Rolls Royce Industrial Power (India) Ltd v Cox

In a mesothelioma claim involving exposure by several employers, the modified causation approach does not relieve the claimant of proving the defendant’s breach of duty. Liability requires exposure caused by that breach which materially increased the risk of contracting mesothelioma.

No minimum duration of exposure must be established. Exposure which is merely de minimis is insufficient, but its significance may be inferred from the nature of the work, the working conditions and the probable period of employment. The evidence must be assessed as a whole, particularly where historic events create unavoidable evidential difficulties.

A welder died from malignant mesothelioma after asbestos exposure during employment by several companies. His widow brought proceedings under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 against the corporate successor of one employer.

The Recorder in Mansfield County Court found that the deceased had performed power-station maintenance work for that employer in 1966–67, had been negligently exposed to asbestos and had consequently suffered a material increase in the risk of mesothelioma. Judgment was entered for the claimant for an agreed £100,000.

The employer appealed, principally contending that the historical evidence was too fragmentary to establish the nature, duration and circumstances of the employment or a breach of duty.

1. The appeal was dismissed unanimously. The Recorder was entitled to conclude from the evidence as a whole that the deceased had worked as a welder for International Combustion at power stations in 1966–67. The nature and scale of the company’s business, the deceased’s general account of power-station conditions and the expert evidence supported the inference that he undertook substantial boiler-maintenance work involving asbestos exposure: paras 20–21.
2. The Recorder had no evidential basis for finding that the employment lasted at least four months. That error was immaterial. Success did not depend upon proof of a specific duration or a prescribed minimum period of exposure. The relevant question was whether the extent and duration of the exposure materially increased the risk of mesothelioma. Exposure within the de minimis principle would be insufficient: para 21.
3. The character of the contract work, the deceased’s role and the evidence about conditions justified the finding that the exposure was not de minimis. On the probabilities, he had worked in those circumstances for at least a week, which the employer accepted would constitute more than minimal exposure: para 21.
4. The modified causation approach in Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22 assisted the claimant where it was impossible to identify which employer’s exposure caused the disease. It did not remove the need to prove the defendant’s breach of duty, consistently with Brett v University of Reading [2007] EWCA Civ 88: para 3.
5. A reasonable employer in 1966 would have known of the risk arising from short or transient asbestos exposure. The expert evidence identified reasonable precautions by which the risk could have been avoided or reduced. The Recorder was therefore entitled to find both breach of duty and a material increase in the risk of mesothelioma: para 22.

Maurice Kay LJ gave the judgment. Hooper and Tuckey LJJ agreed: paras 23–25.

1. Court of Appeal (Civil Division): The employer’s appeal was dismissed. The Recorder’s finding of liability was upheld, notwithstanding the absence of evidence supporting his estimate that the employment had lasted at least four months: [2007] EWCA Civ 1189.
2. Mansfield County Court: Recorder T Clark gave judgment for the claimant on 5 February 2007. He found negligent asbestos exposure which materially increased the deceased’s risk of mesothelioma. Damages were agreed at £100,000.