Mesothelioma Breach of Duty considered by the Court of Appeal: Bussey (Widow and Executrix of the Estate of David Edwin Bussey) v 00654701 Limited (Formally Anglia Heating Limited) & Anr. (2018)

INTRODUCTION

Last week the Court of Appeal heard the appeal in the case of Bussey. The hearing was held on Tuesday, 23 January 2018, and the Court of Appeal was constituted as follows - LJ Jackson, LJ Moylan and LJ Underhill. Counsel for the claimant was Mike Rawlinson QC & Gemma Scott and counsel for the defendant was Mr Charles Feeny.

The judgment has been reserved, but BC Legal attended the hearing and provide some insight into from the hearing in this feature article.

BACKGROUND

The appeal is from the High Court decision in Bussey which, bound by the Court of Appeal decision in Williams v University of Birmingham [2011] EWCA Civ 1242, dismissed a widow’s claim for damages, following her husband’s death from mesothelioma, as she could not prove, on the balance of probabilities, that the levels of his exposure to asbestos during the course of his employment exceeded those set out in Technical Data Note 13 (TDN13) of 1970, which accompanied the 1969 Asbestos Regulations.

The appeal relates to the tension between Williams and the earlier Court of Appeal decisions in Jeromson -v- Shell Tankers UK Limited [2001] EWCA Civ 101 and Maguire -v- Harland Wolff Plc. [2005] EWCA Civ 01, which appear to provide conflicting guidance on the test of ‘reasonable foreseeability’ and whether exposure limits for asbestos set out in hygiene standards at the time of exposure indicated ‘permissible levels of exposure’, for the purposes of breach of duty in asbestos claims.

Williams applied the hygiene standards in Technical Data Note 13 after 1970 to set a ‘safe’ level of exposure to asbestos, whereas the claimant argued in Bussey that the pre-Williams guidance by the Court of Appeal in Jeromson and Maguire was that no safe level of exposure could be assumed and a defendant ought to have taken all reasonably practicable steps to reduce exposure to the lowest practicable level.

Williams was followed by HHJ Yelton QC in Bussey as the last authority in time.

However, the earlier decisions of the Court of Appeal in Jeromson and Maguire were not brought to the attention of the Court of Appeal in Williams and so the issue is whether Williams can stand as a proper authority. Can there be ‘safe’ or ‘acceptable’ levels of exposure to asbestos with reference to industry hygiene standards, or should all exposures have been reduced to the lowest level practicable?

Let us turn now to the submissions on appeal.

ARGUMENTS ON APPEAL

Mr Feeny for the defendant argued:

  1. That the appeal goes back to the first principles in Donoghue -v- Stephenson [1932] UKHL 100 and in Williams there is a clear step of dealing firstly with the perception of risk and then reasonable steps to take once that threshold is crossed.
  2. The need to refer to Jeromson & Maguire was not required because those cases dealt with the steps it was reasonable to take rather then what was a reasonably foreseeable risk.
  3. The present case was similar to Williams where it was not argued that there was a risk to be ignored. If so, as here, it would have been met with Jeromson and the Claimant would have succeeded.
  4. The approach ought to first consider the extent of exposure and then to consider if that exposure would be reasonably foreseeable by plumbers during the period of exposure (it was agreed at trial that the Defendant would not have obtained Factory Inspectorate documents nor where there any documents from the Defendant). This approach as per Williams was correctly applied by HHJ Yelton QC.

The Claimant’s Submissions: 

The claimant took points b) & c) together and the substance of Jeromson and Maguire adopted a two stage approach to:

  1. Carryout a fact finding exercise to establish what is reasonably foreseeable.
  2. Then as policy and considering the circumstances at (a), where a Defendant has done nothing or, not done something that they ought to have done or, what they had done was inadequate, should be judged by the standards of the time.

