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

In employer negligence claims arising from historical asbestos exposure, foreseeability is assessed by reference to the injury recognised at the time and the knowledge of a reasonable and prudent employer, not hindsight. It is enough that some personal injury was foreseeable; mesothelioma need not have been identified. Uncertainty about whether any exposure was safe did not, by itself, impose a duty in the 1950s to eliminate exposure. The court must first ask whether the particular exposure created a real and significant risk of asbestos-related injury and, only then, what precautions were required. Maximum permissible or threshold limits are evidence, not a bright line. On the facts, light, intermittent and comparatively low exposure did not create a foreseeable risk in the relevant period. Both appeals were dismissed.

These conjoined appeals concerned claims for damages following mesothelioma and death after alleged occupational asbestos exposure in the 1950s.

• In the White appeal, the deceased had worked in a hospital laboratory where soft asbestos mats were used under Bunsen burners. The High Court dismissed the claim: [2022] EWHC 3082 (KB).
• In the Cuthbert appeal, the deceased had worked on a construction site where carpenters used asbestos insulation boards and he sometimes swept debris. The High Court likewise dismissed the claim: [2022] EWHC 3036 (KB).

The appeals challenged the legal test for foreseeability, the factual assessment of exposure, the use of historical literature and, in the Cuthbert appeal, the fairness of the defendant’s failure to obtain further evidence before the deceased’s death. The central issue was whether the employers should have foreseen a significant risk of asbestos-related injury from the exposure found.

Both appeals were dismissed. Stuart-Smith LJ gave the leading judgment, with Newey LJ and Underhill LJ agreeing. The question was whether, in the light of contemporary knowledge, a reasonable and prudent employer should have appreciated that the particular exposure created a significant, meaning real and not fanciful, risk of asbestos-related injury. It was unnecessary that mesothelioma itself should have been foreseeable; some pulmonary or other personal injury would suffice.

1. The court endorsed the two-stage approach in Bussey v Anglia Heating [2018] EWCA Civ 243. First, the court asks whether the employer should have been aware of a significant risk arising from the particular exposure. If so, it asks whether proper precautions were taken to reduce or eliminate the risk, or whether advice should have been sought. The existence and discharge of the duty must be assessed in the circumstances of the individual claimant and by reference to knowledge available at the time.
2. The pre-1960 literature principally identified asbestosis and, later, lung cancer. Those conditions were understood to result from substantial exposure, subject to a lower safe level or dust datum. The evidence did not show that employers should have foreseen injury from exposure materially below those levels. The later recognition that mesothelioma could follow slight exposure could not be used retrospectively.
3. The dictum in Owen v IMI Yorkshire Copper Tubes Ltd that employers had to reduce exposure to the greatest extent possible was ill-founded insofar as it went beyond the contemporary foreseeability inquiry. It did not create a general precedent. Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101 was justified on its facts, involving substantially greater exposure, but did not bind the court to adopt that wider proposition. The reasoning in Maguire v Harland and Wolff plc [2005] EWCA Civ 1 was consistent with a conventional foreseeability analysis.
4. Maximum permissible concentrations, threshold limit values and Technical Data Note 13 were not a bright line or universal test. They were, however, relevant evidence. The substantial disparity between those figures and the exposure found could support a conclusion that the risk was not reasonably foreseeable.
5. In the White appeal, the findings of intermittent exposure at very low levels justified the conclusion that no duty to take precautions or seek advice arose. In the Cuthbert appeal, the trial judge was entitled to find that exposure was low, light and intermittent, mainly as a bystander, and to treat the expert calculation as approximate and contextual. There was no basis for appellate interference.
6. There was no unfairness in the Cuthbert defence. A defendant’s ability to seek a deposition, further information or cross-examination did not itself require those steps, particularly where the witness was terminally ill and the employment was more than 60 years earlier. Fairness was the touchstone.

Underhill LJ agreed that the evidence did not support a duty to eliminate all exposure merely because the safe level was uncertain. The final order was dismissal of both appeals.

• Court of Appeal (Civil Division). Both appeals were dismissed on 14 March 2024: [2024] EWCA Civ 244.
• High Court of Justice, King’s Bench Division. The White claim was dismissed by the Deputy High Court Judge: [2022] EWHC 3082 (KB). The Cuthbert claim was dismissed by HHJ Freedman: [2022] EWHC 3036 (KB).