The Supreme Court has granted the parties permission to appeal the Court of Appeal’s decision in Cape Intermediate Ltd v Dring (for and on behalf of Asbestos Victims Support Groups Forum UK) [2018] EWCA Civ 1795: https://www.supremecourt.uk/docs/permission-to-appeal-2018-10.pdf

It appears from the Supreme Court’s website that Cape brought the initial appeal and the Forum has cross-appealed. We don’t know on what basis the parties have appealed the decision.

Permission was granted on 31 October 2018.

Links to our previous posts on this case can be found below:

The post on the first instance decision: https://asbestoslawblog.wordpress.com/2017/12/06/concept-70-disclosure-documents-made-publicly-available-dring-v-cape-distribution-ltd-and-others-2017-ewhc-3154-qb/

The post on the Court of Appeal’s decision: https://asbestoslawblog.wordpress.com/2018/07/31/cape-disclosure-documents-appeal-allowed/

This post was written by James Beeton.

In May we considered the decision of the Outer House of Scotland’s Court of Session in Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25 in this blog post. The question for the court to consider may be summarised as follows:

Where an individual, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?

In the Outer House, Lord Tyre had held that the case fell outside the temporal scope of Rome II and the Private International Law (Miscellaneous Provisions) Act 1995. The result was that the applicable law depended on the locus delicti (i.e. the place of the wrong) pursuant to the common law. Lord Tyre considered that the locus delicti was the place where the injury developed and not where the negligent act or omission occurred. This meant that English law applied to the claims for damages (with significant consequences for some of the claimants, as discussed in the previous blog).

That decision has now been overturned by the Inner House on appeal ([2018] CSIH 57). The locus delicti is the place of exposure to asbestos – not the place where the eventual injury develops.

Decision of the Inner House

Lord Brodie (with whom the Lord President and Lord Menzies agreed), noted that linguistic analysis of the term locus delicti was unlikely to assist the court: the term was ‘a concept rather than a matter of pure objective fact. Identifying it involves a mixed question of fact and law’ (at [33] and [34]). The position in Scots law had never been authoritatively settled prior to the introduction of the 1995 Act and therefore required fresh consideration by the Inner House on this occasion.

Whilst he agreed with Lord Tyre’s conclusion in the Outer House that the cause of action did not arise until injury had been suffered, Lord Brodie held that he had erred in also concluding that the deceased’s presence in England when the ‘final event’ occurred meant that the relevant locus delicti was England ([36]). The second conclusion did not necessarily follow from the first: ‘why should it matter where the deceased happened to be when he succumbed to what was to prove a fatal injury?’ ([38]).

In fact, the relevant features of the case all pointed to the locus delicti being Scotland: this was where the shipyard was located; it was where the deceased was employed; it was where he was exposed to and inhaled asbestos dust; and it was in consequence of those facts that the deceased’s employer was bound to conduct their operations by reference to the requirements of Scots law.

On the other hand, the employer could well object if they were held responsible by reference to the rules of some other system – a real possibility on the basis of Lord Tyre’s interpretation of the locus delicti ([40]). This ‘surprising’ consequence, which undermined a central purpose of the locus delicti rule, was also specifically raised by the Lord President of the Inner House at the beginning of his concurring judgment (at [2]).

Just as the employer was entitled to conduct its operations by reference to Scots law, ‘the deceased was entitled to look to Scots law for the protection of his interests, including his interest in bodily integrity, and therefore, it might be thought, he was entitled to the benefit of such remedies as Scots law affords in the event of these interests not being properly protected.’ The effect of Lord Tyre’s decision was to deprive the deceased of this protection.

In reality, Lord Brodie considered that the issue of geographical location was so unconnected with the development of injury and consequent crystallisation of a cause of action that ‘one might even go the distance of questioning whether there is truly any foreign element in this case at all’ ([41]). The appeal was therefore allowed with the result that Scots law applied.

