Crucial Court of Appeal Victory for Victims of Mesothelioma

The Court of Appeal has today handed down judgment in the appeal in the case of Bussey v Anglia Heating Limited, finding unanimously for the Claimant and putting an end to a technical defence used by Defendants and their employers’ liability insurers to defeat claims for compensation brought by mesothelioma sufferers and their families in so-called “low level exposure” cases.

Mr Bussey died as a result of mesothelioma caused by his exposure to asbestos at work. From 1965 to 1968, he was employed by the Defendant as a plumber and handled and cut asbestos cement pipes and used asbestos rope to caulk joints.

Even though the risks to health of asbestos workers were recognised by the passing in the UK of the Asbestos Industries Regulations in 1931, the risks of mesothelioma being caused by relatively slight exposure to asbestos fibres was still developing in the 1950s, the risks being highlighted in various studies by scientists including Newhouse and Thompson, the warnings being included in reports by HMS Inspectorate of Factories.

By the mid-1960s, the evidence was incontrovertible: there is no safe type of asbestos and no safe exposure level. These facts were made available to the general public on 31 October 1965 in a front page article in the Sunday Times which warned of:

“A disquieting “new” occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind-the-scenes activity by British scientists, experts on industrial health and representatives of at least two Government Ministries”

In mesothelioma cases it was generally accepted that October 1965 represented the date by which all employers were deemed to know of the risks of mesothelioma from exposure to even small quantities (ie. more than background levels) of airborne asbestos dust and this understanding was cemented by judgements of the highest courts in a number of leading cases.

Despite the knowledge of the risks being known in 1965, the Defendants and their insurers have recently enjoyed some success in defeating mesothelioma cases by arguing, that a threshold set by HM Inspectorate of Factories in 1973 was “safe”. In fact this was a misrepresentation of guidelines specifically aimed at HM Inspectors of Factories, to assist them in deciding on whether enforcement action should be taken against an employer causing such exposure.

Unfortunately, this line of argument was upheld in the Court of Appeal in the case of Williams v University of Birmingham in 2011 and followed subsequently in cases in lower courts. The effect of the Defendants’ insurers’ manipulation has been to deny justice to victims and families of this most pernicious of industrial diseases.

The decision of the Court of Appeal today in the case of Bussey v Anglia Heating Limited restores the previous position as the court held unanimously:

1. The judge was wrong to treat Williams as having laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN13 as “safe”. That document does not establish a ‘bright line’ to be applied in all cases arising out of the period 1970 to 1976. Still less is it a line to be applied to asbestos exposure before or after that period.
2. Judges should split out the question of the foreseeability of the risk from the question of what precautions it was reasonable to take against it.
3. When considering 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 should have foreseen”.
4. Thereafter, a Court must ask whether the defendant took proper precautions to reduce or eliminate that risk.
5. If exposure is variable and an employer cannot know the extent of the exposure, he ought to consider the risks involved in “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”.

Thankfully, this perverse re-writing of history appears to be at an end.