McGregor v Genco Ltd- identifying the issue and then the risk

Case Background

The claimant, aged 58, developed mesothelioma and at the time of trial her prognosis was poor. The claimant’s symptoms first appeared around May 2012 and the diagnosis was confirmed in August 2012. The claimant alleged that her illness was caused by exposure to dust which was the result of escalator construction work taking place alongside her work station. Upon leaving school, the claimant worked in the shoe section of Lewis’s department store in Liverpool. The claimant was employed by the British Shoe Corporation who operated a concession within the department store.

The following issues were considered and determined during the course of the trial: was the claimant exposed to asbestos dust during the course of her employment; what was the extent of her asbestos exposure; did the exposure cause her mesothelioma; and was the exposure negligent, in particular did the exposure give rise to a foreseeable risk of injury based upon the knowledge at the time of her employment.

In 1976 work was undertaken on the removal of the old and construction of new escalators within the store. The new escalators were to be in the centre of the store as opposed to the rear of the buildings. The work was undertaken during the day and customers were still allowed to enter the store. It was accepted that the new escalators were installed before the old ones and that the claimant worked approximately 10 feet from both the old and new escalators. The claimant gave evidence that she had to dust the shelves roughly three or four times a day to remove the white dust which had gathered on them. Although the claimant could not recall any plastic sheets being put down it was accepted by the court that there were such sheets to separate the work from the shop floor. The shop assistants were provided with no masks or any other form of respiratory protection.

Both experts agreed it was likely that asbestos insulating boards (AIBs) were used in the construction of the escalators removed and the new ones put in. Both agreed that (on the basis of HSE guidance in place at the time) breaking and ripping out AIBs was likely to be associated with the production of asbestos dust concentrations in the order of 5-20 fibres per millilitre in the breathing zone of the operator carrying out the work. Circular sawing was likely to be associated with levels of 20 fibres per millilitre in the breathing zone of the operator. The experts agreed that, as a rule of thumb, dust concentrations reduced to 10% of the value at source at a distance of 20-30 feet. No dust readings were taken  during the work but the court concluded it was unlikely the claimant was exposed to levels of dust in excess of the recommendations in TDN 13.

Patterson J concluded that, on the balance of probabilities, there was a barrier erected from floor to ceiling but that it was not airtight or polythene. Despite this barrier it was accepted that dust was still escaping and that it was causing shop assistants to regularly remove dust from the shelves and stock room. Therefore the claimant was subjected to asbestos exposure during her employment by the defendant at Lewis’s store. Following on from this it was accepted that the exposure to dust was causative of the claimant’s mesothelioma.

In respect of negligence the claimant submitted that the defendant was under a duty to ensure a safe place of work and that by 1976 it was known that there was a real risk of injury as a result of slight asbestos exposure. In contrast, the defendant argued that the central issue was whether it was reasonably foreseeable that the claimant might be at risk and that that is to be judged according to the knowledge of the time. Patterson J concluded that there was no negligence on behalf of the defendant. In reaching this decision the judge was influenced by the likelihood that the claimant was not exposed to levels of asbestos in breach of TDN 13 and that both experts agreed the erection of a floor to ceiling barrier would have been regarded as adequate at the time. The judge considered, and rejected, whether a further duty arose to make enquiries about the risk the work presented to employees. The protection offered by the defendant was not ‘clearly bad’ and that although the dust was a nuisance there was nothing to put the defendant on notice to make such an enquiry.

Contributor Comments

In Shell Tankers (UK) Limited v Jeromson and Dawson (2001) PIQR P.19 Lady Justice Hale (as she then was) stated at paragraph 35,

The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk; the issue is whether the risk should have been identified.  With the benefit of hindsight, it is now quite clear that the exposure in these cases was sufficient to cause mesothelioma, the disease from which Mr Dawson and Mr Jeromson eventually died. The link between asbestos and mesothelioma was not established until 1960. Until then the known risk of lung disease, in particular asbestosis, and in the 1950’s, lung cancer associated with asbestosis. The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk.”

There are different facets to proof of a breach of duty of care. The starting point has to be that a reasonable person in the position of the defendant would have identified a risk. If this is proved then consideration has to be given as to what steps ought to have been taken to avoid or reduce that risk. A reliance by advocates on behalf of claimants on guidance to reduce asbestos exposure in particular “as far as reasonably practicable” does not necessarily assist in relation to the threshold issue of whether risk ought to have been identified. Guidance of this nature implies the risk has already been recognised.

Mrs Justice Patterson approached the case on the basis of an evaluation of all the evidence and followed the guidance of Lord Justice Aikens in Williams v University of Birmingham at paragraph 37:

I would adopt the same approach in relation to the standards by which the University is to be judged in the present case. What is not acceptable now may have been regarded as acceptable in 1974. As Simon J summarized the position in Lilian Rose Asmussen v Filtrona United Kingdom Limited (but substituting “the University” for “the employer” to apply to this case):

…the foreseeability of injury has to be tested against the standard of the well-informed [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][University] who keeps abreast of the developing knowledge and applies [its] understanding without delay, and not by the standard of omniscient hindsight. [A University] can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless (a) the practice is clearly bad practice, or (b) in the light of developing knowledge about the risks involved in some location or operation a particular [University] acquired greater than average knowledge of the risks.”’

Following the decision of the Court of Appeal in Williams a perception has developed that cases of exposure from 1970 onwards can be assessed simply by reference to whether the exposure has shown to have exceeded the guidance in TDN 13 of 1969.  This was the argument of the defendants in Billingham v Barnsley. This argument over simplifies the position and the question in each case is one of fact as to whether there were circumstances which indicated risk.  In this context, the level of exposure by reference to published standards is highly relevant but not necessarily determinative. In the Barnsley case there were clearly, on the evidence, heavy exposures which were suggestive of risk and the fact that with hindsight the relevant individual’s exposure was not shown to exceed the guidance did not assist the defendants. The nature and level of the exposure should have been avoided even if not every exposed individual had a cumulative level of exposure which exceeded the relevant guidance.

By way of contrast with Barnsley, in the present case there was no evidence at all which indicated that anyone in a responsible position employed by the defendants should have considered risk. The dust was a nuisance but on the evidence nothing more. The expert witnesses agreed that the enclosure would have been considered adequate by contemporaneous standards and that the levels did not exceed those in TDN 13 of 1969. There was therefore nothing on the evidence which would indicate that the defendants were not themselves directly engaged in the relevant activities should have appreciated that their employees were at risk.

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