• The first problem is pinpointing an actual asbestos exposure. It is generally thought that mesothelioma is only caused by asbestos. But it is quite possible to have been exposed to asbestos without even knowing about it. It is not enough to show there was asbestos exposure in a school you attended and you can’t think of anywhere else you were exposed.

    A claimant must positively prove a likely asbestos exposure. And with mesothelioma claims pupils we could be looking back over many decades. This could lead to even greater than usual evidential problems in proving the asbestos exposure so long after the events.

    If you can overcome that hurdle then you still need to show the school was at fault. You might think that was obvious. Surely they were negligent in exposing you to asbestos? But the law is not quite as simple as that. Until 1988 there were no specific asbestos regulations that applied to schools. Before that date, we are left with the judge-made law, the common law, and this is where things can sometimes get a bit tricky.

    In recent years the Court of Appeal has rather raised the bar for what needs to be proven to win low exposure mesothelioma cases. Until 2011 it was generally thought that if you could prove anything more than minimal asbestos exposure after October 1965 an occupier or employer would be found negligent, as long as they should have known about the asbestos and could have done something to reduce or prevent it. However, I’m afraid this is the law no longer since the Court of Appeal decision in Williams v Birmingham University (2011). That case involved a young university student in 1974 carrying out experiments in a University tunnel. The tunnel had been lined with asbestos, including blue asbestos, which by then was not in the best of states. It was thought Mr Williams’ exposure to asbestos, while more than minimal, would have been at a low level. Engineers estimated the asbestos fibres he was exposed to would have been well below the level of the Health and Safety Executive’s then current guidelines about when to prosecute breaches of the 1969 Asbestos Regulations. These were set out in Technical Data Note 13 of 1970 (“TDN 13”). This note stated for example that the regulations should not be enforced for white and brown asbestos where the asbestos dust produced was less than 2 fibres per cubic centimetre over four hours. Somehow the defendant’s barristers managed to persuade the Court of Appeal to accept that because Mr Williams’ asbestos exposure would have been below those enforcement standards the university could not be considered negligent. The Court of Appeal concluded that the best guide for an employer as to what in 1974 was “an acceptable level of exposure to asbestos” was the “official guidance” given in TDN 13. The court, therefore, held that generally asbestos exposure below the TDN 13 guidance level would not be considered to give rise to a reasonably foreseeable risk of injury. Therefore no legal blame could be attached to the University and the widow’s claim failed.

    Since this decision, a whole series of other cases of low-level asbestos exposure have failed at the same TDN 13 hurdle. The courts seem to have accepted without question that the TDN 13 guidance note must be taken as the standard against which employers are to be judged until the HSE issued new stricter guidelines in 1983.

    This represents a particular problem in school asbestos cases where the exposure occurred before 1983. By definition teacher/pupil asbestos exposure at their school will nearly always be low exposure – below the TDN 13 guidance levels. After 1983 it should be rather less of a problem. This is because the HSE then issued new guidelines which made clear that any asbestos exposure was potentially hazardous and the duty was, therefore, to eliminate or reduce asbestos exposure levels to the lowest level possible. Therefore, after 1983 as long as a school should have been aware that its staff and pupils were being exposed to asbestos fibres (even at low levels) if they did nothing effective to reduce or eliminate that exposure they should be considered negligent. A former teacher or pupil contracting mesothelioma, as a result, should then be entitled to compensation, assuming, of course, they can prove the exposure that could have caused the mesothelioma.

    Some of the difficulties with succeeding in mesothelioma claims against schools are illustrated by the earliest recorded mesothelioma case by an ex-school pupil succeeding against her school Dianne Willmore’s v Knowsley Metropolitan Borough Council (2011). Dianne Willmore was a pupil at the then recently built Moss Park comprehensive school between 1972 and 1979. She seems to have been exposed to a low level of asbestos dust for quite short periods from asbestos-based ceiling tiles. Her potential exposure included walking under workmen who were removing the tiles to access electrical cables and walking past ceiling tiles that had been removed and temporarily dumped in a busy school corridor and a busy toilet. Some of those tiles had already been damaged. The witness evidence about her exposure to asbestos dust was not the strongest. However, the trial judge was prepared to infer the asbestos ceiling tiles would inevitably have got knocked and damaged by pupils in the busy corridor and toilet which therefore would have disbursed asbestos dust. He held that it was therefore likely that Diane in walking past those damaged tiles on a number of occasions had some exposure to that dust, even though she could not now actually recall getting dust on her. Importantly, the council admitted negligence. However, they argued that for Diane’s case to succeed she had to show she had come into contact with the asbestos tiles regularly enough to double the risk of her developing mesothelioma.

    The trial judge rejected that argument and held that in accordance with the recent Compensation Act 2006 it was enough that Dianne could show that she had been exposed to sufficient asbestos to make a material contribution to her risk of contracting mesothelioma, even if her exposure was too low to double that risk. Despite the council’s appeal that position was upheld by the Court of Appeal in 2009 (literally only hours before Diane died) and then confirmed by the Supreme Court.

    It is notable that this case preceded the Court of Appeal decision in Williams. What would the result of that case have been if the council had not conceded negligence in Dianne’s case? Her case made it to the Court of Appeal two years before Williams. We must wonder if a differently constituted Court of Appeal would then have come to the same position as the Court of Appeal in Williams or whether it would have established a rather more helpful precedent? I suspect that faced with a claim by a woman who would have been a vulnerable child at the time, entrusted to the school’s care, the Court of Appeal would have found the council were negligent despite the low level of exposure. This could have been justified on the basis that by the 1970s, given the already published warnings, this local authority school should have known that there was no safe level of asbestos exposure and should, therefore, have done what it reasonably could to reduce asbestos exposure. And if the Court of Appeal found there could be liability of a school for low-level asbestos exposure to a teenage girl in the 1970s, how could it not then have found there should be liability of a university for low-level asbestos exposure to a student in his early 20s in the Williams case?

    Like many others, I am convinced that the Williams decision is wrong.

    First, TDN 13 was never really intended to be a guidance note for employees at all, but a guidance note for health and safety prosecutors as to when they should prosecute breaches of the 1969 regulations. Second, even as a guidance notes arguably all TDN 13 did was set a standard as to when an employer should be prosecuted for not providing respirators, the highest level of protection under the regulations. Third, it ignored the approach taken by a previous Court of Appeal six years earlier in Maguire. The court there recognised that after October 1965 employers generally should have been aware that there was no safe level of asbestos exposure and that any guidance given as the minimum standards expected did not mean an employer could reasonably disregard asbestos exposures below that level. Fourth, they wrongly equated what an employer would have regarded as an “unacceptable risk” of harm with a “reasonably foreseeable risk of harm.” It is for a court to decide what sort of risks are legally “acceptable”. If a risk of harm is reasonably foreseeable an employer or occupier is expected to take reasonable steps to reduce that risk, whether or not employers at the time may have thought it was “acceptable”.

    Thankfully it seems that the Williams decision is going to be seriously challenged in the appeal courts in Bussey v Anglia Heating (another mesothelioma widow’s claim that failed in the High Court at the hurdle of TDN 13).

    Despite the Williams decision there have continued to be a number of compensation pay outs to both former pupils and teachers. We ourselves currently have such a case where the local authority has recently conceded liability. However, that case involves exposure from the 1990s. Before 1984 school asbestos cases are likely to remain quite challenging until such time as (hopefully) the Williams decision is reversed.

    This content is correct at time of publication

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