Bussey v Anglia Heating Ltd

Published 26 February 2018

Facts and Background

The claimant, as widow and executrix of the deceased, claimed damages in respect of the deceased's mesothelioma caused as a result of exposure to asbestos during the course of the deceased's employment with the defendant from 1965 to 1968.

The deceased worked for the defendant as a plumber.  It was alleged that the deceased was exposed as a result of:

• Cutting white (chrysotile) asbestos pipes with a hacksaw for approximately 1 hour every 2 or 3 weeks.  This would give rise to an exposure level between 2 and 4 f/ml.
• Sweeping up after cutting the pipe which gave rise to a similar level of exposure as above.
• Using asbestos rope to caulk joints for approximately 20 to 30 minutes per job.  The asbestos rope contained a mix of white (chrysotile) and brown (amosite) asbestos and gave rise to an exposure level between 2 and 4 f/ml.

The claim was initially heard by HHJ Yelton who heard oral evidence from expert engineers for the claimant (Mr Bradley) and the defendant (Mr Glenn).  The claim was dismissed at 1st instance following the decision of Williams v University of Birmingham [2011] EWCA Civ 1242 on the basis that the exposure levels were accepted as being below the levels set out in TDN13.

The claimant appealed on the basis that:

• Williams was incorrectly decided as the court was not referred to the necessary and relevant authorities
• Williams concerned a visitor rather than an employee and the present case should therefore be distinguished
• TDN13 should not be considered as "the touchstone test" for breach of duty

The Decision

The Court of Appeal unanimously allowed the claimant's appeal and remitted the case back to HHJ Yelton to determine breach of duty in light of the guidance provided by the Court of Appeal.  The guidance provided being:

• Williams did not set a precedent that exposure levels below the standards set out in TDN13 ought to be considered as "safe".
• When considering breach of duty the court is to consider whether there was a foreseeable risk that an employee would be exposed to asbestos and if so what reasonable steps could be taken to avoid that risk.
• When assessing foreseeability "it is necessary to look at the information which a reasonable employer in the defendant's position at the relevant time should have acquired and then to determine what risks such an employer would have foreseen."

In this case the Court of Appeal noted that from the mid-1960s it was widely recognised that low levels of exposure to asbestos could cause mesothelioma.  The defendant would have known that the deceased was exposed to asbestos and that risk could have been reduced or avoided by either requiring the pipes to be cut outside or by providing the deceased with a mask.

The Court of Appeal endorsed LJ Hale's comments in Jeromson that where exposure is variable and the employer cannot know the extent of the same then consideration should be given to "the potential maximum exposure" and "only if he could be reassured that none of these employees would be sufficiently exposed to be at risk could he safely ignore it".

LJ Jackson was at pains to make clear that he did not consider Williams to have been incorrectly decided based on the evidence available to the court in that case.

It remains to be seen whether the defendant will seek permission to appeal to the Supreme Court and/or the outcome of the reconsideration of the case by HHJ Yelton.