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Case Study

Permission to appeal given in low level asbestos exposure mesothelioma case

72-year-old David Bussey sadly died from mesothelioma caused by exposure to asbestos while working as a heating engineer in the 1960s and up to 1980. He instructed Fieldfisher partner Caroline Pinfold to pursue a claim but died in 2016 before the court action was started.

His job entailed cutting and maneuvering asbestos cement pipes and rope, bringing him into frequent contact with asbestos dust without any mask to protect him or advice about the risks of working with asbestos materials.

Mr Bussey's widow pursued the compensation claim and settled it against one of her husband's employers at the time, Pump Maintenance Limited, but her second claim against Anglia Heating Ltd, for the balance of damages, was dismissed by His Honour Judge Yelton in May this year.

The Judge decided he was bound to follow the case of Williams v University of Birmingham which was decided by the Court of Appeal in 2011. The decision in Williams held that even when it was known that exposure to asbestos at low levels could be fatal, there was no duty for an employer to take action until the level of exposure exceeded the level set out in Technical Data Note 13 (TDN13). This document was only published in March 1970, two years after the relevant period of exposure with Anglia Heating Ltd, and was primarily intended to provide guidance to factory inspectors for prosecutions under the Asbestos Regulations that came into force in May 1970.

Mrs Bussey's legal team argued TDN13 was not a reliable or appropriate test of acceptable levels of exposure to asbestos at the relevant time and furthermore did not apply since the victim in Williams was a visitor to the premises, rather than an employee.

Instead, they argued that Mr Bussey's case more closely followed the earlier cases of Maguire and Jeromson in which the Court of Appeal had decided that an employer had the duty to reduce exposure to asbestos to the lowest level reasonably practicable.

It was admitted on the facts of Mr Bussey's case that the employer could have taken steps to materially reduce the exposure faced by the Deceased by taking simple steps.

The decision on low level exposure to asbestos could potentially affect thousands of mesothelioma sufferers and their families and it is for this reason the appeal has been expedited.

The facts of Mr Bussey's case will not form the subject of the appeal, but the Court will consider the law. Hopefully, the judges hearing the appeal will agree that Williams should not be followed and that TDN13 is not relevant or appropriate in cases such as Mr Bussey's and others.

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