Following a long-fought battle in the case of Bussey v Anglia Heating Ltd [2018 EWCA Civ 243] , it's good to be able to report positive news for future mesothelioma claims against employers, many of which have been stayed awaiting last month's decision in the Court of Appeal.
The team at Fieldfisher instructed Michael Rawlinson QC and Gemma Scott from 12 KBW to seek consideration from the Court of the application of Williams v University of Birmingham [2011 EWCA Civ 1242] in low-exposure mesothelioma claims arising out of employment.
Veronica Bussey successfully pursued a claim for compensation originally against one of her husband David's employers, Pump Maintenance Limited, for exposing him to asbestos while he worked as a heating engineer. David originally instructed us but sadly died in 2016 before the second action began.
Due to the shortfall in damages, on behalf of her husband, Mrs Bussey's second claim, against Anglia Heating Ltd for the balance, pursuant to Section 3 of the Compensation Act 2006, was then dismissed by His Honour Judge Yelton in the High Court in May last year.
Judge Yelton decided he was bound to follow the case of Williams v University of Birmingham which was decided by the Court of Appeal in 2011.
The decision in Williams held that even when it was known that exposure to asbestos at low levels could be fatal, there was no duty for an employer to take action until the level of exposure exceeded the level set out in Technical Data Note 13 (TDN13). This document was only published in March 1970, two years after the relevant period of exposure with Anglia Heating Ltd, and was primarily intended, we argued, to provide guidance to factory inspectors for prosecutions under the Asbestos Regulations that came into force in May 1970.
In appeal, Mrs Bussey's legal team then argued TDN13 was not a reliable or appropriate test of acceptable levels of exposure to asbestos at the relevant time and furthermore did not apply since the victim in Williams was a visitor to the premises, rather than an employee.
Instead, they argued that Mr Bussey's case more closely followed the earlier cases of Maguire and Jeromson [case citations Maguire v Harland and Wolff (2005) EWCA Civ 1, Jeromson v Shell Tankers (2001) EWCA Civ 100]] in which the Court of Appeal had decided that an employer had the duty to reduce exposure to asbestos to the “lowest level reasonably practicable”.
The arguments on law addressed to the Court, explained here by Mr Rawlinson, were that:
- While Williams was the last CA judgment on this issue, it would only bind a lower Court in the face of earlier and apparently contrary CA authority (namely Maguire v Harland & Wolff and Jeromson v Shell Tankers) where those earlier decisions had been fully considered by the later CA.
- It was now known that Jeromson had not been more than tangentially cited (and Maguire had not been cited at all) to the Court in Williams.
- Thus either (i) the CA in Williams had acted in ignorance of the formulation of the test for breach in Maguire and Jeromson, namely that once the threshold of foreseeable risk had been reached the duty upon an employer was to reduce the risk from asbestos exposure to the lowest level reasonably practicable; or (ii) it must be that the CA in Williams had impliedly sought to restrict that earlier formulation of the duty to employment cases because the victim in Williams was not an employee but rather a visitor to premises.
- In the first of those circumstances, it was argued that the Court in Bussey should follow the Maguire and Jeromson formulation because the CA in Williams had acted in ignorance of those earlier and applicable authorities. In the second of those circumstances, the Court should still follow Maguire and Jeromson because Mr Bussey’s exposure arose as a result of his employment and hence was closer to the facts of Jeromson than Williams.
- It was admitted on the facts of this case that the employer could have taken steps to materially reduce the exposure faced by the Deceased by taking simple steps.
- In the alternative, the Claimant wished to argue that Williams was simply wrong insofar as it has been taken to have held that, in the face of the risk of fatal injury to an employee, a gap existed between the level of exposure at which foreseeable injury was created and some higher level of exposure at which the exposure would then be deemed unacceptable and would thereby require remediation.
In their landmark ruling, the three Court of Appeal judges upheld the appeal. Lord Justice Jackson said the High Court judge in the original Bussey hearing had felt ‘constrained’ by relying on data in TDN 13 that was never intended to be used as a yardstick for making claims.
The case has been remitted back to Judge Yelton for re-determination of liability and will be heard later this year.
This reset the threshold of asbestos cases by acknowledging that the way retrospective measuring levels of asbestos fibres have been applied in the past to deny or delay Claimants the compensation they deserved is wrong, falsely creating a so-called ‘safe’ level of asbestos exposure, even when it was known to cause fatal cancer.
This is never what the data in TDN13 were intended for but, following Williams, they became the test against which all other claims were measured.
Claims that have been delayed through the need for expert engineering evidence on retrospectively measuring levels of fibres in the air can now move forward more quickly and, in principle, mesothelioma sufferers can have easier access to funds for private immunotherapy treatment which gives hope for prolonged life.
Immunotherapy treatment breakthrough
Although more trials and more evidence are needed involving immunotherapy, there is also tentative good news that, in some cases, the treatment can prolong the life of mesothelioma sufferers.
In another recent landmark mesothelioma case, we successfully won back the original costs of immunotherapy treatment, not yet available on the NHS, for our client Pamela Stubberfield from insurers. The successful claim also included payment for all future treatments so long as it continues to be effective.
As immunotherapy treatment gathers momentum, the good news is that the Bussey ruling enables Claimants to push through current and future cases faster, offering a glimmer of hope for so many sufferers and their families.