Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 Court of Appeal provides clue to resolving incoherent asbestos common law 9 March 2018 Name: Nick Pargeter Partner BLM T +44 (0)207 865 3361 E Nick.pargeter@blmlaw.com Name: Malcolm Keen Associate BLM T +44 (0)207 865 3381 E Malcolm.keen@blmlaw.com 1
Summary The dichotomy in the two approaches to breach of duty for asbestos exposure has existed since Williams in 2011. The two extremes are: (i) (ii) Jeromson and Maguire say that because there is no safe level of exposure to asbestos, exposure must be reduced to the lowest level practicable. The logical consequence of this is seen in Hawkes: breach of duty for unmeasurable, moderate/more than minimal exposure from making electric blankets in 1946. Williams says that the best guidance on whether an employer will be in breach of duty is whether exposure exceeds the level in official guidance. The Court of Appeal in Bussey found that Williams does not mean that the guidance level in TDN 13 (1970) is a bright line below which there is no liability for exposure. The Court of Appeal in Bussey found that the Defendant knew or ought to have known that the Claimant was being regularly exposed to small, unmeasurable levels of asbestos. The Court of Appeal found that there were ready means available to reduce the risk. The Defendant did not reduce the risk. Following Jeromson/Maguire, surely this was sufficient for the Court of Appeal to find the Defendant in Bussey in breach of duty? But the Court of Appeal did not do so. The Court of Appeal still considered it necessary for evidence of knowledge to be examined. The conclusion from this must be that whilst Jeromson and Maguire have not been explicitly criticised, the approach they set out has not been endorsed. The Williams approach in respect of TDN13 as a bright line of liability prior to 1974 has been rejected. The explicit test the Court of Appeal has now set out is the traditional one: what did the Defendant know (or ought to have known); and what did it do. So whilst the Court of Appeal has not chosen one of the two approaches in the dichotomy, it has placed reasonable knowledge back at the centre of the test. Reasonable knowledge will still be shown by evidence including official guidance and industry practice at the time. Background The deceased worked for the defendant plumbing company between 1965 and 1968. He came into contact with asbestos from tasks such as cutting through asbestos cement pipes (for about one hour every two-three weeks) and using asbestos rope to seal joints. The experts estimated that the deceased was exposed to asbestos at a level close to (but not exceeding) the levels in 1970 Technical Data Note 13 (TDN13). The claimant died of mesothelioma in January 2016. 2
First instance The judge dismissed the claim on the basis that the Court of Appeal in Williams v. University of Birmingham [2011] (concerning exposure in 1974) had held that a claimant cannot succeed in a period before 1970 (as here) where asbestos exposure was below the levels in TDN13 (i.e. average concentration of 2 fibre/ml over a four hour sampling period). The Claimant appealed, arguing that it was reasonably foreseeable between 1965 and 1968 that the level of asbestos exposure here could cause mesothelioma, and TDN13 was not the touchstone for breach of duty before 1970. The Claimant also submitted that relevant authorities had not been cited to the Court. Court of Appeal s findings (i) The employer s duty in an area of developing knowledge is to take positive thought for the safety of his workers in light of what he knows or ought to know; he must keep reasonably abreast of developing knowledge; with improvements in knowledge, a risk once regarded as an inescapable feature of an industry (the consequences of which the employer is not liable for) may become a risk against which the employer should take care. (ii) Jackson LJ was clear that the test to determine foreseeability in mesothelioma cases in Williams was correct. In Williams, the Court of Appeal was right to state that there could only be breach of duty if it would have been reasonably foreseeable to the University Defendant in 1974 that exposure to asbestos at a level just above 0.1 fibre/ml for 52-78 hours gave rise to an unacceptable risk of asbestos-related injury. (iii) The Court of Appeal in Williams held that TDN13 was the best guide to what were acceptable and unacceptable levels of asbestos exposure in 1974. Jackson LJ was clear that Williams was correctly decided. But this did not mean that TDN13 was the only yardstick to determine foreseeability. The correct approach is to look at the information which a reasonable employer in the defendant s position at the time should possess, and then determine what risks the employer should have foreseen. Applying the Williams principle to Bussey, Jackson LJ explained that the foreseeability test was: During 1965 to 1968, ought the Defendant to have foreseen that the Deceased s work with asbestos exposed him to an unacceptable risk of asbestos-related injury? (iv) Underhill and Moylan LJJ disagreed with Jackson LJ in respect of the use of unacceptable risk when assessing foreseeability. (v) Underhill LJ explained the two stage nature of the approach to foreseeability (as set out by Jackson LJ at (iii) above) here: 1. Should the Defendant between 1965 and 1968 have been aware that the claimant s exposure to asbestos gave rise to a significant (i.e. real not fanciful) risk of asbestos-related injury? 3
