Mesothelioma and Date of Knowledge

Cuthbert v Taylor Woodrow
White v S of S for Health

One of the lawyers involved in these conjoined appeals has modestly described the outcome as “the most important mesothelioma judgment for perhaps 20 years”. The Court of Appeal says these weren’t even test cases. So who is right and what are the wider implications?

Mr Cuthbert worked for Taylor Woodrow between 1956 and 1959. His exposure came from others working on asbestos insulation board. Mr White worked as a lab technician between 1949 and 1960. His exposure came from asbestos mats that were often in poor condition. Both men later developed mesothelioma.

The asbestos exposure in both cases came before widespread knowledge of the links between low-level exposure and mesothelioma. That point is usually held to have been reached with the publication of a single Sunday Times article in 1965.

Both claims lost at first instance. The claimant in Cuthbert criticised the judge’s findings of fact which had rejected a lot of Mr Cuthbert’s witness evidence. More importantly, both appeals argued that the lower courts had failed to take into account the earlier decision of Jeromson. This case was also about asbestos exposure in the 1950s. This included a finding that there had been enough information around for employers to conclude that “asbestos dust is harmful and that the precaution needed is to suppress it”.

The claimants argued that this clear message triggered a duty in all employers to take positive steps to reduce asbestos exposure. If they could not prove that they did so, they would be in breach of duty. Their argument was about what an employer should have known at the time. In turn, this explains why these weren’t test cases. They’re not about law. They are about evidence.

The Court of Appeal was taken to the source material which led to the finding in Jeromson. It decided that this hadn’t been properly considered in that earlier case. The statement that asbestos was harmful had to be understood in the context of asbestosis – a condition thought to be caused by prolonged significant asbestos exposure. If the exposure was lighter, employers wouldn’t be liable. The court also rejected the criticism of the trial judge’s factual findings in Cuthbert.

This ruling preserves the position as most practitioners had understood it. A claimant must prove heavy exposure pre-1965 to establish negligence.

So if this is not a test case and preserves the position that we all understood, what is the importance of this judgment?

Preserving the position is, of course, a success in itself. There are still plenty of cases where exposure is alleged before 1965. If the appeals had succeeded it would have been very difficult to resist these claims.

It may be that the most important effect of this decision will be felt on the treatment of claims with post-1965 exposure.

The judgment refers to “evidence that even as the 1960s progressed there was ample material supporting a continued belief that there were safe levels of exposure, which was also material to the question of reasonable belief in the relevant period”.

This all begs a very serious question. Either employers suddenly developed a callous disregard for the safety of their employees for a fixed period after 1965, or the message about asbestos was confused, unclear and contradictory. This judgment forcefully emphasises the importance of a thorough review of all the contemporaneous documentation to examine employers’ knowledge. If the full weight of that material can be deployed, the 1965 bright line may appear to be much dimmer. As John Maynard Keynes said: “If the facts change, I change my mind – what do you do?”