“In respect of engineering/occupational hygiene evidence, although the Claimants identified an appropriate expert occupational hygienist in accordance with the Master’s direction, and a draft report was prepared and a conference with Counsel held, no such report was ever served by the Claimants. The consequence was that the only expert occupational hygienist evidence before the Court was that of the Defendant’s expert Mr Graeme Hughson, dated1st July 2022 . That report was accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time.”
“I consider that a reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e. more than fanciful) risk of injury as a result of the exposure to asbestos at the level to which I have found that [Mr Cuthbert] was exposed.”
“turn on the amount of asbestos dust to which the deceased is 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 steps to reduce the risk of exposure, or to avoid it altogether, or at least take advice on what precautionary steps ought to be taken.”
“… I think it is likely that whenever the Bunsen burners were used, or the mats were moved around the lab, (i.e. intermittently) some dust was likely to be emitted, mostly by normal usage and occasionally by breakage of the mats. In a hospital laboratory, I consider it is likely that the lab benches would be regularly wiped down either with a wet or dry cloth, and in the course of that activity dust particles left on the benches would be likely to enter into the work environment. More so if dry rather than wet cloths were used. Occasionally, I accept the mats might break and emit larger quantities of dust but as a general rule the dispersion of dust particles into the air would have been intermittent rather than constant and probably at low quantities.”
“[Mr White] was likely to have been exposed to asbestos dust but intermittently and in very low quantities. Mr Hughson has estimated the exposure equated to 0.02 to 0.05 fibre/ml (8-hr TWA); or 0.2 to 0.4 fibre/ml years. On the basis of the joint medical evidence and Mr Hughson’s evidence and notwithstanding this is a level which is only a “marginal increased level above background”, it is a statistically significant increase in risk, and I find … sufficient to amount to a material increase in the risk of the deceased developing mesothelioma.”
“(i) Should Sefton Hospital … have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury. Where "significant" is meant to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant. (ii) If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take.”
“It would seem to me to be odd to find the Defendant in breach of duty, if, had appropriate advice been sought, the hospital would reasonably have been advised that the risk of asbestos-related injury was sufficiently low or negligible as to be not worth troubling about. Equally, it would seem odd, not to find a breach of duty, if, had appropriate advice been sought, the hospital would have been reasonably advised to take at least some precautions to reduce the risk of asbestos related injury.”
“On this issue, Mr Hughson’s evidence is helpful. He explains that throughout the 1950s and early 1960s the prevailing view was that occasional and relatively low-level exposure to asbestos even in industrial processes and the application of asbestos lagging, was not thought to be hazardous and would not have warranted precautions such as segregation of the workplace or use of respiratory protection. Thus even if it was accepted that a necessary part of the deceased’s employment included cutting asbestos sheets made of millboard or AIB, for use as protective heat mats, that activity would not have been classed as a hazardous one.”
“whether, given the knowledge that:- (i) Soft asbestos mats were in use as heat protective mats (ii) Such mats were probably known to be liable to emit small amounts of asbestos dust by abrasion when used, moved or dropped. the Defendant hospital ought to have considered that this intermittent and relatively light level of exposure to asbestos mandated at the very least seeking advice on what precautions to take.”
“Whether or not one accepts the soundness of the back-calculation of Mr Hughson, the fact is that the levels of exposure which the deceased was subjected to by the intermittent use of Bunsen burners and the mats which were used to protect the benches they were placed on was likely to be very low indeed. On the estimation of Mr Hughson (which in the absence of any expert evidence to the contrary I take to be reasonably reliable) this would have been for a few minutes, probably no more than 12 minutes per day. In the light of this, Mr Hughson reaches what I consider to be a reasonable conclusion that the levels of exposure implied by the deceased’s evidence would have been considered to be ‘trivial’ by the standards of the day. It follows that, similarly to Swift J in [Abraham] at §86, were expert advice to have been sought by the Hospital in the period 1949 to 1960, while it is a possibility that an adviser might have advised the hospital to eliminate the use of soft asbestos mats, I consider, having regard to the fact that during that period asbestos heat mats were still being used in many other everyday settings such as schools, the response would (at least until the end of the first period of employment in 1960) on the balance of probabilities have been that there was no need for the defendants to be concerned about any risk of asbestos related injury from the continued use of those mats. That advice would necessarily have changed after 1965, and most obviously after the Department of Education and Science memo of 1967.”
