II Asbestos

Asbestos is a mineral with extraordinary properties. It is resistant to fire, chemicals and mechanical traction, and it can be spun into yarn and woven into cloth. As such it has been used widely, in industrial activities, as a fire break in buildings and ships, and in mechanical applications. Unfortunately, the health problems associated with asbestos are equally impressive. The dust from asbestos causes, among other things, lung disease, specifically asbestosis, mesothelioma, and lung cancer. The English litigation over illnesses caused by asbestos is fragmented, and has been heard over many years, raising different issues of law, and with different results. Its apogee has probably been in its extraordinary impact on the law of causation.Footnote ⁷ Causation may speak directly to the responsibilities we owe to one another, and so the standards expected of each other, and the Fairchild saga tells us a great deal about the supposed immutability of the correlative nature of negligence. But I shall focus on more direct expressions of standards of behaviour towards employees and local communities exposed to asbestos, rather than on causation. I shall also focus on industrial activities rather than, for example, the presence of asbestos in buildings.Footnote ⁸

I discuss here cases in the tort of negligence.Footnote ⁹ The first question in the English law of negligence is whether the defendant owes the claimant a duty of care. An employer straightforwardly owes its employees a duty of care in respect of personal injury, but as discussed below, the requirement that a claimant’s illness be reasonably foreseeable has raised questions about whether a duty is owed to other claimants, such as family members and those living around factories. Turning to whether that duty is breached, the conventional bar for standard setting in English negligence law is the “reasonable person”, sometimes coupled with a requirement for prudence or care: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”;Footnote ¹⁰ negligence involves “acting in a way in which someone would not have acted if they had taken reasonable care”.Footnote ¹¹ The reasonable person standard is in principle open to all sorts of considerations from external criteria,Footnote ¹² so I am not by any means suggesting that the asbestos cases are unique. The English courts balance a range of factors “intuitively, qualitatively, verbally, impressionistically, and on the basis of their largely tacit assessments of what is fair and socially valuable”.Footnote ¹³ The factors balanced depend on the circumstances, but include foreseeability of harm, likelihood of harm, gravity of harm, and the cost of precautions.

The Asbestos Industry Regulations 1931 were notoriously inadequate. The asbestos industry itself was very closely involved in their development, whilst the trade unions were late in the day presented with a more or less complete draft by government.Footnote ¹⁴ The regulations stayed in place unamended until 1969.Footnote ¹⁵ And notwithstanding their substantive weaknesses, the regulations were in any event poorly enforced. Regulators, industry and trade unions all seemed to have accepted a low level of compliance, in the interests of economic growth.Footnote ¹⁶ Although the regulations were routinely breached, there were only two prosecutions between 1931 and 1968.Footnote ¹⁷ Such a failure to comply with regulation is, in English tort law, not in principle decisive of negligence,Footnote ¹⁸ although breach of statutory standards is non-conclusive evidence of breach in negligence,Footnote ¹⁹ and legality is one of the range of issues relevant to deciding what a reasonable person would do in any particular case.Footnote ²⁰ Many of the asbestos cases involve statements along the lines that defendants “made no serious effort to conform” with their statutory obligations,Footnote ²¹ and indicate tort’s capacity to step in when official enforcement is weak. In many asbestos cases, the employer’s fault is egregious and there is little detailed work for the common law to do in terms of standard setting.

The different aetiologies and understandings of two of the lung diseases caused by asbestos have been legally significant. Asbestosis was recognised many decades earlier than mesothelioma. Asbestosis is caused by heavy, prolonged exposure to asbestos, and was the focus of the 1931 Regulations, which concentrated on the dustiest industries. Mesothelioma, by contrast, can be caused by light and occasional exposure (although the greater the exposure, the greater the risk), and was unknown to science or medicine until decades later. In the case of Margereson, the claimants, who when children had lived and played around the defendant’s factory, sued the defendants in respect of the mesothelioma they suffered many decades later.Footnote ²² The Court of Appeal held that the reasonable foreseeability of “some pulmonary injury” is sufficient to establish that the claimant’s harm is reasonably foreseeable for the purposes of duty of care, meaning that scientific and medical ignorance of the disease of mesothelioma was not immediately fatal to a claim in negligence.

