The Court of Appeal Sets the Standard for Low Dose Exposure in Pre-1965 Mesothelioma Cases

The Court of Appeal handed down its judgment on 14 March 2024, dismissing two conjoined appeals in cases of mesothelioma arising from asbestos exposure in the 1950s, Executors of the Estate of Thomas Albert White v Secretary of State for Health and Social Care (”White”) and Executrix of the Estate of Derek Barry Cuthbert v Taylor Woodrow Construction Holdings [2024] EWCA Civ 244 (“Cuthbert”).

Philip Turton of Ropewalk Chambers was Junior Counsel for the Defendants in White, led by David Platt KC and instructed by Jason Bleasdale of Clyde & Co.

The appeals considered the duty owed by employers in cases of low dose exposure prior to 1965.  The Claimants in both cases challenged the legal test applied by the trial Judges, each of whom had dismissed the claims on the ground that the injury itself was not, at the time, properly foreseeable. In both cases the deceased parties had contracted mesothelioma after being exposed to low levels of asbestos dust during employment in the 1950s; Mr White between 1949 and 1960 as a Lab Technician; Mr Cuthbert between 1956 and 1959 whilst engaged in construction work on a building site.

The lead judgment of Lord Justice Stuart-Smith, with whom Underhill and Newey LJJ agreed, reviewed the entirety of the literature covering the period, up to and beyond the seminal “watershed” for knowledge in mesothelioma cases of 1965 and concluded that neither employer was in breach of duty for failing to take further steps to limit or prevent the asbestos exposure which occurred. In both cases therefore the Court of Appeal dismissed the appeals and held that the Judge had applied the correct legal test.

Keep an eye on The Ropewalk Disease Blog for Philip Turton’s analysis and insight into the judgment and its implications for asbestos practitioners.

For access to the judgment, please click here.