“(i) Should Sefton Hospital in … the first period of employment (1949-1960) … have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? No: in respect of … the first … period. I have found that the exposure to dust was not more than minimal and certainly not at a level which would have triggered a duty on the Defendant to take precautions or seek advice on what precautions to take. (ii) If yes, did Sefton Hospital take proper precautions to reduce or eliminate that risk or at the very least seek advice as to what, if any, precautions he could take. Not applicable. There was insufficient exposure to trigger the duty to take precautions or seek advice.”
“For the reasons I have given, I have concluded that the Defendant did not know and cannot reasonably have been expected to have known during the period 1949 to 1960 … that asbestos dust in the minimal quantities in which the Claimant was likely to be exposed was a risk against which they should have guarded by taking reasonable steps or by taking advice.”
“34. Further, I struggle to see how it was that the deceased spent between one/two hours standing around the carpenters. Given the lack of any information from the deceased himself as to what he was doing during that time, in my judgment, it is improbable that the description in his witness statement is accurate. … In this regard, I also note what was recorded on the application form for IDB, “I came into contact with asbestos while working in the building industry. On occasions, I recall working alongside carpenters cutting up asbestos sheets which were used for soffits.” … It is of note that the deceased does not there say that he had daily contact with the carpenters or that he spent significant periods of time in close proximity, when they were cutting up asbestos sheets. 35. I also have difficulty in accepting that, over a period of two years or more, on every day, the carpenters were cutting up asbestos materials for use in soffits. It seems to me that this defies common sense, even in the context of new buildings being built. There must have been a limit to the number of asbestos materials which were being incorporated into the building or buildings. Whilst I accept that the carpenters may have spent some of their working time engaged in this activity, I do not accept that it was a daily occurrence or that this activity was continued over a period of two or three years. 36. It seems to me that, looking at the matter objectively and applying common sense, the overwhelming probability is that the deceased had no more than sporadic contact with the carpenters - perhaps, he did see them every day or most days, but I do not find that he spent anything close to one/two hours standing around them whilst they carried on with their tasks. I have already made it clear that I do not accept, in any event, that the carpenters were engaged each and every day cutting up asbestos materials. It is also questionable whether this work was being carried out over a two/three year period. Overall, it seems to me much more likely that the deceased had irregular and intermittent contact with the carpenters and that, at times, they were engaged in cutting up asbestos materials when he was in their vicinity. Moreover, on the deceased’s own account, depending upon the weather, the cutting of asbestos boards took place outside. 37. As to sweeping up, I am willing to accept that this was a task which the deceased undertook from time to time and, maybe, on occasions, a number of times per day. What I am unable to accept is that he was the person who always swept up after the carpenters, once they had cut up the asbestos materials. Experience would suggest that they probably did some of their own sweeping. Furthermore, whatever his job description, it is difficult to understand how or why he would have been allocated the specific task of sweeping up once the carpenters had cut up the asbestos materials. Further and in any event, the sweeping up undertaken by the deceased will have involved not only asbestos dust but other types of dust. 38. The deceased himself does not give any information as to over what period of time, on each working day, he spent sweeping up dust. Even if I were to conclude that he did do sweeping up on a fairly regular basis, it seems to me probable that this would have only occupied a very small portion of his working day. Indeed, I would not disagree with the suggestion made by Miss Foster that, perhaps, he spent in the order of ten minutes per day sweeping up. 39. I do bear in mind that, in his second statement (although not in his first statement), the deceased says that there were clouds of dust when the Asbestolux was cut up. This is perhaps not surprising, but it does not follow that the deceased was thereby covered in such dust. Indeed, if there were visible clouds of dust, then I would have expected the deceased to keep his distance. There was no good reason for him to be standing so close to the carpenters that he became covered in dust. Insofar as he says that his clothes were covered in dust, again this may well have been the case, but building sites are dusty environments and it does not follow that the dust which he brushed off his clothes was asbestos. “40. Overall, I find the account given by the deceased, particularly in his second statement, to be implausible. Rather, I am driven to the conclusion that his exposure to asbestos when employed by the defendant was of a low order, light and intermittent and, in the main, as a bystander.”
