Emma Jane White & Ors v Secretary of State for Health and Social Care

An employer’s duty in an asbestos case depends on whether the exposure gave rise to a real, significant risk of asbestos-related injury which a reasonable employer ought to have recognised. The court must assess the historical state of knowledge and the nature, frequency and level of exposure. Published exposure limits may assist but do not provide a universal test of foreseeability. Where the exposure is no more than minimal, the duty to take precautions or seek advice is not triggered. On the facts, intermittent and very low exposure from laboratory heat mats did not establish a foreseeable significant risk during either period of employment. The claim therefore failed in negligence and under the pleaded statutory duties.

The executors of Thomas White’s estate claimed damages under the Law Reform (Miscellaneous Provisions) Act 1934 for mesothelioma allegedly caused by asbestos exposure at Sefton General Hospital. The deceased worked there as a junior laboratory technician from 1949 to 1960 and as a senior biochemist from 1973/74 to 1991/92.

The issues were the extent of exposure, whether it was sufficient to give rise to a common-law or statutory duty, whether that duty was breached, and quantum. The hospital’s successor accepted the employment but advanced no positive factual case and relied principally on the argument that any exposure was low level and occurred before the relevant risk was generally known.

1. Expert evidence. The court was not bound to accept uncontroverted expert evidence complying with CPR Part 35. It had to evaluate the evidence in the usual way, considering the report, its purpose and all the circumstances. However, departure from a properly reasoned opinion within the expert’s expertise required cogent explanation. The burden remained on the claimants to prove the facts on the balance of probabilities.
2. Applicable duty. The court applied the reasonable and prudent employer test in Stokes v Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, as developed for changing knowledge in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] ICR 236 and Bussey v 00654701 Ltd (formerly Anglia Heating) [2018] ICR 1242. The employer must consider whether the work involved a real, significant risk of asbestos-related injury and, if so, whether proper precautions were taken or advice sought.
3. Exposure and foreseeability. During 1949–1960, exposure from soft laboratory mats was intermittent, modest and very low, estimated at approximately 0.02–0.05 fibre/ml (8-hour TWA). During 1973–1991/92, significant exposure was not proved and any exposure was de minimis. The court treated back-calculation against later published limits as potentially unhelpful and not determinative.
4. The historical evidence showed that, before 1965, the relevant knowledge did not make this level of exposure a foreseeable risk requiring precautions. Although later guidance favoured hard mats and subsequently prohibited soft asbestos mats, the evidence did not establish that soft mats remained in use during the second employment period.
5. The claimants therefore failed to prove breach of the common-law duty or of the pleaded statutory duties under the Asbestos (Licensing) Regulations 1983, the Asbestos (Prohibitions) Regulations 1985 and the Control of Asbestos at Work Regulations 1987. Judgment was given for the defendant. The judge’s assessment of damages was expressly hypothetical.