Billingham v John Barnsley & Sons Ltd & Ors [2013] EWHC 520 (QB)

[2013] EWHC 520 (QB)Case No IBM90132Date 13/03/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
Before
MR JUSTICE BEAN
Between
EDNA HILL AND LISA BILLINGHAMClaimant(Executrixes of the estate ofClaimantDEREK BILLINGHAM deceased)ClaimantJOHN BARNSLEY & SONS LIMITEDFirst DefendantsLLOYDS BRITISH INSPECTION SERVICES LIMITEDSecond DefendantsVAUGHAN BROTHERS (DROP FORGINGS) LIMITEDThird Defendants
Matthew Phillips (instructed by Irwin Mitchell, Birmingham) for ClaimantJayne Adams (instructed by Plexus Law, Evesham) for Second DefendantsHearing Hearing dates: 5 th and 7 th March 2013
Judgment
[1]Derek Billingham was born on 30th May 1949. He died of malignant mesothelioma on 1st August 2008. In this claim issued on 20th July 2011 the claimants, as executrixes of his estate, sued three defendants by whom he was employed in the late 1960s and early 1970s. The claim against the first defendants was discontinued well before the trial. The third defendants settled the claim against them on the evening before the trial. This left the second defendants, then called Lloyds British Testing Services Ltd, to whom I will refer as “the defendants”. Mr Billingham was employed by them in the tax years 1968/9 and 1969/70. This included a period of about three months during which he worked at Cottam power station in Nottinghamshire. Construction of this power station had begun in 1967 and it was commissioned (that is to say, became fully operational) some time in 1969.[2]The characteristics of mesothelioma are now sadly well known. To use the words of Lord Phillips in Sienkiewicz v Greif (UK Ltd) [2011] 2 AC 229 “Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres”. It lies dormant, usually for decades, and is not detected until shortly before the patient’s death.[3]Mr Billingham’s mesothelioma was not diagnosed until December 2007. He signed a witness statement on 24th June 2008, only a few weeks before his death. I bear in mind that the defendants have had no opportunity to cross-examine him on that statement, and the evidence in it must therefore be approached with a degree of caution. I heard oral evidence from Reginald Ransby, who worked as a welder at Cottam from July 1967 until 1996, and from Keith Delahay, a test and inspection engineer who has worked for the defendants since 1972/3 at a number of locations including Cottam and other power stations. I heard expert engineering evidence from John Browne and Martin Stear, each of them with substantial experience. I also had before me a report by Graham Glenn on behalf of the Third Defendants, to which Ms Adams for the defendants referred without objection, although I bear in mind that neither party represented at the trial had the opportunity to cross-examine him, and the weight to be attached to his statement is accordingly reduced.[4]The relevant part of Mr Billingham’s statement is as follows:
“I then moved to Lloyds British Testing who were a company specialising in testing the strength of things like chains and anchors. I was employed there for more than 12 months and during that time I spent a lot of time working away from home. The company had a contract to test the strength of the girders at Cottam Power Station in Nottinghamshire. The power station had steel floors and girders and we had to test their strength. We would test the strength of the girders by throwing a chain over the girder and then put weights into it to see how much it could stand. This was very often a dusty job. I would have to throw the chain up, feed it over and catch it on the other side. I would be standing right underneath it as the chain was dragged across the dusty girder. I would be showered in dust each time I had to do this, which was each time we tested a girder. We would test many each day. When doing this job we worked all over the power station. We worked in the boiler houses and up in the roofs, which I recall were particularly dirty, dusty environments to work in. We also worked outside the building as well as testing all the staircases. The power station itself was not a particularly pleasant place to work. As I have said, it was a very dusty environment inside. It was also very noisy because of all the turbines and it was also a very hot place to work. The power station was a very big place and it was obviously a big contract for the company. The factory was so big that I recall if we lost one of our colleagues, it could take hours for us to find them again. There would be a crew of 3 or 4 of us who would go up to Cottam. We would go up for 1 week or 2 weeks at a time and would have a bit of time in the factory in the interim. I would estimate that I spent about 3 months at the power station in total during my time there. Of that, I would estimate that I spend 50% of my time in the building testing the girders. We were not provided with any hats or masks to protect us from all the dust at the power station. We were provided with gloves but that was it. I am now aware that asbestos was used for lagging at the time in the power station, however we were not given any warnings about the dangers at the time.”
[5]Mr Delahay told me:
“My work as a Test and Inspection Engineer has involved from time to time working on all major power stations including Cottam Power Station testing runway beams, I do not recognise the methods described in the testing of girders as this would not give a true reflection of the test. In testing of runway beams the load is applied through the bottom flange as it is flange bending as well as beam deflection that has to be within tolerance using a chain over the top of the beam would not apply the load correctly and indeed may even bend the top flange of the beam the load should be applied using a beam clamp or beam trolley running on the bottom flange. (Mr Delahay produced a photograph of this process as carried out on the premises of the Birmingham Post and Mail at some point in the 1980s.) It is the Client’s responsibility to ensure a clean and safe area of work before any testing can commence. If the beams required a clean, prior to the testing being undertaken then the engineer would request that the Client arranges to do so before the test procedures begin. Cottam Power Station is a coal fired station which burns pulverised coal this is ground to a talcum powder type consistency, in boiler houses it would be residue of pulverised fuel and ash that would possibly build up on runway beams. The runway beams do not form part of the main structure of the power station but instead would be an installation specifically designed and installed to carry out maintenance duties. The testing of runways is undertaken by applying a test load to prove the equipment is fit for the purpose. The load would be applied to the runway by the means of a manual or power operated device. Having applied the load the test would be complete.”
