Maguire v Harland & Wolff Plc & Anor

An employer’s duty in negligence depends on whether injury of the relevant kind was reasonably foreseeable to the particular claimant. Foreseeability must be assessed by reference to knowledge reasonably available when the alleged breach occurred, especially in a scientifically developing field.

Before late 1965, the available literature did not identify injury from domestic or familial exposure to asbestos dust. An employer could therefore owe and breach a duty to reduce an employee’s workplace exposure without owing an independent duty to the employee’s wife in respect of dust carried home. The later discovery of familial risk could not retrospectively make that risk reasonably foreseeable.

Harland & Wolff admitted that, between 1961 and early 1965, it negligently exposed its employee, Mr Maguire, to asbestos dust. He carried contaminated clothing home, where his wife shook, brushed and washed it. She later developed mesothelioma and died. Her personal representative continued her claim.

Morland J held that pulmonary injury to Mrs Maguire was reasonably foreseeable and that simple workplace precautions would have prevented her exposure. The employers appealed. The central issue was whether, in light of the knowledge reasonably available before Mr Maguire’s employment ended, an employer should have foreseen physical injury to a member of his household from secondary exposure to asbestos dust.

1. By a majority, the appeal was allowed. Judge LJ, with whom Longmore LJ agreed, held that physical injury to an employee’s wife through domestic exposure to asbestos dust was not reasonably foreseeable between 1961 and early 1965. Morland J’s finding that the risk was reasonably foreseeable and obvious could not stand.

2. Negligence required foreseeability of physical injury of the relevant kind to the particular claimant. The existing knowledge of workplace risks did not itself establish foreseeability of a separate familial risk. Before late 1965, neither the specialist literature nor the conduct of responsible employers, safety authorities, the Factory Inspectorate or the medical profession identified a need to protect employees’ families from dust carried home.

3. The court had to avoid hindsight in a scientifically developing field. The evidence showed a gradual development of knowledge, initially focused on employees directly exposed at work. The Newhouse and Thompson research published in 1965 first brought the risks of domestic and environmental exposure into public view. That material became available only after Mr Maguire had ceased working for the appellants.

4. An employer’s duty to its employees required asbestos exposure to be reduced so far as practicable. The permissible-concentration figures published in 1960 did not authorise avoidable exposure. That employee-facing duty did not, however, answer the distinct question whether injury to a family member was then reasonably foreseeable.

5. The environmental-exposure principle recognised in Margereson could potentially protect a family member where conditions outside the factory effectively replicated those within it. It did not apply here because Mrs Maguire’s exposure was not shown to replicate her husband’s workplace exposure or to be at a level which would have constituted a breach of duty had it occurred in the factory.

6. Mance LJ dissented. He considered that the appellants’ serious failure to control avoidable asbestos dust foreseeably extended the same general risk beyond the workplace. In his view, it was unnecessary to foresee the precise identity of the injured third party or the precise disease.

7. The appeal was allowed. Permission to appeal to the House of Lords was refused, with consequential orders concerning costs and repayment of sums paid under the order below.

1. Court of Appeal (Civil Division): By a majority, allowed the employers’ appeal in [2005] EWCA Civ 1, set aside the finding of liability and refused permission to appeal to the House of Lords.

2. Queen’s Bench Division: Morland J held on 26 March 2004 that the employers were liable in negligence for Mrs Maguire’s personal injuries and consequential loss. No citation is stated in the judgment.