In Jeromson,Footnote ²³ liability was imposed on the employers of claimants who had contracted mesothelioma working in ship building and repair in the 1950s, before the disease of mesothelioma had even been recognised. Margereson, as mentioned above, meant that claims could in principle be brought for mesothelioma contracted before scientists had recognised the disease. In Jeromson, the question remained whether the reasonable person would have taken precautions in respect of less heavy and less frequent exposure. The Court considered the weighty Merewether and Price report, a publication of the British government in 1930,Footnote ²⁴ and the Asbestos Industry Regulations 1931 (although they did not apply to the claimant), both of which focused on asbestosis. The judgment also discussed the Factories Act 1937 and the Reports of the Chief Inspector of Factories. This material indicated the dangers associated with dust generally, and with asbestos specifically, if not necessarily directly with the activities carried on by the claimant, specifically stripping asbestos insulation and replacing it. Advice to the ship building and repair industry and to power stations, whilst not in all respects applicable to the claimants, was said to identify the “thinking” of the Factories Inspectorate.Footnote ²⁵ The “prudent employer” would have taken precautions, or in the first instance have made inquiries about precautions.

In the two cases of Margereson and Maguire, by contrast with Jeromson, the claimants were not employed by the defendants. The defendants were clearly in breach of the duties they owed to their employees, but the question was their position with respect to non-employees. Mrs Maguire sued her husband’s employer, having contracted mesothelioma as a result of exposure to asbestos when washing her husband’s work clothes. She was unsuccessful. The Court of Appeal focused inconsistently on the position of the claimant (a family member exposed in the home) and the type of exposure (lighter and more intermittent than that associated with asbestosisFootnote ²⁶ ) and also elided consideration of the existence and the breach of the duty of care.Footnote ²⁷ The Court concluded that the way in which Mrs Maguire was harmed would not have been reasonably foreseeable until late 1965, by which time her husband no longer worked for the defendants. In reaching that conclusion, the Court turned to regulatory and specialist literature, noting the absence of any warnings with respect to familial exposure in “the specialist safety, medical or factory inspectorate literature”.Footnote ²⁸ The “numbing silence”Footnote ²⁹ on the matter was only broken in late 1965, when two articles appeared in the specialist literature, subsequently reported in the Sunday Times.

In Margereson, outlined above, whilst it was clear that the defendant’s efforts “to alleviate the problems of dust contamination were woefully inadequate”,Footnote ³⁰ the Court had to consider whether it owed a duty of care in respect of environmental exposure to asbestos around the defendant’s factory. The Court of Appeal concluded that “the information which should have operated upon the defendant’s corporate mind” in respect of the ability of asbestos dust to cause pulmonary injury was “in existence long before Mr Margereson’s birth date”, which was in 1925. This predates not only understanding of mesothelioma, but also the Merewether and Price report, conventionally identified as the earliest official interest in asbestos, and regulation directed at asbestosis. The reasonable foreseeability that underpinned the industry’s duty to local residents was based on various early factory inspectorate reports, as well as the workplace regulation of dust generally from the 19^th century onwards.Footnote ³¹ The important difference between Margereson and Maguire may be the quantity of exposure in the former, which was similar to that experienced within the “factory walls”.Footnote ³²

III Climate change

Urgenda is a famous case in which a Dutch NGO (Urgenda) brought a successful action in “hazardous negligence” against the Dutch government’s climate change policy.Footnote ³³ The Netherlands had set its greenhouse gas emissions reduction target at 17% by 2020 against a 1990 baseline, in accordance with the overall EU target of a 20% reduction by 2020.Footnote ³⁴ The Court ordered the Netherlands to take action to cut its climate change emissions by 25%. The decision is controversial on a range of measures, including standing, separation of powers (or balance of powers) and causation,Footnote ³⁵ and not all are confident about Urgenda’s chances in the appeal.Footnote ³⁶ The decision could even have been overturned by the time this article is published. But I am interested particularly in the question of judicial methodology, the way in which the Court constructed the standard of care in this case,Footnote ³⁷ regardless of the way in which the actual decision is ultimately resolved.

