Breach of duty in mesothelioma claims: Williams remains binding
Bussey v Anglia Heating Ltd
12 May 2017
In a judgment dated 12 May 2017, His Honour Judge Yelton sitting as a deputy judge of the High Court made it clear that the Court of Appeal authority of Williams v University of Birmingham  EWCA Civ 1242 is binding unless and until the Court of Appeal or Supreme Court decide otherwise. Daren Charlton provides a concise summary of the issues in Bussey v Anglia Heating Ltd (2017).
Mr Bussey had been employed by the defendant as a plumber between 1965 and 1968 and his work had involved some modest asbestos fibre exposure. After hearing expert evidence on likely asbestos exposure levels HHJ Yelton made a finding that the exposure was probably below that set out in the now well-known guidance of TDN13 published by HM Factory Inspectorate in 1970. The exposure took place before the guidance was published but as the judge pointed out it would be perverse to suggest that TDN13 had increased the guidance levels for exposure.
The Court of Appeal in the Williams case looked at breach of duty in some detail (in which DWF successfully acted for the defendant) and confirmed that defendants should be judged by the standards of the day by reference to the guidance then available, with TDN13 being reasonable guidance at the time of its publication.
Counsel for Mr Bussey sought to argue that formulating a standard of care based around guidance such as TDN13 was wrong when it was known by late 1965 that mesothelioma could be caused by very low levels of exposure. On that ground it was suggested that the Court of Appeal decision in Williams was decided without proper regard to the law; it was simply wrong.
HHJ Yelton did not express a view on that point but made it clear that Williams was binding authority and the lower courts could not interfere with it. On that basis the claim must fail.
Since the Williams decision was made in 2011 it has been followed in many judgments, including most recently the DWF case of Smith v Portswood House Ltd (2016), and that fact was highlighted by HHJ Yelton as strong argument for not departing from it. Williams is clear binding authority and it seems unlikely that the Court of Appeal would find at this stage that it was decided without proper regard for the law. On that basis it should be followed unless and until the Supreme Court decides otherwise.
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