In Jones v. Metal Box the court examined the likelihood of mesothelioma being caused by limited exposure to chrysotile (white asbestos).

Jones v. Metal Box Ltd and Crown Cork & Seal Ltd

Cardiff CC 11.01.07  HHJ Hickinbottom

Facts

The Deceased, Beryl Jones, died from mesothelioma in 2001.  Her only known exposure to asbestos was during production line work in the 1950s and 1960s at a factory owned by the Defendants successively.  She worked as a packer at the end of a transfer belt comprising an endless loop about 3 inches wide, which carried components through an oven.  The Judge made the following findings of fact:

• The Deceased started work on the production line in about 1954 and finished in about 1968.
• The transfer belts were made of woven asbestos.
• On the balance of probabilities, the belts were made from chrysotile but contaminated with an unknown but certainly more than trivial amount of tremolite. (Rejecting the evidence of Dr Gibbs for the Defendant and accepting that of Dr Rudd, and conceded by the Defendant’s liability expert Mr Finch).
• The asbestos belts were used from about 1963 to at least 1968.
• Although there was no evidence that packers were exposed to clouds of visible dust, the Deceased was intermittently but regularly exposed to small amounts of dust invisible to the naked eye, resulting from the normal operation of the oven, the changing of the transfer belt, roughing up the belt to prevent jamming and sweeping up around the oven.
• The dust contained "a substantial amount of asbestos" and ‘comprised chrysotile with an unknown but with a more than trivial proportion of the emphibole tremolite’.

Causation

The Defendant adduced evidence from Dr Alan Gibbs, Histopathologist, that exposure to uncontaminated chrysotile did not increase the background risk of mesothelioma which was probably less than 1:10,000. In contrast, Dr Rudd gave evidence that exposure to pure chrysotile fibres did increase the risk of developing mesothelioma.  Given that he had found that the chrysotile in the Defendant’s factory had been contaminated by tremolite, the Judge did not need to make a finding but said that he preferred the evidence of Dr Rudd, which reflected "the overwhelmingly preponderant scientific view".

Dr Gibbs argued also that there was a threshold of exposure even to contaminated chrysotile below which there was no increased risk.  The Judge disagreed for the following reasons :

• Whilst Dr Rudd accepted that there could be "trivial" exposure, he defined that as the presence of unworked asbestos (e.g. an asbestos plate on an ironing board or a corrugated asbestos roof) which did not increase the background level.
• Although crocidolite (blue asbestos) is considerably more potent as a carcinogen than chrysotile (and the Judge made no finding as to their relative potency) it did not mean that there was a threshold exposure to chrysotile below which there was no increased risk.
• The Asbestos Regulations 1969 imposed standards published by HM Factory Inspectorate but these merely provided guidance as to the levels of dust that would avoid a prosecution.  They did not purport to lay down safe levels of exposure.
• Mesothelioma is not thought to be dose dependent.
• The general view of national and international bodies is that there is no threshold below which exposure to chrysotile can be regarded as safe.

The Judge concluded :

"It is clear that the mainstream scientific view – based upon considerable research and a view shared by Dr Rudd – is that there is no recognised threshold of exposure to commercial chrysotile (i.e. chrysotile contaminated with tremolite) below which exposure can be said to be safe, i.e. as not to increase the risk of mesothelioma.  … If a person is exposed to chrysotile at levels above those found in the environment at large, then I am satisfied that that person has an increased risk in respect of mesothelioma." 

Dr Gibbs’ evidence was that the Deceased’s mesothelioma had been idiopathic, i.e. not work related.  However, that opinion was based on three premises that the Judge had held to be incorrect – chrysotile without tremolite was not carcinogenic; the transfer belts were made of pure chrysotile; and there was a threshold below which exposure to contaminated chrysotile was still safe.  The parties had agreed that, to succeed with the claim, the Claimant had to show that the exposure to chrysotile had at least doubled the Deceased’s risk of developing mesothelioma.  Unless the Claimant could show that the risk was doubled, it was more likely than not that the mesothelioma had an idiopathic rather an occupational cause.  Dr Rudd’s evidence was that the exposure had caused between a twofold and tenfold increase in risk and, on the balance of probabilities, was the cause of the mesothelioma.  The Deceased’s exposure to asbestos was relatively small but not trivial and the Judge held that, on the balance of probabilities, it had caused the mesothelioma.

Date of Knowledge

The Claimant accepted that, prior to 1965, the Defendant could not reasonably have been expected to foresee that exposure to low levels of asbestos was a foreseeable risk of injury.  In 1965, Newhouse & Thompson published an article linking mesothelioma with those living close to an asbestos factory and among relatives of those who worked in them.  On 31.10.65, the Sunday Times ran an article based on this research which identified mesothelioma as "a killer disease" affecting not only those who worked in asbestos factories.  There were further publications in 1966 and 1967. 

The Judge held that, after the publication of the Sunday Times article in October 1965, the Defendants were on notice of the fact that, if any employee was exposed to "even very low (minimal) levels of asbestos" he was at risk of developing mesothelioma.

Breach of Duty

The Defendants argued that, even after 1965, it need only to have considered the safety of the employees exposed to visible quantities of asbestos dust for a considerable time.  The Judge held that, after 1965, the Defendants should have :

• Reviewed manufacturing processes to identify any use of asbestos;
• Thereby identified the transfer belts as containing asbestos;
• Investigated the operation and identified the scope for exposure to asbestos fibres in circumstances identified previously;
• Considered what steps should be taken to eliminate or, if not practicable, reduce such exposure.

Had the Defendants taken these steps, there was no reason why, by autumn 1966, they should not have changed the belts to a readily available and cheap alternative material not containing asbestos.  The failure to take any steps to reduce exposure to asbestos between October 1965 and 1968 when the Deceased left her packing job, amounted to a breach of the common law duty of care.

For the same reasons, the Defendants were also in breach of S.63 Factories Act 1961 from October 1965 onwards.

Judgment was awarded in favour of the Claimant in the sum of £60,000 inclusive.

The decision is a first instance decision of a County Court Judge and thus not binding.  Neither is the analysis of the epidemiology regarding the carcinogenicity of chrysotile very thorough.  Nevertheless, it is clear that the Judge was not in the least impressed by Dr Gibbs’ evidence on causation.  It is interesting to note that the expression de minimis does not appear in the judgment.  Neither is there specific reference to there being a material increase in risk of mesothelioma, from which one assumes that the Defendants did not raise a de minimis defence and attempt to argue that, though there may have been a slightly increased risk, such increase was not "material".  Had the Defendants done so, there is little doubt that the Judge would have found against them on the point.  He quite clearly felt that a doubling of the risk was sufficient to be material even if it may still have created a risk of only 1:5,000 (assuming a background risk of 1:10,000). 

The case illustrates the difficulties of defending a claim for mesothelioma in circumstances where there has been some exposure to asbestos in the Defendant’s employ, even if very limited, in the absence of any other significant source.

Simon Cradick can be contacted on 029 2038 5464 or be email.