Billingham v John Barnsley & Sons Ltd & Ors

In an asbestos-related mesothelioma claim, breach of the common-law duty of care turns on the foreseeable risk created by the claimant’s actual exposure, assessed against the knowledge and standards reasonably expected at the relevant time. Exposure need not be continuous, nor must an average concentration over weeks or months be established. Short periods of very high exposure can suffice. Technical guidance may assist in assessing foreseeability, but it does not provide a universal safe threshold or displace ordinary tort principles. An employer or occupier who should foresee substantial exposure must take reasonable precautions, such as wetting, cleaning or providing respiratory protection.

The claimants, as executrixes of Derek Billingham’s estate, sued three former employers after Mr Billingham died from malignant mesothelioma. The claims against the first defendants were discontinued and the third defendants settled before trial. The remaining claim concerned exposure during approximately six weeks of indoor work at Cottam Power Station in 1968–69, where Mr Billingham tested girders or beams by throwing chains over them and was showered with settled dust.

The central issues were whether the dust contained asbestos, the level and duration of exposure, what a reasonable employer should have known at the time, and whether reasonable precautions were omitted.

1. Liability established. Judgment was entered for the claimants against the second defendants. The agreed full-liability quantum was £82,000, less any sum recovered from the third defendants. £38,000 was to be paid within 14 days, with liberty to apply within three months.
2. The court accepted that Mr Billingham regularly disturbed dust from girders or beams with chains. The dust had settled after asbestos lagging or asbestos-based roof sheets or wall boards had been installed. It probably contained asbestos. The court found that exposure occurred many times daily for about six weeks, with concentrations potentially reaching 100 fibres/ml for the first few seconds after disturbance.
3. The relevant question was whether the defendants failed to take reasonable precautions against quantities of asbestos dust which, given the knowledge reasonably available in 1968–69, they ought to have foreseen would create a risk of injury. The court treated the approach in