Factual and Procedural Background
This claim for damages arises under the Law Reform (Miscellaneous Provisions) Act 1934 concerning the death of an individual from mesothelioma, diagnosed in September 2019 and who died in April 2020 at age 87. The Claimants are the executors of the deceased's estate and allege that the death was caused or materially contributed to by wrongful asbestos exposure during two periods of employment at Sefton General Hospital: approximately 1949-1960 as a junior lab technician and 1973/1974-1991/1992 as a senior biochemist. The deceased also worked at the University of Liverpool in between these periods. The Defendant is the successor entity liable for Sefton Hospital's obligations and accepts the employment and dates but disputes the extent and nature of asbestos exposure.
The procedural history includes directions for exchange of factual and expert evidence, with factual witness statements served by the Claimants and expert reports exchanged from respiratory and occupational hygiene experts. The Defendant did not serve factual evidence nor require oral evidence from the Claimants’ witness. The Claimants did not serve an occupational hygiene expert report, resulting in reliance on the Defendant's expert evidence in that regard. The court considered the admissibility and weight of the expert evidence in light of relevant case law.
Legal Issues Presented
- What were the nature and circumstances of any asbestos exposure during the deceased's employment at Sefton General Hospital and/or other employments, particularly the level of exposure during the two periods of employment with the Defendant.
- Whether the level of asbestos exposure, as proven, gave rise to a duty of care at common law and/or under the Asbestos (Licensing) Regulations 1983, Asbestos (Prohibitions) Regulations 1985, and Control of Asbestos at Work Regulations 1987.
- If such a duty existed, whether it was breached by the Defendant failing to take adequate precautions or make enquiries about necessary precautions to reduce or avoid the risk.
- If liability is established, the quantum of damages payable.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Stokes v. Guest Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 |
General duty of care owed by employer to employees, including keeping abreast of developing knowledge and taking reasonable precautions. |
The court adopted the classic test for employer duty of care, emphasizing reasonable and prudent conduct based on knowledge at the time. |
| Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] ICR 236; [1984] QB 405 |
Clarifies the distinction between recognised practices and newly emerging risks requiring employer precautions. |
The court acknowledged the evolving nature of knowledge and risks, applying this to assess the duty owed. |
| Bussey v. 00654701 Ltd (formerly Anglia Heating) [2018] ICR 1242 |
Confirms the duty of employers in relation to developing knowledge about asbestos risks and the necessity to take precautions. |
The court relied on this authority to frame the duty of care in the context of asbestos exposure and evolving scientific understanding. |
| Jeromson v. Shell Tankers (UK) Ltd [2001] EWCA Civ 101 |
Employers must consider the maximum potential exposure and take precautions accordingly, even if exposure levels are variable and uncertain. |
The court applied this approach to assess whether the Defendant should have foreseen and mitigated the risk of asbestos exposure. |
| Gunn v. Wallsend Slipway and Engineering Co Ltd (unreported 1988) |
Historical view on when asbestos risks were known and actionable by employers. |
Referenced to contrast with other cases on foreseeability and knowledge of asbestos risks. |
| Owen v. IMI Yorkshire Copper Tubes Ltd (unreported 1995) |
Employers’ duty to reduce asbestos exposure to the greatest extent possible from early dates. |
Used to illustrate differing judicial views on knowledge and duty regarding asbestos exposure. |
| Maguire v. Harland and Wolff plc [2005] PIQR P21 |
Foreseeability of risk from secondary asbestos exposure and its implications for employer liability. |
The court considered this case in relation to the timing and extent of knowledge about asbestos risks. |
| Williams v. University of Birmingham [2011] EWCA Civ 1242 |
Test for breach of duty requires foreseeability of risk at the relevant time and level of exposure. |
The court applied the principle that exposure below certain guideline levels may not constitute a breach if risk was not foreseeable. |
| Coopers Payen Ltd v. Southampton Container Terminal Ltd [2003] EWCA Civ 1223 |
General principle that the court must apply the burden of proof to all evidence, both fact and opinion. |
The court followed this approach in evaluating expert evidence. |
| Abraham v. Ireson [2009] EWHC 1958 (QB) |
Assessment of asbestos exposure levels and whether employer should have taken precautions based on intermittent and low-level exposure. |
The court used this authority to compare with the present case’s exposure levels and duty to act. |
| Hawkes v. Warmex Ltd [2018] 2 WLUK 190 |
Exposure to asbestos dust and the extent to which an employer must consider practicable protective measures. |
The court considered this case in relation to the threshold of exposure amounting to more than minimal risk. |
Court's Reasoning and Analysis
The court undertook a detailed factual analysis to determine the extent and nature of asbestos exposure during the deceased's two periods of employment at the Defendant hospital. It accepted the deceased’s and his daughter’s factual evidence, hospital records, and the Defendant’s expert occupational hygiene evidence, noting the absence of any expert evidence from the Claimants on occupational hygiene.
Findings established that during the first period (1949-1960), the deceased was exposed intermittently to low levels of asbestos dust, primarily from friable soft asbestos mats used as heat protective mats under Bunsen burners. The estimated average asbestos concentration was approximately 0.02 to 0.05 fibres/ml (8-hour time-weighted average), equating to a marginal increase above background levels but nonetheless a medically significant increase in mesothelioma risk according to the respiratory experts.
During the second period (1973/1974-1991/1992), the evidence was insufficient to prove the continued use of soft asbestos mats; harder mats likely replaced them, reducing dust emission to insignificant levels. Moreover, the deceased held a more senior position with limited lab exposure, further diminishing the likelihood of significant asbestos exposure.
The court applied established legal principles on employer duty of care, notably the tests from Stokes, Thompson, and Bussey, to assess whether the Defendant should have foreseen the risk and taken precautions. It concluded that the low and intermittent exposure during the first period did not give rise to a duty to take precautions or seek advice at the time, given the contemporaneous knowledge and guidance about asbestos risks. The second period’s exposure was found to be negligible and did not trigger any duty.
The court also critically evaluated the validity of back-calculations of exposure levels, accepting the Defendant’s expert’s estimates as reasonable in the absence of contrary expert evidence. It considered the relevant historical guidance and scientific knowledge, including memoranda from the Department of Education and Science and Technical Data Note 13, concluding these did not impose a duty on the Defendant during the relevant periods given the exposure levels found.
Consequently, the court found no breach of duty at common law or under statutory provisions pleaded, as the Defendant neither knew nor ought reasonably to have known of a significant risk requiring precautionary measures during either period of employment.
Holding and Implications
The court’s final decision is in favour of the Defendant, dismissing the Claimants’ claim for damages.
The holding establishes that where asbestos exposure is intermittent, minimal, and below levels known or reasonably foreseeable to cause injury at the relevant time, no duty of care arises on the employer to take precautions or seek advice. The decision reflects the importance of contemporaneous knowledge and expert assessment in defining employer liability for asbestos-related injuries.
No new legal precedent was set; the ruling applies the existing principles of employer duty of care in the context of evolving scientific understanding of asbestos risks. The Claimants are therefore not entitled to damages under the facts and law as found by the court.