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Written on 29th June 2023 by Laura Magson

Our client has been granted leave to appeal the judgment of HH Judge Freedman in her claim against her deceased husband’s former employer, Taylor Woodrow.

Her husband died from mesothelioma as a result of occupational exposure to asbestos whilst he was employed as a trainee supervisor for the construction company in the late 1950s. His recollections of his daily exposure to asbestos dust and fibres were recorded during his lifetime in his witness statement and included supervising carpenters who were drilling and sawing Asbestolux boards, cutting Asbestolux himself and sweeping up the debris and dust.  The defendant employer did not seek to challenge his account by seeking evidence on commission during his lifetime at the start of his claim and no factual witness evidence was put forward by the defendant at trial. He died during the early stages of the claim and his wife continued the proceedings as executrix of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and as a dependent under the Fatal Accidents Act 1976.

The case was fought by the company’s insurers and was dismissed at trial by the judge who found that the deceased’s exposure to asbestos had been of ‘low order, light and intermittent’. On that basis, the court held that there had been no breach of duty because a reasonable employer in the 1950s could not have foreseen a significant risk of injury from that level of exposure to asbestos.

We sought leave from the Court of Appeal to appeal the decision on multiple grounds, including that the judge had made errors of fact, inferences and law. In particular, we asked the Court of Appeal to consider whether the judge had failed to follow previous and binding decisions by the Court of Appeal in the cases of  Maguire v Harland and Wolff Plc [2005] EWCA Civ 1 and Shell Tankers (UK) Limited v Jeromson [2001] EWCA Civ 101 which established that the employer’s duty of care in relation to asbestos exposure was not solely triggered by substantial exposure. The risks from asbestos exposure meant that employers were required to reduce the employee's exposure as far as reasonably practicable. On the factual evidence in this case, the employer had not taken any steps to reduce our client’s husband’s exposure to asbestos.

The Court of Appeal granted our client leave to appeal on all grounds. 

Why is the Cuthbert v Taylor Woodrow appeal important for people affected by mesothelioma and asbestos disease? 

Our aim in all mesothelioma claims is to provide full and timely recompense for individuals and families affected by this devastating disease. Mesothelioma shortens the sufferer’s lifespan and reduces the quality of their remaining time, so our priority is always to maximise the benefit they receive from the claim. This can come from early access to interim or final settlement compensation to enhance their current quality of life, the guarantee of funded immunotherapy treatment in future, the peace of mind that there is financial provision for their widowed partner, or the acknowledgement inherent in an apology, admission of liability or judgment.

Claims are often contested, at least at the outset until supporting evidence has been exchanged but, in our experience, very rarely need to be decided at trial. It is important, however, that where judicial decisions are needed to resolve individual cases, we can turn to the court, and if necessary to the Court of Appeal to interpret and clarify the law. This allows us to advise all our clients and act for them in their claims with confidence that justice will be done.

We never lose sight of the immense and deeply personal importance to our individual clients of these difficult and emotive claims. We also know that many more claims by mesothelioma sufferers who were exposed to asbestos in the late 1950s and early 1960s by large company employers are still coming to light and will be affected by the outcome of this claim. In addition to providing a definitive judgment for our client, the appeal in this case will also help clarify:

  • the basis for deciding mesothelioma claims arising from asbestos exposure which occurred between 1955, when asbestos was first widely known to cause lung cancer, and 1965 when even trivial exposure to asbestos was known to cause mesothelioma;
  • the level of exposure to asbestos which, at that time, should have given rise to a foreseeable risk of injury in the mind of a well-informed, large employer (such as the large construction company in this case, Taylor Woodrow).

What happens next?

The Court of Appeal have indicated that this case, Jennifer Cuthbert (executrix of the estate of Derek Barry Cuthbert (deceased)) v Taylor Woodrow Construction Holdings [2022] EWHC 3036 (KB) will be listed for hearing before three Lord Justices in or before March 2024.

If you or your loved one are suffering mesothelioma or asbestos-related disease and you would like to find out more about making a claim, you can talk to one of our specialist solicitors, free and confidentially, by contacting us.