Permission to appeal granted in Bussey: The beginning of the end for Williams?

You may recall that we recently blogged about Bussey v Anglia Heating. This was a case in which HHJ Yelton (sitting as a High Court Judge) found that between 1965 and 1968 the Claimant’s husband had been exposed to asbestos, at levels which fell below the TDN13 threshold. The Judge held that he was bound by Williams v Birmingham and that accordingly the claim could not succeed.

The Claimant applied for permission to appeal on the facts (the level of exposure) and the law (the legal arguments about the status of Williams and its relevance to her case).

Permission to appeal has been granted on the law only and an expedited hearing has been ordered. The appeal will be listed before October 2018.

You can read our full post on Bussey here, in which a detailed summary of the legal arguments advanced at first instance are set out.


Oldman v DEFRA… bringing back Jeromson

In this post, Harry Steinberg QC examines the case of Oldman v DEFRA, another instalment in the line of first instance decisions in which Williams v Birmingham is considered.

A copy of the unreported judgment can be found here.

The common law has a momentum of its own. It can be immensely difficult to stop when it takes a wrong turn. The law governing asbestos liabilities took such a turning in October 2011 in Williams v University of Birmingham [2011] EWCA Civ 1242. Since then, successive Courts have been convinced by the specious precision of TDN13 and lured into using it as a proxy for what was considered a safe level of exposure at the time. In doing so, they have placed reliance on the assumed results of hypothetical fibre counts that hardly anyone carried out, including, of course, the defendants who have repeatedly benefited from this fashion for reconstructive dust-counting

The inherent flaws of Williams – and its use of TDN13 as a safety standard – are manifold and well known. First, the TDN13 guidance was based on a British Occupational Hygiene Society paper about the comparatively high levels of exposure necessary to give rise to a risk of asbestosis. But it had nothing to say about mesothelioma, which, as had been known since Newhouse & Thompson in 1965, could be caused by tiny quantities of asbestos. Second, TDN13 was produced in collaboration with the asbestos industry. The HMFI was in close contact with the official-sounding Asbestosis Research Council, which was set up, funded and run by the three largest UK asbestos manufacturers. It remains a disturbing example of the dangers of allowing an industry to regulate itself. Finally, TDN13 was never intended to be a safety standard. It was a threshold for prosecution and enforcement (not that the HMFI did much prosecuting or enforcing in this area) not an expression of what was generally deemed safe.

Instead, the mechanistic application of TDN13 has produced decisions that defy logic, language and, on occasions, legal principle. In Williams itself, for example, the Court of Appeal made a finding – untenable in the light of the available literature – that exposure below the TDN13 threshold could not give rise to a foreseeable risk of injury. This approach led to the conclusion, in McCarthy v Marks & Spencer [2014] EWHC 3183, that the obligation to reduce asbestos exposure was so qualified by these control limits that the ‘lowest level reasonably practicable’ actually meant something else. This thinking has become so ossified that the Court refused, in Bussey v Anglia Heating (unreported, 12 May 2017), to apply well-established principle as to the extent of the employer’s duty.

This approach also subverts good health and safety practice, which gives priority to risk prevention. A responsible employer or other ‘duty-holder’ will first try to eliminate risks before falling back on after-the-fact fibre-counting or other sampling methods.

The decision of HHJ Moloney QC in Oldman v DEFRA sees a welcome return of the pre-eminence of the employers’ old-fashioned duty to take proper steps to protect employees from harm. Mr Oldman worked as a marine engineer from 1954 until 1980. Until the early 1960s, he was exposed to asbestos as a result of working on lagged pipes on an elderly steam vessel, the Sir Lancelot. It was possible that he had been exposed afterwards, but to a lesser extent. He contracted pleural thickening and sued for damages. The Court held that the pleaded statutory regulations did not apply to his work at sea. Accordingly, the claimant needed to make out the common-law claim. The defendant, predictably enough, relied on Williams and its progeny. The Judge held that those cases applied only to the duty in respect of a “very low level of exposure”. The Court looked, instead, to the earlier decision of the Court of Appeal in Jeromson v Shell Tankers [2001] EWCA Civ 101.

In Jeromson, the Court of Appeal had reviewed the literature, including the famous letter from the Chief Inspector of Factories to the shipbuilding industry in 1945. The Court concluded that the threats posed by asbestos were sufficiently well understood by 1951 for employers to be under a duty to reduce their employees’ exposure to asbestos to the greatest possible extent. This would have included the use of respirators. It was necessary only to show that there was a risk of some form of pulmonary disease, it was not necessary to foresee or understand the precise nature of the injury. In later years, as knowledge of the risks developed, the duty can only have become stronger.

Accordingly, in Oldman, the Court held that the defendant owed its engineers, ‘a duty to reduce their risk of exposure to asbestos to the greatest extent possible.’ The defendant had failed to take appropriate precautions and was so held liable.

This was a revival of one of the basic principles of employers’ liability and echoes the classic statement of principle of Swanwick J in Stokes v Guest Keen & Nettlefold [1968] 1 WLR 1776. On the other hand, and almost inexplicably, the Court of Appeal in Williams was not shown its earlier decision in Jeromson. If it had been, one suspects that the result might have been different. The reasoning in Oldman is robust, orthodox and unimpeachable. And, after the wrong turning in 2011, it offers a clear way out of this legal blind alley.