[6]Mr Ransby said:
“I worked for CEGB as a welder class 1. My job was to repair chutes and bunkers and manufacture replacements. I also worked on the repair of high pressure pipe work. I was exposed to lots of asbestos dust from the work of the laggers who were working in the power station. When I first began work at Cottam Power Station asbestos lagging was used extensively to insulate pipe work and plant. The asbestos lagging arrived on site in pre-formed shapes. The laggers cut the pre-formed asbestos shapes using a normal hand saw and attached them to the pipes using a metal tie or something similar. The pre-formed asbestos shapes were then covered in a wet mix asbestos lagging. The laggers mixed dry asbestos powder with water in a tub and stirred it until it was at the right consistency. The asbestos was then applied by hand and smoothed down to a finish. The process of mixing the asbestos lagging and cutting it created a great deal of asbestos dust which covered the areas the laggers were working in. Once the wet mix asbestos had dried the laggers put galvanised sheeting over the pipes. Some of these pipes would have been up to 2 feet in diameter, and also had asbestos packing between the flanges. I recall the asbestos lagging itself was white in colour. It broke down into a fine dust easily. I worked in the area of laggers carrying out this work. The asbestos dust they created went into the atmosphere and floated around the building. Maintenance people like a friend of mine, John Martin, who has since died from an asbestos illness, carried out work on pipe work and machinery. They frequently had to remove asbestos lagging to gain access to the pipes and flanges. They were not careful how they removed the lagging as they did not know that asbestos was dangerous. They removed it with their hands and small hand tools. The asbestos lagging was generally in a very dry and deteriorated condition. Asbestos lagging created a great deal of dust when it was removed. On longer pipes the asbestos lagging was up to 4-5 inches thick. I can recall instances when it took John approximately an hour to remove the asbestos lagging on the larger pipes. It depended on the access to the pipes and the amount of asbestos lagging that had to be removed as to how long it took. I could have taken longer than an hour. I recall John Martin being completed covered from head to foot in asbestos dust from his work. He looked like a flour grader. Lots of asbestos dust went into the atmosphere cause by the work of the maintenance staff like John Martin and pipe laggers. The asbestos they removed from the pipes was allowed to fall onto the floor to be cleaned up at the end of the job. Asbestos dust floated around for ages in the atmosphere as there was a lack of ventilation. Everyone working in those premises was exposed to the asbestos dust. When the people working on the lagging cleaned up after themselves they used a dry brush to sweep up the bits and pieces of asbestos as well as the dust. They then shovelled it into a skip. Lots of the asbestos dust rose into the atmosphere when they swept and shovelled it up, which people working in there inhaled. There was no dampening down of the dust first. The maintenance people created more asbestos dust when changing asbestos flange jointing and asbestos gland packing. The asbestos gland packing was used to create a seal around a valve spindle. The asbestos packing was about a ¼ inch square to 1 inch square. The gland packing was wrapped around the spindle of the valve. When they changed the flanges and packing they had to cut the asbestos flange joints from a long sheet of asbestos using a hammer to knock the shape around the pipe edge. The two pipes to be sealed were then tightened up which compressed the asbestos flange jointing. Bolt holes also had to be knocked into the asbestos flange jointing. I recall there could have been up to 20 bolt holes on the longer diameter pipes. When doing that work further asbestos dust was created that went into the atmosphere. When I started working at Cottam Power Station I was supplied with a safety helmet, two boiler suits and a pair of goggles. I was not provided with any respiratory protection or masks. I believe that it was about in the mid 1970’s that it was becoming generally known that asbestos was dangerous. The company did not tell us before that asbestos was dangerous. The first time masks were provided to me and my colleagues was in about the early 1980’s. It was around that time the power station began to take other precautions in relation to asbestos, such as employing specialist contractors to attend on site to remove any asbestos lagging. At that time enclosures were erected around areas from which asbestos was to be removed. Extractor fans were also introduced to remove the asbestos from the air. While these precautions were welcome at the time, they were of no use to the people who had been exposed to lots of asbestos dust in that Power Station in all the previous years. I was saddened to learn of the death of John Martin, particularly in the circumstances. I am aware that many of my colleagues from Cottam Power Station have died from asbestos related diseases…”
[7]In oral evidence Mr Ransby told me that the application of asbestos lagging (including the mixing process) was carried on throughout the period of construction of the power station on a rolling basis. As one area of pipework or other plant or equipment was installed it would be lagged and the workers would then move on to the next area. Dry sweeping of asbestos was carried on during the instruction phase but only the floors were swept. Asbestos stripping occurred during the construction period but Mr Ransby added that this was (as one would expect) “not very often”.[8]Mr Ransby accepted in cross-examination that there were runway beams in the power station: these were high above the ground, but there were staging levels which enabled people to gain access to them.

