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.
ASBESTOS LAW 