Introduction

The case of White & Ors v Secretary of State for Health and Social Care ([2024] EWCA Civ 244) presents significant discussions surrounding the duty of care owed by employers to their employees, specifically in the context of asbestos exposure and the subsequent development of mesothelioma.

In this appeal, the Claimants represent the estates of individuals who contracted mesothelioma due to asbestos exposure during their employment. The core issue revolves around whether the trial Judges correctly applied the legal test for establishing a duty of care based on the levels of asbestos exposure and the prevailing knowledge at the time of exposure.

The Court of Appeal (Civil Division) dismissed both appeals, reinforcing the importance of historical context in negligence cases involving occupational hazards.

Summary of the Judgment

The Court of Appeal upheld the decisions of the lower courts, dismissing both the White appeal and the Cuthbert appeal. The primary reasoning was that the trial Judges had appropriately applied the legal standards of duty of care and foreseeability based on the knowledge available during the periods when the asbestos exposure occurred (1949-1960 for Mr. White and 1956-1959 for Mr. Cuthbert).

The Appeals raised questions about whether the trial Judges had correctly assessed the levels of asbestos exposure and whether the employers should have foreseen the risk of mesothelioma, a condition not widely recognized until the 1960s.

The trial Judges concluded that the exposures were neither constant nor at levels sufficient to trigger a duty of care, considering the medical and engineering evidence available at the time. The Court of Appeal concurred, affirming that the trial Judges did not err in their application of the law.

Analysis

Precedents Cited

The judgment extensively reviewed previous cases and legal principles to contextualize the duty of care in asbestos exposure cases:

• Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968]: Established foundational principles for the duty of care, emphasizing foreseeability and the standard of a reasonable employer.
• Thompson v Smiths Shiprepairers (North Shields) Ltd [1984]: Further clarified the duty of care, separating known practices from those deemed clearly bad.
• Jeromson v Shell Tankers (UK) Ltd [2001]: Focused on significant exposure levels and the responsibility of employers to recognize and mitigate risks.
• Maguire v Harland and Wolff plc [2005]: Addressed familial and environmental exposure, expanding the scope of duty of care beyond direct employment.
• Bussey v Anglia Heating [2018]: Highlighted the importance of contemporaneous knowledge over hindsight in determining foreseeability.
• Williams v University of Birmingham [2012]: Discussed the application of duty of care in the context of evolving scientific knowledge.

These precedents collectively underscore the evolution of the duty of care in relation to occupational hazards and the critical role of prevailing knowledge in assessing foreseeability.

Legal Reasoning

The Court of Appeal meticulously dissected the trial Judges' reasoning, emphasizing the following legal principles:

• Duty of Care: Employers owe a duty to ensure the safety of their employees, which hinges on whether the risk of injury is foreseeable.
• Foreseeability: Determined by the knowledge and standards at the time of exposure, not by hindsight.
• Standard of Care: Assessed against what a reasonable and prudent employer would have understood and acted upon given the information available.

In both appeals, the Employers were not found to have breached their duty of care because the levels of asbestos exposure were deemed low and intermittent, and the risk of mesothelioma was not foreseeable during the periods in question.

The Court also examined the extensive literature and expert testimonies on asbestos risks, determining that the knowledge linking low-level asbestos exposure to mesothelioma was not established until the 1960s. Therefore, employers in the 1950s and early 1960s could not have reasonably foreseen the risks associated with the exposure levels experienced by the Claimants.

Impact

This judgment reinforces the principle that the duty of care is intrinsically linked to the knowledge and standards prevailing at the time of the alleged negligence. It sets a clear demarcation for future cases involving occupational hazards:

• Historical Context: Emphasizes the necessity of considering the temporal context and contemporaneous knowledge when assessing foreseeability.
• Evolution of Risk Understanding: Highlights how evolving scientific knowledge can shift perceptions of risk and potentially influence future duty of care assessments.
• Precedential Clarity: Clarifies that previous cases like Jeromson do not bind the Court in subsequent cases where factual circumstances differ significantly.

For legal practitioners, this judgment underscores the importance of aligning negligence claims with the specific historical and factual contexts of each case, particularly in areas where scientific understanding evolves over time.

Complex Concepts Simplified

Conclusion

The White & Ors v Secretary of State for Health and Social Care ([2024] EWCA Civ 244) judgment serves as a pivotal reference in understanding the application of duty of care and foreseeability within the realm of occupational health and safety law.

By dismissing both appeals, the Court of Appeal affirmed that employers during the mid-20th century could not have reasonably foreseen the risks associated with low-level asbestos exposure resulting in mesothelioma, given the prevailing scientific knowledge and industry standards of the time.

This decision underscores the necessity for courts to consider the historical context and existing knowledge when adjudicating negligence claims, particularly in fields where scientific understanding is rapidly evolving. It also emphasizes that legal responsibilities are dynamic, adapting as new information and understanding of risks emerge.

For future cases, this judgment highlights the importance of aligning negligence claims with the specific factual and temporal contexts, ensuring that duty of care assessments remain fair and grounded in the knowledge available at the time of the alleged misconduct.