Comment

The decision of the Outer House came as something of a surprise to the insurance industry given the prevailing market practice of adopting the place of exposure as the relevant locus for choice of law purposes. This decision therefore represents a return to what may be considered normalcy.

Our previous post commented that Lord Tyre was right to conclude that the cause of action would only develop where damage was suffered. Although he agreed with that conclusion, Lord Brodie sidestepped the further conclusion that this was also sufficient to determine the locus delicti. In his view, the place where the cause of action crystallised did not determine the applicable law: a broader analysis capable of taking into account a variety of factors was required.

Of central importance to this conclusion was the need for employers to be able to rely on their adherence to domestic health and safety regimes in Scotland, rather than being held to a potentially higher (and unforeseeable) foreign standard. Similarly, there was no good reason for depriving the deceased of the protections and remedies offered by Scots law where this governed the work he was doing when exposure took place.

The Court of Appeal today allowed Cape’s appeal against the judgment of Master McCloud in respect of the so-called Cape disclosure documents, setting aside the Master’s original Order. The Court of Appeal’s decision was reached on the basis that the Master did not have jurisdiction to allow inspection of many of the categories of documents that fell within the scope of the Order. 

Readers of this blog will recall that on 5 December 2017, Master McCloud determined that many of the documents referred to in the major asbestos product liability trial of Concept 70 & Others v Cape International Holdings Ltd (which took place over the course of several weeks at the start of 2017 before Picken J) could be made publicly available. Our post about that decision can be read here.

The Master refused permission to appeal. Cape applied to the High Court for permission, which was granted by Martin Spencer J, who ordered  that the appeal be heard by the Court of Appeal, pursuant to CPR 52.23 in view of the importance of the issues raised.

The hearing before the Court of Appeal took place on 18 and 19 June, and judgment was handed down today.

We will write a detailed post in due course, but for the moment, the key passages of the decision are extracted below. They are taken from the lead judgment of Lord Justice Hamblen. The full decision can be read here.

112. I would accordingly summarise the current position on the authorities as follows:

(1) There is no inherent jurisdiction to allow non-parties inspection of:

(i) trial bundles;

(ii) documents which have referred to in skeleton arguments/written submissions, witness statements, experts’ reports or in open court simply on the basis that they have been so referred to.

(2) There is inherent jurisdiction to allow non-parties inspection of:

(i) Witness statements of witnesses, including experts, whose evidence stands as evidence in chief and which would have been available for inspection during the course of the trial under CPR 32.13.

(ii) Documents in relation to which confidentiality has been lost under CPR 31.22 and which are read out in open court; which the judge is invited to read in open court; which the judge is specifically invited to read outside court, or which it is clear or stated that the judge has read.

(iii) Skeleton arguments/written submissions or similar advocate’s documents read by the court provided that there is an effective public hearing in which the documents are deployed.

(iv) Any specific document or documents which it is necessary for a non-party to inspect in order to meet the principle of open justice.

113. The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c). There may also be additional compliance costs which the non-party should bear, particularly if there has been intervening delay.

114. In the light of my conclusion on inherent jurisdiction it follows that the Master had no jurisdiction to allow inspection of a number of the categories of documents identified in the Order. The documents for which it is likely that there was jurisdiction are the witness statements (but not exhibits), expert reports and written submissions and skeleton arguments. It may also be that there is jurisdiction to allow inspection of a number of the documents relied on at trial, but not on the generalised basis set out in the Order.

This post was written by Aliyah Akram.

In the latest in a series of claims against Johnson & Johnson in the US a St Louis jury has ordered that the pharmaceutical company pay a total $4.69 billion to 22 women who have suffered ovarian cancer as a result of using J&J’s asbestos contaminated talcum powder.  The award against both J&J and a subsidiary includes compensatory damages of $550 million and punitive damages of $4.14 billion.

