High Court revisits the question of the breach of duty of care in relation to mesothelioma

English law has developed a body of principles to address the particular problems posed by mesothelioma. This special area of law is known as the “Fairchild enclave”, a reference to the House of Lords decision in 2002. The Court has adopted a modified test for causation, but the claimant still has to prove that the defendant was negligent and/or in breach of duty. Where a claimant is unable to rely upon a breach of statutory duty, this question usually involves an analysis of the level of exposure and available knowledge of the risks. The recent High Court decision in Bussey v Anglia Heating (12 May 2017) reviewed this issue in the context of low-level, infrequent exposure.

The Court of Appeal in Williams v Birmingham University [2011] EWCA Civ 1242 emphasised that before a Court approaches the question of causation, it must first establish (in the absence of a breach of a statutory duty) that there has been a breach of the duty of care by the defendant. The correct formulation of the duty was to take reasonable care (including measures if necessary) to ensure that an individual was not exposed to a foreseeable risk of asbestos-related injury. The defendant’s conduct must be judged by the standards expected of a reasonable and prudent party, taking account of the developing knowledge of the particular danger at the time. On the facts, it found that the defendant was not negligent as it could not be said, given the low level of exposure, that a body in the position of the University in 1974 ought reasonably to have foreseen that the claimant would be exposed to an unacceptable risk of asbestos-related injury. The Court found that “the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally” was to be found in Technical Data Note 13 (TDN 13) issued by the Factory Inspectorate in 1970.

It is generally accepted that 1965 marked a turning point in the UK in relation to knowledge about mesothelioma. A paper was published in the Journal of Industrial Medicine which set out the link between asbestos exposure and mesothelioma; this was followed later in 1965 by an article in the Sunday Times publicising the study and the mesothelioma risk of asbestos exposure.

In Bussey, a plumber had been exposed to asbestos in his employment between 1965 and 1968 at levels that the judge found to be “not substantial although not de minimis”. The judge followed the approach laid down in Williams. He relied upon TDN 13 as setting out guidance on the concentration of asbestos dust which was likely to lead to prosecution under the Asbestos Regulations 1969. The judge explained that, although this guidance postdated the relevant exposure, it would be perverse to find that any guidance that might have been provided before 1970 would have specified lower levels as “safe”. On the facts, the victim had not been exposed to levels of asbestos dust above those set out in TDN 13 and therefore the defendant was not in breach of duty.

The claimant argued that Williams had been incorrectly decided because the Court of Appeal had ignored indications in two previous Court of Appeal decisions that a stricter test for negligence/breach of duty should be applied, namely that a defendant would be in breach of duty if it failed to reduce the exposure “to the greatest extent possible”. The trial judge said that he was bound to follow Williams. There has also been wider debate about whether the same test should apply to employers/employees as was applied in Williams, which involved a student and therefore someone who was not an employee of the exposing party.

Those representing claimants with mesothelioma have argued that Williams makes it unjustifiably difficult to establish breach of duty in cases involving low-level exposure after 1965. It is likely that attempts to overturn the approach laid down in Williams will continue.

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