This post was written by Michael Rawlinson QC and Gemma Scott, who acted for the Claimant in Bussey v Anglia Heating Ltd., the latest case to consider the application of Williams v University of Birmingham in low-exposure claims.
A full copy of the judgment, which was handed down last Friday, is available on Lawtel and Westlaw.
[UPDATE: The Court of Appeal has granted the Claimant permission to appeal. See our post about the appeal here]
Michael Rawlinson QC and Gemma Scott have received the judgment in the case of Bussey v Anglia Heating Ltd., a case fought in order to seek consideration of the application of Williams v University of Birmingham in low-exposure mesothelioma claims arising out of employment.
The relevant facts were that, from 1965 to 1968, the Deceased, Mr Bussey, was exposed to asbestos dust whilst (i) sawing and manoeuvring asbestos cement pipes and (ii) transporting and breaking open asbestos rope used for caulking bends in the asbestos pipes. He did so whilst installing domestic heaters and boilers. Sadly, he developed mesothelioma and died.
Mr Bussey’s widow successfully claimed against one other Defendant. But there was a shortfall in the damages and so she sought the remainder from Anglia Heating Ltd pursuant to Section 3 of the Compensation Act 2006.
At trial, His Honour Judge Yelton (sitting as a Judge of the High Court) found that the level of exposure fell below the ‘limits’ prescribed within TDN 13. The arguments on law addressed to the Court by Mrs Bussey (during trial and the iterative process following receipt of the draft judgment) were that:
- Whilst Williams was the last CA judgment on this issue, it would only bind a lower Court in the face of earlier and apparently contrary CA authority (namely Maguire v Harland & Wolff and Jeromson v Shell Tankers) where those earlier decisions had been fully considered by the later CA.
- It was now known that Jeromson had not been more than tangentially cited (and Maguire had not been cited at all) to the Court in Williams.
- Thus either (i) the CA in Williams had acted in ignorance of the formulation of the test for breach in Maguire and Jeromson, namely that once the threshold of foreseeable risk had been reached the duty upon an employer was to reduce the risk from asbestos exposure to the lowest level reasonably practicable; or (ii) it must be that the CA in Williams had impliedly sought to restrict that earlier formulation of the duty to employment cases because the victim in Williams was not an employee but rather a visitor to premises.
- In the first of those circumstances, it was argued that the Court in Bussey should follow the Maguire and Jeromson formulation because the CA in Williams had acted in ignorance of those earlier and applicable authorities. In the second of those circumstances, the Court should still follow Maguire and Jeromson because Mr Bussey’s exposure arose as a result of his employment and hence was closer to the facts of Jeromson than Williams.
- It was admitted on the facts of this case that the employer could have taken steps to materially reduce the exposure faced by the Deceased by taking simple steps.
- Judgment should follow.
- In the alternative, the Claimant wished to argue that Williams was simply wrong insofar as it has been taken to have held that, in the face of the risk of fatal injury to an employee, a gap existed between the level of exposure at which foreseeable injury was created and some higher level of exposure at which the exposure would then be deemed unacceptable and would thereby require remediation.
The Court held that it was bound by Williams as it was the last decision of the CA in time. Accordingly, the claim must fail because Mrs Bussey could not prove that her husband’s exposure to asbestos exceeded the prescribed ‘limits’ in TDN13. The necessary paperwork for appeal is being prepared.