Legal update - Smoking or asbestos? High Court dismisses lung cancer claim

Tuesday 1 February 2022

In Terence Ward v Wellcome Foundation & Harrods Limited 2021 the High Court dismissed a claim for asbestos-related lung cancer after declining to find evidence sufficient to cause a breach of duty, or to double the risk of contracting lung cancer.

The judgment is useful to councils facing asbestos claims particularly, those for asbestos-related lung cancer. 

Background

The Claimant alleged exposure to asbestos while working as a fire security officer with Wellcome Foundation between 1969 and 1978/9 and as a fire officer with Harrods Limited between 1988 and 1995. The Claimant stated he worked around workmen stripping asbestos lagging, being close to those sweeping and, in the case of Harrods, working close to those cutting asbestos insulating board. At Wellcome, the Claimant handled asbestos blankets.

The Claimant alleged that his exposure amounted to two hours and 15 mins a day, plus two hours per week, handling fire blankets at Wellcome. At Harrods, the Claimant alleged he was exposed two to three hours a day.

The Defendants did not deny their premises contained asbestos. However, they denied the levels of asbestos were sufficient to be causative of the Claimant’s lung cancer and that he was exposed in breach of duty. The Defendants pointed to the Claimant’s 48 to 52 pack of cigarettes a year history of smoking as the alternative cause of his lung cancer.

Both Defendants advanced extensive documentary evidence, photographs and witness evidence to show precautions were taken in respect of asbestos. Harrods’ witnesses noted that specialist contractors were engaged to remove asbestos and recalled tents and precautions being taken.

Judgment

The High Court made the following factual findings:

  • That Harrods engaged specialist contractors in the late 1980s with work carrying on into 1989, and the photographs showed clean pipes after the work was undertaken.
  • There was a general awareness of asbestos and where encountered, specialist contractors were engaged.
  • Where stripping work was encountered by the Claimant, it was most likely these materials had been tested and found to be free from asbestos or the asbestos had already been removed.
  • The Claimant’s estimate of the duration of his exposure was rejected as overestimated. Any incidental exposure was found to be below the occupational thresholds.
  • In respect of earlier exposure with Wellcome, the Claimant’s evidence was rejected on the grounds that the recollection was mistaken with respect of lagging, and the dose from use of fire blankets was less than 0.4 fibre/ml years.

The Claimant relied primarily on a breach of Regulation 15 of the Asbestos at Work Regulations 1987 for failing to retain health surveillance records for 30 years. The Defendant argued that this Regulation was not engaged where the Claimant was exposed below the action level, which was accepted by the Court.

In respect of causation, the parties accepted that the Claimant must prove an overall dose to asbestos of 25 fibre/ml years where the exposure is to predominantly crocidolite (blue) and amosite (brown) asbestos, or 40 fibre/ml years where exposure was to a chrysotile or amphibole mixture. All three experts gave ranges of exposure based on the witness evidence which fell below that key threshold.  

Given that all experts found the exposure was below the required dosage threshold, the Court found that the Claimant’s heavy smoking history was the most likely cause of his lung cancer.

Comment

However, this decision is useful because:

  • The case emphasises the evidential hurdles a claimant must overcome to prove exposure particularly when reliant on historic recollections. Those principles in Gestmin v SGPS SA v Credit Suisse (UK) Limited 2013 were applied by the Court. With the issues surrounding a witness’s recollection a common theme in historic asbestos claims, the decision shows the benefits of careful analysis of evidence. This may feed into decisions on whether to seek further information from a claimant or seek an Evidence on Commission.
  • The decision highlights the importance of obtaining key information such as the tasks undertaken and the duration of those tasks, so an exposure level can be calculated. This was key to showing that the occupational hygiene levels were not exceeded such to trigger duties in the Regulation relating to document retention.
  • The Court reaffirmed the dosage threshold for lung cancer, dependent on the quantity of amphibole asbestos. Identifying what types of asbestos are in a particular product as early as possible is key to defending these claims. 

Lung cancer is a common cancer in the population at large, however, frequently claims are brought implicating asbestos where an individual’s dose to asbestos is insufficient to prove the cancer is caused by any exposure.

For councils, future claims are likely to centre on tradesmen working on properties, and claimants will continue to face an uphill struggle to show exposure was sufficient to exceed the dosage threshold. For those non-traditional and very light exposures (seen in increasing numbers) by teachers for instance, any claim should be considered carefully, as it is unlikely that the dosage threshold could be exceeded, even over a long career.

Liam Bedford (liam.bedford@kennedyslaw.com) is a Senior Associate at Kennedys.

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