After more than 7 years of injustice the Court of Appeal has put an end to the technical defence raised in a series of cases culminating in a previous Court of Appeal ruling, by unanimously overturning the High Court decision in Bussey v Anglia Heating Ltd and determined that victims of the asbestos cancer mesothelioma and other asbestos conditions no longer have to prove that their exposure exceeded certain technical exposure limits that no one knew about or even measured.
Instead the test is once again whether the type of asbestos exposure gave rise to a foreseeable risk of asbestos related injury, bearing in mind the fact that there were no known safe limits of exposure, and if so did the employer take all reasonable precautions to eliminate or reduce that risk.
An earlier Court of Appeal decision in Williams v Birmingham University 2011 has been interpreted by Defendants and insurers as holding that asbestos victims could not succeed in a claim for damages unless their exposure to asbestos exceeded levels laid down in TDN13, a technical publication designed to assist HM Factory Inspectors to decide whether to prosecute companies in the Criminal Courts for breach of the Asbestos Regulations 1969.
This led to a number of claims failing in the courts as they were unable to satisfy this test. This was unjust as this had not been the intention of the guidance when issued; employers were unaware of the limits contained within it, and never took any measurements of levels of exposure in any event.
Accordingly, how could they rely on this guidance to defeat asbestos cases when no one knew what level of exposure the victim had been subjected to?
The Court of Appeal unanimously allowed the Appeal on the following grounds:*
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. It was relevant that neither Jeromson v Shell Tankers UK Ltd  EWCA Civ 100 nor Maguire v Harland and Wolff PLC  EWCA Civ 1 was cited in If Aikens LJ had those two decisions in mind, he would not have suggested (if that was his intention) that TDN13 was a general yardstick for determining the issue of foreseeability.
3. The majority (Underhill and Moylan LJJ) held that Aikens LJ’s use of the phrase “an unacceptable risk of asbestos-related injury” was liable to lead to confusion. Courts should not seek to address whether a particular risk is acceptable or unacceptable. Rather, 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.
4. 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”.
5. Thereafter, a Court must ask whether the defendant took proper precautions to reduce or eliminate that risk.
6. Their Lordships endorsed Hale LJ’s observation in Jeromson that, 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”. Further that “only if he could be reassured that none of these employees would be sufficiently exposed to be at risk could he safely ignore it”.
The case has been remitted to HHJ Yelton to re-determine liability in the light of these findings.
What does the Bussey v Anglia Heating Ltd judgment mean for sufferers of mesothelioma and their families? It means that this technical defence used by Defendants and their insurers to deny justice to mesothelioma victims and their families is no longer available. It will not open any floodgates but it does offer comfort and means that more victims and their families will have a means of accessing Justice when previously they may have had none. Those cases which lost cannot be retried but mesothelioma cases which have previously been turned down may now succeed and would certainly have nothing to lose by seeking a second opinion. As asbestos lawyers we still need to show negligence or breach of duty but we do not have to prove exposure above a certain limit.
We urge anyone who is suffering from an asbestos related illness to get in touch with our specialist asbestos illness team. You could be entitled to make a claim for compensation.
Joanne Candlish is Solicitor and Department Manager for Asbestos at Your Legal Friend. Joanne has over 25 years’ experience and is a senior litigator member of the Association of Personal Injury Lawyers. She specialises in mesothelioma and asbestos related lung cancer claims and has represented clients in several high-profile cases.
*Source of judgment: 12 King’s Bench Walk https://www.12kbw.co.uk/court-appeal-unanimously-allows-claimants-appeal-bussey-v-anglia-heating-ltd/