Andrew McLaughlin, ranked in the Chambers UK industrial disease spotlight table, has successfully defended a public house in Manchester against an occupational disease employers’ liability claim brought by a former chef who alleged he was exposed to aspergillus fumigatus mould spores over several years. He claimed to have developed acute invasive aspergillosis, a life-threatening condition, and occupational asthma.
The trial was heard at Manchester Civil Justice Centre over two days at the beginning of this month. The claimant, Mr Paul Brady, worked as a chef at the Hare and Hounds pub in Manchester from 2006 to 2014, and claimed he was exposed to the mould spores in the cellar which he had to enter to collect foodstuffs etc. He claimed he had to clean the sink in the cellar which was filthy with the mould.
Experts in the fields of public health medicine and respiratory disease were called by both sides. Andrew cross-examined Dr Barber for the claimant, whose evidence was described by the claimant’s counsel in his closing speech as unimpressive to the extent that he could not even ask the judge to find in his client’s favour on the occupational asthma claim.
The claim for acute invasive aspergillosis, which was pursued on the basis of the public health expert’s evidence, was also rejected. The judge held that the claimant had failed to prove that the levels of the mould spores in the air, which are ubiquitous, was unsafe or posed a foreseeable risk of injury and that the disease had occurred due to exposure at work as opposed to other activities such as gardening and composting, which the claimant admitted he liked to do.
The judge held Regulation 9 of the Workplace Regulations 1992 imported a requirement of foreseeability. This was one of the few remaining employers’ liability cases where the claimant was able to rely on a breach of regulations to bring his claim, although it did not help him in the end.
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