“Assuming that the deceased was indirectly exposed to asbestos dust for one and a half hours per day as a result of the carpenters cutting up AIBs (and I have already found this to be inherently improbable) and, assuming that he spent approximately ten minutes per day sweeping up asbestos dust, Ms Conroy agreed with Dr Phillips that his average daily exposure was in the order of two fibres/ml. I stress that this is no more than an approximation and, inevitably, there would be considerable variability from day to day. Nevertheless, this measurement does provide some insight into his likely overall level of exposure to asbestos dust.”
“I am able safely to conclude that the measurements agreed upon by the two occupational hygienists are entirely consistent with my own impressionistic assessment of the degree and extent of the deceased’s exposure to asbestos dust when working for the defendant.” [Emphasis in the original]
“… when deciding whether pulmonary damage in this case was foreseeable, the test is the conduct of the reasonable and prudent employer taking positive thought for the safety of its workers in the light of what it knows or ought to know (actual or constructive knowledge) … .”
“I turn to what the defendant should have known in the mid to late 1950s about exposure to asbestos dust. Undoubtedly, the message that was to be taken from the literature to which I have referred was that asbestos dust was highly dangerous and that its inhalation was to be prevented as far as possible. But it needs to be emphasised that that message was delivered in the context of the known risk of asbestosis and of occupational exposure to significant quantities of asbestos dust. As in Abraham, the question which needs to be asked is whether the information then available should have alerted an employer to the possibility that an employee whose exposure to asbestos was light and intermittent might have been at risk of contracting an asbestos related injury.”
“83. After considering the relevant literature and the relevant authorities, I consider that a reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e more than fanciful) risk of injury as a result of the exposure to asbestos at the level to which I have found the deceased was subjected. Whilst it is correct that there was no safe level of asbestos exposure at the material time, nevertheless, even the permissible level of exposure which was set in 1970 was far in excess of the levels to which the deceased was exposed. This is not conclusive, but it points strongly in favour of the proposition that, at the material time, as a matter of Law, the defendant was not fixed with knowledge that asbestos exposures at the levels to which the deceased was subjected gave rise to the foreseeable risk of injury. 84. In view of my findings as to the levels of asbestos dust to which the deceased was exposed and my findings on reasonable foreseeability of risk, it necessarily follows that the defendant is not to be criticised for failing to give any warning or failing to take any precautions. With the benefit of hindsight, it might seem obvious that the deceased should have been afforded some protection, but the state of knowledge was such as at the late 1950s that, in my judgment, as a matter of Law, there was no breach of duty where the exposure was light and intermittent.”
“In fact, the history, and the medical and radiological features of the cases of fibrosis together with the results of comparison of the dust counts, all contribute in some degree to the view that with comparatively low concentration of dust in the neighbourhood of a process, the resulting cases of fibrosis amongst the workers in that process are longer in developing and remain longer in a milder stage. It follows, therefore that in such cases the rate of accumulation of dust in the lung has not greatly exceeded the rate of elimination, and a further point of great practical importance emerges, namely, that in order to prevent the full development of the disease amongst asbestos workers within the space of an average working lifetime, it is necessary to reduce the concentration of dust in the air of the workrooms to a figure below that pertaining to spinning at the time over which these cases were exposed.”
