Asbestos law: insurance industry on alert as to the approach to low-level exposure

The insurance industry is on alert following the High Court ruling in Hawkes v Warmex Ltd [2018] EWHC 205 (QB). Mr Peter Marquand ruled that asbestos exposure that was less than ‘substantial’ was capable of establishing breach under the common law duty of care and s. 47 of the Factories Act in the 1940s.

Mrs Hawkes died from mesothelioma in 2014. It was alleged that between 1946 and 1952 she had been exposed to asbestos while making electric blankets at the defendant’s factory. It was claimed the inner linings of the blankets were made of asbestos which would come loose and settle on her clothes as she worked. The claimant, Mrs Hawke’s son, argued that the defendant was negligent and in breach of numerous statutory duties. Judge Marquand held that the claimant had failed to demonstrate the lining contained asbestos. Accordingly, the claim failed on the facts.

Crucially, however, obiter the Judge addressed the defendant’s duties as a factory owner and employer in the 1940s and 1950s in terms of low-level exposure:

1. Dealing with the ‘second limb’ of s.47 and whether the defendant’s manufacturing process produced ‘substantial’ quantities of dust, the judge held that it did not. Having heard the expert evidence and reviewed the relevant literature he considered it improbable that such fibre counts would have been visible;
2. Most importantly, dealing with the ‘first limb’ of s.47, the judge accepted the formula laid down in Jeromson v Shell Tankers [2001] EWCA Civ 101, whilst strictly confining Williams v The University of Birmingham [2011] EWCA Civ 1242 to its context. He held that in determining breach of duty, the question is whether asbestos-related injury is foreseeable, rather than mesothelioma itself. He found that by 1946 to 1952, asbestos-related injury was a reasonably foreseeable consequence of exposure to asbestos dust even at low levels, and if the lining had been proved to contain asbestos, the defendant would have been in breach of its common law duty and s.47 of the Factories Act 1937.

This case appears to be a further step towards departure from Williams, albeit Mr Marquand’s remarks were made obiter and are therefore non-binding. With the Court of Appeal’s decision in Bussey v Anglia Heating Ltd pending, the industry is relying on the Appeal Judges to reaffirm the decision in Williams and provide much needed clarity on the issue of low-level asbestos exposure.