2. If the answer to 1. above is that the Defendant should have been aware that the Deceased s exposure gave rise to such a risk, did the Defendant take proper precautions to reduce or eliminate the risk. In respect of the first stage, Underhill LJ stated that the answer would depend on how quickly the knowledge, first published in 1965, that low exposures could cause mesothelioma was disseminated among reasonable and prudent employers. Underhill LJ stated that there was no reason to suppose the Defendant measured the Deceased s asbestos exposure, and so could not have known whether it was above or below any maximum safe limit. It was unsound to address this issue by comparing backguestimations of the Deceased s exposure against TDN13. (vi) The Defendant in Bussey called no evidence about what information it possessed about asbestos-related illness in 1965-68. The expert engineers agreed that in 1965, following publication of an article by Newhouse and Thompson which received national press coverage, it became common knowledge that exposure to relatively small quantities of asbestos dust, particularly crocidolite, was associated with mesothelioma. The Defendant knew the Deceased was regularly exposed to small quantities of asbestos. There were two simple means of reducing Mr Bussey's exposure to asbestos... requir[ing] him to do the cutting and caulking outside, alternatively to wear a respirator. In Jeromson v. Shell Tankers [2001], Hale LJ observed that only if an employer could be reassured that none of its employees would be sufficiently exposed to asbestos be at risk could it safely ignore the exposure. Jackson LJ considered that the Defendant here could not be so reassured. TDN13 set out the exposure levels which, after May 1970, would trigger a prosecution by the Factory Inspectorate. These levels were a relevant consideration but were not determinative. If the judge at first instance had not felt constrained by TDN13 he would have looked at the issues of foreseeability and breach more broadly. The Defendant called no factual evidence about what it knew in the late 1960s. The Court of Appeal did not have sufficient evidence before it to decide liability. The Court of Appeal allowed the Claimant s appeal, set aside the judgment in favour of the Defendant and remitted the issue of liability back to the trial judge (bearing in mind the Court of Appeal s guidance). Implications 1. Containing Jeromson An important element in Bussey was Smith LJ s view in Jeromson that:... 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 4
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. The potential effect of Jeromson, if uncontained, is almost limitless. In Hawkes v. Warmex Ltd [2018], in respect of exposure between 1946 and 1952 (estimated at not more than 10 fibre/ml), considering Jeromson, Maguire and Williams the Judge would have found (had the fire blankets in issue been found to contain asbestos) that the Defendant would have been in breach of duty. The Judge stated that: As the employer cannot measure the dangerous dust, the only response to more than minimal dust must be to reduce it as far as practicable. Warmex Ltd had no measures in place and if the inner lining was made of asbestos, they should have taken precautions or taken advice based on the evidence of Mrs Hawkes of the amount of dust, as what she describes is more than minimal. These failures would have been a breach of both the Factories Act and the common law. Jeromson was considered in Maguire v. Harland & Wolff [2005]. Maguire concerned secondary exposure between 1961 and 1965 via a spouse s work clothes. Longmore LJ stated in Maguire that: the employer will be in breach of duty if he fails to reduce his employee's exposure to the greatest extent possible, reading possible as meaning practicable,.... A dichotomy of approaches between Jeromson/Maguire vs. Williams has developed since 2011. Arguably this can be traced back to the Supreme Court s decision in Baker v. Quantum Clothing Group, that the foreseeability of harm at the time of exposure should be determined by reference to official guidance at the time showing threshold limit values (TLVs). The employer should be entitled to follow official guidance; official guidance is the best guide to an employer s date of knowledge; if exposure was below the level in the TLV at the time of exposure, the average employer should not be in breach of duty. Bussey is the Court of Appeal s attempt to reconcile these two lines of authorities. It was inevitable that at some point this reconciliation would have to take place. In Bussey, the Court of Appeal has not criticised the previous Court of Appeal decisions in Jeromson, Maguire or Williams. It must be remembered that Williams has in essence been approved; the decision still stands, albeit on its own facts, and with a reining-in of TDN13. The task for defendants is thus to constrain Jeromson and Maguire. This can be done by showing the reality of knowledge and practice in the 1960s of what employers actually knew, and what they really did in the 1960s and 1970s. The bounds of Jeromson and Maguire can be shown by the Health and Safety regime that actually existed at the time. Bussey suggests that neither TDN 13 nor the Jeromson and Maguire standard to reduce all exposure to the greatest extent practicable are bright lines. What an employer reasonably ought to have known must be taken into account. 5
