Secondary exposure to asbestos

Maguire -v- Harlan & Wolff Plc

Three Court of Appeal judges heard this case on 10 November 2004. Mrs Maguire (now deceased) contracted mesothelioma. It was alleged that her exposure to asbestos was as a result of washing her husband’s clothes. Harland & Wolff employed Mr Maguire between 1960-1965. It was accepted that Mr Maguire was negligently exposed to asbestos. The issue for the court to decide was whether the shipyard was liable for Mrs Maguire's 'secondary' exposure to asbestos from her husbands contaminated clothes.

Two of the appeal court judges decided that:

  • The question for the court was whether the defendants ought reasonably to have foreseen that Mrs Maguire was at risk of injury from the amount of asbestos on her husbands overalls – was it foreseeable that the health of someone who had 'second hand' contact with asbestos was at risk
  • The court considered the state of knowledge up to 1965 by looking at the expert literature available to the defendant dealing with any warning about the risk of secondary exposure. They found that the reports and literature were silent about the risk of secondary exposure up to 1965. The warnings did not sound until a report by Newhurst & Thompson was published in late 1965.
In the absence of any appropriate health warnings, the defendants did not have the knowledge to lead them to consider secondary exposure. Therefore the risk to injury was not reasonably foreseeable - at that time.

The third Appeal judge decided that:

  • A Factories Inspectorate Booklet published in 1960 stated that the overalls and protective clothing of workers are another source of exposure to dust. The general message was that exposure to dust from clothing should be avoided.
  • He thought it would be obvious that a wife would be handling and washing her husbands clothes and would therefore be exposed to asbestos.
  • He considered that the defendant should be held liable.

 The claim for compensation was dismissed by a majority of 2–1

Comment: The case deals specifically with the question of whether a shipyard is liable for secondary asbestos exposure up to 1965 involving injury to an employee's family member. It does not deal with whether legal liability may arise in a case against a similar company where the secondary asbestos exposure occurred later than 1965.

Vibration Judgment at Corus (British Steel)

The claimants were boilermakers at Corus’ Llanwern site who used vibrating tools – mainly grinders – to repair or make heavy industrial parts for furnaces and rolling machines used to produce molten steel. The court went through the familiar considerations with experts on anger time and vibration dose and found exposure at or above 2.8 m/sec2 at all material times.

On breach of duty, the Judge went through the familiar sources of literature/knowledge considered in cases such as Doherty -v- Rugby Joinery (see Law Bulletins April and December 2004) and ruled as follows:

  • The 1975 British Standards Guide DD43 – in which publication Corus played a part – created a duty to warn employees of the danger of vibrating tools (using the simple language suggested in Armstrong -v- British Coal (2), 30 September 1997 ) and start medical surveillance
  • That duty had been breached but was not causative of any injury here, symptoms having started later for the successful claimant Kington so the case was not won on this point.
  • The 1988 BS6842 report created a duty on Corus (who were again involved in its publication) to take positive steps to train and advise employees; to design tools differently; to provide protective equipment; and to change working systems.

 This breach of duty applied to all three claimants. Only one got home on medical causation of HAVS/VWF and received £5,000 for a Stage 2 Taylor-Palmear injury (moderate).

Comment: This has set a precedent for boilermakers or similar workers employed at Corus since 1987. There was a previous successful Court of Appeal case (Brown) against Corus for bricklayers who used vibrating and wrecking tools in their work. The full judgement in this case is very considered on all HAVS issues of exposure and legal and medical causation and very useful literature

Davis, Kington and Hyde -v- Corus Cardiff CC, 24 September 2004