Kearns v Delta Steeplejacks Ltd

An employer’s liability for asbestos exposure may be apportioned by time exposure where the evidence does not permit reliable findings about another employer’s exposure and dose-based assessment is materially imprecise. Pleural plaques alone do not necessarily constitute actionable injury; the claimant must establish diffuse pleural thickening or another injury exceeding the de minimis threshold. Where asbestos exposure causes present respiratory disability and there is an agreed risk of specified future conditions, provisional damages may be appropriate.

The claimant had worked as a steeplejack for the defendant for about seven or eight years and had been exposed to asbestos in several occupational activities. He claimed damages for asbestos-related pleural disease and respiratory disability. The claim against another employer was discontinued before trial, but the court was required to take that employment into account when apportioning any award.

The defendant conceded breach of duty. The issues at trial were the extent of exposure, the appropriate apportionment method, whether the claimant had diffuse pleural thickening in each lung, the cause of any such condition, and the appropriate damages and future-risk order.

1. The defendant was in breach of its duties under the Control of Asbestos at Work Regulations 1987 and the Control of Asbestos Regulations 1969 to prevent or minimise exposure to asbestos dust. The breach was conceded.

2. The claimant’s evidence established extensive exposure while employed by the defendant. His exposure was assessed at 25 fibre ml/year or more. Although the experts provided dose-based and time-based assessments, the court had no factual evidence from the other employer and accepted that a dose assessment was imprecise. The appropriate apportionment was therefore the agreed time-exposure figure of 39 per cent.

3. The claimant established diffuse pleural thickening in the right lung and the court found that it was caused by asbestos exposure rather than the claimant’s previous traumatic haemothorax and surgery. The evidence concerning the subsequent radiography was inconsistent with the trauma being the cause.

4. The claimant did not establish diffuse pleural thickening in the left lung. The evidence showed pleural plaques and related changes, but not sufficient thickening or functional impairment. Those changes did not amount to actionable injury because they were no more than de minimis.

5. The court assessed provisional general damages for pain, suffering and loss of amenity at £40,000, with £300 special damages. After applying the 39 per cent apportionment, the award was £15,717. Provisional damages were ordered for mesothelioma, significant asbestos-related progression of diffuse pleural thickening, asbestosis, and asbestos-caused lung cancer, with the agreed period for applying for further damages.

First-instance decision. No prior or appellate decision is stated in the judgment.