Williams (on Behalf of the Estate and Dependants of Michael Williams, Deceased) v University of Birmingham and Another

JurisdictionEngland & Wales
JudgeLord Justice Aikens,Lord Justice Patten,Lord Justice Maurice Kay
Judgment Date28 October 2011
Neutral Citation[2011] EWCA Civ 1242
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: B3/2009/2640
Date28 October 2011
Between:
Williams (On Behalf of the Estate and Dependants of Michael Williams, Deceased)
Appellant
and
University of Birmingham & Anr
Respondent

[2011] EWCA Civ 1242

Before:

Lord Justice Maurice Kay, VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION

Lord Justice Aikens

and

Lord Justice Patten

Case No: B3/2009/2640

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LEEDS COUNTY COURT

HER HONOUR JUDGE BELCHER

7LS56503

Royal Courts of Justice

Strand, London, WC2A 2LL

Mr Charles Feeny (instructed by DWF LLP) for the Appellant

Mr Julian Goose QC (instructed by ISON HARRISON) for the Respondent

Hearing date: 25 July 2011

Lord Justice Aikens

I. An outline of the case so far.

1

On 24 November 2006 Michael Williams died of malignant mesothelioma of his left lung. He was 54 and left a widow and three dependent children. On 6 November 2007, his widow, Julie Williams, ("the claimant"), brought proceedings on behalf of the estate of her late husband ("Mr Williams") pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and also on behalf of herself and the children pursuant to the Fatal Accidents Act 1976. The defendant to the proceedings and the appellant on this appeal is the University of Birmingham ("the University"), where Mr Williams had studied physics as an undergraduate between 1970 and 1974.

2

In Mr Williams' final year at the University he undertook speed of light experiments as part of his degree course. Those experiments were carried out in a service tunnel, some 90 feet long, which ran from the basement of a building which was part of the University's science department, called the Poynting Building, to the basement of another building called the Nuffield Building. The tunnel, which was not ventilated and was kept locked at one end, had central heating pipes running through it. They were lagged with asbestos lagging which, it was agreed at the trial, was likely to have been the original lagging installed in the 1930s or 1940s, at the same time as the heating system. The University carried out asbestos dust tests in 2004, 2006 and 2007 on dust residues taken from the tunnel and adjacent basement areas. The tests found all forms of asbestos in the dust: in particular, crocidolite (blue asbestos), amosite (brown asbestos) and chrysotile (white asbestos).

3

After graduation Mr Williams trained as a pilot. Between 1976 and 1983 he was employed as an airline pilot by Brown & Root UK Limited ("B&R") at Heathrow Airport. He worked frequently inside a hanger which was in a poor condition. At one stage those acting for the claimants alleged that the hanger contained significant amounts of asbestos and, originally, B&R were joined to the present proceedings as second defendants. However, the proceedings against them were subsequently withdrawn. B&R denied that Mr Williams had been exposed to asbestos whilst employed by them.

4

Shortly before Mr Williams died, on 2 November 2006, when legal proceedings were already in prospect, the University's insurers wrote to his solicitors. They stated that, following their enquiries " …it is not disputed that your client would have received some exposure to asbestos whilst carrying out experiments at the University". It was accepted by the University that Mr Williams was exposed to all three types of asbestos that had been found in the dust tests. However, the University's defence to the proceedings was, and remains, that the extent and the circumstances of Mr Williams' exposure to asbestos during those experiments in the tunnel was de minimis, so that the University was not liable to Mr Williams, his estate and his dependents in respect of the subsequent fatal mesothelioma.

5

A trial on liability only was held at the Leeds County Court before HHJ Penelope Belcher from 16 – 18 September 2009. The case put forward originally by the claimant was that the University was in breach of its common law duty of care to Mr Williams and also its common duty of care under the Occupiers' Liability Act 1957. However, at the trial it was agreed that the judge need only deal with the former basis of claim, as nothing was to be gained by investigating the latter as an alternative. In its defence the University pleaded that it had not breached any duty of care to Mr Williams; nor, it said, was any of the admitted exposure to asbestos causative of the mesothelioma which had been diagnosed in August 2004 and from which he had subsequently died.

