A Claimant has been successful in a mesothelioma claim in what is thought to be the first litigated case involving exposure to asbestos dust from overalls.
Carey v Vauxhall Motors Ltd
The case, Carey v Vauxhall Motors Ltd, was brought in the High Court. Although there have been successful secondary exposure cases in the past, this was the first to be won by a Claimant in the High Court.
Mrs Carey was diagnosed with mesothelioma in late 2017 and was unable to recall ever coming into contact with asbestos through her own work. It was then identified that Mr Carey had been exposed to asbestos through his work at Vauxhalls.
Exposed to asbestos
Mr Carey worked at the Vauxhall/Bedford Trucks plant in Dunstable as a maintenance electrician between 1973 and 1979 and regularly came into contact with asbestos as part of his job. In August 1976 he married and would sometimes return home in his dusty overalls which his wife, Mrs Carey, would then launder for him.
Did Vauxhalls have a duty of care?
Vauxhalls did not take issue with the nature of the asbestos exposure and whether their duty of care extended to family members of employees, rather they tried to argue that there had been minimal asbestos exposure at Mr Carey’s worksite and therefore it was not causally significant.
The argument failed and the Court found that as the dangers of asbestos were known as early as the 1960s and there was sufficient asbestos to cause Mrs Carey’s cancer, the company was at fault.
The trial had been listed for an expedited trial on liability and it was hoped that an interim payment would be paid to fund immunotherapy treatment for Mrs Carey. Sadly, even the expedited trial was not soon enough and Mrs Carey tragically passed away just days before the trial which was held in December 2018. The claim was continued by her husband, Mr Carey.
The judgement from HHJ Walden-Smith, sitting as a Judge in the High Court, is important for Claimants and raised three major points:
- The case has clarified what the duty and standard of care is in so called “secondary exposure cases” stating “…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 measure 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.” (from paragraph 18 of the judgement)
- In cases where the exposure to asbestos occurred after October 1965, any exposure more than de minimis (i.e. levels of exposure above background levels) is likely to result in a finding of negligence unless the Defendant can prove that they took all reasonable and practical measures to prevent exposure, regardless of whether the Claimant was an employee or suffered second hand exposure. This is a continuation of the Bussey v 00654701 Ltd  EWCA Civ 243 line of authority, flexing its muscle to secondary exposure mesothelioma claims.
- There is a false premise that until the 1970’s or 1980’s there was a “safe level of exposure” and this case further confirms that this was not the case.
The judgement is welcome news for asbestos Claimants, although for Mrs Carey’s family it was “bittersweet”, having come too late to assist her directly. Vauxhall Motors stated that they were “disappointed” with the result but would “respect the judgement”.
How can we help?
Have you or a family member had secondary asbestos exposure? If you require assistance in pursuing an asbestos compensation claim for mesothelioma or other any other asbestos disease then please contact us today on our freephone number 0800 038 6767. Alternatively, head over to the contact us page, complete the form and we will be in touch.