Successful Defence of Mesothelioma Claim Following Application of Brumder Defence

A fatal mesothelioma claim has been dismissed by HHJ Glen sitting in the County Court at Swindon.

The Judge found that the deceased, who died from mesothelioma in June 2021 aged 89, was a director and shareholder as well as an employee of the Defendant company from its incorporation in May 1965 and throughout the relevant period. His father and two brothers were also directors and shareholders. They worked together as scrap merchants in what was a family business.

The Judge found the deceased was primarily exposed to unsafe levels of asbestos in the 1950s and early 1960s, but his exposure during his employment with the Defendant continued in the early 1970s. His exposure with the Defendant came from working with scrap metal in the company yard, some of which consisted of boilers and pipework lagged with asbestos, and that the lagging was removed by the process of “dry stripping”.

The Judge found the company was in breach of duty because “no provision of any kind was made” for the deceased’s health and safety. The Judge also found, applying the decision in Brumder v Motornet Service and Repairs Limited [2013] EWCA Civ 195 [2013] 1 W.L.R. 2783, that the Defendant’s breach of duty was a consequence of the deceased’s breach of duty to the Defendant company as director.

The Claimant had argued that one of the deceased’s brothers was in fact in charge of health and safety due to delegation or dividing up of responsibility, but this was rejected as speculation by the Judge. The Judge found all the directors shared the same duties and responsibilities to the company for health and safety. The Claimant also unsuccessfully argued that Brumder should not apply to cases where the deceased was not the sole director/shareholder. The claim was therefore dismissed.

HHJ Glen’s decision confirms that the Brumder defence can be applied in the context of a small family business where the deceased was a director who failed to take any precautions against his own exposure to asbestos.

Jack McCracken acted for the successful Defendant on instructions from Oliver Bingle, Amar Bhogal, and Dom Somers of Keoghs LLP.