Unknown case

In an asbestos exposure claim, foreseeability involves two questions: whether a reasonable employer should have appreciated that the exposure created a real risk of asbestos-related injury, and whether reasonable precautions were taken to reduce or eliminate that risk.

Historical hygiene standards are relevant evidence, but they are not a universal or decisive threshold. The court must assess the knowledge reasonably available to an employer at the material time and the particular exposure proved. Where a simple precaution would have eliminated a significant risk, failure to take it may constitute breach even without precise exposure measurements.

The claimant, the executrix and widow of Philip Dean, brought a claim against his former employer following his death from mesothelioma. Mr Dean had worked for the defendant between 1959 and 1972 and alleged repeated exposure to asbestos dust from unprotected boiler lagging while maintaining a nearby air compressor.

Quantum was agreed at £200,000, leaving breach of duty and the statutory claim under section 63(1) of the Factories Act 1961 for determination. The central issues were the reliability of Mr Dean’s recollection, whether the boiler lagging was unprotected and contained asbestos, the nature and extent of exposure, foreseeability, reasonable precautions, and whether the exposure engaged the second limb of section 63(1).

1. Liability. The claim succeeded in negligence and under the first limb of section 63(1) of the Factories Act 1961. The defendant had taken no precaution to reduce or eliminate a foreseeable risk of asbestos-related injury.
2. Evidence and exposure. Mr Dean’s account was reliable despite the initial clinical records not recording asbestos exposure. The boiler was probably covered only by a canopy, its lagging was unprotected and, on the balance of probabilities, contained asbestos. Mr Dean was exposed three or four times a week for about nine years. Disturbance of the lagging, floor dust and dust on his clothing created visible dust and occasional clouds of dust.
3. Foreseeability. Following Bussey v Anglia Heating [2018] EWCA Civ 243, the inquiry had two stages: whether the employer should have known that the exposure created a significant, real risk of asbestos-related injury, and whether proper precautions were taken to reduce or eliminate it. The risk was significant. From about 1965 a reasonable employer should have appreciated the risk from short or transient exposure.
4. Hygiene standards. Technical Data Note 13 was relevant but did not establish a bright-line test or determine foreseeability. The court had to adopt a nuanced assessment of the information reasonably available at the time. Precise dose reconstruction was unnecessary and potentially unsound. The defendant had no evidence of any assessment of the risk and could not establish that the exposure was de minimis.
5. Precautions. Covering the boiler with a hard protective material was a simple and obvious precaution which would have eliminated the exposure. The defendant failed to prove that reasonable precautions had been taken.
6. Second statutory limb. The court considered, obiter, that the transient cloud of dust did not amount to a substantial quantity of dust for the purposes of the second limb of section 63(1). The relevant quantity is assessed when dust is given off, but the evidence did not show dust hanging in the air as a haze or smog of the kind considered in Prater v British Motor Holdings Ltd [2016] 6 WLUK 193.