Background

As reported in last month’s Disease Review (Let’s get Bussey: Bussey v Anglia Heating Ltd), the 2011 decision of  Williams v University of Birmingham [2011] EWCA Civ 1242 is the subject of criticism and much debate.

There are two key argument levelled at Williams, firstly that the decision placed heavy reliance on Technical Data Note 13 (“TDN13”) as a safety standard (the Court of Appeal found that exposure below the TDN13 threshold could not give rise to a foreseeable risk of injury) – despite the fact the TDN13 guidance was based on a British Occupational Hygiene Society paper about the comparatively high levels of exposure necessary to give rise to a risk of asbestosis; TDN13 makes no mention of the exposure levels necessary to develop mesothelioma. TDN13 was not created to set out a safe standard, rather it was intended to set out a threshold for prosecution and enforcement where asbestos level had become unsafe.

The second levelled at Williams is that the court decided the case without reference to an earlier decision on the same point, namely Jeromson v Shell Tankers [2001] EWCA Civ 101. In Jeromson the Court of Appeal considered a wealth of literature on the knowledge and effects of asbestos, including a letter from the Chief Inspector of Factories from August 1945, who wrote to the shipbuilding and ship repairing industry of his concerns about ‘Asbestos Insulation aboard Ships’. The letter emphasised that: ‘while asbestos dust may not have any apparent effects at first, experience shows that, particularly if the workers are exposed to the dust in substantial concentrations, serious results are apt to develop later’.

In Jeromson the court concluded that the threats posed by asbestos were well understood by 1951 so that employers were under a duty to reduce their employees’ exposure to asbestos to the greatest possible extent. In failing to consider JeromsonWilliams is said to be a decision per incurium.

Oldman v DEFRA

This month the matter of Oldman v. DEFRA was heard before His Honour Judge Moloney QC. This was another first instance decision.

Mr. Oldman worked as an engineer on the Ship ‘Sir Lancelot’ from 1954 until 1980. Following Mr Oldman’s death a claim was brought by his son, as executor of his father’s estate. The claim was issued against DEFRA, the successor of the Ministry of Agriculture, Fisheries and Food, which was the claimant’s employer between 1951 and 1983

It was alleged that from the beginning of his employment up until the early 1960s, Mr Oldman was exposed to asbestos from working on lagged pipes on the ship. The claim was brought for negligence and breach of the statutory duty under the Ship Building and Ship Repairing Regulations (1960) and the Asbestos Regulations (1969). However, HHJ Maloney QC, held that these Regulations did not apply because the work was carried out at sea as such the claim was brought in common law.

At the age of 84 years old, in 2010, Mr Oldman developed respiratory problems.  In December 2012, Mr Oldman was diagnosed with pleural thickening. It was speculated at the time this has been caused by exposure to asbestos. However, as at the time of diagnosis in 2012, Mr Oldman denied that he had worked with or had been exposed to asbestos, although he later recanted and alleged that while he didn’t work directly with asbestos, he had been exposed to it on the ships he worked on.

In late 2013 Mr Oldman began to show signs of dementia. During an application for disability living benefits Mr Oldman said that during his work as a marine engineer, he had lagged pipes, but was unaware that he was working with asbestos. He also set out that he was not provided with dust protection at that time. In March 2015, Mr Oldman made a witness statement alleging he had carried out work on lagged pipes and had been covered in dust, both whilst working.

On 13th November 2015 Mr Oldman died at the age of 89, of pleural thickening and consequent respiratory problems.

In considering the case His Honour Judge Moloney QC divided the deceased’s employment into pre-1960 exposure, when he was working on elderly steam vessels and post-1960, when he was working on the more modern diesel vessels. He concluded that, whilst there would have been asbestos on both kinds of ships, it was much more likely to have been disturbed whilst working on lagged pipework in the steam vessels.

He stated, that the existence of a duty of care depended largely on the state of knowledge at the time and concluded that the risk of exposure to asbestos in respect of work on ships was well-known from at least 1945. What was his basis for this conclusion?

HHJ Maloney relied heavily on a letter from the Chief Inspector of Factories, dated 1945, recording the very serious health consequences of exposure to asbestos and recommending the use of ventilation, damping down of dust and the provision of respirators for those fitting or removing asbestos, on-board ships. He also referred to a report, prepared in 1971 by Surgeon Commander Harris, which recorded a survey carried out in 1967 on warships under refit. The report found that there were high concentrations of asbestos dust arising when applying pipe insulation and lagging. The report recommended precautions for those that carried out minor works with asbestos, such as the use of protective clothing, respirators and showering after work.

When deciding the case HHJ Moloney QC ruled that the proper authority to be guided by was Jeromson, when he stated at paragraph 8 of his judgment:

“The Court reviewed the literature, including the literature to which I have referred, showing that in the period from 1951 to 1960, the threats posed by exposure to asbestos were sufficiently well-known for employers to be under a duty to reduce their employees’ exposure to asbestos to the greatest possible extent. The Court noted that during the 1950s, if an expert had been consulted about how to carry out that duty, he would have recommended the provision of respirators for persons working on asbestos. The Court of Appeal also confirmed in the Jeromson case the critical point that all that is required for liability is knowledge that the exposure is likely to cause some form of pulmonary disease. It is not necessary for the employer to foresee or understand the precise nature of that disease, e.g. mesothelioma as opposed to pleural thickening”.

HHJ Maloney also pointed out, in relation to Williams, it was a case about the duty owed in respect of a low level of exposure capable of causing mesothelioma, but not of causing other respiratory diseases, such as pleural thickening. And therefore Williams was not as relevant as Jeromson, where the level of exposure was much higher.

HHJ Maloney concluded that

“… the nature and extent of the duty to be expected of a responsible ship-owner, here a government department, towards its employed marine engineers in the 1950s. In later years, the duty can only have become stronger”

And that that the defendant owed its engineers, ‘a duty to reduce their risk of exposure to asbestos to the greatest extent possible’.

HHJ Maloney found that the defendant had failed to take appropriate precautions and was so held liable.

The judgment in Oldman can be found here.

What this means for you

This is a first instance decision in the county court and HHJ Maloney distinguished between Williams and Jeromson on the basis of the level of exposure and the conditions suffered. However, this can be seen to show the growing distaste in the judiciary for the decision of Williams and its reliance on TDN13. Given the case of Bussey is being appealed we may yet see a departure from the decision in Williams in the future. For now, Williams and TDN13 remain the standard to be applied when considering harmful levels of exposure to asbestos.