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Williams v University of Birmingham, Court of Appeal, 28 October 2011

14 November 2011
The issues

Asbestos – causation – mesothelioma – Sienkiewicz v Greif

The facts

On the 24 November 2006 Michael Williams died on malignant mesothelioma of his left lung. He was 54 and married with three dependant children. His widow brought an action for damages against the University of Birmingham where he had studied physics as an undergraduate between 1970-1974. In his final year he did experimental work in a service tunnel which is part of the university’s science department. It had central heating pipes running through it, lagged with asbestos lagging probable installed in the 1930s or 1940s. When tests were done in 2004, 2006 and 2007 they found all forms of asbestos in the dust, in particular blue asbestos, brown asbestos and white asbestos. The university accepted that Mr Williams had been exposed to all three types of asbestos found in the dust tests.

Their case was that the exposure was de minimis such that the university was not liable. Matter went to a liability trial at the Leeds County Court. In her judgment, the judge concluded that the exposure, particularly to blue asbestos, was at a level close to or above 0.1 fibres per ml2 but less than 0.2 fibres per ml2. She found that Mr Williams worked between 52-78 hours in total in the tunnel and that his risk of contracting mesothelioma as a result of his exposure to asbestos fibres was materially increased. She also concluded that the university knew or ought to have known that the pipe lagging had asbestos and low level exposure particularly to blue asbestos could cause mesothelioma. The judge took the view that the question of whether an exposure was de minimis was relevant only to the question of whether there had been a breach of duty but that once the claimant had successfully established breach of duty the extend to which that particular exposure contributed to overall level of disease was irrelevant save for the extend of seeking contributions of others who had similarly exposed the victim to a material increases in the risk of developing mesothelioma. She therefore rejected the defendant’s secondary arguments on causation. The university appealed.

The decision

Three issues arose:

  1. In a case where the claimant alleged that the defendant was liable for the consequences of a person contracting mesothelioma, what was the correct legal test for deciding whether the defendant was in breach of duty?
  2. Was the judge entitled to conclude that the lagging in the tunnel was in a poor condition in 1974?
  3. Did the judge apply the correct test when considering the issue of causation?

Generally the test for whether the university was negligent and in breach of duty, having regard to the authorities, was whether the university ought reasonable to have foreseen the risk of contracting mesothelioma rising from Mr Williams exposure to asbestos fibres by undertaking the experiments in the tunnel in the manner contemplated, to the extend that the university should (acting reasonably) have refused to allow the tests to be done there, or taken further precautions or at the least sought advice.

What the university ought reasonably to have foreseen had to be judged by reference to the state of knowledge and practice as at 1974. In Baker v The Quantum Clothing Group Limited, the Supreme Court had reaffirmed that in relation to the common law duty of care of employers, the standard of conduct to be expected was that of a reasonable and imprudent employer at the time but taking account of developing knowledge about the particular danger concerned. In the context of a statutory duty imposed on employers by s29(1) Factories Act 1961, the Supreme Court held that safety had to be judge according to the general knowledge and standard of the time.

The same approach was appropriate in this case.

1. What was the correct legal test for deciding whether the defendant had been in breach of duty?

The judge had conflated the test for causation and the test of liability by bringing in the causation test into the liability question. The duty was to take reasonable care to ensure that Mr Williams was not exposed to a foreseeable risk of asbestos related injury. The reference in the judge’s test to exposure to a material increase in the risk of mesothelioma was wrong. There was nothing in Fairchild or Sienkiewicz v Greif to suggest that the Supreme Court had altered the breach of duty test in mesothelioma cases such that a claimant had only to demonstrate that the defendant failed to take reasonable steps to ensure that the claimant was not exposed to a material increase in mesothelioma.

2. Had the judge been entitled to conclude that the lagging in the tunnel had been in poor condition in 1974?

There was sufficient evidence for the judge properly to make a finding that on the balance of probabilities the lagging was in poor condition in 1974. However, on the then state of knowledge it had not been shown that at the level of exposure to asbestos fibres actually found by the judge, the university ought reasonable to have foreseen that the claimant would have been exposed to an unacceptable risk of asbestos related injury. The best guide to what in 1974 was acceptable and what was an unacceptable level of exposure to asbestos generally was that given in the Factories Inspectorate Technical Data Note 13, of March 1970 and in particular the guidance given about blue asbestos. Even if the judge had been entitled to conclude that the lagging was in poor condition and that the level of exposure to asbestos fibres was as found, she could not properly have concluded that the university was in breach of its duty of care to Mr Williams.

3. Did the judge apply the correct test as to causation?

The defendant argued that the proportion of exposure to asbestos fibres that Mr Williams suffered when working in the tunnel was by comparison with the exposure he that must have suffered else where at de minimis proportion which meant it would not be possible to find that the exposure in the tunnel had caused a material increase in the risk of him contracting mesothelioma. According to Sienkiewicz v Greif, all the judge had to do was make a finding of fact that tortious exposure of the victim to asbestos fibres at the hands of the defendant materially increased the risk that the victim would contract mesothelioma. He did not have to do a comparative exercise in exposures.

The judge had applied the wrong test when she said the question whether an exposure is de minimis, was relevant only to the question of breach. The claimant had to establish a breach of duty and whether the exposure was de minimis was relevant at that stage. If a breach of duty was established the claimant still had to establish causation. The court had to ask whether the exposure was such as materially to increase the risk of the claimant contracting mesothelioma. That exercise was conducted on common law principles as adopted for mesothelioma cases. It was clear from Sienkiewicz v Greif that s3 of the Compensation Act 2006 operated only once a claimant had proved breach of duty and causation. However, although the judge had applied the wrong test, the court concluded that the judge had intended her conclusion to be a finding of fact on causation.

Appeal allowed as to issues 1 and 2.

Comments

There is a useful appendix summarising the history of the development of knowledge of danger of exposure to asbestos fibres at the end of this judgment.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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