Briefing Note - Employers' Liability for Secondary Exposure to Harmful Materials

A court ruling has recently established that a woman who was exposed to asbestos dust as a result of handling her employee husband’s working clothes and who subsequently contracted mesothelioma had no claim against her husband’s employer.

The husband, Mr Maguire, was a boilermaker with shipbuilders Harland and Wolff. He was exposed to asbestos in the early 1960s, when it was not well understood that any exposure to asbestos could have fatal consequences. He was not affected but in 2000, when she was 67, his wife was diagnosed with mesothelioma and died shortly thereafter. Mr Maguire brought a claim on the basis that the secondary exposure of his wife to the fibres that caused her death had arisen because of the negligence of his employer.

That there was no ‘safe’ level of exposure to asbestos was not realised until late 1965. Prior to that, there was an understanding that exposure to asbestos could be harmful, but there was no understanding that secondary exposure to small quantities of asbestos could also be damaging.

The Court of Appeal concluded that in the absence of contemporaneous evidence that Harland and Wolff should have been aware of the possibility of risk due to contact with asbestos due to secondary exposure, they could not be held liable.

Had there been scientific evidence available at the time of Mrs Maguire’s exposure to the asbestos, to the effect that even minute amounts of asbestos could cause damage, the possibility of injury would have been foreseeable. In that case Harland and Wolff would have found it difficult to defend the case.

When thinking through health and safety issues, it is important for employers to look beyond the here and now and to consider the other potential consequences of their policies.