Does the specific injury or disease which a claimant sustained need to be reasonably foreseeable for liability to be established? Or is reasonable foreseeability of a risk of any injury or disease sufficient?
The date of ‘guilty’ knowledge is a frequent topic which arises in industrial disease litigation. This is when a defendant ought to have known that a particular form conduct could reasonably foreseeably cause injury.
My article considering what is a ‘Reasonable and Prudent Employer’ covered the basics of this question.
However, a question which leads on from this, and one which also arises fairly regularly, is whether there needs to be reasonable foreseeability of the specific injury/ disease which a claimant went on to sustain.
Page v Smith:
A helpful starting point is Page v Smith [1996] A.C. 155, not an industrial disease case, but rather in the context of psychological injury.
Per Lord Lloyd [at 190]:
The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff.
If a working definition of “personal injury” is needed, it can be found in section
38(1) of the Limitation Act 1980:
‘”Personal injuries’ includes any disease and any impairment of a
person’s physical or mental condition …”
So, there was no need for the conduct to cause the specific injury which the Claimant subsequently experienced – simply a risk of some injury.
Margereson v Roberts
In Margereson v Roberts [1996] P.I.Q.R. P358, the claimants were children who played in the vicinity of an asbestos factory in the 1920s and 1930s. Both went on to develop mesothelioma in the 1990s.
As well as an issue in relation to knowledge of any injury due to exposure to asbestos dust in that era, a point was taken that there was not sufficient knowledge of the link between asbestos and mesothelioma until after the exposure dates in this case. This was considered by Russell LJ [at 361]:
We add only that in the context of this case we take the view that liability only attaches to these defendants if the evidence demonstrated that they should reasonably have foreseen a risk of some pulmonary injury, not necessarily mesothelioma.
Shell Tankers v Jeromson:
in Shell Tankers v Jeromson [2001] EWCA Civ 101, it is set out, succinctly at [32] by Hale LJ that:
“There was no dispute between the parties as to the relevant legal principles. It matters not that at the relevant time the diseases understood to be caused by exposure to asbestos did not include mesothelioma.”
Conclusion:
In short, the answer is a brief one. If it is reasonably foreseeable that a particular course of conduct poses a risk of injury then a duty is owed. It matters not if the specific injury or disease which flows from that conduct was not reasonably foreseeable.
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