“To sum up, therefore, it appears probable that concentration of dust and length of exposure as factors in the production of fibrosis are interdependent within certain limits. While it seems necessary for the production of generalised fibrosis of the lungs that a definite minimal quantity of dust must be inhaled, the lower the concentration of dust in the air breathed, the longer the lapse of time before the fibrosis is fully developed, and within a certain limit, the higher the concentration of dust, the sooner the fibrosis becomes fully developed and the more intense the involvement of the lung tissue. If this hypothesis is correct, and the evidence points to it, the practical inferences are of very great importance, since it follows that the application of measures resulting in the reduction of the concentration of dust in the air in the neighbourhood of dusty asbestos processes will cause, firstly a great increase in the length of time before workers develop a disabling fibrosis, and secondly, the almost total disappearance of the disease, as the measures for the suppression of dust are perfected.”
“The appropriate methods for suppression of dust may only be fully determined when the harmful effects of comparatively low concentrations of asbestos dust are duly appreciated. Very dusty processes will not fail to be recognised, but in processes such as spinning and weaving, in which other textile trades special methods for dust control are not required, due precautions are also necessary.”
“Dr. Merewether's investigations on the medical side are of great scientific value. They establish the facts that the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs, that the development of the disease varies in direct proportion to the length of the exposure to dust, and that susceptibility to the disease is not affected either by age or sex. The remedy for these conditions is to be found, as in the case of so many industrial diseases, in the suppression of dust. The second part of the Report indicates that this point has only recently been appreciated. In the non-textile section of the industry, no serious difficulties arise as regards the application of exhaust ventilation. For the textile section, it is evident that a good deal of experimental work will have to be carried out before completely successful ventilating appliances are evolved effectively to remove all the dust.”
“For these reasons and from examination of the varying conditions of exposure to dust amongst "spinners" in individual factories, it appeared reasonable to infer that the exposure of workers in this group to dust, as a whole, was not greatly in excess of the maximum safe limit. One of the conclusions, therefore, of the original investigation was "that in order to prevent the full development of the disease amongst asbestos workers within the space of an average working life-time, it is necessary to reduce the concentration of dust in the air of the workrooms to a figure below that pertaining to spinning at the time over which these cases were exposed." This deduction was, later, accepted, in the light of the evidence available, and with the reservation that it was subject to alteration in conformity with further medical experience, as a safe basis on which it would be possible to work out appropriate dust suppression methods. For this purpose, therefore, the conditions arising from flyer spinning carried on without exhaust under good general conditions was considered as the safe criterion and was termed the "dust datum."”
“We are but on the threshold of knowledge of the effects on the lungs of dust generally. … While Section 47 of the Factories Act of 1937 may be thought somewhat ambiguous in its reference to a "substantial quantity of dust of any kind," it is, I consider, an admirable one in that it requires precautions even before it is possible to say specifically that the dust in question is harmful to a recognisable pathological extent. There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought to-day to be harmless may, following research, be viewed in another light to-morrow. It is not many years ago when the dust of Asbestos was regarded as innocuous, while to-day it is recognised as highly dangerous. On the other hand where dust from a material can be shown to be relatively harmless the substitution of such a material for a harmful one is a most valuable measure of protection.”
“Asbestos Regulations The Code of Regulations dealing with the dangers arising in the handling of asbestos has been in force since 1931, and reports show that constant vigilance is necessary in order to ensure that there is no slackening in the fulfilment of the precautionary measures laid down. In factories where processes scheduled under the Regulations are carried on, the maintenance of dust control, particularly adequate exhaust ventilation at all possible points where dust may be evolved, is of the utmost importance. Those firms which have had long experience with the product and realize how the incidence of asbestosis arises are fully alive to the many problems involved, and from the inspection point of view, it is very necessary to keep an ever watchful eye for the new use of asbestos in some manufacturing or other process, for example, on ships or buildings where the work may be undertaken by someone not fully realizing the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.”