This was supported by Baker -v- Quantum Clothing Group Limited [2011] UKSC 17 which adopted a two stage approach and drew a distinction between the risks involved and the steps to take once identified. Much was made of this point because, it was argued, once a defendant was aware of the risk the defendant should have done something, and logically, given that from 1965 the risk was known steps should have been taken to reduce exposure. This was the central tenet of the Claimant’s argument and that reasonable foreseeability proceeds breach of duty, is a low threshold and was crossed in this case.

It was said that reasonable foreseeability is a factual question which only asks what the reasonable man knew or ignored at the fringes. The ambit of foreseeability is governed by the comments in Czarnikow Ltd v Koufos [1969] 1 AC 350 which was cited in Jeromson and accepted in Abraham -v- G Ireson [2009] EWHC 1958 (QB). Czarnikow, it was argued, set the limits of foreseeability and applying to this case is as follows at 421 C (Lord Upjohn):

‘So the claim for damages must be the natural consequence of the breach or in the contemplation of both parties. But in tort a different test has been adopted in expanding the basic law of damages and I cannot accept the argument addressed to your Lordships that they remain the same. The test in tort, as now developed in the authorities, is that the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however unlikely it may be, unless it can be brushed aside as far-fetched. See the Wagon Mound cases’.

 Which was echoed by Lord Reid as follows:

‘The modern rule of tort is quite different and it imposes a much wider liability. The defendant will be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified *386 in neglecting it, and there is good reason for the difference. In contract, if one party wishes to protect himself against a risk which to the other party would appear unusual, he can direct the other party's attention to it before the contract is made, and I need not stop to consider in what circumstances the other party will then be held to have accepted responsibility in that event. But in tort there is no opportunity for the injured party to protect himself in that way, and the tortfeasor cannot reasonably complain if he has to pay for some very unusual but nevertheless foreseeable damage which results from his wrongdoing. I have no doubt that today a tortfeasor would be held liable for a type of damage as unlikely as was the stoppage of Hadley's Mill for lack of a crankshaft: to anyone with the knowledge the carrier had that may have seemed unlikely but the chance of it happening would have been seen to be far from negligible. But it does not at all follow that Hadley v. Baxendale would today be differently decided’.

It was described as a ‘violence to language’ by the Claimant to argue that it is not reasonably foreseeable where exposure is more than de minimis and it was known that small amounts could cause mesothelioma. In looking to ascertain the binding nature of the passage in Czarnikow, Jackson LJ probed as to whether that element of the Judgment was supported by the other members of the Court of appeal. The Claimant said he could not find anyone dissenting on that point. Jackson LJ was keen to know who positively said they agreed with it or said ‘I agree’. This was to be dealt with over lunch but was not raised further.

TECHNICAL DATA NOTE 13

It was argued that Technical Data Note 13 was not the correct delineator of liability for five reasons. It was accepted that TDN 13 was correctly interpreted by HHJ Yelton QC but that it should never have been used in the first place. The arguments against the use of TDN 13 were:

  1. The lack of a statutory regime: It was argued that TDN 13 was not to be used as a marker of civil liability because the document was used as a standard for enforcement in criminal proceedings. It was argued that a bright line was needed given the high evidential standard. An example was put that an average individual would breathe 500 ml of air per breath at a rate of 20 per min. This gives a using 2-4 fibre/ml (TDN 42). Thus, in 20 mins a total of 400,000 - 800,000 fibres were inhaled and a very small dose (or a single bullet) could cause mesothelioma. There was no civil enforcement mechanism.
  2. The contents of TDN 13 were lacking detail. It was argued that the Code did not have the detail of say the 1972 Code of Practice referred to in Baker in relation to NIHL.
  3. TDN 13 cannot be looked at in isolation. Other documents should be considered. Reference was made to Toxic Substances and this gives a route map to the relevance of dust levels where it is said that there is an overriding duty to reduce dust levels because dust was known to be dangerous per se. But, unlike Toxic Substances, TDN 13 is silent on all other factors.

