Court of Appeal case may shed light on future asbestos exposure cases
This case will be referred to determine the issue of liability in light of the guidance provided by the Court of Appeal. There appears to be a clear…
Bussey v 00654701 Limited (formerly Anglia Heating Limited) 2018
Judgment has been handed down by the Court of Appeal and the lead judgment was given by Lord Justice Jackson. The facts of the case were that between 1965 and 1968 the now deceased Mr Bussey was exposed to asbestos whilst installing domestic heaters and boilers when he was employed by the defendant.
The matter was heard by His Honour Judge Yelton on 11 May 2017. He found that the level of exposure was within the limits that were later prescribed by TDN13 in May 1970. He felt bound by the earlier Court of Appeal decision in Williams v University of Birmingham (2012) and dismissed the claim.
Counsel for the claimant raised four main issues in his appeal: -
- Williams was decided per incuriam because earlier relevant authorities were not cited by the court. In particular, in Williams the Court of Appeal did not consider the decisions in Jeromson v Shell Tankers (2001) and McGuire v Harland & Wolff (2005).
- Williams should be distinguished because that case concerned a lawful visitor rather than an employee.
- On the evidence, in the period 1965 to 1968 it was reasonably foreseeable that exposure to the levels of asbestos at issue in this case could cause mesothelioma. Insofar as Williams holds otherwise it was wrongly decided.
- In any event, Mr Bussey’s employment with Anglia preceded the publication of TDN13. That technical data note cannot be the touchstone test for breach in respect of any period before 1970.
Dealing with foreseeability and breach Lord Justice Jackson reaffirmed the approach taken by the Court of Appeal in Williams. He went on to apply the test in Williams to the Bussey case and asked the question, whether during the period 1965 to 1968 would Anglia reasonably have foreseen that if Mr Bussey was exposed as alleged, that he would have been exposed to an unacceptable risk of an asbestos related injury.
In determining this issue he stated that 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 an employer should have foreseen. In determining this issue he referred to TDN13 and whilst he was at great pains to say that Williams was correctly decided he accepted it would have been helpful if Jeromson and McGuire had been cited in that case.
He found that TDN13 should not be regarded as a universal test of foreseeability in mesothelioma cases. It was his view that the judge at first instance treated the levels in TDN13 as determinative of the case in that he considered that he was bound to do so in light of the Williams decision.
He thought this was incorrect and that if the trial judge had not been so constrained he would have looked at the issue of foreseeability and breach more broadly. However, as the Court of Appeal did not hear the oral evidence of the experts or have a full transcript of the judgment they remitted the case to His Honour Judge Yelton to determine the issue of liability in light of the guidance provided.
The three judges however differed in the correct formulation of the criteria to be considered with Underhill LJ and Moylan LJ suggesting a two stage test should be applied, being firstly whether an individual’s exposure was below that which there was no significant risk and, if satisfied, whether the defendant had taken proper precautions to reduce or eliminate that risk.
This case will now be referred back to his Honour Judge Yelton to determine the issue of liability in light of the guidance provided by the Court of Appeal. There appears to be a clear steer by the Court of Appeal that the claimant’s exposure post dated knowledge of the risks associated with small quantities of asbestos dust. However what can be taken from this judgment:
- TDN13 is only a guide and a factor to take into account for cases involving exposure between 1965 and 1976, and should not be determinative of employment cases on its own.
- Foreseeability has always been and will remain case specific. Going forward, defendants and their advisors will need to look in more detail at the knowledge of the defendants and whether based on the facts of each case whether they would have appreciated that there was a risk of injury.
- If it is found that there is a foreseeable risk of injury it is unclear whether on the back of this judgment that there is ever a safe acceptable level of risk of mesothelioma even after an employer has reduced the risk by taking all available precautions or the level of risk was so low in any event. This seems counterintuitive in light of the advice from the Factories Inspectorate or from trade bodies over the years.
The remitted hearing will be interesting and hopefully informative as to how cases will be determined in the future. However, we do not believe that this judgment will lead to certainty in low level asbestos cases.