Appeal decision upheld in mesothelioma case

Rolls Royce Industrial Power (India) Ltd v Cox

(Court of Appeal - 22 November 2007)

Between 1961 and 1965, Mr Cox (now deceased) was employed as a welder by a number of companies, many of which had allegedly exposed him to asbestos from his work within power station maintenance. Mr Cox's widow issued proceedings against the defendant as the corporate successor to the company that employed him for a period between 1966 and 1967. The defendant appealed the finding of liability.

The defendant argued the exposure evidence available indicated no more than that the deceased worked for the defendant's predecessor for an unspecified period in 1966/67 and did not establish that he had worked with asbestos.

The Court of Appeal held that the evidence, including an engineering expert's report describing the defendant's business at the time and the deceased's probable exposure, entitled the judge at to conclude that the deceased had been exposed to asbestos. Lord Justice Maurice Kay stated: "For the claim to succeed, the judge needed to be satisfied that the extent and duration of the exposure had constituted a material increase in the risk to the deceased of contracting mesothelioma." To satisfy the test above, exposure need only be more than de minimis (minimal risk).

COMMENT

Even where the evidence is imprecise in relation to the exact nature and duration of a deceased's employment and exposure, it is possible that the court will nevertheless find liability based on the totality of the information available. An exact measurement of the duration of exposure is not a prerequisite for a finding of liability. Malcolm Keen, BLM London.