6

The judge heard oral evidence of fact from only one witness: Mr Richard Brough of the University's Estates Department. Mr Brough gave evidence about the history and maintenance of the tunnel and surrounding area, the pipework and the lagging. The judge also had evidence before her in the form of a number of statements from various witnesses. These included two statements taken from Mr Williams before he died. There were also statements from the solicitor who took those statements and from witnesses in relation to construction materials used in the premises at Heathrow where Mr Williams had worked for B&R.

7

The judge heard medical expert evidence from Dr Muers for the claimant and Dr Gibbs for the University. She also heard expert evidence from two occupational hygiene consultants: Mr Alvin Woolley for the claimant and Mr Martin Stear for the University.

8

The judge delivered her reserved judgment on 17 November 2009. She found as a fact that the asbestos lagging of the pipes in the tunnel was in poor condition when Mr Williams conducted his experiments there in 1974 and that there was a lot of dust on the floor of the tunnel which contained asbestos fibres which would have been disturbed when the experiments were carried out by Mr Williams. 1 The judge concluded that Mr Williams' exposure in the tunnel to asbestos fibres, particularly crocidolite fibres was at a level close to or above 0.1 fibres per ml 2 but less than 0.2 fibres/ml. 2 The judge further concluded that each period of Mr Williams' work in the tunnel, which she found to have been between 52 and 78 hours in total, 3 materially increased the risk of him contracting mesothelioma as a result of his exposure to asbestos fibres in the tunnel, which would have contained crocidolite. 4 The judge also concluded that the University knew or ought to have known that the pipe lagging in the tunnel was asbestos and that low-level exposure, particularly to crocidolite, could cause mesothelioma. 5

9

On the question of whether the University was in breach of its admitted duty of care to Mr Williams, the judge concluded that:

"….the repeated visits to the tunnel even if only over a period of 8 weeks were nevertheless such that there was a material increase in the risk of Mr Williams contracting mesothelioma as a result. In those circumstances I find that there was a breach of duty and that the Defendant was negligent". 6

10

The judge then considered issues on causation. The medical experts agreed that Mr Williams died as a result of malignant mesothelioma of the left pleura and that it was likely that this mesothelioma was caused by exposure to crocidolite asbestos. 7 However, Mr Feeny, counsel for the University at the trial and on this appeal, argued before the judge that the exposure of Mr Williams to asbestos in the course of the experiments he conducted in the tunnel was so small compared with other exposures to asbestos to which Mr Williams might have been subject that the "university exposure" had to be regarded as de minimis. Therefore, he argued, the exposure to asbestos in the tunnel had not materially increased Mr William's risk of contracting mesothelioma. Thus, even if the University was in breach of duty, that did not, in law, cause the subsequent mesothelioma.

11

The judge rejected this argument. First, she considered section 3 of the Compensation Act 2006 ("the 2006 Act"). 8 The judge held that:

"… the question of whether an exposure [to asbestos] is de minimis is relevant only to the question of whether there is a breach of duty. Once a claimant has successfully established a breach of duty as a result of an exposure with a material increase in the risk of developing mesothelioma, the extent to which that particular exposure contributes to the overall level of disease is irrelevant save to the extent of seeking contribution from others who have similarly exposed the victim to a material increase in the risk of developing mesothelioma". 9

12

The judge went on to characterise the correct question in relation to causation as follows:

" …once a breach of duty is established and it is established that the victim has contracted mesothelioma as [a] result of exposure to asbestos, the proper question is whether because of the nature of mesothelioma and the state of medical science, it is not possible to determine with certainty whether it was the exposure caused by the breach of duty or some other exposure which caused the victim to become ill….". 10

13

The judge recorded that Dr Gibbs, the consultant histopathologist who gave expert evidence on behalf of the University, concluded that Mr Williams must have been exposed to substantial amounts of crocidolite somewhere other than the University. 11 The judge further recorded that Dr Gibbs also confirmed that his figures on Mr Williams' exposure to asbestos did not exclude the possibility that some of the crocidolite found in Mr Williams' lungs as a result of post mortem tests came from exposure in the tunnel. 12 The judge then set out her conclusion on causation and so the liability of the University:

" In those circumstances, in my judgment, having found on the balance of probabilities that Mr Williams was exposed to asbestos in the tunnel at the University and that that exposure constituted a material increase in the risk of him contracting mesothelioma, that Mr Williams contracted mesothelioma as a result of exposure to...

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