In an interesting turn of events involving, what appears to be, a fairly standard mesothelioma claim, learned counsel Michael Rawlinson QC made the bold move of inviting a High Court judge to determine that the Court of Appeal decision in Williams v University of Birmingham was a decision made per incuriam (that is, it was wrongly decided because did not properly consider the case law which came before it).

In Bussey v Anglia Heating Ltd, heard in April 2017, the claimant (a widow and the executrix of her late husband Mr Bussey, the deceased) sought damages for the claimant's suffering and ultimate demise from mesothelioma. The claim was pursued against two employers, Anglia Heating Limited with whom the deceased was employed between 1965 and 1971, and Pump Maintenance Limited with whom his employment was between 1974 and 1982. The deceased was employed as a plumber. With Anglia Heating he alleged exposure as a result of cutting and installing asbestos flue pipes and from cutting and handling asbestos string. With Pump Maintenance Limited he alleged handling and cutting asbestos string on a daily basis.

All parties obtained engineering evidence, the claimant choosing to rely upon David Brady, the defendants relying upon Graham Glenn and Dr Hughson from IOM Engineering respectively. Mr Brady concluded that the deceased would have been exposed at levels above background and that this would be regarded as significant in the context of the risk of developing mesothelioma. He concluded that defendants should have been aware of the risks associated with such exposure. Mr Glenn was clear that the exposure levels alleged during the employment with Anglia Heating would not have exceeded the levels of exposure outlined in TDN 13 which was issued after the deceased’s employment.

Pump Maintenance Limited admitted liability shortly before trial. This defendant was responsible for 88.56% of the alleged exposure. The claim proceeded against Anglia Heating in respect of the remaining 11.54%.

The case looked, for all intents and purposes, like a straightforward restatement of the Court of Appeal decision in Williams v University of Birmingham in which it was held that the best guide as to what in 1974 was an acceptable or unacceptable level of exposure to asbestos generally is that set out in the Factory Inspectorate’s “Technical Data Note 13” (TDN13) of March 1970.

Notwithstanding this, the claim proceeded and counsel for the claimant, Mr Rawlinson QC suggested that the High Court Judge His Honour Judge Yelton should depart from the Court of Appeal decision in Williams. Mr Rawlinson QC suggested that Williams was decided per incuriam and the Judge was instead bound by the earlier approach of the Court of Appeal in 2 judgments being Jeromson v Shell Tankers and Maguire v Harland and Wolff plc.

His Honour Judge Yelton was somewhat at pains to set out why Mr Rawlinson’s “bold” submission was improper by running through the many cases which have subsequently followed Williams. He also highlighted the Supreme Court's recent restatement of the doctrine of precedent in Willers v Joyce in which Lord Neubergher giving judgment said that the Court of Appeal is bound by its own previous decisions unless satisfied that one of those decisions was given per incurium in which case that court could depart from such a decision. But High Court Judges are bound by decisions of the Court of Appeal. And, where there are two inconsistent decisions, High Court Judges should follow the latter. The judge also rejected the submission that Williams should be restricted to non-employer cases. Subsequent cases had involved employees.

The judge was satisfied, in following Williams, that the claimant was unable to satisfy the court on the balance of probabilities that the deceased had been exposed to levels of asbestos beyond those set out in TDN 13, as concluded by Mr Glenn. Although the deceased’s exposure preceded TDN13, it would be perverse to find that the guidance increased rather than decreased the levels of exposure which a responsible employer would regard as safe.

We should flag that the Judge found there to be some force in the claimant’s criticisms of Mr Glenn in so far as he was selective in his use of quotations from the “bank of knowledge documents” albeit overall he found that both he and Mr Brady were doing their best to assist the court on the likely levels of exposure. He considered the levels of exposure suggested by Mr Brady to be unsustainable and agreed with Mr Glenn that the exposure would have been very low and limited in time. He concluded that exposure was perhaps up to one hour every two to three weeks. This was not substantial, but not de minimis.

The High Court judge denied the claimant’s application to appeal, stating that the current law is clear. He had however made it clear in his judgment that a first instance judge cannot hold that a Court of Appeal decision is per incuriam, that is a matter for that court. It appears, therefore, that Mr Rawlinson will now proceed to seek permission to appeal from the Court of Appeal and invite them to determine the relationship between Williams on the one hand and Jeromson and Maguire on the other which he considers to be a point of “general public importance”.