Mesothelioma claims: Williams v University of Birmingham under fire
Matthew Boyle looks ahead to the case of Bussey v Anglia Heating in the Court of Appeal.
It is understood that the Claimant’s appeal in this fatal mesothelioma claim will be heard by the Court of Appeal on 23 January 2018. The appeal may shed new light on the status of the earlier decision of Williams v University of Birmingham and the relevance of the Factories’ Inspectorate guidance set out in TDN13 of 1969.
The factual background to the claim is that the deceased Mr Bussey was employed by the Defendants as a plumber between 1965 and 1968. He was exposed to asbestos intermittently for short periods of time when he was required to handle and cut asbestos rope and asbestos cement flue pipes. Before the trial Judge (HHJ Yelton) the Claimant contended that this exposure exceeded the levels set out in TDN13. However the Judge preferred the evidence of the Defendants’ expert (Mr Glenn) and rejected this argument. The Claimant’s alternative case was that, even if exposure fell below TDN13 levels, this still amounted to a breach of duty because Williams v The University of Birmingham had been wrongly decided.
Perhaps not surprisingly, the trial Judge concluded that he was bound by Williams and that exposure below TDN13 levels did not constitute a breach of duty. The Court accepted that, on the basis of Williams, the levels within TDN13 of 1969 are the best indication of levels which were regarded as reasonably safe prior to 1976. Although the Deceased’s exposure had occurred before TDN13 was circulated, the Judge did not accept that breach could be established from exposure lower than that referred to in this guidance during the relevant period.
It remains to be seen what arguments will be canvassed before the Court of Appeal. However on the basis of articles published by Counsel for both parties (Michael Rawlinson QC for the Claimant; Charles Feeney for the Defendants) the following appear to be the most likely areas of contention:
- The status of TDN13. The guidance was intended to inform decisions by factory inspectors as to when to bring criminal prosecutions under the Asbestos Regulations 1969. Should it therefore be regarded as the definitive guide to the interpretation of Regulation 2(3) of those Regulations (or indeed the position at common law) in the absence of any other guidance at the relevant time?
- The epidemiology behind TDN13. It is common ground that the data used to devise the exposure levels related to the risk of developing asbestosis (not mesothelioma) and is now known to be flawed. However is this a good reason to abandon reliance on TDN13 when the flaws were not readily apparent at the time, there was no rival school of epidemiology and the guidance was being used by the Factories Inspectorate?
- Is it relevant that the decision in Williams related to an occupier, not an employer? This is perhaps doubtful since TDN13 was after all issued as guidance in an employment setting. It is also unclear that there is a principled distinction to be drawn on such a basis.
- Can the decision in Williams be reconciled with the observations made in the earlier cases of Jeromson and Maguire to the effect that asbestos exposure should have been reduced to the lowest level practicable? Or were these cases materially different in that they related to significant exposures where the Defendants should have identified a reasonably foreseeable risk of injury?
Williams has proved a useful case for Defendants and their insurers in seeking to defend mesothelioma cases where the alleged exposure to asbestos pre-dated 1976 and was not substantial. Practitioners on both sides will be therefore be watching with interest to see if the appeal in Bussey leaves the reasoning in Williams intact.