EWJ Dec 2023 - Journal - Page 39
It was noted that regulation 63 of the Factories Act
1961 required all practicable measures to be taken to
protect employed persons against the inhalation of injurious dust, following the Chief Inspector of Factories’s Annual Reports of 1949 and 1956. The Judge
also noted:
work with asbestos cement entailed even at low levels.
In addition, given the size and nature of Bovis’s business they should, at the time they employed the deceased, have been aware that the exposure to asbestos
which his work involved gave rise to a significant risk
of asbestos-related injury being more than a fanciful
risk. In particular, the ARC guidance did warn of the
risks associated specifically with asbestos cement and
recommended some precautions. Given the state of
knowledge at the time, a reasonable and prudent employer in those circumstances should have taken steps
to address the issue. There was no evidence Bovis did
anything to assess and reduce the risks when simple
measures such as a face mask could have been provided and/or the cutting of panels outdoors mandated. Such measures would have reduced the risk of
inhalation of asbestos. Accordingly, Bovis ought to
have reasonably foreseen that the deceased would be
exposed to a risk of asbestos related injury and as such
Bovis were negligent. He also answered, as part of the
question on breach the question of whether the work
undertaken by the deceased materially increased the
risk of developing mesothelioma? In other words, was
it reasonable for Bovis at the material time to believe
that there was a level of exposure below which there
was no significant risk, and that the deceased’s exposure was below that level? It was held that it was not
reasonable for Bovis to believe that there was a level of
exposure below which there was no significant risk.
This was because the deceased was exposed to a measurable level of asbetsos (on Martin Stear’s calculations
between 0.021 to 0.29 f/ml years; assuming 10-14 days
of cutting and handling asbestos cement around 50%
of the time). Further, as there is no known lower
“It is clear that by the mid 1960s, there was an
increased awareness of the risks to health posed by
exposure to asbestos.”
It was also noted that in 1965 Newhouse and
Thompson published their findings that established
that mesothelioma could be caused by low level exposure and that might affect the families of workers and
that this information was widely disseminated in the
Sunday Times in the same year.
The judge was also referred to ‘The Asbestos Research
Council Recommended Code of Practice’ (‘the code’)
which was issued in April 1965. The code made specific reference to the handling, working and fixing of
asbestos and asbestos cement products in the building
and construction industries. The preamble stated
(emphasis added):
“The use and manipulation of asbestos and asbestos cement
products is very diverse […] special precautions are only
necessary when there is a possibility that operatives
may inhale asbestos dust as result of proximity to
cutting grinding or similar operations.”
The code of practice also provided:
“3.2.1 where hand cutting and working has to take place
regularly a dust exhaust system will often not be possible.
Where any risk of inhaling asbestos dust is present operatives
should wear approved type respirators.”
Other precautions are then set out in the code,
including damping down etc. It was noted that there
were steps Bovis could have taken, such as damping
down, but that they did not take these steps.
Professor Dae Kim
Consultant ENT & Head and Neck
& Thyroid Surgeon
MBChB, BDS, MSc, FRCS (Orl-HNS), PhD
The Legal Test
The Judge reminded himself of the test as formulated
by Underhill LJ in Bussey v 0065401 Ltd (formerly
Anglia Heating Ltd) [2018] EWCA Civ 243 and reformulated it for the present case as follows:
Professor Dae Kim is currently a Consultant ENT, Head & Neck and Thyroid
Surgeon at The Royal Marsden Hospital (Chelsea) London. He has over 25-years’
experience in treating a wide range of ear and hearing problems, as well as nasal and
sinus problems. He has a special expertise in thyroid cancer and thyroid surgery, as
well as complex head and neck problems including neck trauma, neck lumps, throat
problems, including swallowing and voice change.
The unique combination of extensive clinical experience within major centres of
excellence, involvement in national and international committees and a strong
academic career ensures that he is able to be up-to-date with the latest medical
literature and ‘best-evidence’ to support medical reports of the highest quality.
“…should Bovis at the time they employed Mr Harrison have
been aware that the exposure to asbestos which his work
involved gave rise to a significant risk of asbestos-related injury? I note significant means any real risk, albeit statistically
small, rather than a fanciful risk.”
The judge also considered what was said by Lord
Phillips at 108 of Sienkiewicz v Grief (UK) Ltd [2011]
UKSC 10 (emphasis added):
“…the only circumstances in which a court will be able to
conclude that wrongful exposure of a mesothelioma victim to
asbestos dust did not materially increase the victim’s risk of
contracting the disease will be where that exposure was
insignificant compared to the exposure from other sources.”
• Hearing loss
• Dizziness
• Sinus problems
Thyroid and Parathyroid Surgery
• Thyroid Surgery
• Parathyroid surgery
• Thyroid Cancer
• Hyperparathyroidism
Head & Neck Surgery and Oncology
• Head & Neck Cancer (including salivary, larynx & pharynx cancers)
• Thyroid Cancer
• Voice disorders
• Swallowing disorder
• Breathing Disorders (of throat).
Professor Dae Kim has extensive medicolegal experience & training
Tel: 07950 440575 - Mobile: 07950 440575
Email: enquiry.daekim@gmail.com - Alt Email: enquiry.daekim@gmail.com
Website: www.entmedicolegalexpert.com
Alt Website: www. entsurgeon-daekim.com
Address: Parkside Hospital, 53 Parkside, Wimbledon, London SW19 5NX
Findings on the Law
At the time Bovis, a large national building company
engaged in large projects, ought to have been aware of
the risk of exposure to asbestos that the deceased’s
EXPERT WITNESS JOURNAL
Areas of expertise include:
Ear, Nose & Throat Problems
• General ENT problems
• Tinnitus
• Nasal conditions and surgery
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DECEMBER 2023