Williams v. University of Birmingham [2011] EWCA Civ 1242 Court of Appeal, 28 October 2011

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1 Williams v. University of Birmingham [2011] EWCA Civ 1242 Court of Appeal, 28 October 2011 Summary In a mesothelioma claim, the defendant was not in breach of duty in relation to exposure to asbestos for a period in The best guide to what was an acceptable and what was an unacceptable level of exposure to asbestos was that found in the Factory Inspectorate s 1970 guidance document Technical Data Note 13. Introduction The deceased died of mesothelioma in November The claimant, his widow, brought proceedings in November 2007 against the defendant university where her husband had studied between 1970 and For a period in 1974, he had carried out experiments in a service tunnel at the university containing pipes lagged with asbestos. The defendant admitted that he had been exposed to asbestos, but argued that exposure was de minimis and thus the defendant was not liable. At first instance, the judge held the defendant liable at common law. The judge found that: (i) (ii) (iii) (iv) The asbestos lagging was in poor condition and there was a lot of dust on the tunnel floor. The deceased was exposed to asbestos (including crocidolite) at a level of close to or above 0.1 fibre/ml, but below 0.2 fibre/ml. The deceased spent between 52 and 78 hours in the tunnel in total. His visits to the tunnel were such that there was a material increase in the risk of [the deceased] contracting mesothelioma as a result. In these circumstances I find that there was a breach of duty and the at the Defendant was negligent. having found on the balance of probabilities that [the deceased] was exposed to asbestos and that that exposure constituted a material increase in the risk of him contracting mesothelioma, that [the deceased] contracted mesothelioma as a result of exposure to asbestos, and that is not possible to determine with certainty whether it was the exposure at the University or another exposure which caused him to become ill, I find that the University is liable in damages for the resulting mesothelioma and any consequential losses. The defendant appealed. Court of Appeal s findings (a) Mesothelioma: general approach Following Sienkiewicz v. Grief (UK) Ltd [2011] UKSC 10, the claimant has to prove, on a balance of probabilities, that the defendant s acts or omissions, in breach of duty, materially increased the risk of the claimant contracting mesothelioma. This rule applies where there are multiple defendants and where there is only one defendant. A material increase in the risk means a degree of increase that is more than minimal; it is for the trial judge to determine on the facts of each case whether the increase is material. Section 3 of the Compensation 2006 Act does not mean that a defendant will be liable in tort if he has materially increased the risk of 1