Urgenda is a striking case of the courts borrowing the epistemic authority of external norms. The Court is quite explicit about its lack of independent expertise, and refers to its reliance on “current scientific knowledge and (other) data the State [ie the defendant] acknowledges or deems to be correct”.Footnote ³⁸ Section 2 of the judgment discusses a range of international, EU and domestic scientific, policy and legal material, quoting at considerable length from a number of documents. It quotes, for example, the Intergovernmental Panel on Climate Change (IPCC), an organisation set up by the World Meteorological Organisation and the United Nations Environment Programme and described by the Court as “a global knowledge institute”.Footnote ³⁹ It runs through the UN treaty framework and several COP (conference of the parties) decisions, as well as EU policy and law and Dutch scientific and policy documents. This lengthy part of the judgment seems simply to provide some context and background on the climate change problem. It is headed “the facts” in English, and the decision making part of the judgment constantly refers back to it.

The Court relies heavily on IPCC reports, and their acknowledgement by others, including the COP. Both parties also accepted the authority of the IPCC reports; the Dutch government had done so in other contexts and presumably had no wish to reverse that position, and Urgenda based much of its claim on the IPCC reports. The Court’s review of the impacts of climate change lead it to the “intermediate conclusion” that:

Turning to the concentration of carbon dioxide equivalent in the atmosphere, discussed further below, “the court concludes that in view of risk management and from scientific considerations, there is a strong preference for the 450 scenario, as the risks are much higher with a 500 scenario.”Footnote ⁴¹ Referring to earlier discussions of the IPCC, EU policy, the endorsement by Annex I countries of the necessity of 25–40% reductions in Cancun, the Netherlands’ earlier policy of a 30% reduction by 2020, the Court reaches a:

From here,

The Court concludes that a 25% reduction “is the absolute minimum and sufficiently effective, for the Netherlands, to avert the danger of hazardous climate change”.Footnote ⁴⁴

The breach of international legal obligations in this case explicitly did not constitute a legal wrong against Urgenda,Footnote ⁴⁵ and the same must apply to the other non-binding sources referred to here, be they IPCC or EU documents. Rather, in what the Court called a “reflex effect”, these materials contributed to the shaping of the civil law standard of care.Footnote ⁴⁶ Whilst the Netherlands enjoys a broad discretion in the area of climate change, “the objectives and principles, such as those laid down in the UN climate change convention and the TFEU [Treaty on the Functioning of the European Union], should also be considered in determining the scope for policymaking and duty of care”.Footnote ⁴⁷

The Court takes international scientific, policy and legal documents, supported by EU and domestic material, to take the parties inexorably, step by step, to the conclusion that the Netherlands is in breach of its duty. These conclusions are presented as fact, incontrovertible and inevitable. In part of course this is because in Dutch procedural law, once the parties agree on the facts, those facts enter the decision making process. But equally, the parties disagree most vehemently on the outcome, the appropriate approach to climate change, and the outcome is an inextricable combination of legal judgment with these facts as presented by (and to) the Court.

IV How courts knowFootnote ⁴⁸

The sources of knowledge considered in the cases are diverse and gain their authority in very different ways. Some are simply binding legal documents, for example the Asbestos Industry Regulations 1931, at least when applied to the activities subject to their terms. Some are non-binding “regulation”, for example when those Regulations are used to provide context in respect of other industries, or some of the COP undertakings relied on in Urgenda. Some are “governmental”, regulator’s reports, codes of practice, consultation papers, or superseded policies. We have international and domestic “scientific” bodies, such as the IPCC and the Royal Netherlands Meteorological Institute (KNMI), and from a different era the Merewether and Price report, as well as academic and popular articles.

Elsewhere I have said that external norms like these make both a pragmatic and an epistemic contribution to tort.Footnote ⁴⁹ Pragmatically, for example, they allow courts to sidestep difficult questions of evolving behaviour, clarifying the information available to the reasonable person at the relevant time. The broad literature assists the court with establishing what the defendant knew or ought to have known, and might outline responses that are considered feasible in the broader community. I am more interested here in the epistemic role of external norms. Straightforwardly, they allow the courts to “know”. The courts “must provide an authoritative understanding of the factual matrix”, but they do not find the facts independently, or solely on the basis of expert reports,Footnote ⁵⁰ instead “weaving into [their] account how other institutions have found facts.”Footnote ⁵¹ We are quite used to the idea that courts explicitly and implicitly provide criteria for the conduct of public standard setting, and even for the adequacy of scientific evidence in policy contexts. The courts’ approval or adoption of external norms and standards confers a certain authority and legitimacy on those standards. Here we also see the other side of this, as those norms simultaneously confer authority on the fact finding and standard setting of the courts.Footnote ⁵² The courts are empowered to look more confidently beyond the claims of the defendant, when the defendant (including a state defendant) is claiming some specialist expertise: that the Dutch state knows best what action should be taken on climate change; that the asbestos industry (and government regulators) knew best how to balance economic and safety demands. These external sources provide the courts with a certain epistemic legitimacy.Footnote ⁵³ And again, as well as reinforcing the epistemic authority of courts, this approach may also reinforce the authority of the facts and external fact finders.

