We are delighted that the Court of Appeal has unanimously decided in favour of Mr Bussey’s surviving widow in Bussey v Anglia Heating Limited. This means that Mrs Bussey can now claim 100% of the mesothelioma compensation owed to her, following the tragic loss of her husband to mesothelioma. The claim was originally dismissed before being brought to the Court of Appeal earlier this year.
Continue reading to learn about the case in detail.
Mr Bussey’s exposure
Mr Bussey was sadly diagnosed with asbestos-related mesothelioma after being exposed to airborne asbestos dust whilst working for Anglia Heating Ltd. He worked as a plumber for the company between 1965 and 1968. During his work, he was required to handle and cut asbestos cement pipes and manipulate asbestos rope to caulk joints.
The original claim
Originally, Mrs Bussey lost her claim, on behalf of her husband, for mesothelioma compensation. The sitting Judge, HHJ Yelton, dismissed the claim because he believed he was bound by the Court of Appeal’s decision in Williams v University of Birmingham  EWCA Civ 1242. This decision set the apparent precedent that if a person’s exposure to asbestos was below the levels set out in TDN13, their claim for compensation could not succeed.
However, Williams was a mesothelioma claim which involved lower levels of asbestos exposure, compared to those experienced by Mr Bussey. The former was also an occupier’s mesothelioma claim, not a claim being pursued against a past employers’ insurer.
Thankfully, Mrs Bussey was allowed to appeal the decision. Her case was heard by the Court of Appeal on 23rd January 2018 by Lord Justices Jackson, Underhill, and Moylan.
Mrs Bussey’s appeal was successful – the court allowed it on the following grounds:
- They stated that the first judge was wrong to treat the Williams case as a binding proposition that employers were entitled to regard exposure at levels below those identified in TDN13 as ‘safe.’ They continued to say that TDN13 cannot be seen as a ‘bright line’ to be applied in all mesothelioma claims arising out of asbestos exposure in the early 1970s. It can be applied even less so to asbestos exposure experienced prior to 1970.
- Neither Jeromson v Shell Tankers UK Limited  or Maguire v Harland and Wollf PLC  were cited in Williams. Therefore, it was stated in Bussey that if Aikens LJ had those two decisions in mind in Williams, he would not have suggested that TDN13 was a general yardstick for determining the issue of foreseeability of harm in a mesothelioma claim. At Asbestos Justice we regularly receive comments from the Defendants in mesothelioma claims arguing just that. Therefore, the helpful comments made by the Court of Appeal in this case will assist many mesothelioma sufferers and their families in securing mesothelioma compensation in the future.
- Two out of the three sitting judges in the Court of Appeal decided that Aikens LJ’s use of the phrase “an unacceptable risk of asbestos-related injury,” could lead to confusion in mesothelioma claims. Courts should not seek to address whether a risk is acceptable or unacceptable. Instead, Judges should separate the foreseeability of risk, from the question of what precautions it was reasonable to take against it. This is yet another point which is helpful to specialist asbestos disease solicitors when running mesothelioma claims for clients.
- When considering whether the employer could have foreseen the risk of harm as a result of asbestos exposure, the Court of Appeal held that: “it is necessary 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.”
- Thereafter, the Court should look at whether the company took proper precautions to reduce or eliminate the risk. We deal with many mesothelioma claims for clients each year, which involve asbestos exposure in the 1960s and 70s. In many of these cases, no precautions to protect workers were taken at all. These blatant omissions can be relied upon as proof of negligence and breach of statutory duty in mesothelioma claims.
- It was also held in Bussey that, following guidance laid out by Hale LJ in Jeromson, if a person’s exposure to asbestos dust was variable, and the employer was not able to ascertain the extent of that exposure, they ought to consider the risk of the, “potential maximum exposure.” Furthermore, “only if he could be reassured that none of these employees would be sufficiently exposed to be at risk, could he safely ignore it.”
This ground-breaking, highly important mesothelioma claim, has now been referred back to the original trial judge, HHJ Yelton. He will reconsider liability in light of the findings of the Court of Appeal.
How can we help?
If you require assistance in pursuing a mesothelioma claim, please contact us today. You can do so by calling our Freephone number: 0800 038 6767. Alternatively, you can fill in our contact us form here.