The activity described by Mr Billingham

[9]Ms Adams, for the defendants, submits that Mr Billingham may have been confused when giving his witness statement, at a time when he was gravely ill and attempting to recall one of many employments 40 years previously. She relies on the evidence of Mr Delahay to say that in his experience runway beams were not tested by throwing chains over them and attaching weights to the end of the chains. However, Mr Delahay only started doing this work in 1974/5, that is to say at least five years after Mr Billingham’s period at Cottam Power Station. I also note that Mr Stear did not say that no runway beam or girder would have been tested in the way Mr Billingham describes.[10]I do not think it matters whether the “girders” described by Mr Billingham were runway beams reached from staging levels or girders of another kind reached from the floor. I accept his evidence and find that he was testing girders or beams with chains. I also accept his evidence that he would regularly be “showered” with dust dislodged from the surface of the girders.[11]The next question is when this occurred. It is common ground that it is likely to have been during the construction of the building rather than after it was commissioned. Ms Adams submits that on the balance of probabilities it would have been in the very early stages of construction before the installation and lagging of pipework, and that therefore it is unlikely that any dust on the surface of the girders or beams contained asbestos. But I accept the evidence of Mr Ransby that lagging was carried out on a rolling basis throughout the period of construction. In any event, Mr Stear told me that dust on girders could come from a variety of sources and not only from lagging. When pressed by Mr Phillips on behalf of the claimants as to what alternative sources he could suggest, he identified only roof sheets and wall boards. He accepted that these materials would probably have been asbestos based. He was driven to agree that the dust on the surface of the beams would probably have been contaminated with asbestos, whether from lagging or otherwise. That was Mr Browne’s view; and also that of Mr Glenn, who after referring to Mr Billingham’s evidence about the chains disturbing dust on the girders wrote:- “There would be no means by which he could have identified any component in the dust, but asbestos insulation was in common use in power stations constructed in the 1960s and in my opinion it is reasonable to assume that some of the dust was asbestos.”[12]I find that the throwing of chains over girders or beams described by Mr Billingham occurred at a stage when the lagging of pipes or the installation of roof sheets or wall boards had taken place and that the dust which he disturbed contained asbestos.[13]Ms Adams submits that if Mr Billingham had worked in the vicinity of laggers at Cottam he would have remembered it and included this fact in his witness statement. This is a matter for speculation, since no one suggests that Mr Billingham would have been aware at the time of the sinister significance of the proximity of lagging activities. But even assuming Ms Adams is correct, the submission cannot assist the defendants in view of my finding in the last paragraph. Mr Billingham worked in an area where dust containing asbestos had been allowed to settle in substantial quantities. How close this was to the laggers or even whether they were working at the same time or on the same day as Mr Billingham is not significant.

