PI Brief Update

Mcgregor v. Genco (FC) Ltd: Time and Duty - Simon Morrow & Malcolm Keen, BLM

16/08/14. An employer’s duty at common law is to take reasonable care to protect its employees from a foreseeable risk of injury. In mesothelioma and other asbestos-related illness cases, foreseeability of the risk of injury has a particularly significant role. The recent High Court mesothelioma case McGregor v. Genco (FC) Ltd [2014] EWHC 1376 (QB) provides guidance on considering liability today for a breach of duty which occurred many years ago.

The decision

In McGregor, the claimant worked at a department store in Liverpool in the 1970s and early 1980s. For a period in 1976, demolition and installation work on escalators took place. Asbestos insulating board was used in the old and the new escalators. The claimant described her workplace as extremely dusty. She was diagnosed with mesothelioma in August 2012. The judge dismissed the claim. She accepted that the claimant was exposed to asbestos for a period of months in 1976, that exposure was light, but that this exposure to asbestos probably caused her mesothelioma. The judge concluded that the safety precautions in place (floor to ceiling enclosure) were adequate at the time, though not by today’s standards. She then considered whether there was a further duty to make enquiries as the works progressed. The judge found that there was nothing which ought to have alerted the defendant that the precautions were inadequate and required alteration. She concluded that there was no reason in 1976 for the defendant to have appreciated that the claimant was at risk of an asbestos related injury. The defendant’s failure to take what would now be regarded as appropriate precautions was not negligent.

Effect

McGregor turned on contemporary knowledge of the harmful effects of asbestos. Based on official guidance and standards in 1976, the claimant’s exposure to asbestos did not give rise to a foreseeable risk of injury. As noted above, the employer’s duty is to take reasonable care to protect its employees from a foreseeable risk of injury. As knowledge of a particular condition develops over time, knowledge of the risk of injury associated with particular work also develops. It is no defence for an employer to say it chose to remain ignorant of such developments in knowledge and the concomitant developments in what risks of injury became foreseeable. But equally, as McGregor shows, the employer ought not to be held to standards applicable now, but rather to those in place at the time of the alleged breach of duty.

Conclusion

In relation to the harmful effects of asbestos, a variety of guidance material shows the historic development of knowledge, such as Ministry of Labour and Department of Employment publications. Guidance documents assist the courts in establishing the date when a particular employer ought to have been aware of a foreseeable risk of injury in a particular case. Applying the material to a case requires the court to perform something of a comparative exercise – the knowledge (and thus the dangers) described in the guidance material must be weighed against the nature and extent of the claimant’s exposure. McGregor shows that the degree of exposure to asbestos and the date at which exposure occurred, set against knowledge and guidance at the time, are key in determining whether or not the defendant will be found in breach of duty. As the judge in McGregor observed, hindsight should be avoided.

Simon Morrow, partner, BLM
Malcolm Keen, solicitor, BLM

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