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Harrington v Department for Business, Enterprise and Regulatory Reform

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Harrington v Department for Business, Enterprise and Regulatory Reform [2008] EWHC 2658 (QB)
High Court, 6 November 2008

The defendant was not liable for the deceased’s mesothelioma arising from exposure to asbestos during employment as a bricklayer at a colliery between 1956 and 1958.
The defendant contended that it was not foreseeable in 1956-58 that a bricklayer working on the surface was exposed to the risk of pulmonary illness. The claimant’s case was based entirely on the deceased’s own statements. The deceased stated that he had been exposed to large quantities of asbestos whilst removing and then rebuilding brickwork which covered asbestos lagging inside large boilers. He described working in clouds of asbestos dust. The defendant argued that the deceased’s evidence was unreliable when compared to contemporaneous records. The parties’ engineering experts agreed that they found it difficult to conceive that the defendant would have allowed the deceased, an apprentice, to work on boilers. The claimant’s medical expert reported that the deceased had diaphragmatic pleural plaques which indicated that he had probably sustained significant occupational exposure to asbestos.
Findings of fact
The defendant did not expose the deceased to substantial amounts of asbestos. There were inconsistencies in the deceased’s evidence of exposure. Where there were contemporaneous documents, they demonstrated that the deceased’s evidence was incorrect. Much of the deceased’s evidence was unintelligible. The judge concluded that the deceased was not employed to work in the boiler house but worked principally in the pit village where he was not exposed to any asbestos. He may have, on rare occasions, witnessed fitters removing lagging containing a percentage of asbestos from pipes using hammers. He did not work in the boiler house to any significant extent. Whilst there was no evidence that the deceased ever worked for any other employer which might have exposed him to significant quantities of asbestos, this did not lead to the conclusion that the defendant had exposed him to significant quantities of asbestos. There was a large gap in the deceased’s employment history. His H.M. Revenue and Customs record showed no employment after the tax year 1974/75, when he was thirty-eight. It defied belief that he had done nothing for the last twenty-seven years of his working life.
Findings of law
Following Hale LJ’s guidance in Shell Tankers UK Ltd v Jeromson [2001] EWCA Civ 101, it did not matter that at the relevant time it was not understood that asbestos exposure caused mesothelioma. The question to determine liability was whether the employer ought reasonably to have foreseen a risk of pulmonary injury. Hale LJ in Jeromson also gave guidance on how the court should go about the task of deciding whether the employer should reasonably have foreseen the risk. 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 was such that a reasonable employer should have identified a risk.
Applying this to the present case, the risk to be considered was the potential risk to the employee during the course of his employment. Prior to 1960 (since the risk of contracting mesothelioma from asbestos exposure was unknown), the risk to be considered was the risk of asbestosis or lung cancer caused by asbestos. The judge then addressed the development of knowledge of the harmful effects of asbestos exposure.
Awareness of the harmful effects of asbestos over time
The judge considered Merewether and Price’s 1930 Report on effects of asbestos dust on the lungs and dust suppression in the asbestos industry. The report’s conclusions included that ‘[…] fibrosis of the lungs is a definite occupational risk amongst asbestos workers as a class. […] [T]he risk falls most heavily on those longest employed and on those engaged in the more dusty processes.’ The judge then noted Dr Merewether’s 1933 paper, A memorandum on asbestosis. The Annual Report of the Chief Inspector of Factories 1938 noted a suggestion in some publications of a relationship between asbestosis and lung cancer. The 1943 Annual Report showed that 118 deaths from asbestosis had been brought to the attention of the Chief Inspector since 1929. It was noted in the 1949 Annual Report that ‘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 the 1956 Annual Report, it was noted in relation to the removal of old heat-insulation lagging, that ‘The handling of this very dry and dusty material presents a serious health hazard, […].’
What level of exposure was required?
It was common ground between the parties that, given his employment between 1956 and 1958, the claimant needed to show exposure to significant levels of asbestos dust. The judge looked to the case law for assistance. In Gunn v Wallsend Slipway & Engineering Co Ltd, Times, 23 January 1989, Waterhouse J’s view was that the literature showed that only heavy and prolonged exposure to asbestos involved a risk of contracting asbestosis. In Owen v IMI Yorkshire Copper Tube [1995] unreported, Buxton J considered that a reasonably informed employer would have been aware that care should be taken with asbestos from 1949 and would have known that exposure should be kept to the lowest possible level from the mid-1950s. In Owen, the employer was under a duty to reduce asbestos exposure to the greatest extent possible from the start of Mr  Owen’s employment (1951). In Jeromson and in Maguire v Harland & Wolff plc [2005] EWCA Civ 01, the Court of Appeal approved Buxton J’s assessment in Owen. The judge here agreed.
1        The defendant was not liable. The defendant had no reason to suppose that the deceased, as an apprentice bricklayer working on the surface, would be exposed to significant amounts of asbestos. Therefore, it owed him no duty of care at common law to take steps to protect him from the risks of asbestos. For the same reasons, the defendant was not in breach of its duty under the Mines and Quarries Act 1954.
2        Given the judge’s finding in relation to breach of duty, no finding on causation was necessary. If it had been necessary to make a finding on causation, he would have held it not proved. The judge was not satisfied that the defendant had in fact exposed the deceased to significant amounts of asbestos. During his employment with the defendant, the deceased was, at most, exposed to asbestos on infrequent and isolated occasions. The judge noted that it was ‘possible, given the low level of exposure which can cause mesothelioma, that he did indeed contract that condition whilst working for [the defendant].’ However, the judge considered this unlikely because the claimant’s medical expert had observed that the deceased had pleural plaques, indicating significant occupational exposure to asbestos.
In Harrington, the defendant was not liable for the deceased’s mesothelioma even though the judge indicated that it was ‘possible’ that he could have contracted the disease whilst employed by the defendant. The crucial finding was that the defendant was not in breach of its duty of care. The evidence led the judge to conclude that the deceased’s job was not one associated with significant asbestos exposure. Therefore, given this level of exposure, in the late 1950s it was not foreseeable that the deceased’s work put him at risk of pulmonary injury. Harrington suggests that for a defendant to be liable in relation to employment in the 1950s, exposure to asbestos must be significant.
Harrington is also interesting in relation to causation. Even though there was no evidence of exposure in employments other than with the defendant, and the judge held that it was possible that the deceased could have been exposed to asbestos by the defendant, the judge said he would not have held causation proved (had he needed to consider it). This appeared to be because of the presence of pleural plaques suggesting significant asbestos exposure - which he found the defendant was not responsible for. But does the judge’s view conflict with Fairchild? Assuming the judge had come to a different conclusion in relation to breach of duty, his view that it was ‘possible’ that the deceased’s mesothelioma was caused by asbestos exposure when employed by the defendant would suggest that the defendant’s breach made a material contribution to the risk of the deceased developing the mesothelioma. It could be inferred from the judge’s view of causation here that the deceased must have had significant exposure to asbestos in a later employment. The Fairchild exception was succinctly explained by Swift J in Richardson v  Russell [2008] EWHC 1708:
‘[…], in a mesothelioma case […], where there has been exposure at different times with different employers, proof that a defendant’s wrongdoing has materially increased the risk of contracting the disease is sufficient to satisfy the causal requirements for liability.’
Would not the Fairchild exception apply to the defendant here? If it did, the judge’s view that he would not have found causation proved would be unsustainable. In the event, of course, the case did not get beyond the breach stage.

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