Exposure to asbestos fibres

[14]The next issue is the type of asbestos and the level of exposure. There are three types of asbestos: crocidolite (blue asbestos), chrysotile (white asbestos) and amosite (brown asbestos). Even in the late 1960s crocidolite was recognised as the most dangerous of all. The lay witnesses cannot assist on the type of asbestos used. Both expert witnesses were somewhat inconsistent in their evidence on this point. Mr Browne stated in his evidence in chief that the lagging was likely to have contained crocidolite but he could not be certain. In cross-examination he said that there was no way of knowing. Mr Stear said in cross-examination that there a possibility that crocidolite was not in the lagging because the industry was already “moving away from it” in the late 1960s. In re-examination he stated that on the balance of probabilities there was no crocidolite. On this issue I find that the claimants have not discharged the burden of proof: I am not satisfied that it is more likely than not that the asbestos contained crocidolite.[15]For reasons which will become apparent when I turn to the law, an important plank of Ms Adams’ case was HM Factory Inspectorate’s Technical Data Note (TDN) 13, issued in March 1970, about a year after Mr Billingham’s time at Cottam. TDN 13 contains “standards for asbestos dust concentration for use with the Asbestos Regulations 1969”. It states:- “In this note guidance is given on how HM Inspectors of Factories will interpret the expression “dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons” and how the measurements may be made. It is emphasised that these notes have been prepared for the guidance of HM Inspectors since only the Courts can give binding decisions in these matters. It is important to bear in mind that these standards are provisional and may have to be revised from time to time. Chrysotile, amosite and fibrous anthophylite(a) Where the average concentration of asbestos dust over any 10 minute sampling period is less than 2 fibres/cc or 0.1 mg/m³, HM Factory Inspectorate will not seek to enforce the substantive provisions of the Regulations, in particular regulations 7 and 8. Where the concentration is 2 fibres/cc or 0.1 mg/m³ or more (but not more than 12 fibres/cc or 0.6 mg/m³) further sampling over a four hour period will be carried out to determine whether the average concentration of asbestos dust still exceeds 2 fibres/cc or 0.1mg/m³.(b) Where the average concentration of asbestos dust over a four hour sampling period is 2 fibres/cc or 0.1 mg/m³ or more the extent to which HM Factory Inspectorate will require the standard of control to be improved will depend upon the amount by which it exceeds 2 fibres/cc or 0.1 mg/m³ and the duration of exposure.(c) When the average concentration of asbestos dust over any 10 minute period exceeds 12 fibres/cc or 0.6 mg/m³, Inspectors will normally seek to confirm or otherwise the accuracy of the test by means of a further sample before taking action to enforce regulations 7 or 8 whichever is appropriate.”

