Successful Appeal by University of Birmingham in Mesothelioma claim
Williams (on behalf of the estate and dependants of Michael Williams, deceased) v University of Birmingham
Court of Appeal (Civil Division)
28 October 2011
DWF has successfully appealed the decision of HHJ Belcher from Leeds County Court which had found the University of Birmingham in breach of duty for negligently exposing the deceased to asbestos. Ian Macalister, Insurance partner, acted for the Appellant University on instructions from RSA's Legacy team and their Liability Technical Claims Manager Steve Bellingham.
This was a claim for damages following the death of the Claimant's husband from mesothelioma, a malignant tumour of the pleura caused by asbestos exposure. It was claimed that the deceased's exposure to asbestos whilst studying physics at the University had materially increased the risk of contracting the disease. In 1974, as part of his undergraduate studies, the deceased had undertaken a series of physics experiments in a basement tunnel where there were a number of asbestos lagged pipes.
At trial the Claimant argued that the University was in breach of its common law duty of care to the deceased and had negligently exposed him to asbestos. The University accepted that the deceased had been exposed to low levels of asbestos in the tunnel but argued that this exposure was not in breach of duty, and was so limited that it could not have amounted to a material increase in the risk of the deceased contracting mesothelioma.
Her Honour Judge Belcher found that the asbestos lagging of the pipes was in poor condition and there was a lot of asbestos dust on the floor of the tunnel which had been disturbed by the deceased when carrying out the experiments. The judge held that this exposure materially increased the risk of contracting mesothelioma. She further concluded that the University knew or ought to have known that the lagging was asbestos and that low level exposure could cause mesothelioma.
The test applied by HHJ Belcher on breach of duty was wrong, and confused issues of causation with issues of breach of duty. The question that should be asked was whether it was reasonably foreseeable to the University (with the knowledge a reasonable University would have had in 1974) that as a result of the exposure, the deceased would have been at an unreasonable risk of contracting mesothelioma?
Once the exposure was more than de minimis it was necessary to consider whether the University was in breach of duty, applying the correct test. That had to be considered by looking at the standards of the day and what knowledge the University should have had in 1974. The original judgment lacked any finding that the condition of the lagging was such that the University ought to have been alerted to a reasonably foreseeable risk of an asbestos related injury. Therefore the judge's conclusion that the University was in breach of duty could not stand.
Despite doubts that there was a proper finding on causation as a result of the judge not posing the correct test on causation, the Court of Appeal gave the judge the benefit of the doubt. They felt that she probably did intend to make a finding of fact that the University exposure was sufficient to amount to a material increase in risk. If they were wrong on that, such a finding was a reasonable one to make and they therefore declined to interfere with the causation decision.
This decision helpfully clarifies the legal principles and current law in mesothelioma cases. It sets out the correct test for breach of duty and further affirms that breach of duty should be judged by contemporaneous standards. The Court of Appeal clearly approved of the decision of Simon J in the DWF case Lillian Rose Asmussen v Filtrona UK Ltd (2011) which expressed similar views.
The Court of Appeal applied the reasoning of the Supreme Court in Baker v Quantum Clothing Group Limited (2011) when defining the duty of care. The University was only expected to have had a standard of conduct which a reasonable and prudent University would have had in 1974, not any later. What may be an unacceptable risk now was not necessarily unacceptable then and we must be careful not to judge defendants by modern standards.
This is of course a welcome success on the issue of breach of duty. It is disappointing though that the Court of Appeal in their reluctance to interfere with the findings on causation did not set out in greater detail or give guidance on why they felt that it was a reasonable finding of fact that the University exposure was a material contribution to risk.
For further information, please contact:
Ian Macalister, Partner
Direct Dial: +44(0)161 603 5082
Laura Topping, Senior Solicitor
Direct Dial: +44(0)161 603 5195
Stephen Bellingham, Liability Claims Technical Manager at RSA Group
Direct Dial: +44(0)1403 23 4040