The plaintiffs’ lead attorney, Mark Lanier, argued that J&J had known that their ‘Baby Powder’ and ‘Shower to Shower’ products contained asbestos since at least the 1970s but had failed to disclose this to the FDA, the federal agency responsible for protecting public health in the US.  Expert evidence proved that asbestos fibres entered the body when talcum powder was inhaled or applied.  Asbestos fibres were then found in the ovarian tissue of many of the women.

Another 9,000 cases are currently being pursued where it is alleged that asbestos contaminated talc has caused either ovarian cancer or mesothelioma.  Unsurprisingly Johnson & Johnson have made it clear that they plan to appeal this judgment.

In February of this year, the Court of Appeal allowed the Claimant’s appeal in Bussey and set aside the judgment in the Defendant’s favour. It remitted the case to the trial Judge for him to redetermine the issue of liability.

The case has now settled. Quantum was agreed before trial, subject to liability. The case settled on terms that the Defendant would pay the Claimant the agreed amount in full plus costs to be assessed.

See below for links to our previous posts about Bussey:

• For the post about the outcome of the trial, click here;
• For the post about the Claimant’s successful application for permission to appeal, click here;
• For the post about the outcome of the appeal, click here.

Michael Rawlinson QC has written a paper about awards for immunotherapy treatment in mesothelioma claims. In particular, he writes about the different forms such awards can take, having acted in two cases which settled last week in which the awards were compromised on different bases: one in the form of a variable PPO, and the other as a ‘float’ agreement. The paper can be read here.

Regular readers of this blog will recall that Michael has previously written about this topic. For those that missed it, the post can be viewed here.

This blog post is by Michael Rawlinson QC and James Beeton of 12 King’s Bench Walk.

In Docherty v Secretary of State for Business, Innovation and Skills [2018] CSOH 25, the Outer House of Scotland’s Court of Session considered the following question:

Where a man, while working in Scotland, inhales asbestos fibres that cause him injury after he has become resident in England, which law is applicable to determine the admissibility of claims for damages made by his executors and relatives after his death?

Facts

The deceased had worked as a mechanical fitter for a predecessor of the defender. From about 1941 to 1947, and then from 1954 to 1979, he was exposed to asbestos dust in the course of his work.

In 2003 the deceased began to experience respiratory problems and in 2009 he was admitted to hospital. A CT scan showed basal bronchiectasis with fibrosis and mild pleural thickening consistent with asbestosis. He continued to suffer respiratory difficulties until his death in 2011.

At the time when the deceased began to experience respiratory symptoms, at the time of diagnosis and immediately prior to his death, the deceased lived in England.

The pursuers deliberately raised an action in Scotland rather than England with a view to benefitting from the Damages (Scotland) Act 2011, which allows rights of action to a much broader range of relatives than would have had a claim under English law. The Scottish courts are also more generous in valuing claims for grief and loss of association, meaning that there was a further advantage to pursuing the claim in Scotland.

Issues

There were three issues for the court to determine:

1. Whether the applicable law was determined by the Rome II Regulation (No. 864/2007) (“Rome II”);
2. If so, what was the applicable law under the Regulation; or
3. If not, what was the applicable law under the common law of Scotland?

Decision

Did Rome II Apply?

Lord Tyre agreed that the case gave rise to an issue of conflict of laws, but he held that by virtue of its commencement provision at article 31, Rome II was inapplicable. Article 31 provides that Rome II applies to ‘events giving rise to damage which occur after its entry into force.’ The date of entry into force was 11 January 2009.

Lord Tyre was of the view that the reference in article 31 to ‘events giving rise to damage’ was linked to the distinction drawn in article 4(1) of Rome II between three separate concepts, namely:

• The event giving rise to the damage (in this case, exposure to asbestos);
• The damage (the deceased’s illness and death); and
• The indirect consequences of the event (the losses suffered by the deceased’s relatives).

Since the ‘events giving rise to damage’ (i.e. the exposure to asbestos) had occurred before the entry into force of Rome II, the Regulation would not apply.

