Following the bright white line

 

Veronica Bussey (Executrix of the Estate of David Edwin Anthony Bussey) v Anglia Heating Limited [2018] EWCA Civ 243

 

Readers will recollect the decision of Williams v University of Birmingham; it clarified the relevant test of breach of duty in low exposure mesothelioma claims. What has sometimes since been overlooked in the context of Williams is that it was arguably a true environmental exposure case; the character of the exposure was incidental to the environment which the deceased occupied at the material time. It did not arise in consequence of his actual handling or manipulation of asbestos containing products as part of his employment or some other activity which actively procured the release of asbestos fibres. Put simply, in Williams the injured party was simply “in the room” with the asbestos containing materials.  

 

As part of the decision making process in Williams, the Court of Appeal had regard to a little known (until then) piece of technical guidance from the 1970s – Technical Data Note 13 (TDN13); a piece of guidance issued by HM Factory Inspectorate designed, in the context of the then new Asbestos Regulations 1969, to assist employers in understanding the levels of asbestos dust in the atmosphere at which enforcement action would (or would not) take place.

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By the time TDN13 had happened along, the "watershed" in respect of knowledge with regard to mesothelioma had been reached, for, well before its publication (in 1970) the potential for the causation of a fatal lung condition from relatively small exposures to asbestos had, well and truly, reached the public consciousness, firstly through a paper in a technical medical journal (the so called Newhouse and Thompson paper) and then via an article entitled "The Deadly Dust" in October 1965 in the Sunday Times newspaper. Both of those events followed an earlier medical study in South Africa (in 1960) which first highlighted (in real terms) the potential for a unique malignant condition to be connected to asbestos inhalation (the Wagner study).

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From that point in 1965, the potentially devastating consequences of even small exposures to asbestos were arguably clear, albeit, sitting in a position of hindsight, many years later it is always difficult to properly understand and appreciate the atmosphere of the time. Thus, in Williams liability was not established on the part of the deceased for his very brief presence within tunnels under the University of Birmingham to conduct speed of light experiments. Located within those tunnels was pipework lagged with asbestos. In that case, emphasis was placed upon the question of judging breach of duty by the standards of the time and, in that context, particular regard was had to the Judgment in Baker v Quantum Clothing and the need to avoid the imposition of omniscient hindsight in the context of judging the actions of employers and others in regard to their treatment of asbestos (or, indeed, any other occupational risk of insidious injury).

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As part of its consideration of the state of knowledge "at the material time", the Court in Williams was concerned to consider TDN13, and concluded that this was a useful guide to what was regarded, at the time, as ‘safe’ or ‘unsafe’ exposure. Nevertheless, the Court’s consideration of TDN13, in this context, was part of an overall consideration of evidence and, bluntly, the impact of TDN13 was not the "be all and end all" of the breach of duty decision.

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Following Williams, there have been a number of notably successful defences to mesothelioma claims, based, once again, on the principle that in order to establish breach of duty, a Claimant must show (a) knowledge (actual or imputed) of the risk of injury on the part of the Defendant at the material time and (b) a failure to act upon that knowledge, if established, and provide adequate protection (again by reference to the knowledge and standards of the time) from exposure to asbestos.

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Over time, the impact of TDN13 in this context has come to be conflated with the principle that compliance with TDN13 levels of exposure, simpliciter, connotes an absence of breach of duty. On any analysis, however, TDN13 did provide some sense of clarity as to where the line between ‘safe’ and ‘unsafe’ exposure was (consistent, importantly, with the dicta of Baker that omniscient hindsight should not be used to impute breach of duty in regard to historically acceptable practices which, in more enlightened times, would be deprecated). At the same time, there has been a gradual sense of realisation on the Claimant side of the asbestos divide that Williams represented a particular obstacle to the successful prosecution of claims and, moreover, that Williams arguably did not adequately reflect the proper test for breach of duty because certain case law was not cited to the Court of Appeal in Williams (notably, the cases of Jeromson v Shell Tankers UK Limited and Maguire v Harland and Woolf).

 

The decision in Bussey v Anglia Heating has considered, in detail, the impact of Williams v University of Birmingham and the proper test to be applied in respect of breach of duty in mesothelioma claims. It would be right to characterise the appeal in Bussey (by the Claimant) as a full scale assault on Williams by the Claimant in the context of the test of breach of duty in such claims, having regard to the "failure" of the Court of Appeal in Williams to have adequately considered the decisions of Jeromson and Maguire.

