Light exposure mesothelioma case highlights legal difficulties

The recent legal case of McGregor v Genco Ltd,  has again highlighted the particular difficulties that are faced by some mesothelioma victims when their negligent exposure to asbestos is considered light.

The claimant, Mrs McGregor is only 58 years old, being diagnosed with mesothelioma less than 2 years ago. In 1976 whilst working for the British Shoe Corporation, who operated a concession within the Lewis’s department store in Liverpool, she was exposed to asbestos when Lewis’s were renovating their escalators throughout their store. 

During the renovation, asbestos insulation boards were both being removed and new boards cut and fitted. This all taking place just a few feet from where Mrs McGregor was working. In her evidence, she said that during this period her working area was extremely dusty, and that several times a day she would have to remove white dust from shoes which were on display.

The judge, Mrs Justice Patterson, found that a dusty atmosphere became part of Mrs McGregor’s working environment during the renovation period. She also concluded that Mrs McGregor had indeed contracted mesothelioma as a result of being exposed to asbestos whilst at work in the store. However, despite this conclusion, the judge found against Mrs McGregor, holding that the defendant had not breached the duty of care they owed to Mrs McGregor, and were therefore not legally liable for Mrs McGregor’s mesothelioma. The basis for this decision was that in her opinion, the defendant would not have foreseen that Mrs McGregor was being put at risk of an asbestos related injury during the renovation period. So how did she decide that?

The judge found that on the balance of probabilities a floor to ceiling enclosure had been constructed around the renovation work, although whilst it may not have been especially effective in preventing dust from escaping, it had to be considered by the standards of 1976, when it would have been considered adequate.

The engineering expert witnesses in their joint statement, in considering the occupational hygiene standards at the time in 1976 which were published in TDN13 by HM Factory Inspectorate, considered it was possible that Mrs McGregor could have been exposed to dust particles greater than the standards expressed in TDN13 to be avoided, but on the balance of probabilities it was unlikely. No actual measurement of dust particles were taken at the time in 1976.

In an earlier light exposure case, Williams v University of Birmingham (2011), Lord Justice Aikens had said that a defendant was entitled to rely on established guidelines at the time of exposure, namely Technical Data Note 13, in consideration of what was an acceptable or unacceptable level of exposure to asbestos dust particles. The problem of course is if no actual measurements have been taken at the time, then a defendant would have no genuine idea of the true level of exposure in numeric terms. So it is rather bizarre that judges can merely decide that a defendant based on the knowledge of the time of exposure would not even be required to take dust readings to establish the risk level.

Mrs Justice Patterson asked herself whether the defendant was under a further duty to assess the risk as the renovation work progressed. She concluded that as the work was of short duration (2-3 months), in the absence of any particular circumstances to alert the defendant to an enhanced or different risk as the work progressed, then there was not. This finding appears somewhat contradictory. What was the purpose of the enclosure screening that she had found had been constructed? If it were to prevent dust from escaping then clearly the fact that Mrs McGregor had to clean the shoes several times a day is testament to the fact that it was escaping in more than minimal quantities. Furthermore, the judge actually made the finding that Mrs McGregor’s work environment was a dusty environment at the time of the renovation work. So arguably this should have alerted a reasonable employer to there being a clear issue. The judge in a further finding that appears contradictory, held that only small amounts of dust had escaped and that this should be seen as akin to being a mere nuisance rather than a hazard. How can in one part of her judgment she find that the environment was ‘dusty’, and then elsewhere say only small amounts of dust had escaped?

One of the factors the judge considered telling from the evidence provided, was a response by Mrs McGregor’s brother, who also worked for the same company as an assistant manager, when he was asked what a reasonable employer would have done as regards the renovation work in terms of the risk. He responded by saying that it never crossed his mind that there was a risk to health. Mrs McGregor’s brother was a junior manager, and thus it is highly questionable that his honest answer should provide the basis for the foreseability of risk question. Instead determination of that matter should arguably be based on the organisation as a whole.

The judge appears also to have got mixed up as to who actually provided the precaution of the screening, stating that this was provided by the defendant’s, when clearly that was not the case. From the text of the judgment there does not appear any evidence of precautions undertaken by the defendants towards their employees working in the concession at all.

It is interesting to ponder what the position would have been had the claimant been someone who had actually worked on the renovation, and had been cutting up the insulation boards for example as a summer job whilst on holiday from university, and this was their only exposure to asbestos in their life. I would suggest that whilst they would have been just feet away from Mrs McGregor there was clear foreseeability of the risk involved for them in performing such work without any precautions to protect them from the inhalation of fibres, other than wearing generally ineffective paper masks, that were it was said being worn by the men carrying out the renovation. If I am correct in my observation, then this adds to the troubling nature of this questionable judgment.

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