On 11th January 2018, I attended the above course at the opulent, Great John Street Hotel in Manchester. The course was well attended and was insightful to say the least in discussing current hot topics in the field of asbestos disease claims.
Steven Snowden QC and Nina Ross of 12 KBW started the seminar with a helpful discussion on so called “low level” asbestos exposure claims. In particular, their talk concentrated on the 2017 decision in the mesothelioma claim of Bussy v Anglia Heating Limited.
In this asbestos claim, Mr Snowden QC confirmed that the High Court found itself bound by the Court of Appeal decision in Williams v University of Birmingham [2011] and found that the Claimant widow’s claim for damages following her husband’s tragic death from mesothelioma failed as she was unable to prove on the balance of probabilities test that the levels of asbestos exposure her late husband suffered when working for the Defendant, exceeded those detailed within TDN 1970.
The facts of the case are highly relevant to specialist asbestos disease solicitors when assessing mesothelioma claims with relatively low level exposure.
Mr Bussey worked for the First Defendant, Anglian Heating Limited as a plumber between 1965 and 1968. He also suffered exposure to asbestos with the Second Defendant, Pump Maintenance Limited which settled his claim shortly before Trial.
Tragically, Mr Bussey developed incurable asbestos related mesothelioma in 2015 and passed away due to the condition in January of 2016. The Claimant alleged in the mesothelioma claim that her husband’s exposure to asbestos with both Defendants, materially contributed to the risk of him developing mesothelioma.
The first instance decision was heard by HHJ Yelton who only had to assess liability as quantum had been agreed between the parties in the mesothelioma claim.
Mr Bussey had made 3 statements before his sad death covering his exposure to asbestos with the Defendants and no other witnesses could be traced to back up his account on exposure. Expert evidence was also adduced on both sides.
Mr Snowden QC explained that the judge found, on the balance of probabilities that:-
- The defendants were at the material time a substantial firm of domestic plumbers in the Norwich area and were considered to be the largest of such business in the local area.
- The deceased was mostly employed in domestic plumbing and heating work when working for the Defendants.
- The deceased’s exposure to asbestos during his employment came from cutting asbestos cement pipes, usually in the form of flue pipes from a boiler or gas fire. He used a hacksaw to do this as well as asbestos rope, which was used to “caulk joints” onto the new flue pipes. There was no evidence that the deceased had carried out any lagging application or removal during his time with the companies and his exposure will have consisted of white, chrysotile exposure only.
- The witness evidence obtained in support of the mesothelioma claim showed that the deceased estimated that he would need to carry out the cutting and caulking processes once every two to three weeks and the judge accepted this account.
- The cutting process would take around 5 minutes on each occasion and it was successfully argued that the bulk of the materials used by the deceased would not have been asbestos, but most probably cement.
- Some of the dust including the asbestos dust covered the deceased’s clothes and after carrying out the work he would blow the cut end of the pipe and then later dry sweep the dust and debris left behind. The deceased explained that this resulted in visible dust.
- The asbestos rope generated some dust which came off onto the deceased’s hands when handling this and this rope contained amosite, brown asbestos.
- The judge found that the deceased was not given any advice about reducing exposure to asbestos dust during the course of his employment.
- It was also found that the deceased’s exposure to asbestos had caused his mesothelioma.
Whilst causation would be proven, breach of duty was the real battle ground in this mesothelioma claim and the judge preferred the evidence of the Defendant’s engineering expert in the case. He agreed with the expert that the dust from sweeping would produce a similar result in the working environment to that from cutting the materials the deceased used in his work. The judge held that the Claimant’s assertion that this would be high exposure in the region of 100 fibres/ml was unsustainable. Further, the judge found that the dry sweeping took place after the cutting process and would only have been a transient process lasting no more than a few minutes.
At paragraph 20 of the judgement, HHJ Yelton stated:-
“I also bear in mind that the exposure to asbestos in this case was very limited in time. On the basis that the deceased was involved in the cutting of flue pipes once very two or there weeks, his involvement with the dust was not in my judgment substantial although not de minimis. On the figures set out above (which can only be estimates), the deceased was exposed to asbestos dust for up to an hour once every 2 to 3 weeks.”
The judge concluded on the balance of probabilities that the deceased was not exposed to levels of asbestos dust beyond those set out in TDN 13, which had not even been published during the course of his exposure to asbestos with the First Defendant.