But this is not simply a fact finding exercise. The presentational approach of the court in Urgenda, with multiple references to facts and established facts,Footnote ⁵⁴ whilst perhaps a normal effect of Dutch legal procedure, is important. The asbestos cases also present their facts as very straightforward and unexciting. In Margereson for example, the Court of Appeal presents the first instance judge’s findings as “essentially findings of fact”, and its own conclusions as depending upon “elementary legal principles”, notwithstanding considerable legal innovation.Footnote ⁵⁵ This emphasis on stability, and on a rhetorically straightforward integration of any judgment into what precedes it, is an important part of legal reasoning.Footnote ⁵⁶ But it is worth observing that these are not simple facts, they are highly normative. To say that a reasonable person would have behaved differently from the ways in which the defendant’s predecessors in the early to mid-20th century behaved, is anything but a simple factual statement, even if deemed a question of fact not law.Footnote ⁵⁷ In Urgenda we have not just findings of fact (about climate change), but an inextricable combination of fact and legal conclusion. Sometimes the normative choices made by the courts are clear on the face of the decision: “the court concludes that in view of risk management and from scientific considerations, there is a strong preference for the 450 scenario, as the risks are much higher with a 500 scenario”;Footnote ⁵⁸ the judge at first instance in Margereson acknowledges that the problem is not “any serious factual issue”, but “one of evaluation, that is of assessment, balance and judgment.”Footnote ⁵⁹ More often, this remains, understandably, unspoken.

Many of the findings of fact relied on in the asbestos cases and Urgenda are not particularly socially contentious (or contentious between the parties), even if the legal implications may be, and the science is more complicated than is acknowledged. Some will of course disagree even here, and there will be more difficult cases where the facts are more profoundly contested, or are obviously unhelpful to resolving the value divide underlying the legal dispute. It might then be argued that the courts (and litigants) are cherry picking sources, and calling on the “wrong” source. But the challenge is more interesting than whether the courts get it right or wrong. Apart from anything else, when knowledge claims are in abundance, all uses of that knowledge are somewhat selective.Footnote ⁶⁰ The knowledge used in these cases is complex, uncertain and socially constructed.

Starting with Urgenda, “dangerous” climate change is interpreted by the court as a 2°C change in global temperature from pre-industrial levels.Footnote ⁶¹ The impact of the concentration of carbon in the atmosphere on temperature is used to calculate a concentration target, the maximum amount of carbon dioxide-equivalent in the atmosphere; the IPCC reports (and various other national and international reports) assess the likelihood of meeting the 2°C target at different levels of carbon in the atmosphere – the risk of missing the target. The court is consistent with European policy in selecting 450 parts per million (ppm), compared to around 273 ppm before the industrial revolution, as the appropriate target. And then this concentration of carbon is converted further into the long term emissions reduction targets that get all of the headlines, without generally referring back to the cumulative emissions that matter.Footnote ⁶² Although there is a high level of scientific consensus, there are multiple uncertainties at each stage.Footnote ⁶³

“The court – and also the Parties – ... considers [the reports of the IPCC] as facts”.Footnote ⁶⁴ This turn to international orthodoxy is an important part of the search for socially and legally acceptable decisions. Notwithstanding close scrutiny and severe attacks by those denying the existence, anthropogenic nature or urgency of climate change, the IPCC is a robustly influential institution, composed of hundreds of scientists, from all regions and representing developing and developed countries.Footnote ⁶⁵ It is a scientific, but explicitly “policy relevant”, body, whose reports are subject to endorsement by IPCC member governments. Its consensus driven, policy sensitive approach is generally thought to be likely to lead to conservative conclusions, so that our knowledge on climate change becomes a “socially constructed understatement”.Footnote ⁶⁶ This is not because the science lacks integrity, and of course the scientists and many policy makers understand the complexity, but because of the inevitable social commitments of any science, in this case a mammoth project of science for global policy. It is hardly a criticism of Urgenda to say that it is out of date given the reference in the Paris Agreement to a 1.5°C temperature increase.Footnote ⁶⁷ But it is worth noting that both the adequacy and the feasibility of the 2°C target was already contentious:Footnote ⁶⁸ dangerous for whom, for what, with what level of confidence? Before even thinking about the uncertainties surrounding its achievement or its effects.

