Landmark Ruling: Court of Appeal Delivers Conclusive Judgment on Asbestos Exposure Liability Pre-1965

On 14 March 2024, the Court of Appeal handed down judgment in White v Secretary of State for Health and Social Care. White was heard alongside Cuthbert v Taylor Woodrow in December 2023. Clyde & Co LLP represented both Defendants/Respondents. The appeals were concentrated on the issue of the foreseeability of risk of low-level asbestos exposure in the pre-1965 era.

Relevant background

The late Mr White died of mesothelioma in April 2020, at the age of 87. The late Mr White's family pursued the claim on behalf of his estate.

Before his sad death, the late Mr White made a short witness statement in which he alleged exposure to asbestos during his employment as a lab technician at Sefton General Hospital from 1949 to 1960. It was alleged the late Mr White was negligently exposed to asbestos Bunsen burner boards which were fragile, prone to breaking, flaky and friable. The late Mr White also alleged exposure to asbestos as a senior biochemist from 1973 to 1991.

The trial of the claim was heard in November 2022.  The trial judge, Mr Jeremy Hyam KC, accepted the uncontroverted expert assessment of the Defendant’s expert occupational hygienist Dr Graeme Hughson.  The trial judge concluded:

• Handling friable asbestos millboard would likely create an asbestos dust concentration of around 1-2 fibre/ml for short periods of time
• The late Mr White was potentially exposed to an average asbestos concentration of 0.02 to 0.05f/ml (8-hour time-weighted average)

The trial judge determined that, from 1949 to 1960, the late Mr White’s exposure to asbestos had been light, intermittent and trivial. The trial judge determined that any exposure from 1973 onwards would have been de minimis. The appeals were heard together in December 2023.

The trial judge concluded that, when assessed by the standards of the day, the late Mr White’s exposure would have been below a level which would have triggered a duty on the Defendant hospital to take precautions or seek advice on what precautions to take.  Therefore, limb (a) of the Bussey test had not been activated.

Permission to Appeal

The Appellants in White sought permission to appeal on the grounds that the decisions at first instance had been wrongly decided because the Judge had failed to properly apply the approach to foreseeability adopted by the Court of Appeal in Jeromson v Shell Tankers [2001] ICR 1223, Maguire v Harland & Wolff plc [2005] PIQR P21 and Bussey v Anglia Heating Ltd [2018] ICR 1242.

In addition to the above argument, the Appellants in ‘Cuthbert’ argued that the trial judge was wrong to find that the deceased’s exposure was “light and intermittent” and should have instead described the exposure as having been “substantial but intermittent”.

Permission was granted by the Court of Appeal which considered there was a compelling reason why the appeals of ‘White’ and ‘Cuthbert’ should be heard in that it gives the opportunity for consideration of liability in historical cases of exposure to asbestos where the exposure was not substantial or significant over a period of time. The appeals were heard together in December 2023.

Decision of the Court of Appeal

The Court of Appeal in White was provided with a significant volume of historic literature which enabled the Court to conduct a comprehensive review of authoritative guidance relevant to the issue of developing knowledge in the field of asbestos disease into the late 1960s/early 1970s.  The literature on asbestos was considered to be “fundamental to the outcome of these appeals”. 

Upon consideration of established jurisprudence in the field of foreseeability of injury, the Court of Appeal concluded that the only risks that were identified as foreseeable in the period before 1960 were asbestosis, and subsequently lung cancer, both of which were (and are) associated with substantial exposure.  The Court of Appeal observed the literature did not support the proposition that before 1960 there was recognition that exposure to levels of asbestos lower than those thought necessary to cause or contribute to the development of asbestosis, would have given rise to a more than fanciful risk of pulmonary injury.  Indeed the Court of Appeal determined that pre 1960, there was a “dust datum” below which there was no foreseeable risk of developing asbestosis.

The Court of Appeal was referred to guidance in the form of maximum permissible concentrations (MCP), threshold limit values (TLV) and enforcement levels and observed that whilst these did not provide a bright line for determining foreseeability, they demonstrated an understanding that exposure to asbestos below certain levels was safe.  The Court of Appeal considered that the publications which carried this information were purported to be giving advice that could and reasonably should have been applied by employers in the pursuit of complying with their obligations.  Going forwards, it might be deduced that in circumstances where an individual’s exposure to asbestos falls significantly below the levels stated in contemporaneous guidance, an employer could not reasonably have been expected to foresee a risk of injury.

In dealing with the Appellants’ submissions, the Court of Appeal considered the Court’s decision in ‘Jeromson’. It was stated that the levels of exposure in that case fell comfortably within the sort of levels that were known to give rise to a risk of asbestosis or to contribute to its severity.  

The Court of Appeal unanimously dismissed the appeals finding that, by the standards of the day, neither Defendant should have been aware that the exposure complained of would have given rise to a significant risk of injury.

Jason Bleasdale, Partner, who represented the Respondent in ‘White’ states: “The judgment of the Court of Appeal is a cogent, thorough and impressive one which sets out clear and authoritative appellate judicial authority on points of significance to asbestos jurisprudence. It also represents a comprehensive endorsement of the first instance judgment and the legal argument presented by the Defendant.”

The Court of Appeal's judgment can be found here

Jason Bleasdale and Edward Joy of Clyde & Co LLP represented the Defendant, the Secretary of State for Health and Social Care throughout the defence of this claim. Clyde & Co's Occupational Disease and Legacy Claims team advises top UK insurers, the healthcare sector, SMEs, public sector, and corporate clients on various claims, including the full range of asbestos claims, occupational stress, asthma, and COVID-19-related cases. We handle emerging respiratory claims due to housing disrepair and assess risks from increasing cavity wall insulation claims. Our expert teams have a wealth of experience in navigating complex coverage issues.