McGregor v Genco (FC) Ltd

In a historical asbestos-negligence claim, foreseeability is judged by the knowledge and standards reasonably applicable at the time, without hindsight. The relevant question is whether a careful employer should reasonably have foreseen a risk of personal injury and taken precautions or sought advice. Established practice may be relied on unless it was clearly bad, or developing knowledge and the employer’s particular knowledge required more. A nuisance caused by dust, and the wearing of disposable masks by some contractors, did not necessarily put an employer on notice of an asbestos risk. Where adequate floor-to-ceiling enclosure was provided and no circumstances indicated an enhanced risk, there was no further duty to investigate as the work progressed.

The claimant developed pleural mesothelioma after working in a department store during escalator replacement works in 1976. She alleged that asbestos dust escaped from the works and that the defendant, her employer, was negligent in failing to prevent exposure, investigate the nature of the dust, or adopt further precautions. The parties agreed damages at £135,000 inclusive of interest, subject to liability.

The court found that the claimant had been exposed to asbestos dust from the works and that the exposure had caused her mesothelioma. The central issue was whether, applying the knowledge and standards reasonably available in 1976, the defendant should have foreseen a risk of asbestos-related injury and taken further precautions.

1. Claim dismissed. Although the claimant was exposed to asbestos dust during the 1976 escalator works and that exposure caused her mesothelioma, the defendant was not negligent.
2. Foreseeability in a personal injury claim concerns whether the defendant could reasonably foresee that its conduct would expose the claimant to a risk of personal injury. The assessment must use the contemporary state of knowledge. The court must avoid hindsight.
3. The reasonable-employer test requires positive thought for workers’ safety in light of what the employer knew or ought to have known. An established practice may be relied on unless it was clearly bad, or developing knowledge or particular knowledge required greater precautions. The same common-law test applied to the defendant as a retailer as to a factory occupier.
4. The evidence established that asbestos-containing boards were used and that dust escaped into the shoe department. The claimant’s exposure was nevertheless light and intermittent. The experts agreed that a floor-to-ceiling enclosure would have been regarded as adequate in 1976, although it would not meet current standards.
5. The dust nuisance, the continued trading of the store, and the wearing of paper masks by some workmen did not provide sufficient notice that the precautions were inadequate or that further enquiries were required. The works were of short duration and no particular circumstance indicated an enhanced or different risk as they progressed.
6. The failure to appreciate the asbestos risk, adopt measures now regarded as appropriate, or enquire into the nature of the dust therefore did not amount to negligence. The claim was dismissed.