Bussey v Anglia Heating Limited: Important Court of Appeal decision on asbestos claims
The Court of Appeal yesterday handed down judgment following the appeal heard in Bussey v Anglia Heating Limited [2018] EWCA Civ 243. The appeal was allowed, with the case being remitted back to the trial judge for consideration.
The judgment has been keenly awaited as providing guidance as to (i) the correct approach to breach of duty issues in cases involving relatively low levels of asbestos exposure, and (ii) whether the Court of Appeal decision in Williams v University of Birmingham [2011] EWCA Civ 1242 should still be followed.
Summary of decision
Mr Bussey had been employed by Anglia Heating from 1965 to 1968 as a plumber. In the course of his employment he was exposed to asbestos dust while cutting asbestos cement pipes and using asbestos rope to caulk joints. The trial judge (HHJ Yelton) found as fact that the exposure fell below the levels set out in Technical Data Note 13 (‘TDN 13’), the guidance which was later to be issued by HM Factory Inspectorate in 1970. He also held that the Court of Appeal decision in Williams was authority for the proposition that a claimant could not succeed in establishing a foreseeable risk of injury at the relevant time unless he had demonstrated exposure in excess of TDN 13 levels. Although the relevant period of employment pre-dated TDN 13, he held that it would be “perverse” to conclude that its publication could have increased rather than reduced the levels of exposure which a reasonable employer would consider as safe.
The appellant/claimant made four principal contentions:
- Williams was decided per incuriam because earlier relevant authorities were not cited to the court.
- Alternatively, Williams should be distinguished because that case concerned a visitor rather than an employee.
- The levels of exposure found by the judge did pose a foreseeable risk of injury. If Williams held otherwise, it was wrongly decided.
- TDN 13 could not be the touchstone for liability for any period prior to its publication in 1970.
The Court did not accept that Williams had been wrongly decided, and Jackson LJ expressly stated that the correct legal principles had been applied in that case. However, although on the evidence before the court in Williams TDN 13 had been the best guide to what were acceptable and unacceptable levels of exposure in 1974, Jackson LJ held that TDN 13 did not establish a ‘bright line’ to be applied in all cases arising out of the period 1970 to 1976. Still less was it a bright line to be applied to asbestos exposure in an earlier period.
Rather than TDN 13 being used as a general yardstick for determining the foreseeability issue, it was held that a more nuanced approach was required which looked at the information which a reasonable employer should have acquired and then determined what risks should have been foreseen in the light of that information. The Court decried the practice of estimating past exposure and comparing it to subsequently published figures of the kind appearing in TDN 13, particularly when there was no reason to suppose that employers had in fact measured exposure.
The majority of the court (Underhill and Moylan LJJ) did not endorse the notion of “acceptable” and “unacceptable” risks in the context of determining foreseeability. Underhill LJ held that at the stage of assessing foreseeability the court would have to consider whether the exposure gave rise to a significant risk of asbestos-related injury. “Significant” meant any real risk, even if statistically small, which was not fanciful. One aspect of this test would be to consider whether there was reasonably considered to be a level of exposure below which there was no significant risk.
The court concluded that they were unable safely to conclude what the trial judge would have decided had he not treated the levels in TDN 13 as determinative, and accordingly remitted the case for a re-trial.
Discussion
The headline to take away from this judgment is that the general approach in Williams, and the need for a claimant to establish that there was a reasonably foreseeable risk of asbestos-related injury in order to establish a duty to take precautions and therefore liability, remains good law.
However, the Court of Appeal has clearly disapproved of a mechanistic application of TDN 13 to all cases as being determinative of liability. This is particularly the case in relation to the period prior to its publication in 1970. While TDN 13 may often be a relevant consideration, it should not be used as a universal touchstone to decide issues of foreseeability.
It is clear that some of the appellant’s criticisms of the use of TDN 13 found favour, and in particular the point made that it merely formed guidance as to when HM Factory Inspectorate would enforce the 1969 Regulations rather than purporting to set a ‘safe’ level of exposure.
However, it should be recalled that TDN 13 was expressly promulgated in order to help factory inspectors decide whether or not asbestos exposure was “to such an extent as is liable to cause danger to the health of employed persons” for the purposes of regulation 2(3) of the 1969 Regulations. On the face of it, it seems likely that if an employer had sought authoritative advice from a factory inspector in 1970 as to the level at which there was a risk of injury, the inspector would have been guided by the approach of TDN 13. Accordingly, Jackson LJ’s observation that TDN 13 could properly be taken into account in an appropriate case (as it was in Williams) must be correct.
For the period prior to 1970, the Court considered that the retrospective application of guidelines published later (and which are now known to have understated the risk) was unsound. Rather, it appears that one should focus on the material which would actually have been available to the relevant employer at the time, and the court expressly reaffirmed the observation of Hale LJ in Jeromson that where there is uncertainty as to the level of exposure then a prudent employer would consider the risks involved in the maximum possible exposure. This raises the counter-intuitive scenario (which HHJ Yelton described as “perverse” at first instance) that the same exposure which would not be deemed to pose a foreseeable risk in the light of TDN 13 might be sufficient to establish liability at an earlier period. It is hard to imagine a prudent employer reasonably electing to relax standards over the years in question, but that is the logical corollary of this approach.
On one level it is of course correct that a publication of 1970 could not directly have informed what was reasonably foreseeable in the years prior to that. However, HHJ Yelton’s approach does also have a compelling logic of its own given that it is generally accepted that knowledge of asbestos risks was gradually increasing at the time. If after 1970 certain exposures in the course of certain work were deemed not to pose a risk, it is hard to envisage such a risk being foreseeable for identical work at an earlier date.
The majority of the court were also clearly troubled by the formulation in Williams of an “acceptable” level of risk. They considered that where one is dealing with a potentially fatal condition, any significant risk at all could not be ignored. However, they also expressly recognised that the evidence might establish that a certain level of exposure might have been “acceptable” because it did not pose a significant risk. It should be noted that the very wording of the 1969 regulations and the approach set out in TDN 13 endorsed the notion that there was a level of asbestos exposure below which injury was not liable to be caused.
The appellant’s argument that Williams applied only to occupiers rather than employers was not directly dealt with in the judgment, but was implicitly rejected by their Lordships’ reasoning.
It remains to be seen what conclusion HHJ Yelton will come to when the case is remitted for trial. The respondent is likely to argue that, while TDN 13 is not determinative of the liability issue, it remains a relevant part of the factual background that Mr Bussey’s exposure was below a level which guidance suggested in 1970 was liable to cause injury. While TDN 13 was not yet available, the court might be asked to infer that no stricter advice than that reflecting the approach in that document would have been obtained had Anglia Heating sought authoritative guidance as to whether a risk was posed.
The appellant is likely to argue that as yet unpublished material should be ignored, and that in the absence of any means of measuring exposure, or of any knowledge as to what constituted a safe level, the prudent employer should have assumed that there was a risk and taken practicable precautions.
In general, however, it seems that the guidance in TDN 13 will continue to have a role to play in assessing foreseeability of asbestos-related injury, at least for exposure after 1970.
For the full judgment, please click here.
