Bussey v 00654701 Ltd

An employer’s liability for asbestos exposure is not determined by comparing estimated exposure with the enforcement thresholds in official technical guidance. Such thresholds are relevant evidence, but they do not establish a universal safe limit.

The court must first decide whether a reasonable and prudent employer should have recognised a significant risk of asbestos-related injury. A significant risk is any real, rather than fanciful, risk of fatal illness. If the risk was foreseeable, the court must separately assess whether proper precautions were taken. This includes considering the seriousness of the possible injury and the practicality and cost of precautions.

A plumber was regularly exposed to small quantities of chrysotile and amosite dust while employed by the respondent between 1965 and 1968. He later developed mesothelioma and died. His widow claimed damages under the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.

The deputy High Court judge dismissed the claim. He considered himself bound by Williams v University of Birmingham to treat the exposure levels in Technical Data Note 13 as determinative, even though that guidance was published after the employment ended.

The central issues were whether the technical guidance established a universal threshold for foreseeability and whether the respondent should have foreseen a significant risk of asbestos-related injury and taken precautions.

1. Appeal allowed and judgment on liability set aside. Technical Data Note 13 did not establish a bright-line or universal test of foreseeability. It stated the exposure levels at which the Factory Inspectorate would seek to enforce regulations 7 and 8 of the Asbestos Regulations 1969. Those levels were relevant evidence, but they did not determine every negligence claim, particularly one concerning exposure before the guidance was published.

2. The deputy judge had therefore misinterpreted Williams v University of Birmingham. That case did not establish a binding proposition that exposure below the technical guidance levels was safe. Its conclusion that the guidance was the best measure of acceptable exposure in 1974 depended on the evidence and circumstances before that court. The present employer had not measured its workers’ exposure and could not have known whether it fell above or below any suggested limit.

3. Underhill LJ, with whom Moylan LJ agreed on this point, held that foreseeability and precautions should be considered separately. The first question was whether a reasonable and prudent employer should have recognised that the exposure created a significant risk of asbestos-related injury. Any real risk of a fatal illness was significant, even if statistically small. The second question, if such a risk was foreseeable, was whether the employer took proper precautions to reduce or eliminate it.

4. The majority considered the description of a risk as “acceptable” or “unacceptable” liable to confuse those distinct inquiries. Underhill LJ expressly regarded that terminology in Williams as outside its ratio. Where no safe level of asbestos exposure had been identified, the terminology presented particular difficulties.

5. The availability of simple and apparently inexpensive precautions, including outdoor working or a respirator, was material to breach. Nevertheless, the Court of Appeal lacked the necessary factual findings and a complete record of the expert evidence to determine liability itself.

6. The case was remitted to the trial judge to determine liability afresh, either by a full retrial or by considering the previous transcript and further submissions.

1. Court of Appeal (Civil Division): The appeal was allowed, the judgment for the respondent on liability was set aside, and liability was remitted for redetermination: [2018] EWCA Civ 243.

2. High Court, Queen’s Bench Division: HH Judge Yelton, sitting as a deputy High Court judge, dismissed the claim on 11 May 2017 after treating the exposure levels in Technical Data Note 13 as determinative under Williams v University of Birmingham.