Neither, it was agreed, would the Private International Law (Miscellaneous Provisions) Act 1995 apply, which contained a similar commencement provision at section 14. The matter therefore had to be determined by the pre-1995 Act common law.

What was the Applicable Law?

Scots common law provided that a right of action would not be recognised unless it was admitted by the lex loci delicti. However, there was no clear answer to the question of how to identify the lex loci delicti where the harmful event occurred in one jurisdiction but the harm occurred in another.

Lord Tyre approached this question by referring to comments of the House of Lords in Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281.

• At [87] and [88], Lord Rodger had said:

‘In summary, three elements must combine before there is a cause of action for damages for personal injuries caused by a defendant’s negligence or breach of statutory duty. There must be (1) a negligent act or breach of statutory duty by the defendant, which (2) causes an injury to the claimant’s body and (3) the claimant must suffer material damage as a result.

In these cases the claimants do not suggest that the presence of the asbestos fibres in their lungs constitutes an injury…’

At [47], Lord Hope had said:

‘It is well settled in cases where a wrongful act has caused personal injury there is no cause of action if the damage suffered was negligible. In strict legal theory a wrong has been done whenever a breach of the duty of care results in a demonstrable physical injury, however slight. But the policy of the law is not to entertain a claim for damages where the physical effects of the injury are no more than negligible…’

He considered that it was clear from these comments that ‘a cause of action in delict does not arise unless and until there has been both a wrongful act and resultant injury. Specifically, the presence of asbestos dust in an employee’s lungs does not of itself constitute injury, and… no cause of action arising out of negligent exposure arises until it does.’

Since injury was an essential ingredient of an actionable wrong, and since injury could not take place until after the breach of duty had occurred, the place of the harmful event (or locus delicti) was the place where the injury took place and not where the negligent act or omission occurred.

In those circumstances, the claim fell to be determined according to English law and the case insofar as it was based on the Damages (Scotland) Act 2011 would be dismissed.

Comment

The decision represents a coup for defenders faced with pursuers seeking to maximise damages by proceeding in Scotland rather than England.

In addition to the broader range of dependants in fatal accident claims and the more generous levels of award available outlined above, it will also be noted that pleural plaques are in fact compensable in Scots law (where the Rothwell result was overturned by legislation). Following the approach in Docherty, a pursuer resident in England at the time his injury manifests itself will be unable to benefit from those features of Scots law by bringing his case in Scotland.

A suggestion by some commentators is that this decision appears on the face of it to be inconsistent with the Supreme Court’s approach in Durham v BAI (Run Off) Ltd [2012] UKSC 14 (the “Trigger” litigation).

It will be recalled that in that case the Supreme Court determined that mesothelioma was ‘contracted’ or ‘sustained’ for the purposes of employer’s liability insurance policies during the period of exposure rather than at the point of its manifestation in the victim.

The first point to note is that two drivers led to the policy decision in Durham: the first was the type of insurance policy in question (i.e. employer’s liability insurance) and the second was the nature of the disease under consideration.

It is therefore important to note that Durham involved mesothelioma, whereas this case involved asbestosis – a cumulative condition whose causative mechanism is very different to that of cancer.

The policy decision in Durham that the relevant employer’s liability insurance policies would be triggered at ingestion was based in part on (i) the expectation of the London market and (ii) the fact that most modern policies contained exemption clauses for asbestos diseases which would have led to a lack of compensation for mesothelioma victims if the date of clinical onset of symptoms was adopted as the trigger date of the policies. A key driver leading to the policy decision in Durham was therefore lacking.

A further point is that the two cases simply concern different things. Durham deals with the rules of contractual construction concerning whether a tortfeasor may call upon its indemnity: Docherty (and Rothwell) deal with the rules of what constitutes an actionable injury for the purposes of a tort. The concepts are not the same – although there may be a degree of overlap for the purposes of determining the applicability of the Third Party (Rights against Insurers) Act 2010 or 1930 (which could allow the claimant to sue the insurer direct).