Chrysotile, amosite and fibrous anthophylite

[16]It is impossible to be precise about the fibre level to which Mr Billingham was exposed on the occasions when he dislodged dust from the surface of girders by throwing chains over them. As Mr Browne said (and as is obvious) it depends on how much dust was disturbed and how close to it Mr Billingham was standing. Mr Browne pointed out that asbestos fibres are infinitesimally small and once in the air take a long time to settle. They are only visible in very large quantities: you can see 10,000 fibres, he said, but not 50. In his opinion “huge” amounts of asbestos would be released into the atmosphere when the dust was created, and one cannot make any assumptions about where it would settle. The fibres can remain in the air for hours or days. A worker would not have to be in the vicinity of laggers to be exposed to substantial quantities.[17]Mr Browne drew my attention to a study by Harries and others published in 1966 of asbestos hazards in naval dockyards. This showed that the dust concentration caused by the removal of asbestos materials in a confined space can be as high as thousands of fibres per cm³. Obviously the concentration would be less in a very large building such as the power station, and Mr Billingham was not removing asbestos material, but it illustrates how high the very top end of the scale can be.[18]Mr Stear, on the other hand, placed considerable reliance in his report on a study by Bailey and others in 1988 entitled “Personal exposure to asbestos dust during clearance certification”. This showed that when inspections were carried out in a variety of workplaces for the purpose of granting clearance certification, the levels of exposure found were less than those set out in TDN 13. But the usefulness of this study in a case such as the present is undermined by the fact that the employers would be expected to have cleaned up before the inspectors arrived – if, for example, there were layers of asbestos dust on the flat surfaces, there would be no prospect of obtaining a certificate and the inspectors’ visit would be wasted. I have concluded that neither the Harries nor the Bailey study is of much assistance in the present case.[19]Mr Stear, in his report and his evidence in chief, adhered to the view that the TDN 13 standards would on the balance of probabilities not have been breached even if one puts the Bailey study to one side. Both his report and that of Mr Browne contain a good deal of discussion about the average concentration to which Mr Billingham was exposed over a period of weeks or months. Mr Browne, in particular, makes a calculation of the total exposure over a 3 month period on the basis that the average for the whole period would be less than 2 fibres per millilitre of air (f/ml). But with respect to the experts I cannot see that this is relevant to any issue before me in this trial. The question is whether the defendants failed to take reasonable precautions to avoid exposing Mr Billingham to quantities of asbestos dust which (given the state of knowledge which a reasonable employer or occupier should have had in 1968/9) they ought reasonably to have foreseen would expose him to a risk of injury: see the discussion of the law below. The question is not whether they failed to do so continuously over a three month or six week period.[20]Mr Stear agreed with Mr Browne that asbestos dust can take a long time to settle. Asked about the disturbance of dust on the surface of a girder, he said he could not discount that for 30 seconds or a minute after being disturbed, the concentration was very high. It could have been 100 f/ml for a few seconds. The zone of concentration would dilute over the next few minutes, and of course, the rate at which it did so would depend on matters such as air currents.[21]I accept this evidence. I find that it is likely that for a matter of seconds after disturbance of dust on the girders Mr Billingham would have been exposed to very high levels of concentration, possibly as high as 100 f/ml, and that this occurred many times each day during the six weeks or so of Mr Billingham’s work indoors at Cottam.[22]It was not controversial as between the experts what steps could have been taken to reduce the danger from asbestos dust: wetting, cleaning up or if necessary the provision of respirators. There is no evidence that any of these precautions was taken at Cottam.

