Court of Appeal allows appeal in Bussey v Anglia Heating
Bussey v 00654701 Ltd (formerly Anglia Heating Ltd)
Court of Appeal
22 February 2018
The Court of Appeal has today handed down its highly anticipated judgment in the mesothelioma case of Bussey v Anglia Heating. Daren Charlton outlines the findings, considers how the judgment fits with the 2011 Court of Appeal decision Williams v University of Birmingham and looks at where we stand in determining breach of duty.
Background and first instance decision
Mr Bussey had been employed by the defendant as a plumber between 1965 and 1968 and his work had involved some modest asbestos fibre exposure. At the initial trial HHJ Yelton made a finding of fact that the exposure was probably below that set out in the now well-known guidance of TDN13 published by HM Factory Inspectorate in 1970. Following the authority of Williams v University of Birmingham  EWCA Civ 1242 he felt bound to find that breach of duty could not be established, as a reasonable employer at the time would not have considered there to be a reasonably foreseeable risk of injury. The exposure predated the TDN13 guidance but HHJ Yelton felt it would be perverse to find that TDN13 had increased rather than decreased the levels of exposure which a reasonable employer would regard as safe.
Court of Appeal submissions
Before the Court of Appeal the claimant raised the following arguments:
Whilst the Court of Appeal is ordinarily bound by its previous decisions, the Williams authority could be sidestepped on the grounds of being decided "per incurium" – without proper regard to the law. The argument for this was that the court when making that decision had not had proper regard to its earlier decisions in the cases of Jeromson v Shell Tankers UK Ltd  EWCA Civ 101 and Maguire v Harland & Wolff plc  EWCA Civ 1.
The test laid down by those earlier decisions was that the court should firstly look at what was reasonably foreseeable in terms of risk of injury. That was done simply by looking at what was known at the time in terms of risk of injury and in the case of asbestos exposure it was known by 1965 that risk arose from low levels of exposure.
Secondly, the court should look at what action the employer took to deal with that risk when judged by the prevailing standards at the time. If no action had been taken or the steps were inadequate when judged by what was expected of a reasonable employer at the time, then breach of duty should be found.
TDN13 was, in any event, not a proper test of what was foreseeable risk at the time. It was lacking in detail and it was intended as a "marker" for criminal proceedings. Further, it conflicted with other advice available at the time and should not be looked at in isolation.
The decision in Williams was wrong because it conflated foreseeability of risk with acceptability of risk.
The defendant position was that:
There was no tension or conflict between the decisions in Jeromson and in Williams. The Jeromson decision was a case in which there was heavy exposure (the employees were found to be exposed to intense concentrations on a regular basis in confined spaces). It was not surprising that foreseeable risk of injury should have been recognised and the real issue was what steps the employer should have taken. Williams was all about looking at the test for what risk of injury was reasonably foreseeable for low level exposure.
Williams was correctly decided. Where there is an average employer without special knowledge of risk, then that employer should be judged in terms of what risk it should reasonably foresee by the guidance that it should reasonably have taken notice of.
In that respect, TDN 13 and subsequent amendments should be seen as the requisite yardstick.
Looking at what steps an employer ought to have taken only arises if the initial hurdle of reasonably foreseeable risk is cleared.
Lord Justice Jackson gave the lead judgment. He was keen to stress that he did not accept the argument that Williams had been wrongly decided. However it was a decision relevant to the factual circumstances of that case. It did not lay down any general principle of law that a claimant must establish exposure above hygiene levels such as TDN13 in all cases. If it had been the intention of the court to do that, then that was because they had not been referred to the earlier decisions in Jeromson and Maguire. On that basis the trial judge in Bussey should not have felt himself constrained to decide matters on the basis of TDN13 alone. The appeal was therefore allowed. The view was unanimous on that point.
What then is the correct legal test?
Lord Jackson felt that the question was correctly identified in Williams albeit that the answer was not to simply look at TDN13 for guidance. 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. On that basis his formulation of a test would be to ask:
"During the period 1965 to 1968 ought Anglia reasonably to have foreseen that if Mr Bussey cut and caulked pipes in the manner set out he would be exposed to an unacceptable risk of asbestos related injury"
However, Lord Justice Underhill and Lord Justice Moylen objected to the use of "unacceptable" in the test which they felt was unhelpful and liable to mislead. They preferred use of the word "significant". They made it clear that the test involved consideration of the issue that although the employer may have been aware of risk in general terms, it could be reasonable for it at the material time to believe that there was a level of exposure below which there was no significant risk and that the employee's exposure was below that level.
If this first test of "significant risk" is established then the court should look at whether the employer took proper precautions to reduce or eliminate the risk.
Having set out that test the judges were agreed that they had insufficient information to apply it to the Bussey case and remitted the matter back to the trial judge for determination.
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