Thank you to Abigail Holt of Cobden House Chambers for supplying the transcript of the judgment in Oldman.

Grant v Secretary of State for Transport [2017] EWHC 1663 (QB)

The following post by Kate Boakes is about Grant v the Secretary of State for Transport, a quantum-only fatal mesothelioma case in which judgment was handed down last Friday by Martin Chamberlain QC, sitting as a Deputy High Court Judge. Harry Steinberg QC and Patrick Kerr acted for the Claimant.

The following key points will be of particular interest to asbestos lawyers:

  • £92,500 was awarded in respect of general damages for PSLA (this is believed to be the highest ever award for mesothelioma in England & Wales).
  • The case marks the return of intangible benefits, as the Judge awarded £2,500 in respect of this head of claim in a departure from the recent case of Mosson v Spousal (London) Limited.
  • In respect of funeral expenses, the Judge held that the cost of the headstone was recoverable but declined to make an award for the cost of the reception.
  •  An award was made in relation to a difficult claim for future income dependency.

Thank you for reading, and feel free to post any comments or questions you have about the decision, a full copy of which can be found here:

Mr Grant was exposed to asbestos in the course of his work at the British Railways Board between 1959 and 1960. He contracted mesothelioma in around July 2011 and died in November 2014, aged 70. The Claimant was his wife, with whom he had lived for 38 years at the time of his death.

The Judge awarded £92,500 in respect of general damages for pain, suffering and loss of amenity. Although many of the symptoms suffered by Mr Grant were typical for mesothelioma, the Judge held that the following five factors justified an award towards the top of the bracket:

  1. The duration of the symptoms (40 months) was unusually long.
  2. There were three courses of chemotherapy, with extremely unpleasant side-effects including hallucinations.
  3. Mr Grant suffered breathlessness, intermittent pain and night sweats before 2014, from January 2014 he was prescribed morphine, and from July 2014, he reported severe pain.
  4. Between July and November 2014, Mr Grant was doubly incontinent and suffering from pain which was not adequately controlled by medication and was incapacitating.
  5. His significant concern surrounding the Claimant’s financial security after his death.

Following a detailed review of the authorities, the Judge held that it was appropriate to make an award for the loss of intangible benefits. A key part of his reasoning can be found at paragraph 108 of the judgment:

Third, there is a separate reason why an award for services dependency, calculated by reference to the cost of replacement services, may be inadequate to value the loss of the deceased’s services. A wife whose husband used to do all the minor repair work around the house now has to find and choose the painter, plumber, decorator et al. and make the arrangements for them to come and do what needs to be done. These are things she did not have to do before. The time spent by the claimant in doing them has a pecuniary value. That was the basis for the awards made by Hamblen J in Beesley and by HHJ McKenna in Wolstenholme. The difficulty of assessing that value precisely accounts for the modesty of the awards generally made under this head. It does not, however, transform the award from (permissible) compensation for pecuniary loss to a form of (impermissible) solatium. With respect to Garnham J, I do not see why the ordinary activities of family members other than the deceased would be less affected if DIY is done by outside contractors than if done by the deceased himself. Garnham J was no doubt correct to point out that work done by a commercial contractor might be of better quality than that done by the deceased, but that would not necessarily be so. In any event, a services dependency award is, or should be, valued by reference to the cost of replacing the lost services on a like-for-like basis. There is no reason to assume that such awards generally confer a pecuniary advantage on claimants such as to justify a refusal to compensate for losses – real, albeit difficult to assess – of the kind identified by Hamblen J in Beesley and HHJ McKenna in Wolstenholme.

It was accepted that Mr Grant had carried out the decorating, gardening and a small amount of DIY. Since his death, the Claimant had lost the convenience of not having to arrange for such work to be done commercially. This convenience had a modest pecuniary value, which the Judge assessed at £2,500.

In relation to the claim for funeral expenses, the Judge held that the House of Lords’ decision in Gammell v Wilson was authority for the proposition that the cost of a headstone was in principle allowed a part of the claim for funeral expenses, and accordingly an award was made in respect of this loss. As to the claim for the cost of the funeral reception, the Judge reviewed the relevant cases (Gammell v Wilson, Knauer v MOJ and Mosson v Spousal (London) Limited), which, although first instance decisions, he had to follow unless convinced they were wrongly decided. He held that because receptions are not always held after a funeral, and when they are held, there is no invariable practice of providing refreshments, it was difficult to suppose that Parliament intended to include them within “funeral expenses” under the Law Reform (Miscellaneous Provisions) Act 1934. Accordingly, he was not convinced that the decisions were wrong, and he declined to make an award.

The highest value element of the claim was for future income dependency in respect of the development of a 20-acre site Mr Grant had purchased over 20 years prior to his death with the long-term intention of turning it into a business and retail park. The Defendant disputed the claim in its entirety. At the time of Mr Grant’s death at the age of 70, planning permission had not yet been obtained. Notwithstanding these potential difficulties, the Judge determined that Mr Grant, who had “energy, drive and propensity for hard work”, would have made a success of the development, albeit with the assistance of professional advice.  What value his contribution would have been was open to debate, but he would have added value. Accordingly, this was a compensable head of loss in principle. The calculation of this head of loss has been adjourned to allow for further submissions.