Mesothelioma: the foreseeability test

Asbestos close up
The Court of Appeal’s recent decision in Bussey v Anglia Heating Ltd has the potential to expose insurers to a new wave of mesothelioma claims. In Bussey, the Court set out the correct approach to the assessment of foreseeability and breach of duty in cases involving relatively low levels of asbestos exposure.

In the late 1960s, Mr Bussey was employed by Anglia Heating as a plumber. His work involved handling and cutting asbestos cement pipes and manipulating asbestos ropes to caulk joints. Mr Bussey developed mesothelioma and died in 2016. His widow brought a fatal accident claim against Anglia.

In the 2011 case of Williams v University of Birmingham, the Court of Appeal had held that the correct test for breach of duty in a mesothelioma case was not whether the defendant had taken reasonable measures to ensure that the victim was not exposed to a material increase in the risk of mesothelioma. Rather, the employer’s duty was to take reasonable care including, if necessary, taking measures to ensure that an employee was not exposed to a foreseeable risk of asbestos related injury. The Court of Appeal held that the employer’s conduct in this regard was to be judged by reference to the state of knowledge and practice at the time of exposure.

In 1970, a couple of years after Mr Bussey’s employment with Anglia had come to an end, the Factory Inspectorate issued ‘Technical Data Note 13’ (TDN13). TDN13 set out the ‘Standards for asbestos dust concentration for use with the Asbestos Regulations 1969’. It was intended to provide a working guideline threshold for levels of asbestos exposure which were “liable to cause danger to health” for the purposes of enforcement under the provisions of the Regulations.

The trial Judge in Bussey held that TDN13 established the ‘…state of knowledge and practice…’ at the time of Mr Bussey’s exposure and that, accordingly, the Court of Appeal decision in Williams was authority for the proposition that a claimant could not succeed in establishing that the risk of contracting mesothelioma was foreseeable unless he or she could demonstrate exposure in excess of TDN13 levels (this was so notwithstanding that TDN13 was not published until 1970). This was consistent with the approach taken in other first instance decisions which followed the Williams judgment. The Judge further found as a matter of fact that Mr Bussey’s exposure to asbestos fell below the levels set out in TDN13. He therefore dismissed the claim. Mrs Bussey appealed.

The Court of Appeal unanimously allowed the appeal. It held that the Judge had been 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’. TDN13, it held, did not establish a ‘bright line’ to be applied in all cases arising from exposure to asbestos during the period 1970 to 1976 (when TDN13 was in force); still less did it apply to asbestos exposure before or after that period. The Court of Appeal also noted that earlier judicial authorities, which had not been before the court in Williams, raised doubt as to whether there was any minimum level of exposure to asbestos below which such exposure presented an ‘acceptable’ risk (though Lord Justice Jackson did note that since anyone who worked in proximity to asbestos faced some risk of mesothelioma, and that it was not possible to eliminate that risk altogether by taking precautions, the residual risk after taking all proper precautions might be regarded as an ‘acceptable’ risk).

Although allowing Mrs Bussey’s appeal on this issue of law, the Court considered that it had insufficient factual evidence to decide whether the employer in this case had breached its duty. It therefore remitted the claim to the High Court for rehearing on the issue of liability.

So where does this leave us? The Court of Appeal was clear that on its facts Williams had been correctly decided and claimants will still need to establish that there was a reasonably foreseeable risk of contracting an asbestos-related injury in order to establish that a defendant employer was in breach of its duty of care. It is now clear, however, that employers and their insurers can no longer be confident of successfully defending such claims solely on the basis that the claimant’s exposure to asbestos was below the levels set by TDN13. Rather, in the words of Jackson LJ:

A more nuanced approach is required than that. 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.”

This introduces an unwelcome element of uncertainty for insurers faced with claims arising from exposure to asbestos in the late 1960s and 70s as well providing the basis for a potential increase in the number of claims and the costs of managing those claims.

John McGowan