Carey v Vauxhall Motors Ltd

An employer may owe a duty to protect members of an employee’s family from secondary asbestos exposure where such exposure is reasonably foreseeable. Liability in mesothelioma cases does not require identification of the particular asbestos fibre or proof that the defendant was the sole source of exposure. The relevant question is whether the defendant’s breach made a material, rather than merely de minimis, contribution to the risk of contracting mesothelioma. Whether exposure was material is fact-sensitive. The court may draw common-sense conclusions from evidence about asbestos in the workplace, its transfer to clothing, skin or hair, and subsequent domestic exposure.

The claimant, John Carey, represented the estate of Lydia Carey after her death from biphasic mesothelioma. He alleged that asbestos fibres from Vauxhall’s Dunstable factory were carried home by him while working there between 1973 and 1979, causing secondary exposure to his wife between August 1976 and June 1979.

Vauxhall admitted the disease, the asbestos cause and the duty of care, but denied breach and contended that exposure from other employers or sources was more likely. The central issues were whether Mr Carey had significant occupational exposure at the Dunstable factory, whether fibres were transferred to Mrs Carey, and whether that exposure materially increased the risk of mesothelioma.

1. Duty and governing principles. A duty of care to persons exposed indirectly through an employee’s asbestos-contaminated clothing may arise where the risk of such exposure is reasonably foreseeable. The duty extends beyond the factory premises. In a mesothelioma case involving multiple possible sources, a defendant may be liable where its breach made a material contribution to the risk, even though the particular causative fibre cannot be identified.
2. Material contribution. Materiality is a question of degree. Exposure below the de minimis threshold is not material, but low-level exposure may still materially increase the risk. The court must determine the issue on the evidence and may draw common-sense inferences.
3. Findings on exposure. During 1976 to 1979, significant asbestos remained in the Dunstable factory, including asbestos lagging on hot-water pipework, ceiling-tile dust, substations, calorifiers and brake-pad machinery. Mr Carey was exposed to asbestos dust in the course of maintenance work. Dust reached his clothes, skin and hair and was carried home. Mrs Carey was exposed through personal contact and by shaking out and laundering his clothes.
4. The overalls scheme did not establish that Mr Carey was protected from exposure. It was not compulsory, the clothing was not dust-tight, and there was no adequate system requiring workers to shower or preventing contaminated clothing from being taken home. Vauxhall could reasonably and practically have reduced the risk, including by removing asbestos lagging before the relevant period and by taking precautions in relation to ceiling tiles and machinery.
5. The exposure was more than negligible or de minimis and materially increased the risk of mesothelioma. Liability was therefore made out on the preliminary issue. The judgment records no separate costs or damages order.

First-instance liability-only trial in the High Court. No earlier decision in the same proceedings is stated.