“It is to be realised that asbestos dust is one of the most dangerous of all industrial poisons. No degree of care at all stages of handling, machining, mixing, cleaning, packing or unpacking etc. of any material consisting of or containing asbestos is wasted effort.” [Emphasis in the original]
“(3) Concentration of the dust. There are many variables involved in relating exposures to different concentrations of dust and the lung response which may follow. It is necessary, however, to have some guide to which the efficiency of control measures can be related and the Department has, accordingly, recently published a booklet* containing a table based on the latest scientific knowledge showing the maximum concentrations of certain dusts, expressed as particles per cubic centimetre, which if exceeded in factory atmospheres indicate that working conditions cannot be considered to be satisfactory. *Toxic Substances in Factory Atmospheres. … .”
“Permissible Concentrations While systems of control should be as effective as it is practicable to make them, it is desirable to have some guide to which the efficiency of the control measures can be related. In the List at the end of this booklet there are set out figures of maximum permissible concentrations of certain substances used in industry. For each substance a figure of concentration in atmosphere is given. If this concentration is exceeded, further action is necessary to achieve satisfactory working conditions. The List also serves as a general indication of the relative degrees of toxicity of these substances.”
“The figures should not be regarded as fine lines between safe and dangerous concentrations. They are designed to be used as guides in the control of health hazards and continuing attention is necessary to ensure that atmospheric contamination in the factory is kept as low as practicable.”
“This booklet offers some guidance in methods of meeting this statutory obligation - by enclosing the process, by providing local exhaust ventilation, by using personal protective equipment and by general 'good housekeeping'. Attempts should, however, always be made in the first place to use as a substitute the least harmful material possible. In all circumstances the aim should be to reduce the concentration of dust or fume in the atmosphere to the lowest practicable level.”
“The first essential is to be aware that a potentially dangerous material is in use. Whenever new substances or new techniques are introduced, the factory occupier must consider possible hazards. In all cases where there is a risk from dust and fume it is the factory occupier’s duty under the Factories Act to ensure the safest practicable conditions of work for employees.”
“A certain amount of 'background' dust inevitably disperses into the air or workrooms and settles on beams, ledges, benches and floors and workers' clothing. The vibration of machinery and other movements within the workroom as well as direct draughts will cause such dust to become air borne again. It is therefore important to prevent accumulation of dust by frequent cleaning of the workroom. The method of cleaning should ensure that the dust really is collected and is not just dispersed to settle again. Dry sweeping will cause vast amounts of fine dust to be dispersed into the atmosphere. Suitable vacuum cleaning plant of a permanent or portable character should be provided and used.”
“The threshold limit values refer to airborne concentrations of substances and represent conditions under which it is believed that nearly all workers may be repeatedly exposed, day after day, without adverse effect. Because of wide variation in individual susceptibility, exposure of an occasional individual at or even below the threshold limit may not prevent discomfort, aggravation of a pre-existing condition, or occupational illness. … Threshold limits should be used as guides in the control of health hazards and should not be regarded as fine lines between safe and dangerous concentrations. … The values … refer to time-weighted average concentrations for a normal workday. The amount by which these concentrations may be exceeded for short periods without injury to health depends upon a number of factors such as the nature of the contaminant, whether very high concentrations even for short periods produce acute poisoning. whether the effects are cumulative, the frequency with which high concentrations occur, and the duration of such periods. All must be taken into consideration in arriving at a decision as to whether a hazardous situation exists. Enlightened industrial hygiene practice inclines toward controlling exposures below the limit rather than maintenance at the limit. Threshold limits are based on the best available information from industrial experience, from experimental human and animal studies, and, when possible, from a combination of the three.”
