Veronica Ann Bussey as Widow and Executrix of the estate of David Edwin Anthony Bussey (deceased) v 00654701 (formerly Anglia Heating Limited)(1) Pump Maintenance Limited (2)
The High Court has found in favour of the Defendant in this low level exposure mesothelioma case in a Judgment handed down on 12th May 2017.
In so doing the Court rejected arguments that the Court of Appeal decision in Williams v. University of Birmingham  was decided Per Incuriam and that it was a decision that related to ‘non-employee’ claims only.
Mr Bussey died of Mesothelioma in 2015. He had worked for the First Defendant, then known as Anglia Heating Ltd, from 1965 until 1968 and for the Second Defendant from about 1969/70 until about 1980.
The First Defendant was the largest firm of domestic plumbers in the Norwich area. Mr Bussey was employed to undertake domestic heating and plumbing work. His exposure with that company arose from cutting asbestos cement flue pipes with a hacksaw and from the handling and cutting of asbestos rope used for caulking joints. For the Second Defendant, Mr Bussey undertook petrol pump repairs. His exposure to asbestos dust with that company arose through the handling and manipulating of asbestos rope only.
Shortly before Trial the Second Defendant compromised the claim brought against it (for a sum below its full liability value) leaving the Claimant to pursue her action against the First Defendant at Trial for the remainder of her damages.
It was common ground between the Parties that for the claim to succeed the Claimant had to demonstrate that the First Defendant was negligent at common law.
It was accepted by the First Defendant that Mr Bussey would have suffered some exposure to asbestos dust but it was argued that such exposure was light and would not have been considered foreseeably hazardous having regard to the knowledge available and the standards applicable at the material time.
The First Defendant relied upon the Court of Appeal’s decision in Williams v. University of Birmingham  in which Aikens LJ held that the best guide as to what in 1974 was an acceptable or unacceptable level of exposure to asbestos generally is that set out in the Factory Inspectorate’s “Technical Data Note 13” (TDN13) of March 1970. This document set out levels of exposure to asbestos below which the Factory Inspectorate would not bring a Prosecution pursuant to the Asbestos Regulations 1969.
The First Defendant argued that the likely exposure to asbestos suffered by Mr Bussey was below those levels and although the guidance was not issued until after Mr Bussey’s employment had ended, it would be illogical to consider that any lower level of exposure would be deemed foreseeably hazardous in the period before 1970.
The Claimant argued that the decision in Williams was decided Per Incuriam on the basis that the Court of Appeal in that case had not considered Court of Appeal authorities that had preceded it, in particular the decisions in Jeromson v Shell Tankers  and Maguire v Harland and Wolff Plc . In the alternative, it was submitted that the Court of Appeal in Williams was restricted to non-employee cases only and hence was of no relevance to Mr Bussey’s claim.
In the case of Jeromson, Hale LJ held that the Defendants were in breach of the duty owed by them to their employee, the Claimant, in failing to provide a safe system of work. The Claimant in that litigation was employed by the Defendant prior to 1965, and was required to work in confined spaces containing a great deal of asbestos. It was held that the Defendant as his employer should have taken precautions, or at the very least made enquiries about how precautions could be taken. Hale LJ said that “There is no reassurance to be found in the literature that the level of exposure found by the judge in this case was safe and much to suggest that it might well not be so”.
The Court of Appeal decision in Maguire concerned the wife of a boilermaker in a shipyard, whom it was asserted had died as a result of contact with asbestos from her husband’s work clothes between 1961 and 1965. Judge LJ held that it was not possible to hold that Harland and Wolff had failed to address a risk of secondary contamination, which had not been identified or addressed by anyone else within or outside the industry. The claim was dismissed. However, Longmore LJ held that after Jeromson the Court of Appeal was bound to proceed (as between employer and employee) on the basis that an employer will be in breach of duty if he failed to reduce his employee’s exposure “to the greatest extent possible”, reading possible as “practicable”.
Accordingly, as it was accepted by the engineering experts that further steps could have been taken to have reduced Mr Bussey’s exposure to asbestos, such as the use of respirators, and there was no evidence of such steps having been taken, the Claimant submitted that the First Defendant must have been negligent at common law.
His Honour Judge Yelton (sitting as a Judge of the High Court) found that he was bound by the decision of the Court of Appeal in Williams. The effect of that decision was to apply the levels as set out in TDN13 as the relevant standard by which foreseeability of injury was to be judged. On the evidence, the Judge decided that Mr Bussey’s exposure to asbestos would have been below those levels. Although Mr Bussey’s exposure preceded TDN13, the Judge observed that it would be perverse to find that the guidance increased rather than deceased the levels of exposure which a responsible employer would regard as safe.
The Judge relied on the dictum of Lord Neuberger in the Supreme Court decision in Willers v Joyce  which was to the effect that where a Puisne Judge faced inconsistent Court of Appeal decisions, he/she should follow the later decision(s). Further, where the same Judge faced prior decisions by Courts of co-ordinate jurisdiction then he/she should follow those prior decisions. The Judge referenced several cases (Billingham v John Barnsley & Sons  cited amongst others) which had followed the test for common law breach of duty set out in the Court of Appeal decision in Williams.
The Judge rejected the submission that Williams does not apply to claims brought by employees on the basis that Williams had been followed in subsequent cases, namely, Woodward v Secretary of State for Energy and Climate Change  and in Smith v Portswood House Ltd  both of which involved claims brought by employees of the respective defendants.
Mr Bussey’s claim was dismissed and the Judge refused the Claimant’s Application for permission to Appeal to the Court of Appeal.
The First Defendant was represented by Damon Burt and Abigail Burgoine of Plexus Law Evesham