2 mesothelioma. Rather, it means that how liability in tort attaches remains a question for common law, but once liability does attach the defendant is liable for the whole of the damage (subject to contributory negligence and contribution from other tortfeasors). The defendant s breach of duty here The test to determine whether the defendant was negligent and in breach of duty was: ought the defendant reasonably to have foreseen the risk of contracting mesothelioma arising from the deceased s exposure to asbestos in the tunnel to the extent that the defendant should have refused to allow the experiments to be done there, or taken further precautions, or at least sought advice? The question of what the defendant ought reasonably to have foreseen about the consequences of any exposure to asbestos in the course of experiments in the tunnel, and the reasonable conduct the defendant ought to have adopted, must be judged by reference to the state of knowledge and practice in Following the Supreme Court s approach in Baker v. Quantum Clothing Group Ltd [2011] UKSC 17, what is not acceptable now may have been regarded as acceptable in (b) Breach of duty law The judge here failed to apply the correct test when considering whether the defendant was in breach of its common law duty of care to the deceased. The duty is to take reasonable care to ensure that the deceased is not exposed to a foreseeable risk of asbestos-related injury. The reference to material increase in the risk of mesothelioma is not relevant to this issue. If exposure was de minimis then there could be no question of breach of duty. But if exposure was greater then de minimis, the next question was whether, given the actual exposure, it was reasonably foreseeable in 1974 that the deceased was likely to be exposed to the risk of mesothelioma. To answer this question, there had to be findings about: (i) the level of the deceased s exposure; (ii) the knowledge the defendant ought to have had in 1974 about the risks associated with this level of exposure; (iii) whether, with this level of exposure and this knowledge, it was reasonably foreseeable that the deceased was likely to be exposed to asbestos related injury; (iv) the reasonable steps the defendant ought to have taken; and (v) whether the defendant negligently failed to take the necessary steps. (c) Breach of duty facts The judge s finding on the level of exposure was based on her conclusion that the lagging was not in good condition. There was just sufficient evidence for the judge to find that the lagging was in poor condition in However, the judge did not record any specific conclusion about the knowledge the defendant should have had in 1974 on the dangers of exposure to asbestos at any particular levels. There could only be a breach of duty if the judge had been able to conclude that it would have been reasonably foreseeable to the defendant in 1974 that if it exposed the deceased to asbestos at a level of just above 0.1 fibres/ml for hours, the deceased was exposed to an unacceptable risk of asbestos-related injury. The best guide to what was an acceptable and what was an unacceptable level of exposure to asbestos was that found in the H.M. Factory Inspectorate s 1970 guidance document Technical Data Note 13. The guidance document stated, amongst other things, that, in relation to crocidolite, a respirator should be worn unless concentration was below 0.2 fibre/ml. The defendant was entitled to rely on recognised and established guidelines such a those in Note 13. The fact that the judge made no finding that the condition of the lagging in 1974 was such that the defendant ought to have been alerted to a reasonably foreseeable risk of asbestos-related 2

3 injury means that the judge s conclusion that the defendant was in breach of duty cannot stand. The defendant was not in breach of its duty of care to the deceased. The defendant s appeal thus succeeded. (d) Causation Comparative exercise The defendant argued that the proportion of exposure to asbestos the deceased suffered when working in the tunnel was, by comparison with exposure he must have suffered elsewhere, de minimis. This meant that the tunnel exposure did not cause a material increase in the risk of the deceased contracting mesothelioma. Based on comments made by Lord Philllips in Sienkiewicz, the defendant argued that, where the defendant is in breach of duty, the court has to determine whether this defendant s wrongful exposure was insignificant compared with other sources of exposure. The Court of Appeal disagreed. The judge is only required to make a finding of fact that the tortious exposure by the defendant increased the risk of mesothelioma. The judge does not have to conduct a comparative exercise. Conclusion on causation The judge did not pose the correct test on causation. The claimant has to establish a breach of duty. Whether exposure to asbestos is de minimis is relevant at that stage. If breach is established, the court moves on to causation and asks whether the exposure materially increased the risk of the claimant developing mesothelioma. Section 3 of the 2006 Act only operates once a claimant has proved breach of duty and causation on common law principles. However, though the judge erred in framing the test, there was a sufficient finding of fact in favour of the claimant on causation. It was reasonable to conclude that exposure in the tunnel materially increased the risk of mesothelioma. Notwithstanding the Court of Appeal s rejection of the defendant s ground of appeal in relation to causation, the defendant was not in breach of duty and the appeal was allowed. Comment: Williams illustrates the way two recent Supreme Court cases, Baker and Sienkiewicz, assist defendants in mesothelioma claims, and in latent disease claims more generally. 1. There has been a tendency in some quarters (such as the judge at first instance in Williams) to conflate (a) an increase in the risk of developing mesothelioma with (b) breach of duty. Williams disentangles these concepts, and explains the test for liability. Williams explains that the correct test for liability in mesothelioma cases is that the claimant has to prove, on a balance of probabilities, that the defendant s acts or omissions, (a) in breach of duty, (b) materially increased the risk of the claimant contracting mesothelioma. The duty at (a) is to take reasonable care to ensure that the deceased is not exposed to a foreseeable risk of asbestosrelated injury. Material increase in the risk of mesothelioma is not relevant to this issue. If breach is established, the court then considers (b) causation: did the exposure materially increase the risk of the claimant developing mesothelioma? (ii) In relation to breach of duty, foreseeability of harm is key. Foreseeability depends on knowledge. What was the deceased s exposure? What did the defendant reasonably know about the risks associated with this exposure at this time? Given this knowledge, was it foreseeable that the deceased was likely to be exposed to asbestos related injury? What steps should the defendant have taken? Did the defendant take those steps? (iii) In relation to knowledge, and so foreseeability of harm, official guidance documents are pivotal. Williams disabuses some practitioners and courts of the apparent limit on the scope of 3