“Time-weighted average concentrations permit excursions above the limit, provided they are compensated by equivalent excursions below the limit during the workday. The degree of permissible excursion is pegged to the threshold limit value of the particular substance … .”
“they included housewives, domestic servants, cattle herders, farmers, a water bailiff, an insurance agent and an accountant.”
“Until we know the answers to some of the questions posed by the recent findings all exposure to asbestos dust should be considered as hazardous, and supervision should be extended to insulation workers in ships, factories and domestic buildings, who may be intermittently but nevertheless heavily exposed to asbestos dust.”
“3. The occurrence of mesothelioma is associated especially with products made from one of the naturally occurring forms of asbestos, crocidolite (blue asbestos). Exposure to even low concentrations of dust may be hazardous. Present evidence suggests that the association of mesothelioma with asbestos derived from other naturally occurring forms of asbestos than crocidolite is exceptional. In view of the uncertainty about the subject it would seem proper to eliminate the use of crocidolite and crocidolite products and reduce the use of all other forms of asbestos by seeking a substitute wherever possible. 4. Where it is necessary to use an asbestos product, chrysotile asbestos or chrysotile asbestos products should be specified, and steps taken to ensure that dust is reduced to a minimum. Asbestos wool should be kept wet and not allowed to dry out; hard asbestos mats should be used in preference to soft ones (mats should he disposed of when they become frayed); any drilling or sawing of asbestos cement products should be carried out in the open air or under exhaust ventilation, ensuring that the exhaust is effectively filtered before discharge, so that serious hazard cannot arise.”
“There is evidence in a considerable proportion of those cases of an exposure usually occupational in nature, to asbestos, although in many cases this has not necessarily been of very significant extent.”
“In a large proportion of the tumours currently being diagnosed the affected person does appear to have been exposed, commonly as a result of his occupation, to asbestos at some time or other. In many instances, the exposure has been of a slight degree and without evidence of asbestosis.”
“The health problems associated with occupational exposure to asbestos dust have long been of considerable concern to HM Factory Inspectorate. Awareness of these health risks has become much more widespread over the last two or three years and public interest was particularly stimulated by the publication in the October 1965 issue of the British Journal of Industrial Medicine of an article by Dr. Newhouse and Dr. Thomson about the association between exposure to asbestos and mesothelioma of the pleura and peritoneum.”
“The primary danger of inhaling asbestos dust is asbestosis. It is generally recognised that there is also significant risk of lung cancer associated with asbestosis. A risk of mesothelioma of the pleura and peritoneum exists in connection with the inhalation of crocidolite dust in particular. There can be little doubt that these risks will be least in the lowest concentration … , but the quantitative relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related, nor even whether all kinds of asbestos present a risk. Consequently it is not possible, at this time to specify an air concentration which is known will be free of risk in this respect.”
“Still more recently a relationship has been demonstrated between exposure to certain types of asbestos and the occurrence of mesothelioma, a cancer of the pleura (the lining of the lungs) or of the peritoneum (the lining of the abdominal cavity). Whereas asbestosis and the lung cancer associated with it have only arisen in workers who have been exposed for years to heavy concentrations of the dust in asbestos factories or in processes in which asbestos is used, mesothelioma has developed in some individuals with short periods of exposure. It is still a rare tumour among the general population but not uncommon among those exposed to asbestos dust. Crocidolite may be more dangerous in this respect than are the other forms of asbestos.”
“For the purpose of determining what concentrations might cause injury, the TLV is now generally accepted as the yardstick. If, therefore, it can be shown that the TLV has not been exceeded, then the employers’ legal and moral obligation can be said to have been fulfilled. Recent regulations, such as those made in 1969 for asbestos, have followed these general principles. The Regulations lay down general requirements while TDN 13 … sets what is in effect a TLV for the different forms of asbestos.”
“It is also relative to the particular individual affected. This raises a serious additional difficulty in the cases where it has to be determined, not merely whether the act itself is negligent against someone, but whether it is negligent vis-à-vis the plaintiff.”