That disconnect, it seems to us, is also reflected in Lord Mance’s comments (on behalf of the majority in Durham) at [52] that:

‘Damage is only incurred when mesothelioma develops. Only when it develops does the victim incur damage which is legally relevant … [The Fairchild rule] is not a rule which, even as between employers and employees, deems the latter to have suffered injury or disease at the time of any exposure.’

On that approach, it appears that Lord Tyre was correct to take the place where the disease developed as the locus delicti.

On the other hand, Durham was not addressed by Lord Tyre and, as has been pointed out, the decision in Docherty runs contrary to the prevailing insurance market practice of taking the relevant jurisdiction as the place of exposure rather than the place of manifestation of the disease.

It is understood that the pursuers have sought to appeal to the Inner House of the Court of Session. It will be interesting to see how the case progresses.

In this post, Aliyah Akram summarises and comments on the decision of HHJ Curran QC, in which he gave judgment against all three defendants in a case arising out of the death of a bricklayer who had been exposed to asbestos while working in factories

The decision on apportionment and costs (unreported but available on Westlaw and Lawtel) is also noteworthy. Although liability was established against all three defendants, because the Claimant lost on the only disputed issue in relation to D1 (which was whether D1 had employed the Deceased), the Claimant was ordered to pay D1’s costs. However, the Judge held that since D2 and D3 had sought unsuccessfully to take advantage of the Claimant’s argument on this issue, they had to pay the Claimant’s costs of the exercise.

Ronald Walker QC acted for the First Defendant.

---

Mr Hill was exposed to asbestos when he stripped out industrial furnaces which were lined with asbestos insulation.  Working in the furnaces produced clouds of dust and Mr Hill and his colleagues had no more than Martindale masks or scarves across their faces to protect themselves.  The evidence showed that most of the dust would have been brick dust, but there would also have been small quantities of asbestos dust.

Those small quantities of asbestos dust were enough to cause Mr Hill to develop mesothelioma, which proved to be fatal. A claim was brought against three defendants.

 The First Defendant

It was claimed that Mr Hill was employed by the first defendant, a company which constructed and maintained industrial furnaces.  To succeed against the first defendant the Claimant needed to establish its liability as an employer because both the first defendant and its insured were insolvent and the Claimant could only recover from the Financial Services Compensation Scheme on an employer’s liability basis.

But the first defendant denied that it had employed Mr Hill and argued instead that he was the employee of an independent contractor which in turn supplied labour to the first defendant.  It noted that Mr Hill had, before his death, described himself as employed by the independent contractor rather than by the first defendant.  On the other hand, it was accepted that the first defendant employed Mr Hill’s supervisors and exerted a high degree of control over the manner in which he carried out his work.

The court agreed with the first defendant, Mr Hill had not been an employee and so the employer’s liability claim against the first defendant failed.  For the purposes of this case summary the reasoning is not analysed in any detail, but it should be noted that the judgment gives clear and helpful analysis of the circumstances in which a contract of employment might arise with the end user of services.

The Factory Defendants

The other two defendants were described as the ‘factory defendants’.  Both were involved because the first defendant had sent Mr Hill to work in their factories in the early 1970s.  In the second defendant’s factory, he worked on extending furnaces used in the manufacture of gun barrels for tanks and in the third defendant’s cast nickel factory he carried out maintenance work on their furnaces.

The factory defendants raised a number of ultimately unsuccessful defences.

Challenge 1: section 63, Factories Act 1961

The factory defendants argued that the 1969 Asbestos Regulations had replaced section 63 of the Factories Act 1961 which provides that:

“In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom, and in particular, where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust or fume or other impurity, so as to prevent its entering the air of any workroom.” 

