In edition 217 of BC Disease News (here), we provided some insight into the Court of Appeal hearing of Bussey (Widow and Executrix of the Estate of David Edwin Bussey) v 00654701 Limited (Formally Anglia Heating Limited) & Anr.  EWCA Civ 243, a case involving a claimant who was exposed to asbestos between 1965 and 1968, in the course of his employment. Yesterday, judgment was handed down and in this article, we discuss the Court of Appeal ruling.
At the High Court, Bussey was bound by the Court of Appeal decision in Williams v University of Birmingham  EWCA Civ 1242, on breach of duty. The first instance decision of Bussey was provided by HHJ Yelton.
Breach of duty in mesothelioma case law has provided conflicting guidance on the test of ‘reasonable foreseeability’ and ‘permissible levels of exposure’. In the case of Williams, ‘safe’ levels of exposure were deemed to be the hygiene standards in Technical Data Note 13, while the cases of Jeromson v Shell Tankers UK Limited  EWCA Civ 101 and Maguire v Harland Wolff Plc.  EWCA Civ 01 obligated employers to take all the ‘reasonably practicable’ steps to reduce exposure to the lowest ‘practicable’ level.
Lord Justice Jackson, leading judgment on appeal, began by stating, at paragraph 43:
‘Anyone who works or lives in proximity to asbestos faces some risk of mesothelioma. It is possible to reduce that risk by taking available precautions. It is not possible to eliminate it altogether. The residual risk or the risk which remains after taking all proper precautions may be regarded as an “acceptable” risk’.
In appreciating that ‘... the Court of Appeal applied the correct legal principle in Williams’, Jackson LJ adapted Aiken LJ’s formulation of the foreseeability test, with respect to the facts in Bussey:
‘During the period 1965 to 1968 out Anglia reasonably to have foreseen that if Mr Bussey cut and caulked pipes in the manner set out in Part 2 above, her would be exposed to an unacceptable risk of asbestos related injury?’
Although ‘Aikens held that TDN13 was the best guide to what were acceptable levels of exposure in 1974’, Jackson LJ found this to be a mixed finding of fact and law, before going on to say, at paragraph 47:
‘In my view, TDN 13 does not establish a “bright 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.’
Jackson LJ regarded it as important that Jeromson and Maguire were not cited in Williams, and, as such, did not think that:
‘... he [Aikens LJ] would have suggested that TDN13 was a general yardstick for determining the foreseeability issue’.
Instead, Jackson LJ reasoned that a ‘more nuanced’ approach is required to make a determination on foreseeability of exposure, without regarding TDN13 as a ‘universal test of foreseeability’.
In Williams, the deceased’s duration of exposure was short and levels of exposure were low. Jackson LJ therefore clarified that any ruling given, in this instance, would not dispute any of the legal principles stated in Williams.
Jackson LJ held, at paragraphs 59 to 61:
‘TDN13 sets out the exposure levels which, after May 1970, would trigger a prosecution by the Factory inspectorate. That is a relevant consideration. It is not determinative of every case.
If the judge had not felt so constrained he would have looked at the issues of foreseeability more broadly ... I have come to the conclusion, with considerable regret, that the Court of Appeal is not in a position to decide the liability issue on the basis of the material before us.
In the result, I would allow this appeal and set aside the judgment in favour of Anglia on liability. I would remit this case to the trial judge for him to re-determine the issue of liability ...’
Underhill LJ also agreed to allow the appeal and, with reluctance, compelled that it must be remitted to HHJ Yelton for further consideration. His reasoning for this was that he considered the ‘[High Court] Judge was wrong to treat ... 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’.
His Lordship did, however, disagree with Jackson LJ, on the adoption of ‘an unacceptable risk of asbestos related injury’, per Aiken LJ in Williams, as an unobjectionable level or risk. Underhill LJ perceived that that this phrase was liable to be misleading. As an alternative, he suggested that the foreseeability test should be split into a two-fold test:
- Was the defendant aware that the exposure to asbestos would give rise to a ‘significant risk of asbestos-related injury’?
- If yes, did the defendant take ‘proper precautions to eliminate that risk?’
Moylan LJ’s judgment signified unanimous ruling in favour of allowing the appeal. However, he also agreed with Underhill LJ that ‘unacceptable risk’ could cause confusion, rather than ‘determining the critical question of the foreseeability of the relevant risk’.
He also added that he did not believe the purpose of TDN 13 was to procure a ‘safe’ limit of asbestos, since it was designed to provide guidance on when HM Factory Inspectorate would bring proceedings.
Further, Moylan LJ expressed regret for the Court of Appeal’s decision, as there was ‘strong support for the conclusion that the relevant risk of injury would have been reasonably foreseeable to Anglia’.
Together, their Lordships endorsed Hale LJ, in Jeromson, in identifying that where there is variable exposure to asbestos, the court ought to consider the risks involved in ‘the potential maximum exposure’ and only if there could be reassurance ‘that none of these employees would be sufficiently exposed to be at risk could he safely ignore it’.
We will provide detailed commentary on the appeal decision and its potential implications on breach of duty in mesothelioma claims in a future edition of BC Disease News, especially in light of the Hawkes judgment, which was featured in edition 219 of BC Disease News (here).