Case analysis of the 9 key findings in this mesothelioma case caused by exposure to asbestos.

Mrs. Rosemary Dean (Executrix of the Estate of Mr Philip Dean, deceased) v. Armstrong Oiler Company Ltd [2023] EWHC 3445 (KB)

Case analysis of the 9 key findings in this mesothelioma case caused by exposure to asbestos, heard by Her Honour Judge Coe KC, sitting as a Deputy High Court Judge

Overview:

The Deceased was employed by Armstrong Oiler Company Ltd from 1959 to 1972.  He died in June 2020 from mesothelioma.  The Claimant’s case was that the Deceased was exposed to asbestos whilst employed by the Defendant.

Breach of duty (and so liability) was in dispute.

The Claimant’s Case:

Mr Dean was employed as an apprentice loom turner, maintenance officer, and foreman.  It was the Claimant’s case that he was exposed to asbestos dust while inspecting and working on an air compressor near a boiler insulated with asbestos-containing lagging.

The exposure is said to have occurred when Mr Dean brushed past the lagging (to get to the compressor) and during maintenance activities that disturbed the dust, including asbestos dust lying on the ground.

Damages were agreed at £200,000, subject to liability.

It was not disputed that the Deceased had died as a result of mesothelioma.         

The Defendant’s case

Firstly, it was denied that the boiler insulation was unprotected or that it contained asbestos. 

In any case, if there was any exposure, it was argued that such exposure was minimal and without reasonably foreseeable risk of injury.   

Evidence:

Mr Dean provided a written statement prior to his death. This detailed his duties involving the air compressor near the asbestos-lagged boiler.  He described frequent exposure to asbestos dust when working on the compressor and brushing against the lagging, which created dust clouds.

The Claimant’s expert as to exposure, Mr Chambers, described that that Mr Dean's description of the boiler lagging was consistent with asbestos exposure. The Defendant’s expert, Mr Glenn argued that any asbestos exposure would have been minimal and not hazardous according to the standards of the time.

A medical report confirmed that the mesothelioma was likely caused by asbestos exposure during Mr Dean's employment, based on Mr Dean’s account.

The court further considered a large volume of documents, including Mr Dean’s medical records and technical data notes about asbestos exposure standards from the around the period.

The Defendant relied on historical records to argue that Mr Dean's exposure was not substantial enough to breach any duty of care.  Mr Glenn contended that the boiler insulation was likely covered in a material that would prevent significant asbestos dust release.  The Defendant argued that, by the standards at the time, the exposure level did not warrant preventive measures.

The court made findings on 9 key areas:

(i)        Reliable recollection of exposure:

The court considered the reliability of Mr Dean's recollection of his asbestos exposure, which was initially questioned due to medical records indicating no known asbestos exposure. The judge noted that his awareness and identification of the boiler as the asbestos source emerged through detailed questioning and the involvement of solicitors. The clinical notes, which contained some inaccuracies, were deemed insufficient to undermine his evidence. The judge concluded that Mr Dean’s detailed description of his exposure was convincing.

(ii) Was the Boiler Protected and (iii) Did the Insulation Contain Asbestos?

The court considered whether the boiler was protected and if the insulation contained asbestos. It concluded that the boiler was likely unprotected and the insulation contained asbestos, based on Mr Dean’s descriptions and expert evidence, which indicated that asbestos lagging was prevalent at the time.

(iv) The Deceased’s Exposure to Asbestos:

The court accepted Mr Dean’s evidence as to the frequency and degree of exposure to asbestos dust from the boiler lagging over nine years. The Judge found Mr Dean's account of brushing past the lagging and disturbing dust credible, rejecting the Defendant's arguments that minimized the exposure, frequency and intensity.

(v) The Nature of the Asbestos Dust:

The court considered the type of asbestos in the dust, concluding it was likely amosite, with a smaller chance of crocidolite being presence. The experts agreed that without specific testing, it was impossible to determine the exact type, but the described lagging was consistent with asbestos-containing materials used at the time.

(vi) Foreseeability and (vii) Level of Exposure:

The court considered the 2-stage set out in Bussey v Anglia Heating [2018] EWCA Civ 243, setting out that:

“the first question is whether or not the employer should have been aware that the exposure to asbestos dust at work gave rise to a significant asbestos-related injury and Underhill LJ said, “I say ‘significant’ only so as to exclude risks, which are purely fanciful. Any real risk, albeit statistically small, of a fatal illness is significant”. If the answer to the first question is that the defendant should have been aware that the exposure gave rise to such a risk, the second question is whether it took proper precautions to reduce or eliminate that risk.”

It was found (on the evidence before the court) that from 1965 onwards, it was reasonably foreseeable that even minimal asbestos exposure could cause mesothelioma. Reliance on TDN-13 (giving exposure levels for prosecution post-May 1970) was not of relevance for much of the period of exposure, in any event.  In any event, it was rejected that the exposure was sufficiently low to be below levels within.  Accordingly, foreseeability was made out.

The court found that a reasonable employer in the position of the Defendant would have had knowledge of the risk of short or transient exposure to asbestos from about 1965 and that this Defendant knew or ought to have known that Mr Dean’s exposure to asbestos dust at work at the levels found gave rise to a significant risk of asbestos-related injury.

(viii) Precautions:

The court found that the Defendant failed to take simple and effective precautions, such as encapsulating the boiler insulation, which would have completely prevented asbestos exposure. The lack of any protective measures constituted a clear breach of duty.

(ix) Second Limb of Section 63(1) Factories Act 1961:

The Claimant argued that the Defendant breached the Factories Act by failing to protect against ‘any substantial quantity of dust of any kind’. The court noted that while case law on what constitutes a ‘substantial quantity’ of dust is limited, the Claimant did not establish that the Deceased was exposed to a ‘substantial quantity’ of dust under the second limb, as the exposure was a transient cloud of dust and not a quantity of dust, which hung in the air or which was such as to create a smog or haze of the kind described in previous caselaw.

Result: 

Accordingly, the Claimant succeeded on her case.