Billingham v (1) John Barnsley and Sons (2) Lloyds British Inspection Services Ltd. (3) Vaughan Brothers (Drop Forgings) Ltd. (2013): A legal and scientific commentary
Case Background
The executrix in this action brought a claim for personal injury on behalf of the deceased (Mr Billingham). Mr Billingham contracted mesothelioma as a result of asbestos exposure while at work and died. Mr Billingham was employed by Lloyds British Inspection Services Ltd., a company that specialised in testing the strength of industrial installation. As part of his role, Mr Billingham was testing the strength of steel girders at Cottram Power station between 1968-1969; this involved throwing chains over the girders and attaching weights to the end to see how much it could withstand. It was accepted at trial that the power station was a dusty place and that each time a chain was thrown over a girder it would shower Mr Billingham with dust.
The defendant sought to argue that the strength of the girders were not tested by throwing chains over them; that the work undertaken by the defendant was conducted before the installation of the lagging; that the claimant had not worked in close proximity to any lagging; and that the level of asbestos exposure was unlikely to have breached the concentration guidance contained in HM Factory’s Inspectorate’s Technical Data Note (TDN) 13.
Bean J concluded that the girders were tested by throwing chains over them and that each time this was done Mr Billingham would have been showered with dust; that the lagging took place on a rolling basis and that at the time of Mr Billingham’s work there would have been asbestos present; that the dust on the girders was likely to contain asbestos; and that Mr Billingham had been allowed to work in an area where asbestos dust had been allowed to form. The court was unable to be precise about the amount of asbestos Mr Billingham had been exposed to but that did not matter in light of the fundamental question: did the defendant employer take reasonable steps to prevent its employees being exposed to asbestos. On the facts it was decided that reasonable steps had not been taken and that the defendant should have known this exposure presented a risk to employees. Bean J explained that comments by Aikens LJ in Williams v University of Birmingham [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][2011] EWCA Civ 1242 were not inconsistent with the earlier case of Maguire v Harland & Wolff [2005] EWCA Civ 1.
Contributors Comments
At first blush it might appear that it is difficult to square the results in this case with the decision of the Court of Appeal in Williams v University of Birmingham; reflecting similar difficulty in reconciling the Court of Appeal’s decision in Williams with earlier judicial comments which appears to treat 1965 as a date of knowledge of risk from all asbestos exposure however slight.
The latter difficulty reflects judicial comments such as those of Judge LJ in requiring cases where exposure post-1965 was not an issue and there was no detailed analysis or argument as to the position in this period of time. In reality, the use of 1965 as a definite watershed for appreciation of asbestos-related risk can be seen to be an over-simplification. That low levels were not dangerous or not sufficiently dangerous to require prohibition of use was accepted authoritatively throughout the 1970s. The Factory Inspectorate and then the Health and Safety Executive did enforce the Asbestos Regulations 1969 in accordance with the guidance in TDN 13 of 1970. There is evidence that they commended employers who were complying with these standards.
The basic question in every case is whether any employer or other person causing exposure could reasonably consider that they might be creating a reasonably foreseeable risk of injury. The level of exposure established retrospectively is clearly relevant to this question but is not the only factor. To the extent that the Court of Appeal’s approach in Williams focussed primarily on the level of exposure, it is potentially misleading and has encouraged a view that if exposure can be shown not to have exceeded the levels in TDN 13 of 1969 then no question of breach of duty can arise.
However in Williams, there was the additional consideration that the context in which the exposure arose that is disturbing invisible residues in a contained area was simply not viewed at the material time as a situation in which risk might arise. Similar considerations arose in other data knowledge cases such as McGuire in relation to secondary exposure and Pinder v Cape plc in relation to environmental exposure.
Whilst the risks of secondary and environmental exposure were clearly identified by the Newhouse and Thompson research published in 1965, the risks arising from the presence of asbestos containing materials in buildings not directly subject to activity was not considered or publicised until much later. In the early 1970s no one would in fact have considered the risk of Williams being exposed to asbestos at all.
The Judge therefore was correct to draw distinctions with Williams on the basis that in that case there was no obvious disturbance of asbestos containing materials (paragraph 35) and on the basis that although the guidance in TDN 13 was not overall exceeded, there was nonetheless exposure to levels within the guidance (paragraph 36). Against this background, he considered that the deceased would have been considered to have been exposed to asbestos and that a prudent employer considering the exposure would conclude that it ought to be voided even if it did not strictly exceed the guidance in TDN 13.
A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13. In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time. It is difficult to see on the current state of the law following Baker v Quantum and then Williams v University of Birmingham why the Defendant would be held to be in breach in this situation.
