Emma Jane White v Secretary of State for Health and Social Care

Hearing dates: 6–7 December 2023

Approved Judgment

This judgment was handed down remotely at 10.30am on 14 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

In these two actions the Claimants appeal from the decision of the respective Courts below, dismissing their claim for damages attributable to the contraction of mesothelioma and subsequent deaths of those whose estates they represent. I shall refer to the appeals as “the White appeal” and “the Cuthbert appeal”. Each Claimant appeals with the leave of William Davis LJ, who ordered that the appeals should be heard together. Each appeal raises the question whether the trial Judge applied the correct legal test for establishing a duty of care. In the White appeal there is no appeal against the Judge's findings of fact. In the Cuthbert appeal, the Claimant submits that the Judge made findings of fact that were not justified; alternatively, that the Judge did not appreciate the full significance of the findings he made.

After a brief procedural and factual introduction, I shall summarise the most important aspects of the judgments below. In each action, the trial Judge was referred to some of the extensive literature evidencing the state of knowledge about the risks of inhaling asbestos. Each Judge referred to extracts from that literature as informing their approach to the issue of foreseeability of injury. In doing so they followed a path that is well-worn by others. That path has been extensively and thoroughly retrodden by the parties at the hearing of these appeals, with each party making detailed submissions about the inferences to be drawn from individual documents and the aggregate effect of the literature as a whole. Since those submissions are central to the issue of foreseeability of injury, I attempt to trace the development of the literature as a separate section of this judgment. Having done so, I review the applicable principles and the main authorities to which we were referred, after which I address the appeals in each action.

For the reasons I set out below I would dismiss both appeals.

The White appeal: factual and procedural background

Mr Thomas White was born on 23 November 1932. He was in reasonably good health until he was diagnosed as suffering from mesothelioma in or about September 2019, when he was aged 86. He died on 8 April 2020, when he was aged 87. The Claimants alleged that Mr White contracted the mesothelioma because of exposure to asbestos when working at the Sefton General Hospital in Liverpool during two periods of employment. The first was between about 1949 and 1960, during which time Mr White was employed by the Defendant's predecessor as a junior lab technician. The second was between 1973/1974 and 1991/1992 when he worked at the hospital as a senior biochemist.

The trial of the action was before Mr Jeremy Hyam KC sitting as a Deputy Judge of the High Court. The witness evidence consisted of a witness statement from Mr White, completed shortly before his death, and one from his daughter, the first Claimant, who was not required to attend to give her evidence orally or for cross examination. There was a joint statement from the medical experts, Dr Warburton and Dr Moore-Gillon, who were in agreement. In addition, as the trial Judge recorded:

“In respect of engineering/occupational hygiene evidence, although the Claimants identified an appropriate expert occupational hygienist in accordance with the Master's direction, and a draft report was prepared and a conference with Counsel held, no such report was ever served by the Claimants. The consequence was that the only expert occupational hygienist evidence before the Court was that of the Defendant's expert Mr Graeme Hughson, dated 1st July 2022. That report was accompanied by 5 lever arch files of relevant literature in respect of the developing knowledge of asbestos over time.”

In a judgment handed down on 2 December 2022, the trial Judge held that there had been some exposure to asbestos during the first period that was intermittent and in very low quantities, which elsewhere he described as de minimis. During the second period the level of any exposure was likely to be insignificant in causal terms. He then went on to find that the employer had not acted in breach of any duty of care in respect of either period. That conclusion is accepted by the Claimants in relation to the second period; but it is challenged in this appeal in relation to the first.

The Cuthbert appeal: factual and procedural background

Mr Derek Cuthbert was born on 14 December 1938. He was informed of the diagnosis of mesothelioma on 12 March 2021, when he was aged 82. He died on 5 April 2022, when he was aged 83. The Claimant alleged that Mr Cuthbert was exposed to asbestos dust and fibres when employed by the Defendant between about 1956 and 1959 and engaged in construction work at Queenswood School in Cheshunt.

The trial of the action was before HHJ Freedman sitting as a Judge of the High Court. The Claimant was called to confirm her statement. The court also had two witness statements from Mr Cuthbert, dated 10 May and 21 July 2021. Since the HMRC schedule did not cover Mr Cuthbert's employment before 1960, the Defendant was unable to admit his employment or the capacity in which he was employed. There was no medical issue on diagnosis or causation. The only live evidence of substance was that of the occupational hygienists Ms Conroy (instructed on behalf of the Claimant) and Dr Phillips (instructed on behalf of the Defendant).

In a judgment handed down on 30 November 2022, the Judge found that Mr Cuthbert had had “irregular and intermittent contact” with carpenters at the site and that, at times, they were engaged in cutting up asbestos materials when he was in their vicinity. Sometimes, depending on the weather, the cutting of asbestos boards took place outside. “From time to time” he undertook sweeping up debris and on occasions this would be “a number of times per day”. Even if he were to conclude that Mr Cuthbert did sweeping up on a fairly regular basis, it was probable that it only occupied a very small portion of his working day: the Judge accepted Defence counsel's suggestion “that, perhaps, he spent in the order of ten minutes per day sweeping up.” Overall he found Mr Cuthbert's account in his witness statements to be implausible. He concluded that “his exposure to asbestos when employed by the defendant was of a low order, light and intermittent and, in the main, as a bystander.” After a review of the literature and relevant authorities, he expressed his conclusion as follows:

“I consider that a reasonable employer keeping abreast of the available knowledge could not reasonably have foreseen that there was a significant (i.e. more than fanciful) risk of injury as a result of the exposure to asbestos at the level to which I have found that [Mr Cuthbert] was exposed.”

In the light of this conclusion, he found that “there was no breach of duty where the exposure was light and intermittent.” The Claimant challenges the Judge's description of the level of Mr Cuthbert's exposure. In oral submissions, the Claimant placed particular emphasis on the existence of visible clouds of dust when Mr Cuthbert swept up, which the Claimant submits demonstrates direct exposure of an intensity that cannot reasonably be described as “light and intermittent”.

The judgment in the White appeal

The Judge identified at [6] that the central issues on the facts:

“turn on the amount of asbestos dust to which the deceased is likely to have been exposed in each period of employment and whether that level of exposure was sufficient to trigger a duty to take precautionary steps to reduce the risk of exposure, or to avoid it altogether, or at least take advice on what precautionary steps ought to be taken.”

An issue arose as to the extent to which the Claimants, having not served any expert occupational hygiene evidence of their own, not having asked any Part 35 questions of Dr Hughson and not having cross-examined him, could nonetheless impugn the evidence of Dr Hughson on the matters in his report. At that time, the leading authority on the issue was the decision of the Court of Appeal in Griffiths v TUI (UK) Ltd [2021] EWCA Civ 1442, [2022] 1 WLR 973. The majority of the Court of Appeal (Asplin and Nugee LJJ, Bean LJ dissenting) had held that there was no strict rule that the court was bound in all circumstances to accept the uncontroverted evidence of an expert witness which...