Clyde & Co Successfully Defends Mesothelioma Lawsuit : Clyde & Co

Clyde & Co was awarded a positive High Court judgment in a case involving a claim for damages for death from mesothelioma at the end of November.

Clyde & Co successfully defends mesothelioma lawsuit

The death of the deceased from mesothelioma was not disputed and the key question was whether there was a breach of duty by the defendants, which was answered by referring to the then-current view of the danger of exposure to asbestos.

In White v Secretary of State for Health and Welfare [2022] All ER (D) 13 (December) plaintiffs alleged that the deceased was exposed to asbestos while he was worked at Sefton General Hospital, Liverpool, for two separate periods: between 1949 and 1960 as a junior laboratory technician; and between 1973/1974 and 1991/1992 as senior biochemist. In relation to the second period, the deceased’s alleged exposure to asbestos occurred only during the ‘early years’ of that employment.

The central questions of the statement of fact revolved around the amount of asbestos dust to which the deceased was likely to have been exposed in each period of employment and whether that level of exposure was sufficient to trigger a duty to take precautionary measures to reduce, recognize or avoid altogether the risk of exposure advice on the precautionary measures to be taken.

There was no dispute between the parties’ medical experts, who agreed that there was likely a medically significant increase in mesothelioma risk resulting from the deceased’s cooperation with the defendant.

The parties were permitted to seek and rely on their own expert industrial hygienist evidence. The complainant identified an experienced industrial hygienist who prepared a draft report and had a meeting with legal counsel but chose not to serve the report. The only occupational hygiene expert opinion before the court was a written report by the defendant’s expert, Dr. Graeme Hughson.

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Plaintiff did not raise any Part 35 questions regarding Dr. Hughson and did not seek an order that Dr. Hughson to be heard in court. Considering Plaintiff’s submissions that the court was under no obligation to consider Dr. Hughson, the judge concluded that while he was under no obligation to reach conclusions consistent with the views of an unconverted expert witness, in this case Dr. Hughson, any departure from a properly reasoned expert opinion would require compelling justification.

The deceased’s lifetime testimony, a photograph of the deceased and his benefit claim forms have been carefully reviewed. The judge concluded that the heat-resistant mats used by the deceased during the early period of his employment (1949 to 1960) were probably made of asbestos cardboard or asbestos insulating board (AIB) rather than asbestos cement. The judge accepted that the deceased would have been exposed to low and intermittent concentrations of asbestos dust during his initial period of employment as small amounts of dust were released by abrasion of the mats; 1 to 2 fibres/ml for a short time, a total concentration of 0.2 to 0.4 fibres/ml for years.

Considering guidelines issued by the Department of Education in 1967 and in the absence of satisfactory evidence from the deceased, the judge concluded that it was unlikely that the hospital had used soft asbestos mats during the second period of employment. The alternative was hard asbestos mats, which were unlikely to emit any significant dust. The judge therefore found no relevant exposure to asbestos during the testator’s second period of employment.

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In considering whether there was a breach of duty, Mr. Hyam KC considered Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101.

The first question was whether the risk of personal injury resulting from the deceased’s exposure to asbestos should have been reasonably foreseen by a diligent employer to the extent that the employer should take precautions or at least seek advice on what, if any, the case was , precautions they could take.

The judge approached this question by introducing the two-step test in Bussey v 00654701 Ltd (formerly Anglia Heating Ltd) [2018] ICR 1242: He asked whether the hospital’s employer should have known during either the deceased’s first or second term of employment that the deceased’s exposure to asbestos resulted in a risk of asbestos-related injuries. If so, has Sefton Hospital taken reasonable precautions to reduce/eliminate the risk, or at least sought advice? The defendant’s occupational hygienist provided evidence that the judge found helpful. In the 1950s and early 1960s, the prevailing view was that occasional and relatively minor exposure was not considered hazardous and would not have warranted precautionary measures such as work site segregation or the use of respiratory protection. Case law and contemporary literature/advice supported this view.

The judge concluded that at no time of the deceased’s employment did the defendant know, and reasonably should not have known, that asbestos dust posed a risk in the minimal amounts to which the deceased was likely to have been exposed at the relevant times before which they were exposed should have protected by taking reasonable steps or advice.

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