Personal injury lawBy Simon Allen, Russell Jones & WalkerMesothelioma and exposure to asbestos fibres: foreseeable risk of injury at the time of exposureDawson and Jeromson v Shell Tankers (UK) Limited and Cherry Tree Machine Company Limited, Manchester District Registry, 1 February 2000, Raymond Machell QCIt was not in issue that the two deceased claimants had been exposed to asbestos which was likely to cause mesothelioma.

Mr Dawson worked as a marine engineer, while Mr Jeromson was an apprentice fitter.

Their exposure, from 1957 to 1961 and from 1951 to 1957 respectively, was rare and not 'a regular feature of their work'.

It was argued by counsel for the claimant that, in light of the insufficiency of evidence from the deceased's statements about the extent and frequency of exposure, the judge should address his findings to the question of 'potential exposure' rather than attempting to determine an average exposure for any given seaman.

The judge accepted that, although the frequency of the exposure was very limited, the potential was 'very substantial' even though dry-docking work, which seemed to be the main cause of exposure, occurred about once a year.

He concluded the claimants would have been exposed to intense concentrations of asbestos fibres for a matter of minutes rather than hours, but on occasion the exposure would be for hours.The question thus arose as to whether the defendants' knowledge at the time of exposure was of a foreseeable risk of injury from such limited exposure.

Adopting Russell LJ in the domestic exposure case of Margerison v Roberts [1996] PIQR p.

356, the judge questioned whether the defendants 'should reasonably have foreseen a risk of some pulmonary injury, and not necessarily mesothelioma'.

Despite the fact that none of the annual reports of the Chief Inspector of Factories drew any attention to the risk of injury from asbestos to an employee from light to intermittent exposure, such as these claimants suffered, his lordship felt that the approach of Buxton J in Owen v IMI Yorkshire Copper Tube, 15 June 1995 (unreported) was preferable, namely that the dangers posed by asbestos were 'sufficiently uncertain in their extent and effect, in the 1950s, for employers to be under a duty to minimize exposure'.

This case is of importance in demonstrating that although mesothelioma as a condition was only recognised following Wagner's research in 1960, and has an arguable date of knowledge of 1965, even when exposure is of a light and intermittent nature employers ought to have taken precautionary steps to avoid exposing their employees to asbestos fibres some 10 years earlier.

The potential risks are so significant that they far outweigh any expense or difficulty in undertaking the necessary precautions to avoid exposure.

Shell, even if they could show a lack of knowledge, were under a duty to have sought advice from an authoritative body, such as the Factory Inspectorate, and his Lordship felt that a reasonable employer is not entitled to await a statutory obligation before introducing precautions.The significance of the decision is in enforcing the opportunity to pursue damages for mesothelioma from exposure before 1960.

If exposure is heavy, then claims for asbestosis could be pursued and, as mesothelioma is arguably a variant of an asbestos exposure illness, the claims have always been capable of success.

This case highlights that, even in light and intermittent exposure where the risk of asbestosis does not exist, one can still pursue a claim for mesothelioma because of the judge's view that the employers ought to have been aware of the dangers of inhalation of asbestos fibres and sought advice and/or taken precautions accordingly from 1950 onwards.