4 Technical Data Note 13 as a standard for the reasonable and prudent employer. Technical Data Note 13 s relevance is not confined to advising Factory Inspectors when prosecution is appropriate. Rather, Williams suggests that the document sets an acceptable standard which the reasonable employer can follow. The defendant must be judged by the state of knowledge and practice at the time. And guidance documents illustrate knowledge and practice at the time. As in Baker, standards are not immutable: they change with time - as knowledge and society s acceptance of risk changes. Williams and Baker explain how such changes cannot be applied retrospectively. The assessment of whether a risk is acceptable, or a place or practice safe must take place at the time of the alleged breach not in future with the benefit of hindsight. Williams and Baker show that there can be acceptable levels of risk. (iv) Guidance on de minimis and suggests what de minimis exposure might be. Aikens LJ states that if exposure was de minimis then there could be no question of breach of duty. He also says that it was common ground between the experts that if the lagging was in good condition then exposure to asbestos fibres in the tunnel would have been very low, ie. at a level below 0.1 fibres/ml. That low level must be regarded as not a material exposure to asbestos fibres, so that, in those circumstances the University could not have been in breach of duty not to expose [the deceased] to a material level of asbestos fibres. However, Sienkiewicz suggests that de minimis is a concept also relevant to causation. In Sienkiewicz, Lord Phillips considers de minimis in the context of what constitutes a material increase in risk. (v) Williams concerned knowledge and foreseeability at common law. The date of common law knowledge in mesothelioma cases (and other occupational disease claims) is not fixed. The Court of Appeal in Williams has pushed the date of knowledge in low dose exposure cases forward in time substantially. It has often been thought that the cut-off date for knowledge was generally likely to be no later than October Do issues of knowledge/foreseeability play a part in the determination of a breach of statutory duty? Most EL mesothelioma claims are also framed within allegations of breach of statutory duties such as the Factories Act 1961 (and the earlier 1937 Act), the Building (Safety, Health & Welfare) Regulations 1948, the Construction (General Provisions) Regulations 1961 and others. It has been argued that many of the statutory duties - such as section 63(1) of the Factories Act 1961 (Removal of dust and fumes) involve no requirement to prove foreseeability. Section 63 states: (1) 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 an 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. There are two elements to the duty here: The first arises where exposure is to dust likely to be injurious. This imports foreseeability. But the second element: substantial quantity of dust of any kind is not preceded by likely to be injurious. So the argument is that this does not require the foreseeability of a risk of injury to be shown. Section 63(1) still requires the employer to take all practicable measures. Given Baker, it is arguable that an employer cannot take such measures against risks which it cannot foresee. 1 Two papers by M. Newhouse and H. Thompson Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area, Brit. J. Ind. Med. 1965, 22(4) 261 and Epidemiology of Mesothelial Tumors in the London Area, Annals N.Y. Acad. Sci. 1965, 132(1), 579 led to an article in the Sunday Times in October 1965: Scientists track down killer dust disease. 4

5 Baker thus has significant implications for statutory interpretation. Arguably most of the historic statutory duties applicable in mesothelioma claims still involve a consideration of what is a foreseeable risk of harm. Malcolm Keen BLM London P:\PI\MISC\MRK\WILLIAMS CA AMENDED DOC 5