The law

[23]It is common ground that the Factories Acts did not apply to a power station under construction. Although a number of statutory duties are referred to in the pleadings, Mr Phillips accepts that in the present case they take him no further than the common law of tort.[24]Employers’ knowledge of the risk from exposure to asbestos fibres developed over time. A very important development, rightly described by Mr Phillips as a “watershed”, was the publication of papers by Newhouse and Thompson in 1965 recognising the link between asbestos exposure and mesothelioma. The 1966 annual report of HM Chief Inspector of Factories, published in 1967 stated “Stringent measures have to be taken to control the emission of asbestos dust into the atmosphere of workplaces because of the serious risk to health associated with the inhalation of asbestos fibres.” It noted some of the outstanding questions and concluded that “Only epidemiological studies extending over many years can provide the answers. While such studies are proceeding, the only safe course is to eliminate the escape of asbestos dust into the air.”[25]In Williams v University of Birmingham [2011] EWCA Civ 1242 Aikens LJ said at [31]:- “… when a claimant sues a defendant in tort for damages because either the claimant or, more usually the victim who has since died, has contracted mesothlioma, the claimant must prove, on a balance of probabilities, the usual four elements if the claim is for breach of a common law duty. However, the causation element is modified to deal with the “rock of uncertainty” created by the current paucity of medical knowledge on the aetiology of mesothelioma. Therefore, the claimant must show, first, that the defendant owed the victim a duty of care not unreasonably to expose him to asbestos fibres and the consequent risk of asbestos related injury, including mesothelioma. Secondly, the claimant must show that the defendant was in breach of that duty by being negligent in exposing the victim to asbestos fibres and consequent asbestos related injury that was the reasonably foreseeable result of that negligence. Thirdly, the claimant must prove, on a balance of probabilities, that the defendant’s negligent breach of duty caused a material increase in the risk that the victim would develop mesothelioma. Lastly, the claimant must prove the loss and damage suffered in consequence of the injury and that it is within the usual “remoteness” rules.”[26]Aikens LJ continued at [36]:- “The understanding of asbestos related diseases and the extent to which exposure to even very small quantities of asbestos fibres can have dire consequences has grown over the years. The question of what the University ought reasonably to have foreseen about the consequences of any exposure to asbestos fibres in the course of experiments in the tunnel and the reasonable conduct that the University ought to have adopted must be judged by reference to the state of knowledge and practice as at 1974. In Baker v Quantum Clothing Group Ltd [2011] 1 WLR 1003 the majority of the Supreme Court reaffirmed that, in relation to the common law duty of care of employers, the standard of conduct to be expected is that of a reasonable and prudent employer at the time, but taking account of developing knowledge about the particular danger concerned.”[27]Aikens LJ approved the following observations of Simon J in Asmussen v Filtrona United Kingdom Ltd at [55]:- “… the foreseeability of injury is to be tested against the standard of the well-informed employer who keeps abreast of the developing knowledge and applies his understanding without delay and not by the standard of omniscient hindsight. An employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless(a) the practice is clearly bad practice, or(b) in the light of developing knowledge about the risks involved in some location or operation, a particular employer acquired greater than average knowledge of the risks. … It follows that the issue of forseeability involves a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time.”[28]The facts of the Williams case were somewhat unusual. Mr Williams had studied physics at Birmingham University between 1970 and 1974. In his final year of study he undertook speed of light experiments in a long tunnel in a basement. The experiments lasted no more than 78 hours in total. The tunnel was not ventilated and had central heating pipes running through it with asbestos lagging which was found in 2004 to have contained all three forms of asbestos. In 2006 Mr Williams died of malignant mesothelioma of his left lung. It was not disputed that while carrying out the experiments he was exposed to all three types of asbestos. The University’s defence to the claim issued by his widow was that the exposure was de minimis and that injury to Mr Williams was not foreseeable. At the trial Her Honour Judge Belcher found for the claimant but her decision was reversed by the Court of Appeal.[29]At [44] Aikens LJ said that the first issue was whether the exposure had been de minimis or material. He continued:
“If it was a de minimis exposure then there could be no question of a breach of duty, as the judge recognised. But, assuming that the exposure was more than de minimis, it was, in my view, necessary to ask a further question. That is whether, given the degree of actual exposure, it ought to have been reasonably foreseeable to the University (with the knowledge a reasonable University should have had in 1974) that, as a result, Mr Williams would be likely to be exposed to the risk of personal injury in the form of contracting mesothelioma. To determine that question, it seems to me the judge had to make findings about (1) the actual level of exposure to asbestos fibres to which Mr Williams was exposed; (2) what knowledge the University ought to have had in 1974 about the risks posed by that degree of exposure to asbestos fibres; (3) whether, with that knowledge, is was (or should have been) reasonably foreseeable to the University that, with that level of exposure, Mr Williams was likely to be exposed to asbestos related injury; (4) the reasonable steps that the University ought to have taken in the light of the exposure to asbestos fibres to which Mr Williams was exposed in fact; and (5) whether the University negligently failed to take the necessary reasonable steps.”
[30]Thus far, there is as I see it nothing controversial about the Williams decision. The part of the judgment with which Mr Phillips disagreed was when Aikens LJ went on to consider the relevance of TDN 13. The trial judge had found that the level of exposure to asbestos fibres (including crocidolite) had been just above 0.1 f/ml for a period of between 52 and 78 hours. Aikens LJ said at [60] to [61]:
“I agree with Mr Feeny [counsel for the defendant]’s submission that there could only be a breach of duty of care by the University if the judge had been able to conclude that it would have been reasonably foreseeable to a body in the position of this University in 1974 that if it exposed Mr Williams to asbestos fibres at a level of just above 0.1 fibres/ml for a period of 52-78 hours, he was exposed to an unacceptable risk of asbestos related injury.”
In my view the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorate's "Technical Data Note 13" of March 1970, in particular the guidance given about crocidolite.[60] The University was entitled to rely on recognised and established guidelines such as those in Note 13. It is telling that none of the medical or occupational hygiene experts concluded that, at the level of exposure to asbestos fibres actually found by the judge, the University ought reasonably to have foreseen that Mr Williams would be exposed to an unacceptable risk of asbestos related injury.[31]Mr Phillips submits that if this passage amounts to saying that the levels of average exposure over a ten minute period set out in TDN 13 (2 f/ml for chrysotile and amosite) was a “safe” level of exposure, it is inconsistent with previous authority, in particular Maguire v Harland and Wolff [2005] EWCA Civ 1. That was the well know case where the claimant had contracted mesothelioma, not because she worked at the defendant’s shipyard but because she washed the overalls of her husband who worked there in the early 1960s. The Court of Appeal, reversing Morland J, held by a majority that her claim failed. However,

