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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 [2011] 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 [2001] EWCA Civ 101 and Maguire v Harland & Wolff plc [2005] 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.

Findings

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.

Comment

The claimant had argued that post 1965 there was general knowledge that mesothelioma could arise from low level exposure and all employers should have taken precautions to reduce risk by reducing exposure as far as practicable from that time. Failure to do so is a breach of duty. That was not accepted, and the Court of Appeal in Bussey was keen to stress that the test in Williams was broadly correct. If anything Williams has been interpreted in a too restrictive manner by reference to TDN13.

We should not lose sight of the classic test of the employer's duty of care found in the words of Swanwick J in Stokes v Guest Keen & Nettlefold (Bolts & Nuts) Ltd [1968] 1 W.L.R. 1776:

“The overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know.”

“If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”

Further, the employer's duty in an area of developing knowledge of risk was clearly stated by Mustill J in Thompson v Smiths Shiprepairers [1984] Q.B. 405:

“The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.”

So where are we?

The answer must be that we are now in less certain waters. The difficulty for both litigants and their advisors will be looking at an individual case and trying to judge what any particular employer should have known given the time frame in question, its resources and the type of work it was doing. This is especially difficult when the employer in question no longer exists and no evidence is available from it.

It is clear from this judgment that TDN13 still remains important guidance. After all, the view was clear that on its facts Williams had been correctly decided. The court certainly frowned on the use of TDN13 as the only guidance, especially in cases predating its introduction (which might be seen as strange given the view of the trial judge that it could hardly have been an attempt to lower standards). However, rather than having the certainty of TDN13 as a benchmark test we now have the uncertainty of no set guideline and the unenviable task of having to devise on each and every claim a benchmark that fits the individual factual matrix. 

The claimant argument will now be that post 1965 a significant risk of injury will exist in all cases. However, that is not the case and the courts must be discouraged from seeking to place the benchmark too low.

Would a reasonable "average" employer have ignored guidance on exposure levels from HM Factory Inspectorate? Clearly some larger employers with larger resources may have had specialist knowledge. However, for a reasonable "average" employer, deciding to ignore that guidance and go beyond it by seeking to reduce levels further would surely be "ploughing a lone furrow". Suggestions that guidance issued by HM Factory Inspectorate was never intended as a yardstick for "reasonably safe" is looking at history with clear hindsight. To suggest the guidance was only ever intended as a measure for criminal liability ignores the words of Dr Stuart Luxon who was Deputy Chief Inspector of HM Factory Inspectorate in 1973 when he made the statement in a written paper that where the threshold values were not exceeded then an employer's “legal and moral obligation can be said to have been fulfilled” - a point that was clearly noted by David Pittaway QC sitting as a High Court judge in McCarthy v Marks & Spencer plc [2014] EWHC 3183 (QB) one of many cases which have followed the Williams decision.

Looking at history with the benefit of 50 years' knowledge and experience and expecting a modest employer to have gone beyond official government guidance is a step too far, especially at a time when continued use of asbestos was freely permitted in many common building and other products. 

The history of continued asbestos use in the UK post 1965 can be seen as regrettable to say the least but it should be viewed as a governmental failure. Figures in a 1971 Monopolies Commission report suggest the value of sales to UK manufacturers was well in excess of £1 billion in today's value so the lack of political motivation in terms of negative impact for jobs and tax revenue is clear. Half a century later, should we really now be expecting small employers to have taken the high ground and ignored government advice?

Contact

For further information please contact Daren Charlton on 0161 603 5148 or at daren.charlton@dwf.law

By Daren Charlton

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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