In rejecting this argument, the judge held that s. 63 contemplates two categories of dust: (1) dust of such a character and extent as when then foreseeably likely to be injurious to persons employed within the factory and (2) any substantial quantity of dust of any kind.  The two categories are commonly referred to as the first limb and the second limb.  (It was the second limb of the equivalent provision in the Factories Act 1937 which was under consideration in McDonald v National Grid [2014] UKSC 53.)  While the Regulation 3(3) of the 1969 Regulations had replaced s.63 insomuch as it related to dust which might foreseeably have caused danger to health it did not alter the obligations in relation to substantial quantities of dust.

The second defendant also argued that the work carried out by the deceased was not a process within the meaning of s. 63 as the extension of the furnaces was a “one-off” to enable the manufacture of longer gun barrels rather than a form of routine work or maintenance.  This argument was pretty swiftly dismissed as the judge noted that s. 63 refers to “any process carried on”.   

 Challenge 2: section 29 of the Factories Act 1961

The factory defendants also argued that the deceased’s place of work was not unsafe for the purposes of s.29 of the Factories Act 1961 because the safety of the workplace related to its physical structure and attributes having regard to activities which are constantly and regularly carried out there rather than unusual or irregular which creates a hazard of an exceptional kind.

This argument was despatched with similar speed.  The judge found that the furnaces were necessary and intrinsic parts of the factory premises and since the deceased worked in both factories for some weeks their work was regular and thus workplace was unsafe.

Challenge 3: common law liability

Lastly both factory defendants argued that a common law liability should not arise because they had reasonably engaged a third-party contractor, the first defendant, to carry out the work.  Again this defence was dismissed.  The judge held that a duty of care would arise where a factory occupier has control over its premises and the authority to dictate what is or is not done within them.  The clouds of dust being produced by the deceased’s work were an obvious risk to health and safety which the factory defendants should have guarded against.

Conclusion

This was a case of shifting loyalties.  When it suited the factory defendants they joined cause with the claimant to argue that the first defendant had employed Mr Hill.  Equally when it suited the first defendant to argue that the factory defendants would be liable for Mr Hill’s exposure to asbestos they supported the claimant’s submissions.

Ultimately for claimant lawyers this case shows that they can be creative with regard to who they bring claims against and on what basis and that doing so can increase the likelihood of a successful claim.

End Note: see also Hawkes v Warmex [2018] EWHC 205 for an application of s.47 of the Factories Act 1937, the equivalent provision to s.63 of the Factories Act 1961.

In this post, Harry Steinberg QC analyses the decision in Bussey and its likely impact, including a potential limitation argument which may be open to those who were advised not to advance so-called ‘low-level’ exposure claims in the seven-year period after the Court of Appeal’s decision in Williams v University of Birmingham [2011] EWCA Civ 1242.

Mike Rawlinson QC and Gemma Scott – Counsel for the Appellants in Bussey – will be speaking about the case and its implications at the 12KBW Annual Asbestos Seminar at the Barbican Centre tomorrow

---

The end of an era

It is now about a month since the Court of Appeal handed down its decision in the case of Bussey v Anglia Heating Ltd [2018] EWCA Civ 243 . The post-match analysis has been almost as keenly fought as the match itself. But, despite the noise, there can be no doubt that this was a decisive victory for mesothelioma sufferers and claimants.

The facts are well known. Mr Bussey was a plumber working for the Defendant (“the largest plumbing business in Norwich”) between 1965 and 1968. Mr Bussey occasionally worked with asbestos cement pipes and asbestos rope. The trial judge held, as a matter of fact, that his exposure never exceeded the levels set out in TDN13. And that, following Williams v University of Birmingham [2011] EWCA Civ 1242, was the end of the matter.

Except that it wasn’t.

On appeal, Mr Bussey’s widow argued (1) that the exposure gave rise to a reasonably foreseeable risk of harm even though it did not exceed TDN13 levels; (2) that, in line with authority not cited in Williams (i.e. Jeromson v Shell Tankers [2001] EWCA Civ 100 and Maguire v Harland and Wolff [2005] EWCA Civ 1), the Defendant’s duty was to reduce asbestos exposure to the greatest extent possible; and, (3) that Williams was wrongly decided.