The Court was taken to the 1960 & 1965 editions of Toxic Substances in Factory Atmospheres and to the hierarchy of actions to take as follows;

  1. To question whether asbestos should be used at all
  2. The reduce levels to the lowest practicable level
  3. Use the Tables of levels bearing in mind that the US levels are not the same.
  4. C argued that the hierarchy was said to be:

All of which had to be considered in descending order before consulting the Tables in Toxic Substances. It was argued that the defendant’s argument should fail because it relied on the tables before any of those steps have been considered (or more accurately there was no evidence they were taken). The Claimant argued that tables were difficult to use because there was no conversion. Mr Glenn (the defendant’s expert) accepted it could convert between 5-30 fibre/ml. 

The 2 fibre/ml limit in TDN13 was derived from the BSOH sub-committee set up in 1967 which invited asbestos manufacturers to consider what generated a 1% risk of asbestosis. Thus, the 2 fibre/ml limit relates to a safe level for asbestosis and not mesothelioma.

TDN 13 post-dated the deceased’s employment; Toxic Substances already said expressly that there are no safe levels and provides a hierarchy of control measures

JEROMSON & MAGUIRE 

The Claimant relied upon the authorities of Jeromson and Maguire in support of their argument. The Court was referred to the comments of Hale LJ in Jeromson as follows:

‘The science of epidemiology was comparatively undeveloped in 1930, as no doubt was the skill of employers in reading such documents. No modern reader would expect to draw conclusions about the length and intensity of exposure which might give rise to injury from a snapshot study of a weighted sample. Even then, while the headline message was that prolonged intense exposure would inevitably lead to asbestosis, it must have been apparent to any careful reader that the effect of much lower levels of exposure was quite unknown. Dr Merewether himself, in an article published in an American medical journal pointed out that it was ‘wholly untenable’ to infer that ‘so long as the … exposure does not exceed five years the risk of contracting asbestosis is almost negligible.’ (‘A Memorandum on Asbestosis’, Tubercle, December 1933, p 110) Although that publication would not have been available to most European employers, he was only stating what should have been obvious to the prudent reader of Merewether and Price: given the high incidence found after longer periods it would have been quite unsafe for anyone to conclude what might be the safe level of exposure. The message, as Mr Allan QC on behalf of the claimant points out, was that asbestos dust is harmful and the precaution needed is to suppress it’.

The Claimant referred to the 1948 Factories Inspectors Report which reviewed matters shortly after the introduction of s.47 Factories Act to say that it may seem ambiguous but is an admirable requirement and was echoed at Para 50 of Hale LJ’s judgment:

‘The Annual Report of the Chief Inspector of Factories for 1956 (1958, Comd 329) is relevant only to Mr Jeromson's case, but contained 'a similar message':

“One very hazardous process, to which the Regulations do not always apply, is the removal of old heat-insulation lagging. The handling of this very dry and dusty material presents a serious health hazard, which is all the more serious because the work is often done in confined spaces. Much of this work is done in premises not subject to the Factories Acts, and in any case the operation does not take long. The persons who do it are, however, regularly engaged on it and are constantly exposed to risk.”’

Again, these messages may be contained in much longer documents but they are striking in their tone.

The Claimant went on to state that by the 1960’s it was known that there was a risk involved with asbestos that was not so remote so exposure ought to have been reduced to the lowest extent possible. The Court was referred to para 51:

‘Having reviewed the literature, the judge referred to the different conclusions reached at first instance, by Waterhouse J in Gunn v Wallsend Slipway & Engineering Company Ltd, 7 November 1988, and by Buxton J, as he then was, in Owen v IMI Yorkshire Copper Tube, 15 June 1995. He could not agree with Waterhouse J “that the literature justifies the conclusion until 1960, that asbestosis was attributable only to heavy and prolonged exposure”. He preferred the formulation of Buxton J that from the beginning of Mr Owen's employment in 1951, “the difficulties related to and the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible”. He did so “in the context of the absence of any means of knowledge of what constituted a safe level of exposure”. He accepted Mr Allan's submission that “a reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure”. In an uncertain state of knowledge, the risk could not (in the words of Lord Upjohn in Czarnikow Ltd v Koufos [1969] 1 AC 350, at p 422C) be “brushed aside as far-fetched.”’