2. Working directly with asbestos Whilst the Court of Appeal has shattered the equation that: Exposure below TDN13 = No liability, and Defendants cannot rely on TDN13 as a simple indicator of knowledge and thus breach, Bussey does exhort a proper inquiry into what the employer s knowledge actually was (and should have been). So the potential negative effect for defendants of the reduction in status of TDN13 can be countered to some extent by seeking to show what the employer knew, and could have known at the time. And TDN13 will be part of this enquiry. It can also be noted that Booklet 8, Toxic Substances in Factory Atmospheres/Dust and Fumes in Factory Atmospheres, with a TLV likely equivalent to 30 fibre/ml, was not mentioned in Bussey. Successfully defended cases which have relied on the Williams/Baker v. Quantum approach have tended involve claimants who have not directly worked with asbestos. For example, in McGregor v. Genco [2014], the claimant was a sales assistant in a Department Store; in Woodward v. Secretary of State [2015] the claimant was a canteen worker; and Prescott v. University of St Andrews [2016] concerned a library. Exposure in Williams (which remains uncriticised in terms of the test and the result) was just above 0.1 fibre/ml (compared to just below 2 fibre/ml in Bussey); The practical conclusion to be drawn here is not to defend claims for exposure after say 1968 where the claimant was working directly with asbestos. 3. Cloth caps for construction workers and the 1965 fallacy In Bussey, Jackson LJ suggests that all plumbers working with asbestos should have worn a respirator in the late 1960s. At this time construction workers wore cloth caps and formal risk assessments were non-existent. The Court of Appeal appears to have been shown no evidence 6
that that any plumber in the UK in the late 1960s working with asbestos in the way that Mr Busssey did, would have worn a respirator. The other element which Bussey not only repeats but also allows Defendants evidential leeway to attack is the 1965 fallacy :- From the mid-1960s there was knowledge that exposure to relatively small quantities of asbestos dust, in particular crocidolite, was associated with a risk of developing mesothelioma. It is generally agreed that this became common knowledge in 1965 following publication of an article by Newhouse and Thompson which received national press coverage." We would question a number of parts of this view. How many people, including owners of plumbing businesses, in the mid and late 1960s were familiar with the word crocidolite? How many employers would have read the British Journal of Industrial Medicine in which Newhouse and Thompson s paper was published? Even the Sunday Times, with a circulation of 1.363 million in 1966, in which Newhouse & Thompson was reported, was clearly read by a minority of the population (not to mention how that readership could be broken down by occupation/class). What proportion of businesses would have received a Sunday newspaper? What evidence is there of any other publications or broadcast media reporting on the risks of low dose asbestos exposure in 1965? Is it reasonable to say that an employers knowledge should be determined by an article in a newspaper he had never read? It cannot be correct to say that all employers in England & Wales knew or ought to have known that small quantities of asbestos posed a grave risk to health in 1965. Some people knew that perhaps large, national industries and their scientific departments but plumbers and heating engineers even the largest one in Norwich? And following Baker v. Quantum, should there not be an implementation period for safety precautions although clearly a much shorter one than the two years applicable to noise-induced hearing loss. Conclusion The Court of Appeal in Bussey found that Williams does not mean that the guidance level in TDN 13 (1970) is a bright line below which there is no liability for exposure. The Court of Appeal in Bussey found that the Defendant knew or ought to have known that the Claimant was being regularly exposed to small, unmeasurable levels of asbestos. There were ready means available to reduce the risk. The Defendant did not reduce the risk. Had the Court of Appeal followed Jeromson/Maguire, this would surely have been sufficient to find the Defendant in Bussey in breach of duty. But the Court of Appeal did not do so. The Court of Appeal still considered it necessary for evidence of knowledge to be examined. 7
Thus whilst Jeromson and Maguire have not been explicitly criticised, the approach they set out has not been endorsed. So the Court of Appeal has given us a clue to decide liability. But it has not chosen either of the two more straightforward approaches. A practical conclusion to be drawn here is not to defend claims for exposure after say 1968 where the claimant was working directly with asbestos. A positive interpretation for defendants would be that the rationale of Jeromson/Maguire has not been endorsed. So the Court of Appeal has given us a clue to how this incoherent legal situation might be resolved. 8