“9 The test of an employer’s liability for common law negligence is common ground. In Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd[1968] 1 WLR 1776 , 1783, Swanwick J described the position as follows: “From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.” 10 Mustill J adopted and developed this statement in another well-known judgment in Thompson v Smiths Shiprepairers (North Shields) Ltd[1984] QB 405 , 415-416, when he said: “I shall direct myself in accordance with [this] succinct and helpful statement of the law, and will make only one additional comment. In the passage just cited, Swanwick J drew a distinction between a recognised practice followed without mishap, and one which in the light of common sense or increased knowledge is clearly bad. The distinction is indeed valid and sufficient for many cases. The two categories are not, however, exhaustive: as the present actions demonstrate. The practice of leaving employees unprotected against excessive noise had never been followed “without mishap.”
“… However the foreseeability of injury is to be tested against the standard of the well-informed employer who keeps abreast of the developing knowledge and applies his understanding without delay, and not by the standard of omniscient hindsight. An employer 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 employer acquired greater than average knowledge of the risks, … . It follows that the issue of foreseeability involves a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time.”
“The modern rule of tort is quite different [from the rule in contract] and it imposes a much wider liability. The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it.”
“The test in tort, …, is that the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however unlikely it may be, unless it can be brushed aside as far fetched.”
“[L]iability only attaches to these defendants if the evidence demonstrated that they should reasonably have foreseen a risk of some pulmonary injury, not necessarily mesothelioma.”
“Foreseeability of damage in a personal injury claim means only that the risk of some personal injury must have been foreseeable. … In the present case, therefore, the foreseeable risk need not be that of mesothelioma.”
“The degree of foreseeability of risk of injury or harm necessary to establish a breach of duty was reconsidered in the Privy Council case of Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound) Lord Reid put the issue of breach of duty in terms of whether someone is negligent or not: “…a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What [Bolton v Stone] did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.” “…a person must be regarded as negligent if he does not take steps to eliminate a risk which he knows or ought to know is a real risk and not a mere possibility which would never influence the mind of a reasonable man. What [Bolton v Stone] did was to recognize and give effect to the qualification that it is justifiable not to take steps to eliminate a real risk if it is small and if the circumstances are such that a reasonable man, careful of the safety of his neighbour, would think it right to neglect it.”
“Ought the University reasonably to have foreseen the risk of contracting mesothelioma arising from Mr Williams’ exposure to asbestos fibres by undertaking the speed of light experiments in the tunnel in the manner contemplated—and done in fact—to the extent that the University should (acting reasonably) have refused to allow the tests to be done there, or taken further precautions or at the least sought advice.”
“The judge also does not indicate whether any of the experts would have regarded the level of exposure to asbestos fibres (as found) for the length of time found (52–78 hours) as giving rise to a reasonably foreseeable risk of asbestos related injury, in the sense that a reasonably informed body in the place of the University in 1974 ought to have appreciated that if it had been told that Mr Williams was exposed to that level and length of exposure to asbestos fibres it should have foreseen that it would (or even could) expose Mr Williams to an unacceptable risk of personal injury, viz. contracting mesothelioma.” [Emphasis added]
“47 In my view TDN13 does not establish a “bright line” to be applied in all cases arising out of the period 1970-1976. Still less is it a bright line to be applied to asbestos exposure in a different period whether before or after 1970-1974. … 49 A more nuanced approach is required than that. It is necessary to look at the information which a reasonable employer in the defendant’s position at the relevant time should have acquired and then to determine what risks such an employer should have foreseen.”