It was argued that the Court of Appeal were not referred to in Jeromson and these cases all dealt with high levels of exposure (which was required pre-1965 watershed). It was argued that they were relevant and Owen -v- IMI Yorkshire Copper Tubes (1995, Unreported) applies Jeromson and concerned exposure both before and after the 1965 watershed. The Court did not seem too impressed with the argument and the Court pointed out that leading counsel (who is now a High Court Judge) was instructed for the Claimant and it was not only Mr Feeny’s job to bring together all authorities felt relevant to the Court. The Court also noted that no petition to the Supreme Court was made following the Court of Appeal’s Judgment, after enquires were made of both Counsel.

The Claimant relied upon Maguire, accepted Jeromson in both breach and the need to reduce levels to the lowest practicable level.

WILLIAMS

The Claimant criticised Williams in the following way:

  • The exposure was not one of employee / employer but one of students and university so was one of occupier and invited visitor. (Although the Court seemed unmoved by the argument creating any distinction between employee/employer and occupier/visitor).
  • It was positively set out that small amounts of fibres could cause mesothelioma.
  • It was not clear what documents were seen given the appendix and it is not clear if original and full copies were available. There is merely reference to Asmussen -v- Filtrona United Kingdom Limited [2011] EWHC 1734 (QB).
  • There is no reference to Toxic Substances and the state before 1965, a stepped approach to exposure or the hierarchy of control methods.
  • The matters listed as important in the appendix were Thompson and Newhouse and the 1965 Killer Dust article. But there is no reference to the hierarchy in Toxic Substances or the 1938 HMFI report.
  • It was wrong to find (given the above) that there was an acceptable level of exposure. The Court of Appeal merged foresight and acceptability but ‘cannot foresee unacceptable but you foresee the foreseeable’. Although those concepts are connected, they should be treated separately and their fusion robs Jeromson of any substance by removing the need to reduce exposure to the lowest practicable level.

Jackson LJ did put forward that one option was to dismiss the appeal and give permission to the Supreme Court but the Claimant argued that the issue could be resolved in the Court of Appeal.

THE DEFENDANT’S SUBMISSIONS

The Defendant dealt with Jeromson first and argued that this appeal goes back to first principles of tort and Donoghue. It was argued that there was a clear separation of perception of risk and then reasonable steps in paragraph 44 of Williams. It was argued that Jeromson was irrelevant because that case concerned the reasonable steps a defendant ought to have taken in light of the exposure to asbestos fibres found in fact.

In this case, as in Williams, it was argued that reasonable foreseeability was in issue and if the case was argued on the basis of what steps ought to have been taken once a risk was known and was ignored, it would have been met with Jeromson and the Defendant would have lost.

Reasonable foreseeability was broken down into two parts as follows: 

            (1)        The extent of exposure

            (2)        Was that exposure foreseeably hazardous by plumbers?

It was agreed that the provisions of the Factories Act did not apply so the Defendant would not have obtained factory inspectorate documents.

It was argued that TDN 13 is relevant as it is proximate with exposure. Underhill LJ pushed Mr Feeny as to why later and later documents could not apply once we divorce the exposure from the documents in force during employment. Mr Feeny said it was highly relevant because it was proximate to exposure and the Claimant had specifically raised TDN 13.

It was put that any argument that Jeromson was inconsistent with Williams is wrong. It was argued that Hale LJ said what the issue was in Jeromson at Para 35:

The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk: the issue is whether the risk should have been identified. With the benefit of hindsight, it is now quite clear that the exposure in these cases was sufficient to cause mesothelioma, the disease from which Mr Dawson and Mr Jeromson eventually died. But the link between asbestos and mesothelioma was not established until 1960. Until then the known risk was of lung disease, in particular asbestosis, and, in the 1950s, lung cancer associated with asbestosis. The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk’.

