The courts continue to give considerable weight to past occupational industry standards and best practices set at the time of exposure to asbestos, which means that potentially thousands of innocent people who develop the fatal lung cancer mesothelioma after a lower-dose exposure to the deadly dust will be abandoned without justice.
This month (October 2014), McCarthy v Marks & Spencer plc followed on from May’s judgement in the case of McGregor v Gneco (FC) Limited. In both cases the courts found against the asbestos victims and in favour of the defendants based on occupational hygiene limits for asbestos exposure that have since been discredited.
The facts of McCarthy are that the claimant died at the age of 61 from mesothelioma due to inhaling asbestos dust. Mr McCarthy worked for a family company of shopfitters and his job varied throughout his time with the business. He mainly worked as a draughtsman and conducted inspections and surveys. The only known exposure to asbestos dust occurred whilst he was working as a contactor within stores operated by Marks & Spencer for two periods.
The shopfitting company was responsible for maintenance of 13 M&S stores in the North-East of England, modernising the stores, replacing internal wall panels and installing suspended ceilings. The works included fitting asbestolux ceiling tiles into suspended ceilings on metal frames in small areas; larger areas were installed by specialist ceiling contractors. Asbestos was used in the defendant’s stores until about 1975 after which time Supalux tiles were more commonly used. Precautions to avoid unnecessary exposure to asbestos dust were introduced by the retailer in 1984. The first period of exposure was for about three weeks in the summer of 1967, whilst the deceased worked as a joiner on a store renovation in York, and the second period, whilst carrying out surveys and inspections of suspended ceilings at the retailer’s stores between 1967 and 1990. There was no measurement or monitoring of asbestos in the air during either period of exposure.
Mr McCarthy brought a claim against M&S arguing that it had breached its duty of care towards the deceased as an employee of the contractor, on the basis that M&S were supervising the work. The claim failed because it could not be shown that M&S were supervising the contractor’s work and, in any event, the exposure was below the threshold level in the 1960s. It was accepted by the court – despite no asbestos monitoring at the time – that the levels of exposure that the deceased experienced were less than the hygiene or control limits in force at the time the deceased worked for M&S.
The McCarthy judgement reinforces the findings of McGregor, which suggests that it is not enough to be diagnosed with mesothelioma and to identify a time and a place when the exposure took place. It is necessary to demonstrate that asbestos dust above the occupational hygiene level was inhaled.
The result of these recent cases is particularly unjust for mesothelioma sufferers and their families because the occupational levels have been accepted as wrong and difficult questions remain regarding the reliability of their source. At the time The Asbestosis Research Council (ARC) was relied upon and influenced the occupational limits of asbestos exposure. Its members included British Belting and Asbestos, Cape Industries and Turner and Newall. Those companies contributed £7 million to its funding and in his paper ‘Science or Public Relations?: The Inside Story of the Asbestosis Research Council, 1957-1990’, historian, Geoffrey Tweedale, points out that the ARC was run by industrialists and not by scientists.
Add to that the fact that Dr Robin Rudd, a leading medical expert on asbestos disease, has stated that mesothelioma ‘can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk’, and you have a devastating injustice for people exposed to lower-doses of asbestos and go on to develop mesothelioma. If the courts are not prepared to find a way around this injustice, it is time for the government to intervene and help these mesothelioma victims and their families.