Introduction
Mr. White died on 8 April 2020 from mesothelioma at the age of 87. His estate claimed that his death had been caused through wrongful exposure to asbestos dust whilst working at Sefton General Hospital in Liverpool between 1949 and 1960, when he was a junior laboratory technician; and between 1973 and 1992, when he worked as a senior biochemist. The Secretary of State was the defendant, having inherited liabilities from bodies running Sefton Hospital at the relevant times.
Detail
Cause of death was not disputed. Symptoms commenced in about July 2019 and a formal diagnosis of mesothelioma was made in September that year. However, the defendant argued that Mr. Wilson was exposed to extremely low levels of asbestos dust whilst working at the hospital, at a time when the risk of injury from such limited exposure was not generally known. A key issue for the court was therefore the amount of likely exposure during Mr. Wilson’s career.
Prior to his death, Mr. Wilson had made a statement in which he described the use of asbestos mats in the laboratory. He categorised them as “very fragile” and said “they would simply break and the edges would be flaky …. If you placed the board down onto the desk heavily it would just break into pieces and cause so much dust to emerge”.
The defendant served evidence from an occupational hygiene expert. He drew the court’s attention to a memorandum from the Department of Education and Science dated 18 July 1967 which stated: “In circumstances in which asbestos is used in schools there would seem to be little if any risk of creating such heavy quantities of dust as to cause either asbestosis or cancer of the lung in later years. Even so, inhalation of any form of asbestos dust by pupils and teachers should be reduced to a minimum ……. Hard asbestos mats should be used in preference to soft ones.” In 1976, the Department issued revised guidance which stated that “soft asbestos mats should not be used in science”.
The judge concluded that the handling of asbestos mats in a laboratory would be likely to create asbestos dust for short periods. He accepted the expert’s view that this would probably have amounted to 0.2 to 0.4 fibre/ml years during the first employment period. In other words, the likely level of exposure was modest and infrequent, and not more than minimal.
During his second period of employment. Mr. Wilson was in a more senior position and the likely level of exposure to asbestos dust was insignificant in causal terms.
The judge then undertook a detailed analysis of case-law and noted that it was not until 1965, when Newhouse and Thompson published a paper entitled Epidemiology of Pleura and Peritoneum that the risk became known that much lower exposures than had previously been thought to be dangerous could cause mesothelioma.
Decision
During his first period in the laboratory, Mr. Wilson was exposed to very low levels of asbestos dust. Since the entirety of this period was before publication of the key paper in 1965, it was not foreseeable to the hospital authorities that there was a risk the deceased might develop mesothelioma or some other malignant disease from very low level exposure to asbestos dust. During the second period of employment, the degree of exposure was very low indeed. Consequently, although causation had been accepted, it was not foreseeable to the employers at the time that Mr. White might be exposed to a risk which they had a duty to guard against. Judgment was therefore given in favour of the Secretary of State.
Comment
NHS Resolution managed this claim on behalf of the defendant. It was undoubtedly a sad case – mesothelioma is a painful and invariably fatal condition. However, the law has to evaluate such claims based upon what would have been reasonable for the employers to do at the time, and not with the benefit of hindsight. It was not considered that very modest exposure to asbestos dust might be dangerous until publication of the paper in 1965. During the second period of employment, Mr. Wilson was in a senior role and his exposure would have been, in the judge’s view, insignificant. Consequently, breach of duty by the hospital authorities had not been demonstrated.
