Articles & Updates

Divided loyalties? Will natural sympathy for asbestos sufferers trump policy concerns?
Elizabeth Carley reports

In brief

• How will the courts deal with the rise in litigation surrounding lower level exposure to asbestos?
• Williams v University of Birmingham has recently highlighted the relevant issues.

Asbestos litigation to date has tended to focus on injury to industrial workers, as it was in industrial settings that exposure was greatest. But much lower levels of exposure can cause injury or death. There is increasing potential for litigation arising from lower level exposure in non industrial settings, for example in schools. How will the courts grapple with this? The recent Court of  Appeal decision in Williams v University of Birmingham [2011] EWCA Civ 1242, [2011] All ER (D) 25 (Nov) highlights some of the issues.

Williams
Williams concerned low level exposure to asbestos and whether reasonable foresight of harm is necessary for a finding of breach of duty. Mr Williams was a student at Birmingham University. In 1974 he undertook a series of physics experiments in a basement tunnel containing asbestos lagged pipes. At trial, the university accepted that Williams had been exposed to low levels of asbestos. They argued, however, that this exposure was not a breach of duty as it was so limited that they could not have known that such low levels would have such consequences. The trial judge disagreed and found in favour of the claimant.

On appeal, although Aitkins LJ upheld the trial judge’s earlier decision that the exposure to asbestos at the university had probably caused his illness, he nevertheless dismissed the claim, saying the university had not breached its duty of care, given the lack of knowledge in 1974 of the risks posed by small amounts of the substance. Hence, the risk to Williams had not been “reasonably foreseeable”.

Wider implications?
The case highlights the increasing numberof claims which are likely to arise from lower level exposure in non industrial settings, for example school buildings. Practitioners in this area will be familiar with the low exposure case of Willmore v Knowsley Metropolitan Borough Council [2011] UKSC 10, [2011] 2 All ER 857 in which the Supreme Court confirmed that Dianne Willmore had been negligently exposed to asbestos while a pupil at school. Now we have Williams, concerning exposure in a university building.

It is well known that asbestos was widely used in the construction of schools in the 1950s, 60s and 70s. But this potentially deadly material was also used in school labs, workshops, school ceiling tiles and domestic science classes. Asbestos mats were used with Bunsen burners and asbestos saucepan stands in home economics lessons. These were subjected to manhandling, heating or abrasion, releasing asbestos fibres into the air.

A 2004 Health and Safety Executive (HSE) study revealed that “of the approximate 20,400 primary schools and 3,400 secondary schools in the UK, some 13,000 were built between 1945 to 1974, when the use of ACM’s (Asbestos Containing Materials) were at it’s peak”. Many of us attended those schools, and we now realise that a mischievous child carving their initials into the walls with a compass could have deadly consequences.

Too little too late?
Cases such as Willmore and Williams have focused the minds of the HSE and the government on problems of asbestos management. They raise serious questions about whether enough is being done to deal with the legacy of asbestos. Between November 2010 and June 2011, the HSE inspected a random sample of 164 independent schools and it was reported that one in six failed asbestos compliance checks. Significant numbers of children, teachers and other school workers remain at risk on a daily basis. There has been a presumption amongst clinicians and policy makers that  the numbers of asbestos cases will peak in around 2020, but increasing awareness of lower level non industrial exposure is leading many to question whether that scenario is actually rather optimistic.

The courts are undoubtedly aware of the increased trend of cases concerning asbestos exposure in schools. Given the numbers of potential victims who might claim over the coming years, what can we say so far about the attitude of the courts? Willmore seems to indicate good prospects for such claimants, Williams the opposite. But the recent trend of decisions in Asmussen v Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB), [2011] All ER (D) 42 (Jul) and the industrial deafness case of Baker v Quantum Group Clothing Ltd [2011] UKSC 17, [2011] 4 All ER 223 suggest that when defining a duty of care generally in industrial disease cases, the courts will stress that this should be judged by reference to contemporaneous knowledge at the time of the exposure on a case by case basis, so that standards of care will vary over time. The signs are that the courts may be torn between a natural sympathy for asbestos victims and a broader policy concern not to open the floodgates to an ever expanding pool of claimants who have suffered low level exposure. It will be interesting to see which path the courts will take. 

Elizabeth Carley
Industrial Disease Solicitor
Further information: asbestos

This article was first published in NLJ (www.newlawjournal.co.uk), “Personal Injury Specialist”, NLJ, 13 January 2012, page 55.