Causation

Cox v Rolls Royce Industrial Power (India) Ltd [2007] EWCA Civ 1189

Mr Cox had died from mesothelioma contracted as a result of exposure to asbestos dust while working as a welder. During his working life he had been employed by a number of companies that contracted to do maintenance work at power stations. He had been exposed to asbestos fibres in the course of his employment by several employers. During his illness, Mr Cox had written a letter describing the working conditions in a power station and confirming heavy exposure to asbestos; he had prepared lists of some of his employers which did not include the defendant. The defendant was only one employer of a long list on the schedule prepared by HM Revenue & Customs, but none of the others were extant or their insurers could not be traced and no former colleagues could be found to prove the case against the defendant. The defendant argued that as Mrs Cox was unable to prove her husband worked for the defendant for longer than one day, any exposure by the defendant would have been de minimis compared to that which would have occurred with other employers in the same tax year. The trial judge rejected the defendant’s argument that the court should specify a minimum period of exposure in order to fix the defendant with liability. There was no reason to conclude that Mr Cox had worked for the defendant for a de minimis period. In dismissing the defendant’s appeal, the Court of Appeal said: ‘For the claim to succeed the judge needed to be satisfied that the extent and duration of the exposure had constituted a material increase in the risk to the deceased of contracting mesothelioma. No specific measurement of a duration is necessary and the judge was right to resist the invitation to fix one. Exposure that would fall within the de minimis formula would be insufficient.’ This was not a de minimis case.