Maguire v Harlaand & Woolf - Liability for Indirect Asbestos Exposure
Maguire v Harlaand & Woolf - Liability for Indirect Asbestos Exposure
JAMES MAGUIRE (PERSONAL REPRESENTATIVE OF THE ESTATE OF TERESA MAGUIRE, DECEASED) v (1) HARLAND & WOLFF PLC (2) HARLAND & WOLFF HOLDINGS PLC
CA (Civ Div) (Judge LJ, Mance LJ, Longmore LJ) 26.01.05
Facts
Mrs Maguire contracted mesothelioma as a result of being exposed between 1961 and April 1965 to asbestos dust brought home by her husband on his work clothes whilst he was employed as a boilermaker at Harland & Wolff’s shipyard. She was not herself employed by Harland & Wolff (“the Defendants”) but would sort out and wash her husband’s dusty and dirty clothes after his return from work. The Defendants conceded that during his employment Mr Maguire had suffered negligent exposure to asbestos dust.
Mrs Maguire brought a claim against the Defendants for personal injury and consequential damages arising from the Defendant’s negligence in exposing her to asbestos dust which had its source at their premises.
Decision at First Instance
At trial Morland J, addressing the question of whether the Defendants, given the state of knowledge in the period 1961 to 1965, ought reasonably to have foreseen that Mrs Maguire was at risk of pulmonary injury, not necessarily mesothelioma, from the amount and frequency of her exposure to asbestos dust, found that “the risk of serious injury to Mrs Maguire’s health was, and should have been by Harland & Wolff, reasonably foreseeable, and indeed obvious, in the period 1961 to 1965.” He accordingly found that the Defendants had been negligent.
Decision on Appeal
Analysing relevant industry literature from 1930 to 1989 on the state and development of knowledge of the risks associated with exposure to asbestos dust, the Court of Appeal by majority (Mance LJ dissenting) considered Muriel Newhouse’s and Hilda Thompson’s Paper entitled “Epidemiology of Mesothelial Tumours in the London Area and Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area”, published in New York and in the British Journal of Industrial Medicine respectively in 1965, to be the first to bring the dangers posed by familial and environmental exposure to asbestos into the public arena.
By majority the Court of Appeal allowed the Defendants’ appeal on the basis that it was not reasonably foreseeable between 1960 and 1965, and ahead of contemporary understanding, that Mrs. Maguire washing her husband’s dust covered work clothes would herself be likely to suffer personal injury.
Mance LJ gave a dissenting judgment. Relying on information contained in the 1959 Chief Factory Inspector’s Annual Report issued in September 1960, he found that the Defendants had behaved irresponsibly towards Mr. Maguire in disregarding recommended practices to eliminate dust so far as was practicable and that in the particular circumstances the Defendants were responsible for the more remote consequences which they should reasonably have foreseen might occur as a result of their serious disregard of proper procedures for reducing asbestos dust. He did not regard the absence of literature of the risk in the domestic environment as “a touchstone of reasonable foreseeability” in the circumstances of the case. He accordingly dismissed the appeal.
Comment
This case does not purport to establish any general legal principle and is very much decided on its facts. It is however instructive. The majority of the Court of Appeal relied on contemporary literature specifically identifying the risk of secondary exposure to decide the question of reasonable foreseeability of personal injury from secondary exposure to asbestos dust. It would appear that Claimants suffering personal injury as a result of familial exposure to asbestos in the shipbuilding industry before the end of 1965 would be in some difficulty in establishing that negligence on the Defendant’s part. This case would not appear to shut the door to pre-1965 secondary exposure claims in industries outside shipbuilding.