Judge LJ, describing the developing knowledge about the risks of exposure to asbestos, said at [57]:

“In truth the alarm did not sound until late 1965, when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect, to asbestos dust.”
[emphasis added][32]Longmore LJ, at [91], said that in the light of a previous Court of Appeal decision (Jeromson v Shell Tankers UK Ltd [2001] PIQR 19):
“we are bound to proceed on the basis that as between employer and employee the employer will be in breach of duty if he fails to reduce his employees’ exposure [to the greatest extent practicable].”
[33]Mance LJ, who dissented, said at [77]:
“Because of the general and uncertain risks of asbestos dust (in particular), the primary pre-occupation of any employer should have been to reduce exposure to any such dust “as far as possible”.”
[34]Mr Phillips also points out that TDN 13 was not published until March 1970 and cannot therefore have influenced the thinking of a reasonable employer in 1968/9. However, if, using Aikens LJ’s words, it is the best guide to what was regarded as an acceptable level of exposure in 1970, it is hard to see that such a level would have been regarded as unacceptable in 1968 or 1969.[35]It is important to remember that while Mr Williams was carrying out his scientific experiments in the tunnel there no one was removing or working on the lagging or carrying out any other work of construction or maintenance. In other words, it was a static environment far removed from that of a power station under construction. There is no evidence that the level of asbestos fibres in the air varied from one minute to the next or one hour to the next.[36]I do not consider that Aikens LJ in paragraph 61 of Williams was intending to depart from basic principles of the law of tort as set out, for example, by Longmore LJ in Maguire. I put it to Ms Adams that the effect of that part of Williams is as follows: if an employer or occupier in 1970-74 had no reason to think that the TDN 13 levels of exposure would be exceeded, then injury from asbestos fibres was not reasonably foreseeable. She agreed. Mr Phillips also agreed that this is the effect of paragraph 61 (although he submitted that it is not part of the ratio of the case, and cannot be reconciled with previous authorities). Assuming as I do that Williams was correctly decided and is binding on me, it does not assist the defendants on the facts of the present case. They had every reason to think that the level of exposure would substantially exceed 2 f/ml for short periods, and that workers on the premises would be exposed to a foreseeable risk of injury.

Conclusion

[37]I am now in a position to answer the questions set by Aikens LJ in paragraph [44] of Williams. The level of asbestos fibres to which Mr Billingham was foreseeably exposed at Cottam was far more than de minimis and far more than the levels which were to be set out in TDN 13 a year or two later. The probability is that he was exposed for short periods, many times each day for about six weeks, to very high levels of concentration for half a minute or a minute at a time, possibly as high as 100 f/ml for the first few seconds. Any reasonable employer in 1968/9 should have known that exposure to asbestos fibres in those quantities or anywhere near them posed a serious risk of injury. The defendants should also have been aware that quantities of dust containing asbestos allowed to remain on flat surfaces such as girders without being cleaned off would pose a serious risk of injury to the workforce in the vicinity if disturbed. The risks posed by dust could have been reduced by wetting, cleaning off or the provision of respirators. None of these precautions was taken. I am in no doubt that, even by the standards of the times, the employers negligently failed to comply with their duty of care.[38]In the result there must be judgment for the claimant. The quantum of the claim on a full liability basis has been agreed between these parties at £82,000. The settlement reached with the claimants by the third defendants on the eve of trial provides for the payment of £44,000 in damages (and a further sum in respect of costs). If the £44,000 is paid as expected there will be a further £38,000 to be paid by the second defendants. The formal judgment for the claimant against the second defendants will be for £82,000 less any sum recovered from the third defendants, with £38,000 to be paid within 14 days of the handing down of judgment, and liberty to apply within three months.

Cited in 1 later judgment