The Facts

The late Mr Bussey was employed by Anglia Heating Ltd and exposed to some asbestos during work between 1965 and 1968. He was also exposed (probably in greater concentrations) whilst employed by Pump Maintenance Ltd between 1969 and 1980. It was contended that it was in consequence of these exposures the deceased contracted mesothelioma which led to his death in January 2016.

The claim against Pump Maintenance Limited had been settled prior to litigation and the Claimant, the deceased’s widow, conceded that she would need to give credit for damages received.

Given the terms of the Section 3 Compensation Act 2006 Pump Maintenance Ltd would also have been jointly and severally liable for the entirety of damages. We have no details about that settlement and so can only conclude that the Claimant had settled on the basis of a substantial discount for litigation risk against that Defendant.

The Defence

Section 3 Compensation Act 2006 does not prevent the need for a claimant to establish breach of duty against the Defendant. Because the Claimant was unable to rely upon breaches of statutory duty, she was required to prove at common law that exposures were sufficient to give rise to a foreseeable risk of harm.

The beginning of the Claimant’s exposures coincided with the publication in October 1965 of the Newhouse and Thompson paper and the subsequent article in the Sunday Times. This early knowledge was limited to a discovery of a link between asbestos exposure and mesothelioma and of course this led to a flurry of regulatory and legislative activity culminating in May 1970 with the passing of the 1969 Asbestos Regulations and a Technical Data Note (TDN 13) which provided guidance as to levels above which exposure to particular types of asbestos would be regarded as unsafe. Prior to this guidance note employers were not assisted by any guidance as to what would be regarded as safe.

The Claimant’s employment in this case of course pre-dated the Guidance Note and His Honour Judge Yelton (sitting as a High Court Judge) concluded it would be perverse to impose higher safe levels prior to the publication than afterwards. He found himself bound by the Court of Appeal decision in Williams v The University of Birmingham where the Court concluded that TDN 13 was the best guide as to whether or not exposure levels were acceptable or unacceptable.

The guidance note effectively imposed a zero tolerance level for blue asbestos and increasing (safe?) levels for brown asbestos white asbestos. The Judge concluded that the deceased’s exposures were brief and intermittent, with exposure to white asbestos within the levels enshrined in the guidance note a few years later and to brown asbestos at lower concentrations and again levels below those set by TDN 13.

Precautionary or Safe Level Approach?

The Claimant took on the ambitious task of arguing that the Williams decision was incorrectly decided. The basis of the argument was germinated in the observations of Hale LJ in Jeromson v Shell Tankers (2001) to the effect that the subsequent setting of hygiene standards was insufficient to provide reassurance to an employer that exposure levels were safe.

This precautionary approach would have placed any employer as from 1965 under a duty to proactively make enquiries and to enforce a zero tolerance regime until safe levels were set. This is not an approach that has generally been adopted in subsequent cases. The Judge concluded that he was bound by the Williams decision and that the Claimant’s approach would require support in the Court of Appeal or above.

The tension between the precautionary approach adopted in the Jeromson case and subsequent decisions could therefore fall to be explored in High Courts in pre-1970 cases but ambitious Claimants may in the future try to convince the Court of Appeal that TDN 13 did not in fact set levels above which the Health and Safety Executive would prosecute and that these were not in fact safe levels upon which an employer (and particularly well resourced large scale employers) could rely upon, given what was already known and published at the time. It is not known whether Mrs Bussey will seek to appeal but this is possibly unlikely given the factual findings of exposure in the case.

What can we learn?

  • If the Claimant appeals then insurers are at risk of the of the Court of Appeal re-examining whether defendants are entitled to rely on the guidance note and subsequent hygiene levels as evidence of what is safe or unsafe. Lady Hale expressed a concern that when knowledge of some risk is identified, employers should take no chances and adopt a zero tolerance approach.
  • This judgment will encourage claimants to pursue single defendants with no liability defences in preference to settling with multiple employers thereby exposing them to a risk of facing a defence on breach. The Compensation Act 2006 envisages such an approach which then leaves the paying party with uncertain prospects in a recovery claim.