The Asbestos Duty – the right balance?
Disease Aware Issue 3
The casual observer, looking at cases dating back to Fairchild v Glenhaven Services Limited  1 AC 32 to the more recent Knowsley MBC v Willmore  UKSC 10 could be forgiven for equating any exposure to asbestos as sufficient to obtain damages for mesothelioma.
Such a conclusion finds support with ‘the lax approach to the proof of essential elements’ upon which courts have held defendants liable.
This view gains further support from the mesothelioma practice direction and its requirement that defendants explain why judgment should not be ordered against them. As with many complex legal issues this casual observation is superficial and flawed. Mesothelioma litigation does not equate to a strict liability or unfairness to either party. The usual checks and balances remain and resonate in two recent decisions.
In the case of Billingham v John Barnsley and Sons Limited  EWHC 520 (QB) the deceased worked in Cottam Power Station. The workplace was dusty and a supportive witness confirmed there was a lot of asbestos dust in the environment. Both sides obtained engineering evidence. The course of employment was episodic and around three months in total. The claimant maintained that the deceased was exposed to significant quantities of asbestos dust which had accumulated on girders which was disturbed when the deceased tested them for resilience.
The content of Technical Data Note 13 (TDN 13) (see below) was of pivotal importance. The court considered that even before its publication in March 1970, the defendant would not have contemplated a need to take any steps where exposure levels fell below those stipulated in TDN 13.
Both sides obtained engineering evidence. Both experts accepted that the deceased's exposure did not exceed, on average, the 2 fibre/ml threshold set out in TDN 13. Both experts also accepted that when the girder was initially disturbed, the dust concentration was high and for a few seconds could have exceeded 100 f/ml. This would have occurred, said the Judge, "many times each day."
In considering the duty owed by the defendants, the court drew heavily on the decision in Williams v University of Birmingham  EWCA Civ 1242 which confirmed that a claimant must establish that:-
- The defendant owed a duty of care which was to not unreasonably expose him to asbestos fibres and consequent risk of injury.
- The defendant was in breach of that duty.
- On the balance of probabilities that breach of duty caused a material increase in the risk of developing an injury.
- That there has been consequential loss and damage as a result of the breach of duty.
The application of these principles to specific factual scenarios is complex and nuanced. They apply with equal force before and after 1965 (the watershed moment after which low levels of exposure were known to create a risk), but may give different answers to the same factual circumstances after that date.
In determining the duty of care, regard must be had to the state of knowledge and practice at the time. The judge in Billingham accepted the claimant's factual evidence almost in its entirety - despite having acknowledged that the weight of the deceased's statement was reduced given the defendant's inability to cross examine him.
Insurers will recall the Supreme Court's description in Willmore of the trial judge's factual findings as 'heroic'. It is not often that the highest court in the land wedges its tongue so firmly in its cheek.
On the basis of those factual findings, the judge found that the deceased's exposure was such as to give rise to a foreseeable risk of injury.
Despite all the detailed consideration of the circumstances of exposure, and the standard of knowledge at the time, there is little within the judgment to give hard pressed insurers or their hard working and modestly remunerated solicitors any real guidance as to how that conclusion was reached.
In the case of West v Wirral Borough Council (unreported, Liverpool County Court, HHJ Trigger February 2013) the court considered a mesothelioma claim bought by the widow of a man who alleged he was exposed to asbestos from lagged pipes in the boiler room of a school where he was the caretaker between 1993 and 1997. The evidence also suggested the claimant was exposed to asbestos as a joiner in the mid-1950’s.
The claimant argued that the deceased was exposed to asbestos above background levels as asbestos was identified in a February 2000 survey and there had been earlier poor practices with the lagging in the boiler room not encapsulated until 1987.
The defendant’s engineer had suggested that if there was exposure this would have been less than 0.05% of the deceased’s lifetime exposure.
The court held that there had not been exposure above background levels and there was no breach of duty. Further, if there had been a breach of duty the degree of exposure would be such that it would not have materially contributed to the deceased’s increase in risk of developing mesothelioma.
Both cases emphasise the pivotal importance of the quality and extent of factual evidence - with the usual trial risks that entails. Both reaffirm that it remains for the claimant to prove his case as against the standards of care at the time of exposure.
These points must come with a crucial qualification. Where the claimant has worked regularly and directly with asbestos, no matter how light the exposure, the defendant will still be caught by the Jeromson (2001 EWCA Civ 101) interpretation of the 1931 Asbestos Industry Regulations.