The Court of Appeal considered those two absent cases and held: ‘If Aikens LJ had those two decisions in mind, I do not think that he would have suggested (if indeed he did suggest) that TDN13 was a general yardstick for determining the foreseeability issue’ (Jackson LJ at para 48).

This point – that TDN13 is not a yardstick for foreseeability or a “bright line” of liability– is central. It has never been satisfactorily explained why the HMFI’s threshold for prosecution, based (as it was) on a deeply flawed analysis of the risks of asbestosis rather than mesothelioma, should somehow be a touchstone for civil liability.

As Underhill LJ said, ‘I think that the Judge was wrong to treat this Court in Williams as having laid down a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN 13 as “safe”, even in the period 1970-1976, still less at a period prior to its publication.’

So the decision marks the end of an era. It is the end of the supremacy of TDN13 and its relegation to a more appropriate role (as it was politely described) as a “relevant consideration”. The consequences will go far beyond the facts of Bussey.

While the Court of Appeal held that Williams had applied the correct legal principle, there was some disagreement as to what the test for foreseeability ought to be. Jackson LJ proposed the following test: ‘During the period 1965 to 1968 ought Anglia reasonably to have foreseen that…  he would be exposed to an unacceptable risk of asbestos-related injury?’ (emphasis added).

The majority (Underhill and Moylan LJJ) made a subtle, but important, distinction. They held that in formulating the test for foreseeability, the qualifying adjective “unacceptable” should be omitted since it was “liable to mislead”. As Moylan LJ stated, “… in the context of mesothelioma, for which no safe level of exposure to asbestos dust has been identified, the description of the risk as being acceptable has particular problems.”

If the Williams approach is now to be stripped of both its reliance on TDN13 and the concept of ‘acceptable’ level of risk, then it tells us little more than that the risk must be measured by the standards of the day. The test proposed by Jackson LJ, as modified by the other members of the Court of Appeal, must be a worrying prospect for the insurance industry. Defendants can no longer shelter beneath TDN13. The Court pointedly noted that the defendant had called no evidence.

Underhill LJ held that the inquiry into foreseeability must be considered in two stages. First, should the defendant have been aware that the exposure to asbestos dust which his work involved gave rise to a significant risk of asbestos-related injury? Secondly, if so, did the defendant take proper precautions to reduce or eliminate that risk?

Perhaps the most important part is the discussion of what amounts to a significant risk. Underhill LJ specifically clarified this point, ‘I say “significant” only so as to exclude risks which are purely fanciful: any real risk, albeit statistically small, of a fatal illness is significant.’ In other words, a risk of fatal illness will be deemed significant for these purposes even if it would have been considered statistically slight at the time.

This approach, taken together with (for example) what the Chief Inspector of Factories was publishing from 1938 onwards about the potential dangers of asbestos, may make even early cases difficult to defend; see, for example, the pre-Bussey decision on common law duties in Hawkes v Warmex [2018] EWHC 205 (QB).

It also has potentially important consequences for the interpretation and application of the Asbestos Regulations 1969. These regulations, where they applied, imposed mandatory safety precautions, such as the provision of exhaust ventilation or protective respiratory equipment, without any further qualification. Since Williams, however, defendants have sought to limit the effect of the 1969 Regulations. Their argument is based on regulation 2(3) under which the various provisions applied to asbestos dust ‘liable to cause danger’. The argument, therefore, is that this imports the requirement of foreseeability.

But this must now be seen in the light of Bussey and the Court’s approval of the position taken in Maguire, ‘…alarm bells sounded in late 1965 “when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect to asbestos dust”’ (Jackson LJ at para 53).

