Abraham v G Ireson & Son (Properties) Ltd, Stanley
Reynolds t/a Reynolds & Spademan [2009] EWHC 1958
(QB)
In this case Mr Abraham alleged that both defendants exposed him
to asbestos dust in the course of his employment with them between
1956 and 1965.
The claimant served as a plumber's apprentice with the first
defendants between 1956 and 1961. The first defendants were a small
firm of general builders. The claimant then worked for a short
period of time for a plumbing firm, when he was not exposed to any
asbestos. He was thereafter employed by the second defendants from
1962 to 1965. He left them to work as a lorry driver, which he did
for the next 40 years before retiring. He was diagnosed with
mesothelioma in 2008.
The judge found that the claimant's exposure to asbestos with
the first defendants was very light and occurred intermittently.
They carried out repair and maintenance work at domestic premises.
The claimant's evidence was that he carried out typical domestic
plumbing work. He repaired burst or leaking pipes. He did not do
any commercial or industrial plumbing work. He did not service
boilers. The judge accepted that the claimant had used asbestos
string for sealing the joints of soil pipes.
The second defendants were a small plumbing firm employing three
or four plumbers. They carried out domestic plumbing work at
private houses. The claimant's evidence was that while working for
them he spent 75% of his time doing general plumbing work and about
25% of his time carrying out central heating work. His work mainly
involved the installation of new central heating systems. The
claimant never worked on pipes lagged with asbestos nor did he
carry out any commercial plumbing work. The claimant's evidence was
that he used an asbestos scorch pad when undertaking work involving
soldering. The judge concluded that the claimant's use of asbestos
scorch pads was confined to his employment with the second
defendants. He held that the claimant's exposure to asbestos with
the second defendants was still modest and infrequent. However,
that exposure could have been avoided altogether since alternative
asbestos materials were available at the time.
The key question for the judge was whether the relevant
literature available at the time should have alerted an employer to
the possibility that their employees might be at risk of
contracting an asbestos-related injury when the only exposure to
asbestos was light and intermittent.
The judge found the defendants had not been negligent:
"Having considered the relevant literature with care, I
consider it highly unlikely that an employer whose employee's only
exposure to asbestos dust arose as a result of the infrequent use
of asbestos string and/or asbestos scorch pads (even with the
occasional removal of an asbestos flue pipe) would have believed,
on reading the literature (including the 1949 Annual Report) that
he was or might be exposing that employee to risk of
asbestos-related injury. Indeed, some degree of actual reassurance
might have been afforded by the contents of the 1960 booklet. It is
true that the booklet stressed the importance of keeping
contamination of the workplace to a minimum and did not profess to
set a 'safe' level of asbestos exposure. Nevertheless, the level at
which the maximum average permissible concentration of asbestos
dust over a working day was set so much in excess of the levels to
which the claimant was likely to be exposed that it might well have
encouraged the defendants to believe (if they considered it) that
the levels of asbestos dust to which the claimant was being exposed
gave rise to no risk of injury. It seems to me that it was not
until after the publication of the Newhouse and Thomson paper in
1965 at the earliest that employers could have been aware that
asbestos exposure to the levels to which the claimant was subjected
gave rise to a risk of injury."
The judge held that it was unlikely that either defendant on
reading the literature relevant to the time of the claimant's
employment with them, would have believed that the claimant was or
might be exposed to the risk of an asbestos related injury.
The earlier decisions of Owen v IMI Yorkshire Copper Tube
(unreported, 15 June 1995) and Shell Tankers UK Ltd v
Jeromson [2001] EWCA Civ 101 were distinguished on the basis
that in those cases there were findings of significant exposure to
asbestos whereas the claimant's exposure was light and
intermittent.
This is a significant and useful case on date of knowledge for
light, intermittent exposure to asbestos, albeit it is only at
first instance.
Contributed by Calum Mathieson