Dr Alan Jones, Senior Physicist/ Head of Proficiency Testing, Institute of Occupational Medicine, comments
The judge was unable to be precise about the amount of asbestos that Mr Billingham had been exposed to. On the judge’s findings, lagging had taken place on a rolling basis and the dust on the girder would have contained some asbestos dust. Therefore, the Defendant was found liable because it failed to prevent exposure to a hazard which might have contributed a very small risk that anyone so exposed would develop a mesothelioma. Both the duration and the concentration were not determined by the judge’s findings of facts. However, by way of example, if the exposure had amounted to a total of 2 weeks of exposure to a concentration near the exposure limits in TDN 13, then the cumulative exposure would have been about 2 fibres/ml × 1/24th of a year = 0.08 fibre/ml.years, if the asbestos present was either amosite =or chrysotile.
The asbestos was very unlikely to have been crocidolite (blue) asbestos as the Power Stations were aware of the greater risk from crocidolite and had therefore specified that it should not be used for new lagging – and this case referred to lagging taking place on a rolling basis. However, if the Court had found that exposure had been to crocidolite and yet accepted that the exposure had been below the limits specified in TDN 13, then the cumulative exposure might have been about 0.2 fibres/ml × 1/24th of a year = 0.008 fibre/ml.years, if the asbestos present was crocidolite. By 1968, the Power Stations were instructed to follow a code of practice that specified particular care with blue asbestos, so if exposure was to crocidolite then it would probably have been at a lower concentration (than for other types of asbestos).
The significance, in terms of likely risk to those exposed, may be estimated from the findings of occupational epidemiological studies in the traditional asbestos industries where there were substantial exposures. Estimation of risk from the exposures estimated above (about 0.1 fibres/ml.years of amosite or chrysotile or about 0.001 fibre/ml.years of crocidolite) is an extrapolation to exposures much lower than the average exposures in the industrial cohorts that provide the data for the exposure risk relationships. Hodgson and Darnton (2000), who undertook an analysis which combined the data from multiple published studies, produced a summary of their estimates of risk (Table 11 in their paper). It is interesting to quote from that Table 11 of Hodgson and Darnton (2000), as below:
Risk summaries for cumulative exposure of 0.1 fibre/ml.years.
“Chrysotile
Risk probably insignificant, highest arguable estimate 4 deaths per 100 000
Amosite
Best estimate about 15 deaths per 100 000 exposed. Highest arguable estimate 80,”
Risk summaries for cumulative exposure of 0.01 fibre/ml.years.
Crocidolite
“Best estimate about 20 deaths per 100 000 exposed. Highest arguable estimate 100, lowest 2”.
The above estimates of risk were based upon the premise that the exposure took place between age 30 to 35. Essentially, the risk predictions are the estimates of how many deaths from mesothelioma would be expected if 100,000 persons had that cumulative exposure while in that age bracket. There would be additional risks from any other exposures that may or may not have been recognised. If the exposure took place earlier in a person’s life, say from age 20 to 25, then the risk estimates would be approximately doubled.
With the benefit of the modern information (which was not available to the Defendant at the relevant time), it is apparent that the risks from a short period of exposure at levels approaching the limits set in TDN 13 leads to a non-trivial risk.
TDN 13 was entitled “Standards…” etc for asbestos and then in the second edition “Hygiene standards”. Subsequently, the Advisory Committee on Asbestos (1979) recommended that the terminology be changed to “Control Limits” because “Hygiene standard” implied or was misunderstood as a level that was “safe”. It is now generally accepted that there is no known safe threshold of exposure below which there is no risk (of mesothelioma), and it would be extremely difficult to prove the existence of such a threshold. It is generally accepted that the lower the exposure, the lower the risk becomes and extrapolation of models (such as that of Hodgson and Darnton) give a reasonable indication of the risk from an estimated level of exposure.
Health and Safety at Work regulations require that asbestos hazards be managed so as to prevent (in so far as is reasonably practicable) exposure to asbestos.
As Charles Feeny commented:
“A more difficult case will no doubt arise when it is shown as is known to be the case that an employer effectively complied with the guidance in TDN 13. In this context, the victim was likely exposed to a very significant amount of asbestos but nonetheless the employer would be shown to be complying with the law and appreciation of risk as understood at the time.”
The above estimates of levels of risk from exposure that were relatively short (weeks), and at the “standards” or “hygiene standards” set in TDN 13 indicates that a more difficult case is indeed likely to arise. There may have been many jobs which involved some incidental contact with an asbestos hazard, that was controlled properly by the standards of the time but gives rise to a non-trivial risk of mesothelioma which may develop some 40 to 50 years later.
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