On 14 March 2024 the Court of Appeal handed down its judgment in White v Secretary of State for Health and Social Care [2024] EWCA Civ 244. The White appeal was one of two cases, heard together, the other being Cuthbert v Taylor Woodrow Construction Holdings. The issue in each case was that of breach of duty for low‑level asbestos exposure which had occurred in the 1950s.

The Court of Appeal, in a detailed judgment, dismissed the Claimants’ appeals. This week, permission to appeal to the Supreme Court was refused. So ends the appeal process in these cases. The overall effect is to resolve any question about the approach to be taken in relation to mesothelioma claims where exposure was at a low level and occurred before 1965, the generally accepted “date of knowledge” of risk of injury in the form of mesothelioma.

The Court of Appeal judgment may be read here. The Secretary of State for Health and Social Care was represented by David Platt KC and Philip Turton, on instructions from Jason Bleasdale and Ed Joy of Clyde & Co.

Both Mr White and Mr Cuthbert had been exposed to low levels of asbestos dust prior to 1960, Mr White when working as a lab technician at the Sefton General Hospital and Mr Cuthbert whilst engaged in construction work on a building site. In the White case, the exposure was described as de minimis and intermittent. In the Cuthbert case, the judge found that exposure “was of a low order, light and intermittent and, in the main, as a bystander”.

Both claims were dismissed on the basis that the Defendants, when judged by the standards of the time, had not acted in breach of duty. Stricter standards in relation to control of asbestos exposure did not come into play until later, after knowledge of the risk of injury from low levels of exposure had first been publicised by the Sunday Times in October 1965. Both judges rejected the Claimants’ arguments that asbestos exposure should have been eliminated altogether.

The Claimants’ submissions were pursued before the Court of Appeal. The Claimants sought to interpret relevant literature dating back to the 1930s to support a proposition that, asbestos being known to be dangerous and there being no recognised safe limit, the Defendants ought to have done more than they did to avoid such exposure.

The Defendants, by contrast, relied upon an absence of knowledge of the extent of the risk and a perception (evidenced by the literature pre‑dating 1960, and extending beyond and into the 1970s) that there remained perceived “safe” limits (at the time), which they had not exceeded. Thus, as it was put, it was not until the 1960s, and particularly 1965, that an employer might reasonably have perceived that pulmonary injury could foreseeably arise from much lower doses. Thus, for each of these Claimants it was said, no reasonable employer would then have perceived that either was at risk of injury.

Before the Court of Appeal, the parties provided an agreed list of 28 literature references, dating back to the Merewether and Price paper of 1930, which were material to the issues in the appeal. The judgment of Lord Justice Stuart‑Smith provides a careful and comprehensive analysis of the development of the literature between paragraphs 44 and 111, dating back to the 1930s and continuing into the 1970s. From this analysis he concluded:

  1. Until the 1960s, the known risk arising from the inhalation of asbestos fibre was the risk of asbestosis and, at a later stage, a consequent risk of lung cancer.
  2. That risk was thought to arise from what would now be regarded as substantial exposures to asbestos dust.
  3. After 1960, and in particular the publication of “Toxic Substances in Factory Atmospheres” by the Ministry of Labour and the Newhouse and Thompson report in 1965 (picked up by the Sunday Times), perception of risk dramatically changed.
  4. There was no evidence to support the proposition that before 1960 employers should reasonably have appreciated that exposure to asbestos below a level giving rise to a risk of asbestosis would give rise to a foreseeable risk of pulmonary injury.
  5. There was no evidence that any relevant body, whether employers, doctors, government or, critically, Her Majesty’s Factory Inspectorate, appreciated before the 1960s that there was a foreseeable risk of injury from exposure to asbestos at levels below those which were necessary to cause asbestosis.
  6. Repeated references to threshold limit values and the like, whilst not providing any bright line or test to determine the issue of foreseeability, provided evidence that there had been and continued into the 1970s an understanding that exposure to asbestos below certain levels remained safe. The references supported the proposition that the Defendants had been reasonable in paying no heed to the low levels of exposure to which these Claimants had been exposed.

