A defendant has been found not to have breached duty of care over asbestos exposure in the 1950s.
A construction worker’s wife brought a negligence claim against his former employer after his death from mesothelioma in 2022.
Derek Cuthbert worked for Taylor Woodrow Construction Holdings between 1956 and 1959, undertaking work at a school. His widow claimed that during this period he was exposed to asbestos dust and fibres, which led to mesothelioma.
Following his diagnosis, Mr Cuthbert stated that he had worked as a trainee supervisor for the defendant. His job entailed overseeing carpenters cutting asbestos sheets for a few hours every day and sweeping up after them. He said he would get covered in dust and was not provided with PPE.
At the time the negligence claim was brought, Taylor Woodrow Construction Holdings was no longer in business and had no records of work in the 1950s to determine the deceased’s role.
Mrs Cuthbert claimed that the company had breached its duty of care to her late husband. The judge had to decide on two key issues: the extent, degree and frequency of the deceased’s exposure to asbestos dust, and whether this amounted to a breach of duty by the defendant, considering what was then known about health risks posed by asbestos.
When all factors were considered, the judge said they could not accept the deceased’s statement about the level of asbestos dust he was exposed to while working for the defendant.
The judge said they could not accept the deceased’s statement about the level of asbestos dust
Mr Cuthbert was acutely unwell when he made his statements, had failing memory and was trying to recall events from 60 years before. There were questions as to whether at the time of the alleged exposure he had been supervising the carpenters. If he was a supervisor, it was ruled to be unlikely that he spent a few hours a day standing around them. It was also believed to be unlikely that the carpenters would have spent two or three years cutting asbestos sheets for the project.
Sweeping up afterwards was likely to have been one of his tasks, but it would only have occupied a small portion of his day. Building sites were dusty environments and just because his clothing was covered in it every day did not mean it would all have been asbestos dust. The judge ruled that, objectively, it was likely that Mr Cuthbert had only sporadic contact with the asbestos cutters and his exposure while employed by the defendant was low and intermittent, and as a bystander. This conclusion was consistent with speculative measurements provided by occupational hygienists representing both sides.
The defendant’s knowledge of the risks was considered. The company had to be able to foresee the injury in reference to the standards and knowledge of the time, not with the benefit of hindsight. It was known in the mid-to-late 1950s that asbestos dust was dangerous, but this was only in the context of exposure to significant amounts.
A reasonable employer could not have foreseen that there was a significant risk of injury from exposure at the level to which Mr Cuthbert was subjected. There was then no ‘safe’ level but, even in 1970, the set permissible level far exceeded those to which he was exposed.
The judge ruled that the defendant had not breached its duty of care, and dismissed the claim.
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