Compensation Claims for Asbestos

Category: Personal Injury

It is common knowledge that exposure to asbestos can have fatal consequences.  One of the diseases which can be caused by exposure to even small amounts of asbestos is malignant mesothelioma, a type of cancer, which usually affects the lining of the lungs.  The tragedy about this killer disease is that it can be caused by relatively small amounts of exposure to asbestos.  In terms of claiming compensation for exposure to asbestos the courts are often required to consider what was known about how dangerous asbestos was 30, 40 or sometimes even 50 years ago. This is because the reasonable actions of a defendant must be judged within the context of what they knew at the time.  Earlier this year the Court of Appeal grappled with this problem yet again in the case of Mr David Bussey.

Mr Bussey was born in 1944 and worked as a plumber.  Between 1965 and 1968 he worked for a company called Anglia Heating Limited.  This was a very large plumbing business based in the Norwich area.  A lot of the work concerned installing or repairing central heating systems and boilers and occasionally Mr Bussey was brought into contact with asbestos.  By way of example, he would routinely cut through asbestos cement pipes with a hacksaw.  He would also use asbestos rope for caulking joints.  In February 2015 at the age of 70 Mr Bussey developed mesothelioma and as is typical in these cases his pain and suffering gradually increased over the following year and he died on 27 January 2016.

A claim was brought by his widow.  The case was heard by the High Court in April 2017 and unfortunately the case was dismissed.  Whilst the Judge accepted that exposure to asbestos dust had caused Mr Bussey to develop mesothelioma and whilst Mr Bussey did not receive any advice from Anglia about reducing his exposure to asbestos, because Mr Bussey had a relatively low level of exposure to asbestos it was not reasonably foreseeable by Anglia at the time that Mr Bussey could contract mesothelioma from asbestos dust at those low levels of exposure.  The difficulty of the timing of the case was that around the time that Mr Bussey was exposed to asbestos the law was developing in relation to asbestos.  In particular, the Asbestos Regulations 1969 came into force in May 1970 and additionally in 1970 the HM Factory Inspectorate published a document entitled “Technical Data Note 13” entitled “Standards for asbestos dust concentration for use within the Asbestos Regulations 1969”.  It was that document that erroneously suggested there were relatively safe levels of exposure to asbestos.  We now know this not to be true but at the time that was the perceived wisdom.

The Appeal Court decided that it was wrong simply to look at the levels contained in the Technical Date Note as providing what they called a “bright line” to be applied in all cases arising out of the period 1970 to 1976.  What the Judge had to do instead was to look at the information which a reasonable employer in the defendant’s position at the relevant time should have acquired and then to determine what risks such an employer should have foreseen.  In this case, the Court of Appeal accepted that between 1965 and 1968 Anglia could not have known for certain whether the extent of Mr Bussey’s exposure was liable to cause mesothelioma.  It may or may not have done.  However, it was indisputable that there were ready means of reducing that risk.  The Judge felt that a reasonably prudent employer the size of Anglia ought to have foreseen a risk and that risk could be avoided by simple precautions.  It was not just a risk which could be ignored and accepted.  The company had not relied upon any evidence about what they knew or did not know in the late 1960’s.  The Court of Appeal therefore sent the case back to the High Court for there to be a further hearing to consider the evidence afresh and to provide a decision on whether or not Anglia were in its breach of duty of care to Mr Bussey at the time.

If you or a family member has been a victim of exposure to asbestos it is important to seek specialist advice from a solicitor experienced in this work. Mike Shiers has been running asbestos cases at Nash & Co for the last 20 years. He can be contacted by emailing [email protected] or calling 01752 827025.