Evelyn Margereson v J W Roberts Ltd.

A duty of care depends on reasonable foreseeability of a risk of personal injury, not foreseeability of the precise disease later suffered. In asbestos cases, foreseeable pulmonary injury is sufficient; mesothelioma need not itself have been foreseeable. A factory wall does not by itself exclude neighbouring residents where emissions created materially similar conditions outside and inside the premises. Dust concentration, duration, knowledge and comparable exposure are fact-sensitive matters. An appellate court should not interfere with findings that were open to the trial judge on the evidence.

J W Roberts Ltd appealed against findings of liability by Holland J in two claims brought by local residents of an asbestos factory. Arthur Margereson and June Hancock had contracted mesothelioma, allegedly after exposure to asbestos dust escaping from the factory and accumulating in areas where children played. The appeals concerned the existence and scope of the defendants’ duty of care, the date by which the risk ought reasonably to have been known, whether the factory wall limited that duty, and whether the exposure caused the disease. Damages had been agreed subject to liability.

Disposition. The Court of Appeal dismissed both appeals. The judgment was delivered as the judgment of the court.

1. Duty of care. The court adopted the approach stated by Lord Lloyd in Page v Smith [1996] 1 AC at page 190: the relevant inquiry is whether the defendant could reasonably foresee exposing the claimant to a risk of personal injury. In this context, liability required reasonable foreseeability of some pulmonary injury, not necessarily mesothelioma. The working definition in section 38(1) of the Limitation Act 1980 included disease and impairment of physical or mental condition.
2. Knowledge and culpability. The defendants’ argument that culpable knowledge arose only around 1933 was rejected. The evidence showed that information about pulmonary damage from asbestos dust existed long before that date. The defendants therefore had, or should have had, sufficient actual or constructive knowledge when the relevant exposures occurred.
3. Persons outside the factory. The factory wall did not circumscribe the duty of care. Where evidence showed that persons immediately outside the premises were exposed to dust conditions not materially different from those giving rise to a duty inside, a comparable duty could arise.
4. Causation and fact-finding. The trial judge was required to assess dust concentration, duration of exposure, comparability with factory conditions and steps taken to reduce emissions. He was entitled to find, on the balance of probabilities, that the claimants contracted mesothelioma during childhood exposure at the loading bays. Those were essentially findings of fact open on the evidence, and there was no basis for appellate interference.

The appeals were dismissed with costs, subject to legal aid taxation of the respondents’ costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division). In [1996] EWCA Civ 1316, the appeals were dismissed, with costs and legal aid taxation of the respondents’ costs.
• Queen’s Bench Division. Holland J found in favour of both claimants on liability in a judgment delivered on 27 October 1995. The citation of that decision was not stated in the judgment.