John-Paul Swoboda instructed by Helen Childs of Royds Withy King represented the Claimant in this action which is believed to be the first litigated overalls case where the Claimant has been successful.
Mr Carey worked as a maintenance electrician in the Vauxhall/ Bedford Trucks Dunstable plant in the 1970’s. He married Mrs Carey in August 1976. It was his case that he regularly came into contact with asbestos in the course of his work, that he wore overalls which he sometimes took home and that his wife, Mrs Carey, laundered those overalls.
The matter was listed for an expedited trial to consider the issue of liability as Mrs Carey hoped to be able to obtain an interim payment to fund immunotherapy treatment. Tragically Mrs Carey died days prior to the trial which took place between the 3 and 6 December 2018.
HHJ Walden-Smith, sitting as a judge of the High Court, found, having considered, Magereson v JW Roberts Ltd [1996] PIQR 358, Maguire v Harland & Wolff Plc [2005] EWCA Civ 01, and the recent Scottish case Gibson v Babcock International Ltd [2018] CSOH 78 that the Defendant was right to admit that a duty was owed to Mrs Carey even though she had no direct relationship with Vauxhall’s.
Vauxhall’s argued that if Mr Carey was exposed to asbestos it was, in effect, no more than de minimis and did not give rise to a foreseeable risk of injury to Mr Carey nor Mrs Carey. A position self-evidently at odds with the Claimant’s case. The Claimant’s case was largely accepted, and as a result the claim succeeded. It is hoped this judgment will be of assistance to others working for Vauxhalls who have gone on to develop asbestos related diseases.
This judgment clarifies the common law in three important ways.
The duty and standard of care in what might loosely be termed “secondary exposure cases” has been clarified so that, “…all employers [post October 1965] are subject to the duty to take reasonable care to prevent exposure of its employees, and members of their families, from inhaling the asbestos that might cause mesothelioma. The court has to consider whether [the Defendant] fulfilled its duty to take reasonable care by taking all practicable measures to prevent [the person liable to second hand exposure] from inhaling asbestos dust, through contact with their employee … in light of the known risk that asbestos dust, if inhaled, might cause mesothelioma.” (para 18 of the Carey)
Accordingly, where the exposure is post October 1965 any exposure which is more than de minimis (which in practical terms means more than background levels of asbestos given there is no identified safe level of exposure) is likely to lead to a finding of negligence so long as the defendant cannot prove it took all practicable measures, irrespective of whether the victim is an employee or experiences second hand exposure. Carey is therefore a continuation of the Bussey v 00654701 Ltd [2018] EWCA Civ 243 line of authority and extends the logic in that authority to “secondary exposure cases”.
Carey further pushes the errant line of authority based on Williams v University of Birmingham [2011] EWCA Civ 1242 and the false premise that there was a “safe level of exposure” until some undefined point in time well into the 1970’s or 1980’s to the confines of history.