My point is not that Urgenda got it wrong and should have been bolder, or that the Court should have upended Dutch law by going beyond agreements between the parties. My point is that the court in Urgenda got it “right enough” in a particular manner, reflecting but not opening up choices made in other fora. Whilst the legally controversial nature of Urgenda has been much remarked upon, it could be described (by anyone but a lawyer?) as a deeply conservative decision. Only 2°C? That was always contentious. As much as 450 ppm? That leaves considerable risk of exceeding a 2°C global temperature increase. Only a 25% reduction target? Urgenda asked for 40%, and the Court explicitly (understandably) chose the “absolute minimum” level of mitigation. Moreover, it is clear from the judgment that it would have been open to the Dutch government to argue that the new standard should not be applied, for example because of cost implications.Footnote ⁶⁹ The court is hardly embracing the existential nature of the climate change risk.

The asbestos cases are very different, but we see a similar tendency to the “official” and to simplification. There is nothing like the IPCC, but “official” voices, factories inspectors and government reports, are preferred.Footnote ⁷⁰ The cases all suggest a story of steadily and inexorably improving knowledge, ignoring the lone voices, the contests, and the to-ing and fro-ing that would have been more apparent in the moment.Footnote ⁷¹ The cases discussed above do not address the question directly, but with decades of hindsight, they are able to move the reasonable person beyond one of the most resonant “socially constructed understatements” of asbestos regulation. The level of exposure of workers who did not swiftly develop asbestosis was considered the “dust datum” by Merewether and Price, above which dust suppression measures should be taken; this was not supposed to be considered a safe level,Footnote ⁷² but for reasons of practicality and convenience, it often was.Footnote ⁷³ The courts in cases some decades later were able to pick up on the reversal of the orthodoxy. Again, the point is not that the Courts can necessarily fix historical problems with the benefit of hindsight, but to observe how the courts get the facts “right enough”.

Jasanoff talks about the difference between “truth pure and simple”, and “serviceable truth”, which simply needs to be robust enough to allow decisions to go forward.Footnote ⁷⁴ Because of the high level of consensus, and the familiar sources used, this question of “truth” is not on the surface of the decisions discussed above. The “serviceability” of the truths being offered are nevertheless a significant part of the decision; the external sources and the courts together create a sufficiently robust knowledge for the court to go forward. What constitutes sufficiently robust knowledge will vary according to context, and is itself constructed within the process of decision making. The social and the legal are produced alongside the production of the facts, each shaping the other, and each reinforcing the other’s authority.Footnote ⁷⁵

I have argued elsewhere that the authority of external norms within tort might vary according to their authority externally,Footnote ⁷⁶ and that one of the ways in which this might be considered is process: did the decision maker address the relevant material, did it have the relevant skills and expertise, did it consult appropriately? That would clearly not resolve all of our difficulties with the reliance on external sources.Footnote ⁷⁷ And I have also argued that courts are sometimes inadequately curious about the qualities of the external norms that they rely on: asserting the importance of a superior capacity for cost benefit analysis without examining the actual CBAFootnote ⁷⁸ ; asserting the superior democratic credentials of another decision maker without examining the actual process followed by that decision makerFootnote ⁷⁹ ; asserting the public benefit of an activity without examining the publicness of that activity.Footnote ⁸⁰ So I do not mean to suggest that the phenomenon I am discussing here is necessarily straightforward. Moreover, sometimes the distinction between deferring to external norms and their pragmatic but non-hierarchical use will be a fine one.Footnote ⁸¹ But it is nonetheless important. The courts neither hand over their authority to external sources, nor ignore the authority and relevance of those sources. And to complain that the courts identify satisfactorily robust evidence in an unsatisfyingly ad hoc way does not dramatically distinguish the courts from others, including the disciplines of science themselves, where “robust consensus” may be constituted in very different ways according to the subject area and the social commitments and contexts surrounding it.Footnote ⁸²