The difficulty of pursuing a mesothelioma claim in respect of work carried out many decades ago is highlighted in the recent decision of the High Court in the case of Alan Hawkes (executor of the estate of Mrs Doris Helen Hawkes) v Warmex Limited [2018] EWHC 205 (QB). Judgment was given on 8 February 2018. Mesothelioma is a horrible disease and the Court had considerable sympathy for the claimant but on the facts the claim failed.

Mrs Hawkes exposure to asbestos was alleged to have taken place between 1946 and June 1952 whilst she was employed making electric blankets at the Defendant’s premises. The first issue that the Judge had to determine was whether the inner linings of electric blankets that Mrs Hawkes worked on were made of asbestos. The Claimant accepted that if the Judge found as a matter of fact that they were not made of asbestos then the claim would fail. The burden of proof is on the Claimant and the Judge was to decide the facts on the balance of probabilities. If the Claimant succeeded in establishing this then the Judge would have to decide whether the Asbestos Industry Regulations 1931 applied to the Defendant’s premises; whether section 47 of the Factories Act 1937 was breached; and whether the Defendant was in breach of the common law duty owed to Mrs Hawkes. There was no issue on causation as it was agreed between the parties that in the event of any breach of duty being found then causation would follow.

Mrs Hawkes was born in 1925. She worked for the Defendant’s from 1946 until 1952. Apart from the work at Warmex Ltd Mrs Hawkes did not identify any other exposure to asbestos. Her work involved the manufacture of electric blankets for beds. The blankets consisted of a lining with an electrical wire fed through it which generated the heat. The central issue in this case is whether or not the inner lining, through which the wire was stitched, was made of asbestos. After considering the Claimant’s evidence and expert testimony for both parties and evidence about the manufacture of the blankets the Judge decided on balance that it had not been proved that the inner linings of the electric blankets that Mrs Hawkes worked on were made of asbestos.

It was not necessary for the Judge to decide the remaining issues but he did go on to deal with them. The Asbestos Industry Regulations do not apply to the stitching or threading of the inner lining on which Mrs Hawked worked.

The parties had agreed that in the period 1947 to 1952 it was not known that mesothelioma was a potential consequence of exposure to asbestos and it was certainly not known that very low levels of asbestos fibre (possible even one fibre) could cause the disease. Under the Factories Act and the common law there was a duty to take precautions or to take advice in respect of asbestos dust generally in the atmosphere and visible in the air arising in the work process. The Defendant’s had no measures in place and if the inner lining was made of asbestos then they should have taken precautions or taken advice based on the evidence of Mrs Hawkes of the amount of dust as what she described was more than minimal. These failures would have been a breach of both the Factories Act and the common law.

Mrs Hawkes died in 2014 from mesothelioma, but the claim against Warmex Ltd failed because the Claimant had not proved on the balance of probabilities that the inner linings of electric blankets on which she worked were made from asbestos.