Jennifer Cuthbert v Taylor Woodrow Construction Holdings

In assessing negligence for historic asbestos exposure, foreseeability is judged by the conduct of the reasonable and prudent employer in light of actual or constructive knowledge at the time, without hindsight. Recognised industry practice is relevant, but it is not conclusive where developing knowledge or common sense required further precautions. The degree, duration and nature of exposure are central to whether a more than fanciful risk of injury was foreseeable. On the evidence, light, intermittent and largely indirect exposure in the late 1950s did not give rise to a reasonably foreseeable significant risk of asbestos-related injury. The defendant therefore owed no liability for failing to warn or take precautions.

The claimant, acting as executrix and dependent of Derek Cuthbert, claimed damages following his death from mesothelioma. She alleged that he had been exposed to asbestos while employed by the defendant on construction work at Queenswood School between about 1956 and 1959. The claim was advanced in negligence and under the Building (Safety, Health and Welfare) Regulations 1948, but the parties agreed that the regulations imposed no different or higher standard than common law negligence.

The court determined employment, the extent and character of exposure, and whether the defendant should reasonably have foreseen injury from that exposure at the material time.

1. Applicable approach. The court applied the reasonable and prudent employer test, assessed by reference to actual or constructive knowledge at the time. Recognised and general practice was relevant and important, but it was not the sole test. An employer had to keep reasonably abreast of developing knowledge and could not rely on a practice which was clearly bad in the light of common sense or newer knowledge. Hindsight was excluded.
2. Exposure findings. The deceased’s evidence was examined critically because it concerned events more than 60 years earlier and contained inconsistencies and implausible detail. The court found that his exposure was low-order, light and intermittent, mainly as a bystander. Contact with carpenters was irregular. Sweeping occupied only a small part of the working day, estimated at about ten minutes on some days. The precise asbestos product was left finely balanced and was of marginal importance.
3. Foreseeability. The literature established that asbestos dust was dangerous and that significant occupational exposure required suppression. However, the court distinguished cases involving substantial or intense exposure. The degree of exposure was relevant to whether a reasonable employer should have identified a risk. The court rejected the submission that Abraham v G Ireson & Sons (Properties) Limited was wrongly decided and adopted its approach to light and intermittent exposure.
4. Disposition. A reasonable employer in the late 1950s, keeping abreast of available knowledge, could not reasonably have foreseen a significant, more than fanciful, risk of injury from exposure at the level found. The defendant was not liable for failing to warn or take precautions. Liability was not established and there was judgment for the defendant.