Abraham v G. Ireson & Son (Properties) Ltd & Anor

In assessing negligence for historic asbestos exposure, the foreseeable risk must be a risk of some personal injury, not necessarily mesothelioma. The court must consider the degree and frequency of exposure together with the knowledge reasonably available to employers at the material time. Authorities concerning substantial or regular exposure do not establish liability where exposure was only light and intermittent. An employer is not negligent for failing to take precautions against a risk which could not reasonably have been appreciated. For statutory duties using the expression “likely to be injurious”, foreseeability is required. Knowledge of the risk is also relevant to reasonable practicability.

The claimant, a plumber, developed pleural mesothelioma decades after working for two small plumbing and building firms. He alleged exposure to asbestos scorch pads, asbestos string, asbestos board and asbestos flue pipes during employment between 1956 and 1965. The agreed damages were £155,000, subject to liability.

The court determined the extent of exposure, causation, common-law negligence and alleged breaches of regulation 82 of the Building (Health, Safety and Welfare) Regulations 1948 and regulations 20 and 21 of the Construction (General Provisions) Regulations 1961.

1. Exposure and causation. The claimant used asbestos scorch pads only during his employment with the second defendants. His use of asbestos string for the first defendants was infrequent and exposure with the second defendants, although greater, remained modest and intermittent. The court made no positive finding of exposure from asbestos board and found any possible exposure from asbestos flue pipes could only have been very occasional. Alternative asbestos-free materials were available. Despite the modest exposure, the overwhelming likelihood was that it caused the mesothelioma.
2. Common-law negligence. The relevant question was whether a careful employer should have foreseen a risk of personal injury from the exposure, such that precautions or advice should have been sought. The foreseeable injury need not have been mesothelioma. The degree of exposure was material. Trevor Owen v IMI Yorkshire Copper Tube and Shell Tankers UK Limited v Jeromson; The Cherry Tree Machine Company Limited & Another v Dawson concerned substantially greater exposure and did not determine the present case.
3. The literature available during the claimant’s employment established the dangers of asbestos and the need to suppress dust, but did not reasonably alert an employer to a risk of injury from the claimant’s light and intermittent exposure. The 1960 guidance, including its maximum permissible concentration, might even have reassured employers that exposure at those levels was harmless. There was no special knowledge or experience requiring a different conclusion. The defendants were therefore not negligent.
4. Statutory duty. The phrase “likely to be injurious” in regulations 82 and 20 required a degree of foreseeability. It was distinct from the objective concept of whether a workplace was “safe”. In any event, knowledge of risk was relevant to reasonable practicability. Since the defendants could not reasonably have known of the relevant risk, the asbestos dust was not shown to be likely to be injurious and protective steps could not reasonably have been taken.
5. Regulation 21 of the 1961 Regulations did not apply. Judgment was given for both defendants.