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Very briefly, Mr Bussey ("the deceased") was a plumber employed by the Defendant in the period 1965 to 1968. In consequence of that employment, he was exposed to asbestos, on average, for 1 hour every 2 to 3 weeks as a result of hacksawing asbestos cement pipes and/or manipulating asbestos rope.

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The deceased’s employer (Anglia) was, according to the Judgment of the Court of Appeal, "the largest plumbing business in Norwich" at the time.

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The claim failed at first instance, consequent upon the findings summarised below, which, clearly, owed a significant amount to the Trial Judge’s personal interpretation of Williams v University of Birmingham:

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• The deceased’s exposure to asbestos caused his mesothelioma.

• No advice was provided to him by Anglia as to steps to be taken by him to reduce his exposure to asbestos dust.

• 1965 (the date of commencement of the deceased’s employment) was properly to be regarded as the "watershed" for mesothelioma in terms of knowledge of causation of the condition as a consequence of (relatively light) exposure to asbestos.

• On balance of probabilities, the deceased’s exposure to asbestos did not exceed TDN13 levels, albeit, by modern standards, those levels are now properly regarded as far too low.

• In order to succeed, the Claimant must show (on balance of probabilities) that it was reasonably foreseeable by Anglia at the time in question (1965 to 1968) that the deceased could contract mesothelioma from asbestos dust to which he was exposed.

• The Judge found that the Court of Appeal held in Williams v University of Birmingham that in relation to the period before 1970, the Claimant could not succeed if his exposure to asbestos was below TDN13 levels.

• Williams could not be distinguished from the present case. Moreover, it was not open for the Judge to treat Williams as having been decided per incuriam.

• The claim, therefore, failed.

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As Jackson LJ summarised the position in his first Judgment in the Appeal, the issue for the Court of Appeal was: "…whether, given the relatively low level of exposure to asbestos and the state of knowledge in the late 1960s, the Defendant was under a duty to take protective measures."

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The Court of Appeal, via the Judgment of Jackson LJ, began its analysis of the position by considering a number of authorities in respect of the scope and ambit of the duty of an employer to his employee; these cases began with Stokes v Guest Keen and Nettlefold, travelled via Thompson v Smiths Ship Repairers, taking in Jeromson v Shell Tankers and Maguire v Harland and Woolf.

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At paragraph 44 of his Judgment, Jackson LJ set out, in his view, the correct test of foreseeability, note adapted explicitly from the Williams case, as follows: "During the period 1965 to 1968, ought Anglia reasonably to have foreseen that if Mr Bussey cut and caulked pipes in the manner set out [earlier in the Judgment] he would be exposed to an unacceptable risk of asbestos related injury? "

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He went on to state: "It follows from the foregoing that despite [Claimant/Appellant Counsel’s] criticism, the Court of Appeal applied the correct legal principle in Williams…"

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However, as to the impact of TDN13, Jackson LJ clarified the position as follows:

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"Aikens LJ [in Williams] held that TDN13 was the best guide to what were acceptable and unacceptable levels of exposure in 1974. He was not there formulating a principle of law. He was setting out a mixed finding of fact and law…" (paragraph 46).

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"In my view, TDN13 does not establish a ‘bright white line’ to be applied in all cases arising out of 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." (paragraph 47).

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Jackson LJ also emphasised, explicitly and particularly, that the total exposure in Williams was much lower than the total exposure in the present case (paragraph 50). Thus, and by reference to the findings above, TDN13 is not a universal test of foreseeability in mesothelioma cases (paragraph 51). The test, in fact, is the anticipated actions of a reasonable and prudent employer. In that context, Anglia "chose to call no evidence" as to what information it had about asbestos related injury in general or mesothelioma, in particular during the period 1965 to 1968.

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With respect to his Lordship, this is not to be wondered at given the lapse of time since the time in question, but, presumably, his Lordship is also alluding to the possibility of expert evidence as to these matters. However, in that context, his Lordship placed emphasis, again, on the fact that Anglia was the largest plumbing business in Norwich.

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Having come this far, and having noted the position as to the evidence, his Lordship declined to deal with liability, finding that there was insufficient evidence on relevant aspects for the Court of Appeal to deal with the issue. Instead, the case would be remitted back to the first instance Judge for a disposal of the breach of duty issue.

