Foreseeability of risk in mesothelioma claims: Bussey v Anglia Heating

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The Court of Appeal has handed down its long-awaited decision in Bussey v Anglia Heating which will change the approach to low dose mesothelioma claims.

Background

To understand the significance of Bussey, it is necessary to refer to the case of Williams v University of Birmingham [2011].

Mrs Williams, the widow of a former university student who had died of mesothelioma, sought damages based on his exposure to asbestos when an undergraduate in 1974. Mr Williams had conducted scientific experiments in a tunnel underneath university buildings. The tunnel contained central heating pipes lagged with asbestos and Mr Williams would have been exposed to some asbestos dust.

The Court of Appeal held that the university was not liable. It said that the best guide to what, in 1974, was and was not an unacceptable level of exposure to asbestos generally was that given in the Factory Inspectorate’s Technical Data Note 13 of March 1970 (TDN13) and Mr Williams’ level of exposure was not such that the university ought reasonably to have foreseen that he would be exposed to an unacceptable risk of asbestos related injury.

This decision resulted in defendants, in cases of low level exposure after 1970, arguing that exposure to levels below the limits set out in TDN13, did not give rise to liability. Some judges went further and used its guidance to determine liability for low level exposure prior to its publication.

Facts

Bussey was a case of low level exposure, albeit not as low as in Williams. Mr Bussey was employed as a plumber by Anglia Heating Ltd (Anglia) between 1965 and 1968 and his work included cutting asbestos pipes and using asbestos rope for caulking joints. He developed mesothelioma and died in 2016. His widow brought a fatal accident claim against Anglia on behalf of his estate.

The High Court dismissed the claim. It considered itself to be bound by Williams and accepted that TDN13 provided a guide to liability (despite not being published at the time). It concluded that Mr Bussey was not exposed to levels of asbestos dust beyond those set out in TDN13 and therefore it was not reasonably foreseeable by Anglia at the time that Mr Bussey could contract mesothelioma from the dust to which he was being exposed. Mrs Bussey appealed to the Court of Appeal.

Court of Appeal decision

The Court of Appeal unanimously rejected the High Court’s approach. It accepted that Williams was right on its facts but the judgment “should not be read as making TDN13 a universal test for foreseeability in mesothelioma cases”. Lord Justice Jackson, said:

“In my view TDN13 does not establish a ‘bright line’ to be applied in all cases arising out the period 1970 to 1976. Still less is it a bright line to be applied to asbestos exposure in a different period whether before or after 1970 to 1974.”

He went on to say that a more nuanced approach is required. It is necessary to look at the information which a reasonable employer in the defendant’s position at the relevant time should have acquired and then to determine what risks such an employer should have foreseen.

Whilst Lord Justice Jackson gave the main judgment, it is likely to be Lord Underhill’s judgment which will shape the approach to future claims. He said that he suspected that in this case, and in many others, there is no reason to suppose that the employer took any steps to measure the level of exposure to which Mr Bussey or others doing similar work encountered, which means that it could not have known whether it was above or below any supposed “maximum safe limit”. Therefore, comparing “back-guesstimations” of levels of exposure against subsequently published figures of the kind appearing in TDN13, is, in his view, unsound.

The first question is whether, after 1965, Anglia should have known that exposure to asbestos dust gave rise to a significant risk of asbestos injury (not a fanciful risk: a real risk, albeit statistically small, of a fatal illness is significant). This will depend on how quickly the knowledge, first widely published in 1965, of the fact that much lower exposures than had previously been thought to be dangerous could cause mesothelioma, was disseminated among reasonable and prudent employers whose employees had to work with asbestos. One aspect of this question is whether, even though Anglia may have been aware of the risk in general terms, it was reasonable for it at the time to believe that there was a level of exposure below which there was no significant risk, and that Mr Bussey’s exposure was below that level.

If the first question is answered affirmatively, the second question is whether proper precautions were taken to reduce or eliminate that risk.

The Court of Appeal did not have the full transcript of the evidence heard by the High Court so concluded that it was not able to decide the issue of liability and the case was remitted back to the High Court for further consideration.

Comment

It is not yet known whether Anglia will seek to appeal this decision. If it is not appealed, it will change the approach to low dose mesothelioma claims. The decision places a burden on defendants which will be harder to discharge. Simply undertaking a calculation to reach a conclusion that exposure levels were below TDN13 will not be enough. What the court will require, for a defendant to mount a successful defence to a low dose claim after 1965, will be further evidence relating to whether the risks of exposure were foreseeable and adequate precautions were taken.

The decision calls into question the need for engineers to engage in speculative dose calculations. Such a development may be welcomed on both sides as it is likely to materially reduce costs.

Further, it seems to us that the relevance of this decision may not necessarily be limited to asbestos claims. The principles laid down could apply to any case where the courts are required to consider the duty of an employer in constructive possession of official guidance addressing developing knowledge or changing regulation.

If you require any further information or legal advice, please contact a member of our Corporate Risk & Insurance Team.

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