Sentinel

New hope for justice for low level asbestos exposure victims

Date: January 02, 2019 by idu-net

Mr Bussey was a plumber, installing domestic heaters and boilers. As part of his work he had to saw, handle and manoeuvre asbestos pipes and rope. He was exposed to ‘safe’ low levels of asbestos (as defined in a Technical Data Note (TDN13) issued by the Factory Inspectorate in 1970) between 1965 and 1968 and sadly died many years later from the asbestos related and incurable cancer, mesothelioma in January 2016.

However, as a result of a recent Court of Appeal decision in Bussey v Anglia Heating Ltd, there is greater clarity now about low level asbestos exposure cases meaning more claims are now likely to succeed.  The ruling confirms that ‘a low level does not mean a safe level’ so many arguments raised previously by defendants are no longer sustainable.

The defendant company argued that his exposure was ‘low level’ and below a limit set out in Technical Data Note (TDN13). Therefore, they could not be held responsible for the development of his mesothelioma. However, TDN13 was issued by the Factory Inspectorate as being the limit over which they would prosecute an employer.

It was not intended to confirm a ‘safe’ level of exposure to asbestos and was also based on the risk of someone developing asbestosis as opposed to mesothelioma, which can be caused by a much lower exposure to asbestos (a single fibre is thought sufficient to trigger the cancer).

It was found as fact by the trial judge that Mr Bussey was not exposed to asbestos in excess of the limits referred to in TDN13, however, his legal team argued he was exposed to levels which did create a reasonably foreseeable risk and his employer should have protected him against that risk. The Court of Appeal determined that the decision of Williams v University of Birmingham [2011], which ruled that TDN13 was the right standard to measure exposure, had been decided incorrectly and there should be a two stage test:

 

  1. Should the defendant company have been aware that exposure to asbestos dust gave a significant risk of asbestos related injury?
  2. If so, did they take proper precautions to reduce or eliminate the risk?

Following the Williams case it was more difficult for mesothelioma sufferers to succeed with their claims where they were exposed to levels below TDN13. Anyone advised (rightly) not to proceed with their claim since that time, could reconsider claiming as there has now been a change in the law, even where they are now outside the usual three year time limit. Specialist legal advice should be sought.

Should you require advice about this decision or an asbestos related claim please visit the IDU Legal website or call the FREE legal helpline on 0333 305 4357 to get a direct link to specialist asbestos solicitors.