Hill and Billingham v John Barnsley & Sons Ltd and others [13.03.13]
Defendant liable where deceased was exposed to asbestos at a date when a reasonable employer should have been aware of the risk of injury.
The issues of knowledge and foreseeability of risk of harm were reviewed by the Court of Appeal in Williams v University of Birmingham. The judgment in that case made reference to the importance of considering the Factory Inspectorate’s guidance. That guidance was also considered in this case. As a result, it was accepted that the Defendant had, or should have had, knowledge of the risk of harm.
The Williams decision was favourable for defendants. However, this decision may be a sign that claimants are looking to strengthen knowledge and forseeability arguments with experts focusing on other guidance notes issued at the material times to support their opinions.
Derek Billingham died of malignant mesothelioma in 2008. The Claimants, as executrixes of his estate, sued three Defendants by whom he was employed in the late 1960s and early 1970s. The claim against the First Defendant was discontinued. The Third Defendant settled the claim against it shortly before trial.
This left the claim against the Second Defendant, Lloyds British Inspection Services Ltd. Mr Billingham was employed by this company in the tax years 1968/9 and 1969/70, including a period of about six weeks during which he worked indoors at Cottam power station, whilst it was under construction. His work involved testing the strength of steel girders. This required him to throw chains over the girders, which dislodged dust.
Mr Justice Bean found in favour of the Claimants:
- The levels of asbestos fibres to which Mr Billingham was foreseeably exposed at Cottam were far more than de minimis. They were also far more than the levels which were to be set out in HM Factory Inspectorate’s Technical Data Note (TDN) 13 in March 1970. The probability was that he was exposed for short periods, many times each day for about six weeks, to very high levels of concentration for half a minute or a minute at a time. These levels were possibly as high as 100 fibres per millilitre of air for the first few seconds.
- Any reasonable employer in 1968/9 should have known that exposure to asbestos fibres in those quantities or anywhere near them posed a serious risk of injury. The Second Defendant should also have been aware that quantities of dust containing asbestos allowed to remain on flat surfaces such as girders without being cleaned off would pose a serious risk of injury to the workforce in the vicinity if disturbed.
- The risks posed by dust could have been reduced by wetting, cleaning off or the provision of respirators. None of these precautions was taken. Even by the standards of the times, the Second Defendant negligently failed to comply with its duty of care.