Richardson v Russell

In a mesothelioma claim involving exposure during employment with more than one employer, exposure is actionable where the defendant’s wrongdoing materially increased the risk of disease. Exposure is not de minimis merely because it involved relatively low levels of dust, if it was significant, occurred over several years and was comparable with exposure from another employment. An employer who knew of the dangers of asbestos dust was negligent in failing to obtain proper advice and take straightforward precautions to eliminate or minimise exposure, including suitable respiratory protection, damping down materials and extraction where necessary.

The claimant, suing as widow and executrix of the deceased’s estate, sought damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. She alleged that the defendant negligently exposed the deceased to asbestos dust while he worked as a plumber and heating engineer for the defendant between about 1975 and 1987.

The principal issues were whether exposure occurred, whether the defendant was in breach of duty, and whether the exposure materially contributed to the risk of mesothelioma. Quantum was agreed at £118,610, subject to liability.

1. Exposure. The deceased had fairly regular exposure to relatively low levels of asbestos dust from asbestos boards, asbestos cement flue pipes and sweeping debris. That exposure was punctuated by shorter periods of higher exposure when asbestos lagging was removed from pipework and boilers. His exposure while working for the defendant was comparable with his earlier exposure while working for Cotterells.
2. Breach of duty. During the relevant period the defendant knew that asbestos was dangerous. Proper advice would have established that there was no safe limit for exposure and that exposure should be eliminated or minimised. The defendant provided only fabric masks, which afforded inadequate protection, and failed to take straightforward precautions, including suitable oro-nasal masks, damping down asbestos materials and extraction where necessary. He was negligent.
3. Statutory duties. The claimant also relied on the Construction (General Provisions) Regulations 1961, the Construction (Working Places) Regulations 1966 and the Asbestos Regulations 1969. Having found negligence, the court regarded the applicability of those Regulations as academic and did not determine it.
4. Causation. Applying Fairchild v Glenhaven Funeral Services Ltd and Others [2003] 1 AC 32, proof that the defendant’s wrongdoing materially increased the risk of mesothelioma was sufficient. The exposure was significant, occurred over a period of years, and could not properly be described as de minimis. The causal requirements were therefore satisfied.
5. Disposition. There was judgment for the claimant in the agreed sum of £118,610, inclusive of interest.