In a ruling handed down by the High Court (Smith v Portswood House Ltd (Formerly Brazier and Sons )) an employer has successfully defended a mesothelioma claim arising from exposure from cutting asbestos in a factory during the 1970s. The case develops the case law for employers/insurers, demonstrating a successful defence being available where the deceased was actively involved in cutting asbestos creating dust in the 1970s, as well as the difficulty a claimant will have in advancing a case based on breach of statutory duty as an alternative to the common law.
The claimant, Mr Robert Smith, brother of the deceased, Mr Stephen Smith, who was a wood working machinist, was employed in Brazier & Sons’ joinery shop from 1973 to 1977 where he alleged the deceased was exposed to asbestos dust. As a result of this he developed mesothelioma in 2013 and sadly died in 2015. The alleged exposure occurred when the deceased made fire doors containing asbestos and, to cut the components, used a wall saw connected to a dust extraction system.
Factual disputes arose in ascertaining if doors containing asbestos were made on site, how often, and how effective the extraction system for the resulting dust was. Further disputes surrounded whether the limits for asbestos dust concentration had been exceeded and whether the amount of dust given off by the process was “substantial” within the meaning of section 63 of the Factories Act.
The court found that the deceased making a fire door containing asbestos was an exceptional occurrence and, when he used the wall saw, the extraction system collected the dust, keeping the dust levels below the concentrations specified in the Factories Inspectorate Technical Data Note (TDN13), the relevant standard at the time which set limits for asbestos dust concentrations of 2 fibres/ml for a four hour time weighted average (TWA) concentration and 12 fibres/ml for a 10 minute TWA.
While the defendant had accepted that no extraction system was 100% efficient, the Court held that deceased’s evidence did not support a finding that there was a “substantial quantity of dust” given off and thus “there was no basis for a finding of breach of section 63 of the Factories Act 1961”.
Richard Parker at national law firm DWF and John McDonald of 2 Temple Gardens represented the defendants on instruction from their employer liability insurers.
Richard Parker, Head of Occupational Health (Leeds), at DWF said: “Cases such as these present challenges for insurers as finding the evidence on occurrences 40 years ago when the businesses have been taken over and the premises closed is difficult but not impossible, as was demonstrated in this case.
“We are pleased to have been successful in defending against this claim which follows earlier decisions in favour of defendants in the recent cases of McGregor v Genco (2014) and Woodward v Secretary of State for Energy & Climate Change (2015), in which it was for the claimant to present proof of asbestos exposure in excess of the recommended limits at the time.”