UK: Court Of Appeal Unanimously Overturns High Court In Bussey

Last Updated: 27 February 2018
Article by Toby Scott

The Court of Appeal has held TDN13 is not a general yardstick for determining the issue of foreseeability in mesothelioma cases. Accordingly, in heavy asbestos exposure cases, an employer cannot rely upon is own ignorance as to exposure levels and take refuge behind TDN13; because the employer is simply not in a position to know whether it has met the standard. In such circumstances an employer is expected to do its best and adopt a precautionary approach. However, employers who can demonstrate minimal exposure levels (falling for below TDN13) will not necessarily find themselves liable by virtue of this ruling.

The Facts

The late Mr Bussey was employed by Anglia Heating Ltd and exposed to some asbestos during work between 1965 and 1968. He was also exposed (probably in greater concentrations) whilst employed by Pump Maintenance Ltd between 1969 and 1980. It was contended that it was in consequence of these exposures the deceased contracted mesothelioma which led to his death in January 2016.

The claim against Pump Maintenance Limited had been settled prior to litigation and the Claimant, the deceased's widow, conceded that she would need to give credit for damages received.

The High Court decision

The High Court had held itself to be bound by Williams v University of Birmingham [2011] EWCA Civ 1242, and found that a widow's claim for damages following her husband's death from mesothelioma failed.

Mrs Bussey was unable to prove, on the balance of probabilities, that the levels of his exposure to asbestos, during the course of his employment as a plumber with the Defendant (in 1965-1968), had exceeded that set out in TDN13 of 1970. As such, the risk of the deceased contracting mesothelioma was not foreseeable.

The claimant applied for permission to appeal on two grounds:

  1. The determination of the level of exposure;
  2. The application of Williams to the facts of this case.

The Court of Appeal

Although the Court of Appeal rejected the Claimants application to make a factual determination on breach of duty, Mrs Bussey has been granted leave to appeal on the following grounds:

  1. TDN13 is not a touchstone for determining whether the level of exposure to asbestos is 'safe'. It is merely to be used as guidance and sets out the levels of exposure which would trigger a prosecution by the Factory Inspectorate.
  2. The decision in Williams is not to be regarded as incorrect. The Court of Appeal distinguish Williams from Bussey on the grounds that the deceased in Williams had been exposed to lower levels of asbestos than the deceased in Bussey and for a shorter period of time. Therefore the total exposure was different in each case.
  3. The only gloss the Court of Appeal intends to place on Williams is that the judgment "should not be read as making TDN13 a universal test of foreseeability in mesothelioma cases".
  4. It was relevant that neither Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 100 nor Maguire v Harland and Wolff PLC [2005] EWCA Civ 1 were cited in Williams as it affected the approach (not the result) adopted by the court. The outcome may have remained the same, however it would not have been suggested that TDN13 was a general yardstick for determining the issue of foreseeability.
  5. When determining foreseeability it is necessary for the court to look at:

    1. What information should a reasonable employer in the defendant's position at the relevant time have acquired?
    2. Taking this into account, what are the risks the employer should have foreseen?
    3. Did the employer implement precautionary measures to reduce those risks?
  6. The judiciary disagreed on Aikens LJ's use of the phrase "an unacceptable risk of asbestos-related injury". Jackson LJ agreed with the inclusion of 'unacceptable' as "anyone who works or lives in proximity to asbestos faces some risk of mesothelioma". Whilst it is not possible to eliminate the risk altogether, it is possible to implement precautionary measures to reduce the risk and the remaining risk following the measures would be deemed 'unacceptable'.
  7. However, the majority (Underhill LJ and Moylan LJ) held categorising risks as acceptable and unacceptable would lead to confusion. It is particularly problematic to determine whether a risk is acceptable in the context of mesothelioma claims as there is no safe level of exposure to asbestos dust.
  8. The Court of Appeal did not have a full transcript of the evidence, nor did the judges hear oral evidence from the experts. On that basis the Court of Appeal felt it was not in a position to determine liability and therefore remitted the case back to the High Court.

What can we learn?

  • It has been suggested that the decision in Williams handed the defendants something of a windfall in defending claims on breach on the basis that exposures prior to and during the currency of the hygiene standards set by TDN13 would be regarded as acceptable and not actionable if, and with expert evidence, defendants could establish levels below the guidance (even if, adopting the precautionary approach exposed by Hale LJ meant that the risk could not be ignored).This led to the potential anomaly of exposures occurring prior to the publication of TDN13 could be in potential breach of duty whereas subsequent exposures could not (per Williams).
  • Nonetheless this does not mean that defences as to breach are doomed to failure.Mr Bussey was exposed to asbestos concentrations substantially greater than those for Mr Williams and came close to those mentioned in TDN13.
  • Whilst declining Mr Bussey's invitation to make factual finding as to liability, the Court concluded that the Defendant was not in a position to assess whether Mr Bussey's exposure was liable to cause mesothelioma, but it did have available to it precautions that could lead to the unknown or variable risk.
  • To this extent employers appear to have lost the windfall and now need to establish on the basis of then available literature, that exposures were sufficiently low to enable an employer to discount the risk.
  • Lord Justices Underhill and Moylan provided supporting unanimous judgments but went further than Lord Justice Jackson.They rejected as unhelpful Jackson LJs categorisation of risks as "acceptable" or "unacceptable". Underhill LJ preferred a lower threshold for precautions as arising when the risk core is "significant" (i.e. more than fanciful).
  • It is only in very low exposure cases that an employer is likely to be able to demonstrate the absence of constructive knowledge of a significant risk.Beyond those cases the two supporting judges clearly envisage the employer taking precautions on a prospective basis.
  • The case has been re mitted to HHJ Yelton to re-determine liability in the light of these findings, although it is likely that the case will be settled prior to this.
  • Whilst Mrs Bussey's case has been sent back to the court of first instance for re-trial the Court of Appeal clearly took the view following Jeromson that in heavy exposure cases an employer cannot rely upon is own ignorance as to exposure levels and take refuge in TDN13; because the employer is not in a position in any event to know whether it met the standard. In such circumstances the employer is expected to do its best and adopt a precautionary approach.
  • The said, employers who can demonstrate minimal exposure levels will not necessarily find themselves liable by virtue of Jeromson and this ruling.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions