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Breach of Duty and Bussey – Asbestos is back up in the air
The Court of Appeal has ruled on the Bussey case. The claimant has succeeded in part but the essential question has become even less clear. In what circumstances will an employer be in breach of duty for lower level exposures?
Mr Bussey was employed from 1965 to 1968. He was exposed to asbestos from occasional work cutting asbestos cement and using asbestos rope. His exposure was below the limits set in the later TDN 13* standard. Since Williams v University of Birmingham in 2011 this standard has been used to assess whether asbestos exposure levels were in breach of duty.
The claimant’s lawyers in Bussey argued that Williams was wrong and conflicted with the earlier authority of Jeremson. They added that was not a standard of safety and did not apply at the time of Mr Bussey’s exposure. The claimant argued instead that an employer’s duty was to reduce asbestos exposure to the lowest level reasonably practicable. All of the exposure post-dated 1965 after which it has generally been accepted that low level exposure was ‘known’ to cause mesothelioma.
The Court of Appeal disagreed that Williams was wrong but felt that it was a decision reached on its own facts where exposure was even lower than in Mr Bussey’s case. It allowed the claimant’s appeal as the first instance court felt bound by Williams. The Court of Appeal expressed sympathy with the claimant’s arguments that exposure had to be reduced to the lowest level practicable but didn’t make that finding. Instead it returned the case to the first instance judge as it didn’t have enough information to decide when an employer should have had reasonable foresight of harm.
The Court of Appeal specifically said that Williams “…should not be read as making TDN 13 a universal test of foreseeability in mesothelioma cases”.
In commenting on the first instance Bussey decision Keoghs suggested that moving away from the TDN 13 standard may not help claimants. Using this standard has given some means – however spurious – to assess when a particular employer may have been in breach of duty. If there is no “universal test” how can this be done in each case? After all, it must also follow that if TDN 13 is not a universal standard, the 1965 watershed also becomes vulnerable – something touched on by one of the appeal judges.
In another very recent High Court case - Hawkes v Warmex  EWHC 205 - the Court agreed (in obiter) with the claimant’s view that, since asbestos was always known to be ‘dangerous’, an employer’s duty would always be to reduce the level of exposure. This analysis led the Court to conclude that even ‘bits’ of asbestos on workers’ clothing as early as 1946 would have been a breach of duty. It is possible that this will indeed be the end result of the Bussey case.
The underlying question is a simple one. When should employers have foreseen that any given level of asbestos exposure gave rise to a health risk? All the Bussey claimant has achieved so far is to remove one means of answering that question without replacing it with anything else.
The messy and uncertain truth is that the Court of Appeal is right. There is no such thing as a universal standard of foresight. Each case has to be looked at on its own facts. Each defendant’s position will have to be assessed in the context of the knowledge they ought to have had at the time of the exposure. Answering that question requires a factually dense enquiry into the exposure itself, the employer’s resources and the information reasonably available to it at the time. Again that may not be a process which ends in claimants’ favour.
The claimant’s Counsel in Hawkes invited the court to apply ‘Occam’s Razor’ – the principle that the simplest explanation is the most likely. What is more likely; that uniquely in the Western world, British employers universally and callously put their employees at risk, or that the safety information they received was patchy, contradictory and unclear?
**Technical Data Note (TDN) 13: Standards for Asbestos Dust Concentration for Use with the Asbestos Regulations 1969