No specific measurement of minimum duration of exposure to asbestos required
22/11/2007
In the judgment handed down today, the Court of Appeal has rejected the proposition that in cases of exposure to asbestos fibres resulting in mesothelioma, a specific measurement of the duration of the material exposure is required for a claim to succeed. What is required is a finding that the duration of the exposure had constituted a material increase in the risk of contracting mesothelioma. Exposure which was de minimus would be insufficient.
Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189
> judgment , also reported on Lawtel (LTL 22/11/2007)
On the 22nd November 2007 the Court of Appeal dismissed the appeal, brought by the former employers of a man who had died of mesothelioma, against an award of damages won following a County Court trial.
Mr Cox, the deceased, was a welder who had worked in power stations between 1961 and 1985 engaged in maintenance and/or repair works. During that time Mr Cox was exposed to atmospheric asbestos dust and fibre by several employers including International Combustion, the corporate predecessors of the Defendant. As a matter of causation, it was not possible for Mrs Cox, the Claimant, to prove that her husband’s malignant mesothelioma was caused by exposure to asbestos dust and fibre during the period of employment with International Combustion in 1966/67. Relying on the principles set out in Fairchild v Glenhaven Funeral Services Limited [2002] UKHL 22, Mrs Cox succeeded at first instance to fix the Defendant with liability. On appeal, the Defendant argued the trial judge was wrong to find the case proved.
Although much of the case turns on its own facts and evidence, the Defendant had argued at trial and again on appeal that the Court should specify a minimum period of exposure which a Claimant must satisfy in order for a claim of this sort to succeed. The trial judge did not find it necessary to formulate the test otherwise than by reference to an exposure that was not de minimis and Maurice Kay LJ, giving judgement in the Court of Appeal, and with whom Tuckey and Hooper LJ agreed, stated that:
“For the claim to succeed, the judge needed to be satisfied that the extent and duration of the exposure [to asbestos dust and fibre] had constituted a material increase in the risk to the Deceased of contracting mesothelioma. No specific measurement of the duration is necessary and the Recorder was right to resist the invitation to fix one. Exposure that would fall within the de minimis formula would be insufficient”.
Christopher Melton QC and Peter Hodson appeared for the Respondent (instructed by Ashton Morton Slack , Sheffield).
Quick links
> Court of Appeal finds in favour of mesothelioma widow
> 22/11/07 Widow wins asbestos damages case (BBC News)
> 23/11/07 Rollys-Royce ordered to pay up as widow wins court case (Derby Evening Telegraph)