The First Defendant relied upon the Court of Appeal’s judgement in Williams which underlined the correct legal test for breach of duty i.e. that where exposure was more than de minimis exposure, that exposure would need to be reasonably foreseeable to the Defendant that such caused could cause injury, based on its knowledge at the time of exposure.
In contrast, the Claimant submitted that the decision in Williams was reached “per incuriam” i.e. a lack of due regard to the law or the facts and should not be followed. The Claimant’s legal team, led by Mike Rawlinson QC who also attended the course in Manchester, argued that the court should follow the decisions reached at Court of Appeal level in Maguire and Jeromson, which also involved exposure to asbestos pre-1970 and therefore, pre-TDN13. In these cases it was held that a Defendant would be held liable, if it were found that an employee’s exposure, had not been reduced to the lowest level reasonably practicable.
Whilst the judge accepted that Mr Bussey’s exposure would have been reduced, they highlighted that Williams had in face been followed by a number of first instance decisions in Hill v John Barnsley & Sons [2013] EWHC 520 (QB), Woodward v Secretary of State for Energy and Climate Change [2016] EWHC 939 (QB), McCarthy v Marks & Spencer PLC [2014] EWHC 3183. The judge found that where Court of Appeal decisions are inconsistent, it is the later decision which needs to be followed.
On this basis, the Claimant had to show on the balance of probabilities that it was reasonably foreseeable that the decease could develop mesothelioma, based on the knowledge at the time in order to succeed on breach. The judge found that TDN13 limits had not been exceeded and therefore the widow’s claim failed on breach. On the issue of the exposure occurring prior to the introduction of TDN13, HHJ Yelton stated:-
“ it would in my judgment be perverse to find that TDN13 increased rather than decreased the levels of exposure which a responsible employer would regard as safe. In other words, if the decision in Williams is correct, then a Claimant cannot succeed in a claim of this nature in relation to a period before 1970 by showing that exposure to asbestos was at a lower level than provided by TDN13.”
HHJ Yelton accepted that whilst the deceased’s exposure was not de minimis, such exposure failed to exceed levels set out in TDN13 and he found himself bound by the logic of Williams to hold that the Claimant had failed to prove that the First Defendant was negligent.
The case is due to be heard at the Court of Appeal on 23rd January 2018 and the judgement will follow around March of 2018.
Andrew Hogarth QC also provided a helpful talk on dealing with often complex, asbestos related lung cancer claims. His comments were helpful in refreshing my memory of the case of Heneghen which confirmed that compensation can only be recovered for the amount of insurance coverage traced in lung cancer claims. The courts will now adopt a divisible approach on apportionment even though lung cancer is seen as an indivisible condition. Mcghee was not followed.
I also learned of the recent approach of the courts to contributory negligence for smoking in asbestos related lung cancer claims. A list of relevant decisions was provided to delegates with confirmation that each asbestos related lung cancer claim would have to be considered on its own facts.
On product liability asbestos claims, Harry Steinberg QC and Kate Boakes spoke of an interesting settlement they had secured for a Claimant with Cape Intermediate Holdings Limited for virtually full asbestos compensation, showing that where Claimants can recall using asbestolux materials, produced by Cape, they do have a form of recourse against Cape in tort under product liability law.
This won’t be of far reaching assistance in mesothelioma claims however, as in most circumstances, Claimants will be able to claim mesothelioma compensation under the Diffuse Mesothelioma Payments Scheme but it did lead me to think about other asbestos disease claims. There seems to be no reason why asbestos claims for diffuse pleural thickening compensation could not be brought against Cape for example, where no employer’s liability insurance can be traced for polluting employers.
I also learnt from Mike Rawlinson QC that suing in tort under product liability relating to lagging exposure would be difficult if not impossible, as it is very difficult to identify who made the product. I thought that this may be different if pre-formed lengths of asbestos lagging were used and marked with the name of the producer.
Immunotherapy in the treatment of mesothelioma was also discussed at length in an interesting talk by Niall Maclean and James Beaton of 12 KBW and I have covered my thoughts on this in my previous article relating to a mesothelioma claim I pursued for Mr O, who recovered tens of thousands of asbestos compensation to cover his private immunotherapy treatment.
James Cameron
Solicitor, Asbestos Justice
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