DAC Beachcroft 2018 Review – January to March 2018

Published 16 March 2018

Introduction

In this update we consider the decisions below and their impact on mesothelioma claims from a defendant's perspective.

1. Bussey v Anglia Heating Ltd
2. Hawkes v Warmlex
3. Heynike v Birlec Ltd and oths

So far the cases have not gone in the favour of defendants. The overall impression of the cases considered below is that employers cannot argue that it was not known that asbestos was not dangerous and further they cannot argue that no steps to control exposure should have been taken.  The courts accept that asbestos was known to be harmful, notwithstanding that the specific form of harm was not known, and defendants must be able to show that something was done to reduce that risk.  

Defendants and their insurers will need to garner much more direct evidence regarding the control measures in place (if any) if a successful defence is to be maintained. Whether the stricter line taken by the courts will be confined to mesothelioma cases only or whether it will be applied to other asbestos related cases remains to be seen.  Expert evidence regarding exposure levels based on broad assumptions will no longer, it seems, be sufficient to defend these claims.

Mesothelioma: Bussey v Anglia Heating Ltd [2018] EWCA Civ 243

As anticipated the Court of Appeal handed down its decision in Bussey and as anticipated it did not go in the defendant's favour. A summary of the judgment can be found in our previous post.  In brief:

• 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 have been 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."

The full impact of Bussey on mesothelioma claims has yet to be felt and the question of primary liability has yet to be determined by HHJ Yelton.  However it can be seen that:

• TDN13 is not an absolute standard for determining breach but it should remain as one of the factors to be considered;
• The evidential burden for defendants is increased as reliance can no longer be placed solely on engineering evidence and direct evidence of control measures will be required.

It is entirely possible that we shall see claims which have previously been denied based on Williams being resurrected or at least being reconsidered by Claimants.

Mesothelioma: Hawkes v Warmlex [2018] EWHC 205

Facts: 

The Claimant, the son of the deceased, claimed damages for the deceased's mesothelioma. It was alleged that the deceased was employed to make electric blankets for the defendant and that the inner linings of the blankets contained asbestos.  The deceased was employed from 1946 to 1952.  The deceased was required to use a needle and thread to stich an electrical cable through the asbestos material and it was alleged that she was exposed to asbestos as a result.

The Claimant pleaded reliance on the Asbestos Industry Regulations 1931 and that the activity undertaken by the deceased came within (ii) of the preamble namely "all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;”. The application of the 1931 Regulations was not accepted by the defendant.

In the alternative the Claimant argued there was a breach of s.47 of the Factories Act 1937 in respect of substantial levels of dust.  Further and/or in the alternative that the exposure was of "of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed."

The Decision:

The judge found that the blankets did not contain asbestos and therefore the claim failed.

However, the judge went on to say that the 1931 Regulations did not apply on the basis that the preamble referred to the production of yarn or cloth made wholly or in part from asbestos and not to the production of items incorporating such material. Interestingly the judge did say that if the Regulations had applied they would have been breached.

The judge did not consider that s.47 had been breached and there were not substantial levels of dust involved in the process. Consideration was had to the Harries paper and the judge considered that an exposure level of 10 f/ml would not give rise to visible dust.

In respect of the first limb of s.47 (dust likely to be injurious) the judge found that an employer such as the defendant would have known that exposure to asbestos was harmful albeit it may not have known that low level exposures were capable of causing mesothelioma. As such the defendant ought to have taken steps or sought advice as to how to reduce the exposure.

Comment:

The judge's comments are obiter and are therefore not binding but they will be persuasive. This case has perhaps been somewhat overshadowed by the decision in Bussey. However, it is an important case in that, whilst dismissed on the facts, the judge's comments that low level exposures, which were found to be less than substantial, would still be in breach of duty is not helpful to defendants.  If followed the decision requires that exposure be reduced so far as practicable even when by the standards of the time (well before the Thompson & Newhouse article in 1965) the exposures are small.

Mesothelioma: Heynike v Birlec Ltd and oths [2018] EWHC 303 (QB)

The Facts:

The Claimant on behalf of the deceased claimed damages in respect of mesothelioma cases as a result of the deceased's employment with the first defendant when he was contracted to work for the second and third defendants. The deceased was a specialist bricklayer and was exposed to asbestos whilst stripping and relining furnaces.

Several issues arose out of the case:

• Did s.63 of the Factories Act 1961 survive the coming into force of the Asbestos Regulations 1969?
• Was the work undertaken by the deceased a "process" to which s.63 would apply?
• Were the factories where the work was undertaken to be considered as "safe" as per s.29 of the 1961 Act?
• Were the second and third defendants liable at common law?

The Decision:

In an unhelpful decision for defendants the judge found that:

• s.63 did survive the 1969 Regulations in that the whilst the first limb of the test regarding "injurious" levels of dust was replaced by the Regulations the second limb of the test in respect of "substantial levels of dust of any kind" remained.
• A process need not be permanent to be caught by s.63 and the wording of the section was unqualified and related to any activity which took place within a factory regardless of its frequency or duration.
• There was a breach of s.29 as the factory could not be considered as safe given the levels of dust encountered and again the infrequent and sporadic nature of the task was not relevant.

The second and third defendants were liable at common law and they could not employ a reasonable contractor defence. The factories remained in operation whilst the task was undertaken and the defendants knew that it involved asbestos and substantial levels of dust and therefore a foreseeable risk of injury.  Steps should accordingly have been taken to reduce or control the exposure.