We are delighted to read that the Bussey’s appeal has been allowed and that the Judges rejected Technical Data Note 13 as the test in determining the applicable levels of asbestos exposure in mesothelioma cases.
David Bussey was a plumber. He was exposed to asbestos during two periods of employment so there was more than one defendant to the claim. The claim against Avery Way Electronics Limited settled for £150,000 and the case continued against the remaining defendant, Anglia Heating Limited, with whom he was employed from about 1965 to 1968. During that time he handled and cut asbestos cement pipes (with a hacksaw), swept up asbestos and used asbestos rope for caulking joints.
When the case first came to trial, the judge ruled that his asbestos exposure fell below the levels set out in Technical Data Note 13 (TDN13). TDN13 was a document issued by HM Factory Inspectorate in March 1970. This stated that criminal liability would not be incurred where the concentration of asbestos dust in the workplace was kept below certain specified limits.
In the case of Williams –v- University of Birmingham  EWCA CIV 12 42, it was held that a claim could not succeed if the exposure was below the levels in TDN13. This made it far more difficult to succeed in obtaining justice for injured victims in low level asbestos mesothelioma cases. The judge in Williams laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN13 as safe, resulting in TDN13 being used as a guide as to what were acceptable and unacceptable levels of exposure in 1974.
However, the Court of Appeal judgment in Bussey rejects the proposition that employers were entitled to regard exposure levels below those specified in TDN13 as being safe. Lord Justice Jackson says in the judgment that: “TDN13 sets out the exposure levels which, after May 1970, would trigger a prosecution by the Factory Inspectorate. That is a relevant consideration. It is not determinative of every case”.
The decision in Bussey means that while TDN13 is a guide, it is not the benchmark for asbestos exposure and TDN13 does not establish a safe limit for exposure to asbestos.
We are delighted that the often-quoted benchmark of TDN13 has now been overturned.
The case has been sent back to the trial judge for him to re-determine the issue of liability and we are now awaiting that decision.