The logical conclusion is obvious. If there is no ‘safe’ or permissible level of exposure, then the regulations will apply where even only slight exposure is established. This will free the Courts from the solecism of relying on TDN13. It will also bring these cases in line with the stricter approach taken to cases under the Asbestos Industry Regulations 1931 following McDonald v National Grid [2015] AC 1128.

What now?

The Court of Appeal allowed the appeal but remitted the case to the Judge for him to determine the liability issue. It remains to be seen whether the Defendant will continue to fight the case, despite some pretty heavy hints, ‘… if the judge had not felt constrained by the decision in Williams, he might have concluded that, as a reasonably prudent employer, Anglia ought to have foreseen that risk.’

More generally, it seems that this is the end of the TDN13 era. At least, the end of the mechanical adoption of it as some kind of safety standard. It will be significantly easier for claimants to establish liability both at common law and by the invocation of the Asbestos Regulations 1969.

The downfall of TDN13 seems both legally correct and long overdue. And the Court of Appeal held that the Court would probably have taken a different view if it had been taken to relevant authority. But where does that leave the mesothelioma sufferers who, over the last 7 or 8 years since Williams, have been told that they cannot succeed in the light of the prominence of TDN13?  It is little consolation to them that this now appears to have been recognised as a mistake.

Most of these people will now have died, but their dependants or estates may wish to pursue a case. They would have no redress against lawyers who advised them appropriately as the law then stood. But there is a respectable argument that they could avoid a limitation defence. While ignorance of a legal claim does not stop time running under s.14 of the Limitation Act 1980, it might be a decisive factor where seeking discretion under s.33, see, for example, Lea v Armitage Shanks Group Limited (unreported, Swanwick J, 19 July 1977).

Similarly, what about those claims that failed because later Courts explicitly accepted that TDN13 was a ‘safe’ level of exposure? It raises the interesting possibility of an appeal of time in cases such as McCarthy v Marks and Spencer [2014] EWHC 3183 (QB).

In the well-known case of Rothwell v Chemical & Insulating Co Ltd [2008] 1 AC 281 the House of Lords held that Mr Rothwell and his three co-claimants who had all developed pleural plaques, areas of fibrous thickening of the pleural membrane, did not suffer from a compensable condition as they had not experienced any symptoms as a result of the plaques.

The claimants, who had developed plaques after being negligently exposed to asbestos by their employers, had not suffered damage for the purposes of creating a cause of action in tort. The Lords decided that where pleural plaques did not themselves cause any symptoms their presence was not an injury. Neither the risk of developing other asbestos related diseases (to which the plaques themselves did not contribute) nor the anxiety of that prospect amounted to actionable damage.

In their judgments however their Lordships allowed for the prospect of exceptional cases where plaques do cause symptoms. In a recent case just such a rare victim developed pleural plaques which caused such severe symptoms that they resulted in his death.

The deceased was exposed to asbestos during the course of his work as an apprentice and then qualified marine engineer on board ships.  His exposure included applying and removing asbestos lagging on pipework and boilers.

The deceased began to experience breathlessness in August 2011. CT scans and x rays investigating the cause of his symptoms revealed that he had developed extensive bilateral calcified pleural plaques.   Dr Corless, instructed by the claimant, and Dr Moore-Gillon, instructed by the defendant,  agreed that the scans showed disabling pleural plaques. His pleural plaques were extensive, contiguous and heavily calcified and so they acted like a ‘cuirass’ around the lung and restricted ventilation. The effect of the cuirass was to cause the breathlessness he first experienced as well as recurrent respiratory infections. Eventually the impairment of his lung function caused by the plaques led to bronchopneumonia.  The pneumonia caused his death in July 2016.

The claim was issued against them the deceased’s former employers and then settled for a significant sum. It is clear therefore that a diagnosis of pleural plaques does not necessarily spell the end of a claim, where plaques are symptomatic then they are as compensable as any other asbestos related disease.

Aliyah Akram acted for the Claimant in this case.