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Pinder v Cape Plc, High Court, 20 December 2006

1 February 2007
The issues

Duty of care – asbestos – asbestosis – whether duty owed in the 1950’s in respect of second hand or intermittent contact with asbestos fibres.

The facts

The Claimant had been diagnosed with malignant mesothelioma of the pleura. He claimed against Cape Plc whose predecessors, between 1939 and 1970, were the owners of a factory at Acre Mill, Hebden Bridge. The factory was 5 miles from Mytholmroyd, where Mr Pinder was brought up and where he lived until he was 22. In Mytholmroyd was an area of wasteland called Scout End Tip. In 1950 the tip became a tip for trade and house refuse for the Hebdenroyd UDC. Mr Pinder alleged that he had contracted mesothelioma as a result of playing on the tip in the 1950’s and that the cause of the mesothelioma was the dust from the asbestos waste from Cape’s factories which was dumped on that tip.

The decision

The Court was satisfied on the evidence that the illness that the Claimant suffered from was caused by his exposure to the dust from asbestos waste disposed of at the tip by the Defendant or its predecessor.

In coming to a conclusion as to whether, between 1952 and 1960, the Defendant owed a duty to people such as Mr Pinder, exposed to occasional high levels of asbestos dust, there were two relevant considerations; firstly, the level of exposure of asbestos dust and secondly, the circumstances in which Mr Pinder came to be exposed to the dust. By the middle 1950’s it was known that exposure to asbestos should be kept to the lowest possible level and from 1951 that the threat posed by asbestos was sufficiently well known for employers to be under a duty to reduce asbestos to the greatest extent possible. In Maguire v Harland & Wolff the Court of Appeal decided that it did not necessarily follow that an employer, who should have appreciated the risk of harm to his employees, should at the same time have appreciated and addressed a risk to families of employees arising from secondary exposure. To do so would beg the critical question of whether it should have been clear by 1965 in that case that the health of individuals whose contact with asbestos was second hand and intermittent would be under threat. In Maguire the Court of Appeal decided that it was not reasonably foreseeable between 1960 and 1965 that a wife washing the clothes of a husband, who had been exposed to asbestos to a negligent degree, would herself be likely to suffer risk of personal injury.

In the decision of the Court in this case, it was only in the 1960’s that second hand and intermittent contact by persons with exposure lasting for peak periods outside the workplace was a concern and to impose a duty of care in respect of such people prior to the 1960’s would be to apply hindsight to the standards applying in the 1950’s.

If it were reasonably foreseeable that someone outside the workplace might be exposed to levels of dust similar to those which would have given rise to a breach of duty of care in the workplace, then that person would be likely to have a cause of action based on a breach of duty of care owed outside the workplace. However, in this case, besides the fact that the level of exposure would not have reached levels which would have amounted to a breach in the 1950’s, there was no evidence that the Defendant knew, or ought to have known, that children were playing in the waste at that tip. In the circumstances the Defendant could not reasonably have foreseen that the method of disposal of asbestos waste would have been likely to injure the Claimant. By the standards of the 1950’s the Defendant should not have taken particular steps after depositing the asbestos at the Scout Road tip. The evidence was that the recommendations on such matters were developed in the late 1960’s.

Claim dismissed.

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