As a result of the recent Court of Appeal decision in Bussey v Anglia Heating Ltd, there is greater clarity now about low level asbestos exposure cases meaning more claims are now likely to succeed as arguments raised previously by defendants are no longer sustainable.
Mr Bussey was a plumber, installing domestic heaters and boilers. As part of his work he had to saw, handle and manoeuvre asbestos pipes and rope. He was exposed to asbestos between 1965 and 1968 and sadly died many years later from the asbestos related cancer, mesothelioma in January 2016.
Low level does not mean safe level
The defendant company argued that his exposure was ‘low level’ and below a limit set out in a Technical Data Note (TDN13) issued by the Factory Inspectorate in 1970. Therefore, they could not be held responsible for the development of his mesothelioma.
However, TDN13 was issued by the Factory Inspectorate as being the limit over which they would prosecute an employer. It was not intended to confirm a ‘safe’ level of exposure to asbestos and was also based on the risk of someone developing asbestosis as opposed to mesothelioma, which can be caused by a much lower exposure to asbestos (a single fibre is sufficient to trigger the cancer).
The unfairness of arguing that TDN13 confirms an ‘acceptable limit’ can be seen in the case of Mr Bussey. It was found as fact by the trial judge that he was not exposed to asbestos in excess of the limits referred to in TDN13.
Implications of the Court of Appeal decision
However, his legal team argued he was exposed to levels which did create a reasonably foreseeable risk and his employer should have protected him against that risk. Of course, the risk is high – mesothelioma is a cancer for which there is currently no cure.
The Court of Appeal have now confirmed that there should be a two stage test:
- Should the defendant company have been aware that exposure to asbestos dust gave a significant risk of asbestos related injury?
- If so, did they take proper precautions to reduce or eliminate the risk?
The Court of Appeal determined the decision of Williams v University of Birmingham , in which TDN13 was found to be the right standard to measure exposure, had been decided incorrectly.
The possibility of re-opening a claim
Following the Williams case it was more difficult for mesothelioma sufferers to succeed with their claims where they were exposed to levels below TDN13. Anyone advised (rightly) not to proceed with their claim since that time, could reconsider claiming as there has now been a change in the law, even where they are now outside the usual three year time limit. Specialist legal advice should be sought.
Sara Hunt, a partner at Shoosmiths, specialising in asbestos related claims commented:
‘The decision in Bussey is helpful to mesothelioma sufferers who have only had low level exposure to asbestos. Employers can no longer avoid responsibility by simply arguing the levels didn’t exceed the limit set out in the Technical Data Note. Asbestos is not safe and the consequences of an exposure can be devastating to entire families if someone later develops mesothelioma and justice should prevail.’
Should you require advice about this decision or an asbestos related claim please contact Sara Hunt on 03700 864221 or [email protected].