Jeromson concerned exposure over a prolonged period working on board ships and it was accepted that Shell would have been aware of the Factories Inspectorate whereas Anglia Heating would not. Anglia Heating were not an owner of Factories and there is no reason to suppose they would have been privy to Factories Inspectorate documents. In this case the Claimant could not use Jeromson to argue what steps it ought to have taken to reduce exposure where there is no evidence that the exposure gave rise to a foreseeable risk of injury.

The case of Abraham -v- G Ireson Limited [2009] EWHC 1958 (QB) exposure occurred between 1956 and 1962 carrying out similar work to Mr Bussey as a plumber. Exposure pre-dated 1965. It was argued this case approves the Williams in cases before 1965 and in an employer / employee relationship. Abraham also cited Czarnikow and the passage relied upon by MRQC, but this is a contract, not a tort case.

The Defendant cited Thompson -v- Smith Ship Repairers (North Shields) [1984] 1 QB 405 & Stokes -v- Stokes, Guest & Nettlefold [1968] 1 WLR 1776 to submit that these cases set out the position in developing knowledge cases. It was argued that in this case there is no evidence to suggest that this type of work caused levels of exposure. Jackson LJ asked if the absence of evidence cuts both ways and the defendant argued it did not.

The Defendants dealt with Owen -v- IMI Yorkshire Copper Tube [1995] (unreported) to argue that it has to be seen within the context of its own factual findings namely that exposure was occasional and intermittent. Notwithstanding Jeromson there was no risk of injury in the present case.

It was argued that Jeromson not give the correct starting point where there is no appreciation of risk. Although the levels in TDN 13 were not perfect, at the time was the best guide and it was not until the 1980’s was there a requirement to reduce exposure before using the TLV / Control Limit. Underhill LJ asked whether the “Hale Principle” should be applied when it is not known how low the safe level actually is. The Defendant’s argued that at the time the safe level was higher than TDN 13 so if below there is no need to reduce in this case. Underhill LJ was also concerned that if the level of safety was unknown then how is it safe to rely upon a document as to that level of safety. Surely measures must be taken in absence of the ability to test and knowledge of what level is safe. How can the answer be to do nothing? Defendant argued it is a question of what the specific defendant knew at the time. Underhill LJ asked the following; ‘surely if you follow Jeromson, you just stop the clock from 1965?’

The defendant moved to consider Asmussen -v- Filtrona United Kingdom Limited [2011] EWHC 1734 (QB) because:

  •    It was decided after Baker -v- Quantum which changed the law
  •    It considered foreseeability and adopted a subjective test rather than the objective standard applied pre-Barker in a developing                           knowledge case.
  •    Asmussen was approved in Williams             

It was argued that by 1965 there was a general knowledge of asbestos being causative of mesothelioma at very low levels and by April 1967 there was the Heating and Ventilation Circular concerning thermal insulation which generated a much higher and more obvious exposure. At Paragraph 3 it was said that precautions might be taken and even small operations may be significant so the position was not clear and, it was said, does not help the Claimant in his argument.

Underhill LJ asked that not just remove all dust where it was relatively small. The Defendant responded by trying to define what is more than de minimis but less than relatively small. In this case the argument was made that exposure is very, very small.

Responding to TDN 13 the Defendants argued that the documents was not just a document used as a guide to prosecution but the Factory Inspectorate and HSE used it to deal with other issues. In 1969 there was a control limit introduced for blue asbestos but not brown. It was not until 1980’s that the control limit merged brown and blue together. Thus, before merger, brown was used more than blue but was not caught by the lower level in TDN 13.

The Defendant referred to EH 36 and the control limits to say that in 1984 the approach in Williams was used. D referred to paragraph 4 and paragraph 12 to say that the risks posed by asbestos cement is low and are less likely to generate dust than many other products. The Defendant explained the calculations in that there is a 0.375 fibres in a single breath. This is so when the level is 3 fibre/ml (the mid-point of exposure) over a 30 minute period. Thus, 3 fibre/ml fibre/ml / 8 = 0.375 fibre/ml. The justices had significant difficulties in understanding why 8 was used. The Defendant explained that this is the methodology used but it was not made particularly clear how the Defendant got to that figure. (Although 8 is derived from calculating a 4 hour TWA where exposure occurred for 30 minutes).

