Court of Appeal clarifies legal test of reasonable foreseeability in mesothelioma claims

The Court of Appeal has issued important guidance on the legal test to be applied in establishing liability in asbestos-related mesothelioma claims. In a number of cases the Judgment will make it harder for claimants to succeed in their claims. It will however be welcomed by defendants and insurers.

In White v Secretary of State for Health and Social Care and Cuthbert v Taylor Woodrow [2024] EWCA Civ 244 the two deceased workers had been exposed to light or intermittent levels of asbestos. They had gone on to develop mesothelioma around 2019/21, from which both subsequently died. Their exposure to asbestos had ceased in 1959 and 1960 respectively. In both claims the court held that, at the relevant time, risk of injury to the two men was not reasonably foreseeable, and that the defendants were not liable. In doing so the Court of Appeal upheld the judgments of the courts of first instance, in both cases.

 Asbestos, Asbestosis and Mesothelioma

It has been well known for many years that prolonged exposure to significant levels of asbestos can cause a seriously disabling fibrotic lung condition, asbestosis. Employers were under a clear duty to take measures to minimise such exposure well before Messrs White and Cuthbert were exposed. Mesothelioma, by contrast, is a cancer of the lining if the internal organs (usually the lungs). It is invariably fatal, known to be caused by asbestos, and may result from light or transient exposure. However, the causal link between asbestos and mesothelioma was not established until the early 1960s, ie after White and Cuthbert’s exposure had ended.

It might therefore be thought that the defendants would have a strong defence, on the basis that they could not reasonably have foreseen a risk of mesothelioma that no-one was aware of at the relevant time. Not so! There is a long line of cases establishing that it is not necessary for claimants to show that defendants should have foreseen the specific injury. They merely have to show that an injury of a general type was foreseeable.

Hence in White and Cuthbert the claimants had a strong arguable case that, as asbestos had long been known to cause a lung disease, the fact that the precise form of lung injury could not have been foreseen, was not relevant. The claimants drew support from a 1995 High Court case (Owen v IMI Yorkshire Copper Tubes) where the Judge had said that the dangers of asbestos were so well known by 1951, that employers were under a duty to reduce exposure to the greatest extent possible.

The Court of Appeal – Back to Basics

The Court of Appeal in White and Cuthbert fully accepted that it was not necessary for the claimants to show that, at the relevant time, there was a known link between asbestos and mesothelioma.  Nevertheless, that line of reasoning could only take one so far. Ultimately the real test of liability remained what it always had been: reasonable foreseeability. So even though it was not necessary for the claimants to show that mesothelioma was a known risk (at the time); it was necessary for them to show that the levels of asbestos, to which White and Cuthbert had been exposed, gave rise to a foreseeable  risk. Hence, if the claimants had been exposed to levels of asbestos sufficient to cause asbestosis, then liability would have been established for mesothelioma. However, as the levels to which they had been exposed fell far below such levels, then it could not be said that the two individuals had been exposed to foreseeable risks. Therefore, the claims failed.

Comment

The Court has expressly disapproved the passage in Owen, referred to above. The decision is helpful to those defending mesothelioma claims and  is unhelpful to claimants. That said, when we consider the timescales involved, the effect of this decision on mesothelioma claims will be limited. The potential pool of claimants whose exposure both pre-dated 1960 and was in addition slight, is inevitably a relatively small one. The real importance of this decision may lie in its potential impact on a range of other disease claims, some of them perhaps incipient. The Court of Appeal has given a sharp reminder that it is the quantum of exposure, rather than merely the nature of the exposure, which lies at the heart of reasonable foreseeability.