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Following the Judgment of Jackson LJ, Underhill LJ agreed with much of what Jackson LJ had said, but differed in one crucial respect. In that regard, the remaining member of the Court of Appeal, Moylan LJ, exercising the “casting vote” as it were, agreed with Underhill LJ. Thus, on this aspect, there is a 2 to 1 majority on the issue, but it is the Court of Appeal’s clear view. As above, this difference of opinion is on a specific, and (in the context of future claims) crucial issue; this issue is the precise formulation of the breach of duty test. Whilst Jackson LJ anticipated a single aspect test (effectively consistent with Williams), Underhill LJ and Moylan LJ have agreed upon another version of this test.

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This test splits the breach of duty question into two parts. On one level, this can be seen as a pragmatic and simplified process driven approach. On another level, arguably, it introduces new layers of proof required for a Defendant to satisfy the Court that it has complied with its duties.

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According to Underhill LJ (and agreed by Moylan LJ), the breach of duty test in mesothelioma cases is as follows:

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Firstly, the Court must deal with knowledge. In that context, the question (in the present case) was/is should Anglia have been aware during the course of the deceased’s employment (or at any time during that period) that the exposure to asbestos that the particular work involved gave rise to a significant risk of asbestos related injury? (with "significant", explicitly, being judged on the basis that it is designed only to exclude risks which are truly fanciful, any real risk, albeit statistically small, of a fatal illness, according to Underhill LJ, is significant).

 

Having enunciated the first part of the test in that fashion, Underhill LJ did concede, in theory, the possibility that a Defendant may be aware, in general terms of a risk to health, but dismissed a particular risk to a particular worker, or class of workers, in light of knowledge of the explicit terms of their work pattern and, therefore, likely actual exposure.

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However, if knowledge was established, the second limb of the test is thereby engaged. That second question is did the Defendant take proper precautions? In that context, with regard to the present case, Underhill LJ noted the Trial Judge’s findings that two simple and relatively inexpensive precautions (respirator use or working outside) could have been taken.

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Comment

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The explicit re-statement of Williams v University of Birmingham as being good law (by all members of the Court of Appeal), explicitly in the context of having been viewed through the prism of both Jeromson and Maguire, is welcome news. Moreover, again, the appeal in Bussey was, regardless of the outcome, an explicit and concerted attack on Williams because of the obstacle it represents in low exposure and/or environmental exposure cases. That attack, in that sense, has failed.

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The re-statement of the test in Williams by Jackson LJ is, unsurprisingly, an effective re-statement of the original test in Williams, despite the level of semantics involved concerning the language of the test. However, in the context of the "gloss" now applied to that test by the majority, that is, frankly, cold comfort. Hence, the writer is cynical as to this decision being the proverbial triumph of common sense.

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Moreover, a number of other themes start to coalesce from the legal mist as it were. In no particular order of importance, the writer highlights the same as follows:

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• We may be moving, once more, in the direction of differentiation of mesothelioma claims by period and exposure type and/or quantum (despite the hope that Williams had, previously, put that issue to bed).

• That is to say there is a sense that their Lordships regarded Williams to be a case of a different character to Bussey in terms of the quantum of exposure, with several comments being made within the Judgment to the fact that exposure in Williams was truly incidental (which, compared to the instant case, it was).

• This, combined with the "Underhill test", is an explicit concern because that test appears to imply that levels of exposure which, hitherto, could be regarded as “safe” are no longer to be regarded as such (in terms of defensibility with confidence).

• There is now a potential distinction between employers’ liability claims involving the "active manipulation of asbestos containing materials", such as Bussey, and claims where exposure is purely incidental and environmental (in its true sense) like Williams (or perhaps a better example Asmussen v Filtrona). Put rhetorically, can one reach a stage in a case where asbestos containing materials are actually handled by an employee where, still, the Underhill test of significant risk is met?

• There is the potential for a somewhat unnerving "grey area" in the historic period 1965 to 1970; the implication of the Judgment in Bussey appears to be that one cannot rely on TDN13 for this period because it is a later published document. This raises the possibility of arguments on the part of Claimants that, absent any guidance on the point, a given Defendant should, if appropriate precautions were available to be made, have reduced exposure to the very lowest level practicably possible. Putting it another way, even though knowledge was insufficient to even speculate on a safe limit, precautions over and above that (later) safe limit should be instigated. The only limit to those precautions being the financial constraints, leaving a Defendant vulnerable to suggestions as to possible precautions which cannot be properly evaluated because of the lapse of time since the time in question.

• The idea of being in a position to call actual evidence (as opposed to expert evidence) as to the state of knowledge within a given industry/employer at a particular point in time, 30 to 40 years later, is inherently implausible.