Friday, 12 April 2013

Post-LASPO, can there be justice for victims of exposure to asbestos?

The ever-diligent Michael Lees, who tragically lost his wife Gina when she was just 51 from mesothelioma (asbestos-caused cancer of the lung lining), has been in touch to tell me about a report he is preparing. Michael's report probes the development of asbestos legislation and guidance in schools and colleges, and will shortly be published. The report raises a number of serious issues about asbestos, all the more so now that we inhabit the post-LASPO world.

For anyone new to this blog, what I'm referring to is the Legal Aid, Sentencing and Punishment of Offenders Act. The majority of its provisions came into force on 1 April. Despite the Act's title - which might lead the unwary to conclude that its provisions are confined exclusively to the criminal law - it has a direct bearing on civil litigation and the personal injury sphere, not least in the prospects of success for claimants suffering asbestos-related problems.

Sterling work by scientists

Michael's report raises real disquiet about the impact of the Court of Appeal decision in the case of Williams v Birmingham University when set against the new LASPO regime. First, though, and thanks to Michael's excellent research, I should explain the importance of a 1965 paper by Dr Newhouse and Dr Thompson, which was first published in the British Journal of Industrial Medicine.

Newhouse and Thompson revealed that non-industrial, low level exposures to asbestos could cause mesothelioma. Their conclusions were brought to the public's attention when the Sunday Times published an article entitled 'Scientists track down killer dust disease' in October 1965. Thereafter, it was generally accepted by the courts that 1965 was a watershed moment: it marked the date from which a defendant should have reasonably foreseen that low levels of asbestos exposure could cause mesothelioma.

The Williams case

But in 2011, the Court of Appeal's judgment in Williams changed all this. The facts of this case are as follows. In 1974 Michael Williams was an undergraduate at Birmingham University. He was exposed to asbestos while carrying out experiments in a service tunnel beneath the university for between 52 and 78 hours in total. The tunnel contained asbestos-lagged pipes in poor condition and there was a lot of asbestos dust on the floor, which Mr Williams disturbed. The asbestos was identified as crocidolite, amosite and chrysotile.

Mr Williams died aged 54 of mesothelioma in 2006. His widow brought legal proceedings against the university, alleging that it had negligently exposed her husband to asbestos, which in turn caused mesothelioma. At the original trial, at Leeds County Court, it was found that the exposure to asbestos had materially increased the risk of Mr Williams contracting mesothelioma – and that Birmingham University knew, or ought to have known, that the pipe lagging in the tunnel contained asbestos and that low-level exposure could cause mesothelioma. In other words, the university was in breach of its duty of care. The report by Newhouse and Thompson was crucial in the court's decision.

The university appealed. The Court of Appeal ruled that the university was not in a breach of duty as they considered that an organisation such as theirs would not have reasonably foreseen that Mr Williams was being exposed to an unacceptable risk. Instead of using 1965 and the work by Newhouse and Thompson as determining the state of knowledge of the university in 1974, Lord Justice Aitken ruled that their state of knowledge would have been that an "acceptable" level of exposure was the workplace "hygiene" asbestos fibre level stated in Technical Data Note TDN 13 of 1970.

Lord Justice Aiken's judgment concluded: "In my view the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorate's 'Technical Data Note 13' of March 1970, in particular the guidance given about crocidolite. The university was entitled to rely on recognised and established guidelines such as those in Note 13."

Flaws with the Court of Appeal's reasoning

Michael’s report rightly points out serious flaws with this conclusion. On the one hand, workplace asbestos hygiene and control levels are for people working on asbestos. As such, they were never a threshold for a 'safe' level of exposure. On the other, workplace control levels were never meant to be the threshold for an acceptable or unacceptable level of exposure for occupants of buildings. Beyond this, we have known for many years that a very small exposure to asbestos fibres could potentially cause mesothelioma, and that there is no known threshold exposure below which there is no risk - whether for workers or occupants (a distinction which, to me, seems wholly arbitrary).

How does all this apply to schools and colleges? Since the mid-1960s, they have acted on the basis that they could be in breach of their duty (to pupils and staff) if they failed to take measures to reduce the exposure of any pupil or member of staff to a minimum. But now, post-Williams, this position is in doubt. Defendants, confronted by claims for asbestos-related disease, are now able to contest whether they are in breach of a duty.

Access to justice?

This has huge ramifications. Whereas for many years defendants sought to contest liability on the grounds of a break of the chain of causation (a strategy which now appears to have little mileage thanks to the decision of the Supreme Court in 2011 in Sienkiewicz -v- Grief (UK) Ltd), Williams now enables them to dispute that they are in breach. The goalposts have shifted towards defendants, and post-LASPO, this is even more apparent. As Michael persuasively argues, there is a pressing need to challenge the Williams decision.  But to do so might be commercially unworkable given the punitive changes to claimant lawyers' ability to recover costs introduced by LASPO.

Sadly, LASPO once again comes up short when applied to real victims of injustice.

Look out for more information, and Michael's report, on the Asbestos in Schools website.