The Claimants sought to persuade the judge that the test of foreseeability should be revised, basing themselves upon the observations of the Court of Appeal in the cases of Jeromson v Shell Tankers (UK) Limited [2001] ICR 1223, Maguire v Harland and Wolff plc [2005] EWCA Civ 1, and of Buxton J in Owen v IMI Yorkshire Copper Tubes Limited (1995). From these cases, they submitted that, during the 1950s the risks of asbestos were “sufficiently well known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible”. Thus, they contended that, in the absence of any means of measurement, coupled with uncertainty as to safe levels, the Defendants were under a duty to eliminate all exposure so far as possible.

The Court of Appeal (now confirmed correct by the Supreme Court who treated the judgment correct on its facts) rejected the reasoning. To that extent, the decision maintained what might have been regarded as a status quo complicit with a long line of authorities stemming from the seminal judgment of Swanwick J in Stokes v Guest, Keen and Nettlefold (Nuts and Bolts) Limited [1968] 1 WLR 1776 and Thompson v Smiths Shiprepairers (North Shields) Limited [1984] QB 405, as to the standard of care expected of a reasonable employer where there is developing knowledge.

Hale LJ in Jeromson had proceeded on the basis of the facts of that case, which involved significant levels of exposure. The case omitted reference to the fact that the risk contemplated before the 1960s was that of asbestos and not mesothelioma. Any literature review in Jeromson could not be seen as comprehensive. It didn’t refer to the fact that the risks contemplated before the 1960s did not include mesothelioma nor the clear belief throughout the period that there was a lower threshold below which injury ought not to arise and the further evidence, even after 1965, supporting a continued belief that there were safe levels of exposure, which was material to the question of reasonable belief at earlier dates as well.

As to the decision of Buxton J in Owen, cited in Jeromson, Stuart‑Smith LJ said:

“It is not, and never has been, the law that a person is obliged to take all possible steps to prevent the occurrence of a risk that is not reasonably foreseeable. A risk does not become foreseeable simply because hindsight shows that it has not been excluded; and the mere fact that a certain level of exposure to asbestos is recognised to be dangerous does not necessarily give rise to a foreseeable risk of injury in the event of different levels of exposure or different contexts.”

The decision recognises the long-established principle that an employer must take reasonable steps to keep abreast of developing knowledge and will not be negligent if he declines to “plough a lone furrow”. Further, the review of literature undertaken here can properly be regarded as definitive. Lord Justice Stuart‑Smith placed particular emphasis on Wagner’s 1960 paper “Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province” and upon the Newhouse and Thompson paper, published in 1965, “Mesothelioma of Pleura and Peritoneum Following Exposure to Asbestos in the London Area”. As he went on to say:

“It is entirely possible that there are further relevant materials that have not come to light; but it seems unlikely that such materials might change the overall conclusions to be derived from the literature that is already available. If it were of major importance either in reflecting or influencing standards of proper behaviour during the period with which we are concerned, it would be strange that no one has yet identified or relied on it.”

The implication of this is that the material considered represents the full extent of the information available to employers over the period up to and beyond 1965. To that extent, the conclusions of the Court are solid and represent a clear determination as to what the expectation of a reasonable employer should be in that era. The result is that whilst heavy concentrations will still give rise to a breach of duty where sufficient to give rise to a risk of pulmonary injury in the form of asbestosis, low exposures will not. Prior to 1965, no reasonable employer could or should have foreseen that exposure to minimal quantities of asbestos, or even levels of asbestos below the maximum permissible concentration/threshold limit value of 30 fibres/ml, which prevailed in the public literature until at least 1968, would give rise to liability.

Thus, any uncertainty as to the approach to be taken to the issue of liability for low-level exposure prior to 1965 appears now to be resolved and determined. Claimants will succeed if they can show a level of exposure in excess of the contemporaneous guidance without protective steps being taken but liability will not attach for low‑level, incidental or occasional exposure which would not, by the standards of the time, have caused an employer to identify a risk of asbestosis.

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