ASBESTOS LAW

In this post, Harry Steinberg QC analyses the decision in Bussey and its likely impact, including a potential limitation argument which may be open to those who were advised not to advance so-called ‘low-level’ exposure claims in the seven-year period after the Court of Appeal’s decision in Williams v University of Birmingham [2011] EWCA Civ 1242.

Mike Rawlinson QC and Gemma Scott – Counsel for the Appellants in Bussey – will be speaking about the case and its implications at the 12KBW Annual Asbestos Seminar at the Barbican Centre tomorrow

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The end of an era

It is now about a month since the Court of Appeal handed down its decision in the case of Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 . The post-match analysis has been almost as keenly fought as the match itself. But, despite the noise, there can be no doubt that this was a decisive victory for mesothelioma sufferers and claimants.

The facts are well known. Mr Bussey was a plumber working for the Defendant (“the largest plumbing business in Norwich”) between 1965 and 1968. Mr Bussey occasionally worked with asbestos cement pipes and asbestos rope. The trial judge held, as a matter of fact, that his exposure never exceeded the levels set out in TDN13. And that, following Williams v University of Birmingham [2011] EWCA Civ 1242, was the end of the matter.

Except that it wasn’t.

On appeal, Mr Bussey’s widow argued (1) that the exposure gave rise to a reasonably foreseeable risk of harm even though it did not exceed TDN13 levels; (2) that, in line with authority not cited in Williams (i.e. Jeromson v Shell Tankers [2001] EWCA Civ 100 and Maguire v Harland and Wolff [2005] EWCA Civ 1), the Defendant’s duty was to reduce asbestos exposure to the greatest extent possible; and, (3) that Williams was wrongly decided.

The Court of Appeal considered those two absent cases and held: ‘If Aikens LJ had those two decisions in mind, I do not think that he would have suggested (if indeed he did suggest) that TDN13 was a general yardstick for determining the foreseeability issue’ (Jackson LJ at para 48).

This point – that TDN13 is not a yardstick for foreseeability or a “bright line” of liability– is central. It has never been satisfactorily explained why the HMFI’s threshold for prosecution, based (as it was) on a deeply flawed analysis of the risks of asbestosis rather than mesothelioma, should somehow be a touchstone for civil liability.

As Underhill LJ said, ‘I think that the Judge was wrong to treat this Court in Williams as having laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN 13 as “safe”, even in the period 1970-1976, still less at a period prior to its publication.’

So the decision marks the end of an era. It is the end of the supremacy of TDN13 and its relegation to a more appropriate role (as it was politely described) as a “relevant consideration”. The consequences will go far beyond the facts of Bussey.

While the Court of Appeal held that Williams had applied the correct legal principle, there was some disagreement as to what the test for foreseeability ought to be. Jackson LJ proposed the following test: ‘During the period 1965 to 1968 ought Anglia reasonably to have foreseen that…  he would be exposed to an unacceptable risk of asbestos-related injury?’ (emphasis added).

The majority (Underhill and Moylan LJJ) made a subtle, but important, distinction. They held that in formulating the test for foreseeability, the qualifying adjective “unacceptable” should be omitted since it was “liable to mislead”. As Moylan LJ stated, “… in the context of mesothelioma, for which no safe level of exposure to asbestos dust has been identified, the description of the risk as being acceptable has particular problems.”

If the Williams approach is now to be stripped of both its reliance on TDN13 and the concept of ‘acceptable’ level of risk, then it tells us little more than that the risk must be measured by the standards of the day. The test proposed by Jackson LJ, as modified by the other members of the Court of Appeal, must be a worrying prospect for the insurance industry. Defendants can no longer shelter beneath TDN13. The Court pointedly noted that the defendant had called no evidence.

Underhill LJ held that the inquiry into foreseeability must be considered in two stages. First, should the defendant have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? Secondly, if so, did the defendant take proper precautions to reduce or eliminate that risk?

Perhaps the most important part is the discussion of what amounts to a significant risk. Underhill LJ specifically clarified this point, ‘I say “significant” only so as to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant.’ In other words, a risk of fatal illness will be deemed significant for these purposes even if it would have been considered statistically slight at the time.

This approach, taken together with (for example) what the Chief Inspector of Factories was publishing from 1938 onwards about the potential dangers of asbestos, may make even early cases difficult to defend; see, for example, the pre-Bussey decision on common law duties in Hawkes v Warmex [2018] EWHC 205 (QB).

It also has potentially important consequences for the interpretation and application of the Asbestos Regulations 1969. These regulations, where they applied, imposed mandatory safety precautions, such as the provision of exhaust ventilation or protective respiratory equipment, without any further qualification. Since Williams, however, defendants have sought to limit the effect of the 1969 Regulations. Their argument is based on regulation 2(3) under which the various provisions applied to asbestos dust ‘liable to cause danger’. The argument, therefore, is that this imports the requirement of foreseeability.

But this must now be seen in the light of Bussey and the Court’s approval of the position taken in Maguire, ‘…alarm bells sounded in late 1965 “when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect to asbestos dust”’ (Jackson LJ at para 53).

The logical conclusion is obvious. If there is no ‘safe’ or permissible level of exposure, then the regulations will apply where even only slight exposure is established. This will free the Courts from the solecism of relying on TDN13. It will also bring these cases in line with the stricter approach taken to cases under the Asbestos Industry Regulations 1931 following McDonald v National Grid [2015] AC 1128.

What now?

The Court of Appeal allowed the appeal but remitted the case to the Judge for him to determine the liability issue. It remains to be seen whether the Defendant will continue to fight the case, despite some pretty heavy hints, ‘… if the judge had not felt constrained by the decision in Williams, he might have concluded that, as a reasonably prudent employer, Anglia ought to have foreseen that risk.’

More generally, it seems that this is the end of the TDN13 era. At least, the end of the mechanical adoption of it as some kind of safety standard. It will be significantly easier for claimants to establish liability both at common law and by the invocation of the Asbestos Regulations 1969.

The downfall of TDN13 seems both legally correct and long overdue. And the Court of Appeal held that the Court would probably have taken a different view if it had been taken to relevant authority. But where does that leave the mesothelioma sufferers who, over the last 7 or 8 years since Williams, have been told that they cannot succeed in the light of the prominence of TDN13?  It is little consolation to them that this now appears to have been recognised as a mistake.

Most of these people will now have died, but their dependants or estates may wish to pursue a case. They would have no redress against lawyers who advised them appropriately as the law then stood. But there is a respectable argument that they could avoid a limitation defence. While ignorance of a legal claim does not stop time running under s.14 of the Limitation Act 1980, it might be a decisive factor where seeking discretion under s.33, see, for example, Lea v Armitage Shanks Group Limited (unreported, Swanwick J, 19 July 1977).

Similarly, what about those claims that failed because later Courts explicitly accepted that TDN13 was a ‘safe’ level of exposure? It raises the interesting possibility of an appeal of time in cases such as McCarthy v Marks and Spencer [2014] EWHC 3183 (QB).