Asbestos - Duty of care - Proximity

David Brian Chandler v Cape Plc: QBD (Mr Justice Wyn Williams): 14 April 2011

The court was required to determine whether a duty of care was owed in personal injury proceedings between the claimant (C) and defendant (D).

C had been employed by a company (X) between 1959 and 1962.

X was a wholly owned subsidiary of D and was in the business of manufacturing incombustible asbestos.

In 2007, C discovered he had contracted asbestosis as a consequence of exposure to asbestos dust while employed by X. However, X no longer existed and had had no policy of insurance that would indemnify it against claims for asbestosis.

C issued proceedings against D on the basis that D and X were joint tortfeasors who were jointly and severally liable to pay him damages.

Held: The three-stage test of foreseeability, proximity and whether it was fair, just and reasonable for a duty to exist as stated in Caparo Industries Plc v Dickman [1990] 2 AC 605 HL had to be applied, Caparo applied.

D had actual knowledge of C’s working conditions.

The risk of an asbestos-related disease from exposure to asbestos dust was obvious. D employed a scientific officer and a medical officer who were responsible for the health and safety issues.

D retained responsibility for ensuring that its own employees and those of the subsidiaries were not exposed to harm. As such, C had established a sufficient degree of proximity between D and himself.

Accordingly, the three-stage test was satisfied and D owed a duty of care (see paragraphs 72-77 of ­judgment).

Judgment for claimant.

Robert Weir QC, Simon Levene (instructed by Leigh Day & Co) for the claimant; Charles Feeny (instructed by Clarke Wilmot) for the defendant.