Sharon Alexandra Ness v Carillion Capital Projects Limited & Ors.

In a mesothelioma claim, foreseeability is assessed by reference to what a reasonable and prudent employer should have known at the relevant time. The question is whether the work created a real, rather than fanciful, risk of asbestos-related injury and, if so, whether reasonable precautions were taken.

There is no fixed quantitative threshold for a material increase in mesothelioma risk. Low-level exposure may suffice where it is measurable and not insignificant compared with exposure from other sources. Whether exposure is de minimis is fact-sensitive.

The claimant, as personal representative of Mr John Harrison’s estate, claimed damages for mesothelioma following alleged occupational asbestos exposure while Mr Harrison worked for Bovis Limited, a predecessor of the second defendant, in 1966–68.

The principal issue was whether millboard fitted beneath windows contained asbestos. The court also considered whether cutting and fitting asbestos cement panels for up to 14 days constituted a breach of duty and materially increased the risk of mesothelioma. Quantum was agreed at £107,500.

1. The claim relating to asbestos millboard failed. The claimant had not proved on the balance of probabilities that the millboard contained asbestos. The evidence was inconsistent and poorly documented, including changing descriptions of the material and an inadequately recorded photographic identification exercise.
2. Bovis owed Mr Harrison a duty of care. By the mid-1960s, sufficient information was available to a reasonable employer concerning the dangers of asbestos, including low-level exposure. The size and resources of Bovis reinforced the conclusion that it should have been aware of the risk.
3. Applying the approach in Bussey v 0065401 Ltd (formerly Anglia Heating Ltd) [2018] EWCA Civ 243, the relevant question was whether Bovis should have been aware that the exposure involved a significant risk of asbestos-related injury, meaning any real risk rather than a fanciful one, and whether proper precautions were taken.
4. Bovis had provided no evidence of advice, protective equipment, risk assessment or other precautions. Simple measures, such as masks or cutting the panels outdoors, could have reduced the risk. Bovis was therefore negligent and in breach of duty.
5. The court applied the material-increase-in-risk approach in Sienkiewicz v Grief (UK) Ltd [2011] UKSC 10. No universal numerical test determines whether exposure is material or de minimis. The measurable exposure from cutting and fitting asbestos cement was not so insignificant that it could be disregarded. It constituted a material increase in the risk of mesothelioma.
6. The claimant succeeded in respect of the asbestos cement exposure. Judgment was entered for £107,500, with costs to the claimant on the standard basis if not agreed.