Harrods, working close to those cutting asbestos insulating board. At Wellcome, the claimant handled asbestos blankets.
The claimant alleged that his exposure amounted to two hours and 15 minutes per day, plus two hours per week handling fire blankets at Wellcome. At Harrods, the claimant alleged he was exposed between two to three hours per day.
The defendants did not deny their premises contained asbestos but denied the levels of asbestos was sufficient to be causative of the claimant’s lung cancer and that he was exposed in breach of duty. The defendants pointed to the claimant’s 48 to 52 pack years of smoking as the alternative cause of his lung cancer.
Both defendants advanced extensive documentary evidence, photographs and witness evidence to show precautions were taken in respect of asbestos, and Harrods’ witnesses noted that specialist contractors were engaged to remove asbestos and recalled tents and precautions having been taken.
Decision
The High Court made the following factual findings:
- That Harrods engaged specialist contractors in the late 1980s and work carried on into 1989 and the photographs showed clean pipes after the work was undertaken.
- There was a general awareness of asbestos and where encountered, specialist contractors were engaged.
- Where stripping work was encountered by the claimant, it was most likely that those materials had been tested and found to be free from asbestos or the asbestos had already been removed.
- The claimant’s estimate of the duration of his exposure was rejected as overestimated. Any incidental exposure was found to be below the occupational thresholds.
- In respect of earlier exposure with Wellcome, the claimant’s evidence was rejected on the grounds the recollection was mistaken with respect of lagging and the dose form use of fire blankets was less than 0.4 fibre/ml years.
The claimant relied primarily on a breach of Regulation 15 of the Asbestos at Work Regulations 1987 (the Regulation) for failing to retain health surveillance records for 30 years. The defendant argued that the Regulation was not engaged where the claimant was exposed below the action level, which was accepted by the court.
In respect of causation, the parties accepted that the claimant must prove an overall dose to asbestos of 25 fibre/ml years where the exposure is to predominantly crocidolite (blue) and amosite (brown) asbestos, or 40 fibre/ml years where exposure was to a chrysotile/amphibole mixture.
All three experts gave ranges of exposure based on the witness evidence with the claimant’s expert accepting a dose of 24.9 fibre/ml. The defendants’ experts gave lower ranges with Wellcome’s expert giving a midpoint of 17.46 fibre/ml and Harrods’ expert 24 fibre/ml years.
Given that all experts found that the exposure was below the required dosage threshold, the court found that the claimant’s heavy smoking history was the most likely cause of his lung cancer.
Comment
The decision is useful for defendants for a number of reasons:
1 The case emphasises the evidential hurdles a claimant must overcome to prove exposure particularly when reliant on historic recollections. Those principles in Gestmin v SGPS SA v Credit Suisse (UK) Limited [2013] were approved and applied by the court. With the issues surrounding a witness’s recollection, a common theme in historic asbestos claims, the decision shows the benefits of careful analysis of evidence and may feed into decisions on whether to seek further information from a claimant or seek an Evidence on Commission.
2 The decision highlights the importance of obtaining key information such as the tasks undertaken and the duration of those tasks, so that an exposure level can be calculated. This was key to showing that the occupational hygiene levels were not exceeded such to trigger duties in the 1987 Regulation relating to document retention.
3 The court reaffirmed the dosage threshold for lung cancer and that it depends on the quantity of amphibole asbestos a claimant was exposed to. Identifying what types of asbestos are in a particular product as early as possible remains key to defending these claims.
Overall, claimants continue to face an uphill struggle to show exposure was sufficient to exceed the dosage threshold. As future claims involve later and lighter exposures to asbestos, this evidential hill is likely to become ever steeper.
United Kingdom