Williams v University of Birmingham & Anor

In a mesothelioma claim, breach of duty and causation require separate analysis. Breach depends on whether asbestos-related injury was reasonably foreseeable, judged by the knowledge and accepted standards prevailing when the exposure occurred. A material increase in risk is the modified test of causation, not the test for breach.

The claimant must prove that the defendant’s breach materially increased the risk of mesothelioma. Materiality means more than a minimal increase and is a question of fact. The court must consider other possible sources of exposure, but need not conduct a mathematical comparison between them. Compensation Act 2006 section 3 does not establish liability. It makes a person who is liable at common law responsible for the whole damage, jointly and severally with any other responsible person.

Michael Williams contracted fatal mesothelioma after having been exposed to asbestos while conducting undergraduate experiments in a University service tunnel in 1974. His widow brought proceedings on behalf of his estate and dependants. The claim proceeded against the University in common-law negligence.

HHJ Belcher in Leeds County Court found that deteriorated pipe lagging had exposed Mr Williams to asbestos at slightly above 0.1 fibres/ml for 52–78 hours. She held that the exposure materially increased his risk of mesothelioma and gave judgment for the claimant, with damages to be assessed.

The University appealed. The issues were whether the judge had applied the correct test for breach, whether her factual findings supported a reasonably foreseeable risk of asbestos-related injury in 1974, and whether she had applied the correct modified test of causation.

1. Appeal allowed unanimously. The trial judge did not apply the correct test for breach of duty and did not make the findings necessary to establish that asbestos-related injury was reasonably foreseeable to the University in 1974. Aikens LJ gave the leading judgment. Patten and Maurice Kay LJJ agreed.

2. The duty was to take reasonable care to avoid exposing the student to a foreseeable risk of asbestos-related injury. The test was not whether the University had failed to protect him from a material increase in the risk of mesothelioma. That formulation improperly imported the modified causation rule from Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 and Sienkiewicz v Grief (UK) Ltd [2011] 2 WLR 523 into the anterior question of breach.

3. Breach had to be assessed objectively by reference to the knowledge and recognised standards of 1974. The court had to determine the actual exposure, the knowledge reasonably attributable to the University, whether asbestos-related injury was reasonably foreseeable at that exposure, what precautions were reasonably required, and whether the University failed to take them. Contemporary standards must be used without hindsight.

4. The trial judge was entitled to infer that the lagging was in poor condition. The University admitted exposure, the occupational hygienist explained that exposure required deterioration, damage or disturbance, and Mr Williams had described substantial dust. The Court of Appeal therefore upheld that factual finding.

5. Nevertheless, the finding of exposure at slightly above 0.1 fibres/ml for 52–78 hours did not establish breach. Technical Data Note 13 was the best guide to acceptable exposure levels in 1974, and no expert said that the exposure found should then have been recognised as presenting an unacceptable risk. The required foreseeability finding was absent, so the finding of negligence could not stand.

6. For causation, the claimant had to prove that the wrongful exposure materially increased the risk of mesothelioma. Other possible sources had to be considered, but no mandatory mathematical or proportional comparison was required. Although the trial judge misstated the role of section 3 of the Compensation Act 2006, her ultimate finding of a material increase in risk was sufficient and was not unreasonable. The causation ground was dismissed, but the appeal succeeded on breach.

1. Court of Appeal (Civil Division): The University’s appeal was allowed unanimously. The finding of breach of duty was set aside, although the University’s causation ground was rejected.

2. Leeds County Court: HHJ Belcher gave judgment for the claimant on liability and directed that damages be assessed. No neutral citation is stated.