“I think it is important to split out the question of the foreseeability of the risk from the question of what precautions it was reasonable to take against it. In my view the right approach in principle to the necessary inquiry is twofold: (a) The first question is whether Anglia should at any time during Mr Bussey’s employment … have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury. (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.) That will depend on how quickly the knowledge, first widely published in 1965, of the fact that much lower exposures than had previously been thought to be dangerous could cause mesothelioma was disseminated among reasonable and prudent employers whose employees had to work with asbestos. One aspect of this question is whether, even though Anglia may have been aware of the risk in general terms, it was reasonable for it at the material time to believe that there was a level of exposure below which there was no significant risk, and that Mr Bussey’s exposure was below that level. (b) If the answer to the first question is that Anglia should have been aware that Mr Bussey’s exposure gave rise to such a risk (including that there was no known safe limit) the second question is whether it took proper precautions to reduce or eliminate that risk.”
“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. But the link between asbestos and mesothelioma was not established until 1960. Until then the known risk was of lung disease, in particular asbestosis, and, in the 1950s, 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.” [Emphasis added]
“38 Both men had been engaged as marine engineers on various ships, Mr Dawson between July 1951 and May 1957 and Mr Jeromson between June 1957 and July 1961. The engine rooms of these ships contained large quantities of asbestos insulation but this was not dangerous unless disturbed. … 39 [The Judge] found that engineers would be exposed to dust when insulation had to be stripped away and replaced. This happened most often when leaking joints had to be repaired, but from time to time when pipes burst, and during dry docking. Three experts (Mr Browne and Mr Deary for the claimants and Mr Finch for Shell) were agreed that stripping asbestos lagging by crude methods gave rise to high concentrations of visible dust, as did mixing asbestos powder with water to form a plastic mix for new insulation and dry sweeping of asbestos debris. Cutting asbestos lagging by handsaw gave rise to less high but still significant concentrations, and handling asbestos mattresses in bad condition to moderately high concentrations. At the time, however, there was no way of measuring such concentrations and until 1960 there were no published limits. The Judge concluded that all but the last activity would have given rise to concentrations substantially above even the lower limits set in 1960 and the last to concentrations above those limits: "I am quite satisfied that these five activities would have given rise to significant levels of visible dust. . . clearly there to be seen, if considered by any careful employer." As for frequency: "In summary, I find that, at the material time, marine engineers employed by Shell were liable and likely to encounter intense concentrations of asbestos dust, on a regular basis. In the most part, these exposures would be for minutes rather than hours, but on occasion, both at sea and in dry dock, the exposures would be for hours and at even higher intensity."” "In summary, I find that, at the material time, marine engineers employed by Shell were liable and likely to encounter intense concentrations of asbestos dust, on a regular basis. In the most part, these exposures would be for minutes rather than hours, but on occasion, both at sea and in dry dock, the exposures would be for hours and at even higher intensity."”
“whether it was, or by April 1965, should have been, apparent to those whose employees were working with asbestos, that the health of individuals whose contact with it came, so to speak, second-hand and intermittently, and whose exposure to it lasted for peak periods only, was under threat.”
“The issue remains whether Mrs Maguire has established that Harland & Wolff were negligently in breach of the duty owed to her as the wife of an employee working with and contaminated by asbestos dust. If so, liability would arise on the somewhat unusual basis that they failed to address a risk which had not yet been identified or addressed by anyone else, whether within or outside the industry. In the absence of any evidence from any source whatever of contemporaneous insight into familial risk, or any contemporaneous suggestion that the possibility of such risks should be addressed, I am unable to accept that by not later than 1960, and ahead of contemporary understanding, Harland & Wolff should have appreciated that Mrs Maguire was at risk of pulmonary or other asbestos-related injury, and that their failure to do so and to take appropriate precautions for her safety was negligent.”
“I am very poorly and I am in severe pain for much of the day.”
“Mr Feeny (for the Defendant) initially sought to rely on some of this evidence. However, having considered the matter, I indicated my view that it would not be fair to the Claimant to rely on it. She was (and is) gravely ill and in pain; and it is clear she had great difficulty in concentrating on the questions. Mr Feeny did not try to persuade me from this view.”