Jackson LJ asked at this point, if the exposure was “touch and go” if it would be over the levels or could not say if they were, should they have reduced exposure in any event. The Defendant argued that it would be remarkable if exposure did not have the reduced in the 1980’s but did in the 1960’s.

THE CLAIMANT’S REPLY

The Claimant referred to the use of asbestos rope and string to say that exposure was 2- 4 fibre/ml and exposure was the same for cutting and sweeping. It was argued that these were at levels breaching TDN 13 if cutting for 4 hours. Thus, the Claimant argued that TDN 13 looks at time weighting not intensity. This is wrong because the longer the period C carries on working the lower the exposure despite the intensity being high.

This is all within the context that 1 breath can kill given the number of fibres inhaled and there it is impossible to know the precise safe level of exposure. It was noted that Hale LJ did not engage in time averaging when considering safety. The Court was referred to paragraph 37 of Jeromson:

‘Mr Mackay QC, on behalf of Shell, argues that where the issue is whether any risk at all should have been identified, it is more appropriate to consider whether the average as opposed to the potential exposure was sufficient to ring the bell. However, where an employer cannot know the extent of any particular employee's exposure over the period of his employment, knows or ought to know that exposure is variable, and knows or ought to know the potential maximum as well as the potential minimum, a reasonable and prudent employer, taking positive thought for the safety of his workers, would have to take thought for the risks involved in the potential maximum exposure. Only if he could be reassured that none of these employees would be sufficiently exposed to be at risk could he safely ignore it.’

It was argued that all the Defendant had to do was provide a respirator for the limited times. Jackson LJ was receptive to this argument given that the exposure times were so limited and the Deceased was not asked to wear the respirator for entire shifts.

The Claimant submitted that Williams was not an employer / employee case and the case was fought to trial on the agreement that there was no evidence of what they did or did not know. Underhill LJ asked if the Claimant argues that they would be part of organisations and whilst they could not say, he found it surprising if the largest plumbing companies in the locale, was not part of some trade association.

The Claimant argued that during employment it was impossible to measure exposures save for specialised universities and governmental departments. Measurement was not available to companies. Further it was argued that the conversion between particles (everything in the air) and fibres was so uncertain even if measured it could not be interpreted so to inform an employer. The lack of proper testing was so bad, it was argued that the government had to step in and produce TDN 42 to provide some guidance in 1970’s.

It was said that EH 36 does not exonerate the Defendant and use of it by the Defendant was selective because it clearly shows that the dangers where identified. There was reference to paragraph 10 and the need to notify the HMFI is crocidolite was being removed and where it was unknown the asbestos was to be treated as crocidolite. Further, the Claimant referred to the general precautions at paragraph 15 and 18 to say that there was a need to reduce to the lowest practicable levels and specific guidance was given on how to reduce exposure. EH36 did not represent an authority for exposure without measures being taken.

CONCLUSION

In short, the claimant in Bussey, sought to argue that the decision in Williams was reached ‘per incuriam’ i.e. a lack of due regard to the law or the facts and should not be followed. Instead, the claimant argued that the formulation of the test of reasonable foreseeability as seen in the Court of Appeal decisions of Maguire and Jeromson should be applied i.e. that the defendant should be found to be in breach of their common law duty of care due to his failure to reduce his employee’s exposure to the greatest extent possible.

The test, as formulated in Williams has been followed in several subsequent first instance decisions, as we discussed in our Mesothelioma Breach of Duty Guide (here). As such, the appeal in Bussey is of great interest and its outcome of significant implication.

Rupert Jackson LJ, Underhill LJ and Moylan LJ reserved Judgment. We will report on the outcome of the hearing as soon as it is handed down.