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.

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