Michaelmas Term [2014] UKSC 53 On appeal from [2013] EWCA Civ 1346

JUDGMENT
UKSC 2013/0267
McDonald (Deceased) (Represented by Mrs Edna McDonald)
(Respondent)
v
National Grid Electricity Transmission Plc (Appellant)
UKSC 2013/0263
McDonald (Deceased) (Represented by Mrs Edna McDonald) (Appellant)
v
National Grid Electricity Transmission Plc (Respondent)
before
Lord Neuberger
Lady Hale
Lord Kerr
Lord Clarke
Lord Reed
JUDGMENT GIVEN ON
22 October 2014
Heard on 12 and 13 February 2014
Appellant Respondent
Dominic Nolan QC David Allan QC
Philip Godfrey Simon Kilvington
(Instructed by Damon
Burt, Plexus Law
)
(Instructed by Satpal
Singh, Irwin Mitchell
LLP
)
Page 2
LORD KERR
Introduction
1. Percy McDonald was diagnosed as suffering from mesothelioma in July
2012. Sadly, at the beginning of February 2014, just before the appeal in his
case was due to be heard by this court, Mr McDonald died. His widow, Edna
McDonald, has been substituted as respondent in the appeal. The period
between diagnosis and death in Mr McDonald’s case is entirely consistent
with experience of this insidious disease. Survival for no more than a period
of months after diagnosis is the almost invariable outcome.
2. Mesothelioma is a form of cancer that develops from cells of the
mesothelium, the protective lining that covers many of the internal organs of
the body. It usually affects the pleura, the outer lining of the lungs and the
internal chest wall. It is most commonly caused by exposure to asbestos.
Symptoms or signs of mesothelioma may not appear until 50 years (or more)
after exposure.
3. Mr McDonald was employed by a firm known as Building Research
Establishment, operated by the government. Between 1954 and March 1959
he attended Battersea power station in the course of his employment. This
was for the purpose of collecting pulverised fuel ash. Between 1954 and
January 1957 he was at the power station approximately twice a month.
Between January 1957 and March 1959 he was there about twice every three
months. The plant where the ash was collected did not contain asbestos. But
Mr McDonald, while visiting the power station, went into other areas where
asbestos dust was generated by lagging work. This happened particularly in
the boiler house. It is suggested by the appellant that his visits to these areas
took place because of curiosity on his part or because he was on friendly
terms with workers employed there. At the times he was exposed to asbestos,
Mr McDonald was, the appellant’s counsel, Mr Nolan QC, suggested, a
“sightseer” or an “interested visitor”.
4. The lagging work involved mixing asbestos powder with water in large
drums in order to make a paste. It also included the sawing of preformed
asbestos sections and the stripping off of old asbestos lagging. On occasions
Mr McDonald walked through dried asbestos paste. The trial judge found that
his exposure to asbestos was “of a modest level on a limited number of
occasions over a relatively short period of time … [and] … was not greater
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than those levels thought of in the 1950s and 1960s as being unlikely to pose
any real risk to health”.
5. The appellant is the successor body to the occupiers of the power station and,
at trial, Mr McDonald alleged that those occupiers were negligent and in
breach of their statutory obligations under regulation 2(a) of the Asbestos
Industry Regulations 1931 and section 47 of the Factories Act 1937. He also
claimed against his employers that they had been guilty of negligence. The
trial judge, His Honour Judge Denyer QC, dismissed all the claims against
both defendants. On appeal, the Court of Appeal allowed Mr McDonald’s
appeal under the 1931 Regulations but dismissed his appeal under the 1937
Act and in negligence. The appellant appeals to this court against the
judgment under the 1931 Regulations and Mrs McDonald cross appeals
against the dismissal of her husband’s claim under section 47 of the 1937
Act. Negligence is no longer in issue.
The Asbestos Industry Regulations 1931
6. These Regulations were made pursuant to the provisions of the Factory and
Workshop Act 1901, section 79 of which provided:
“Where the Secretary of State is satisfied that any manufacture,
machinery, plant, process or description of manual labour, used
in factories or workshops, is dangerous or injurious to health or
dangerous to life or limb, either generally or in the case of
women, children or any other class of persons, he may certify
that manufacture, machinery, plant, process or description of
manual labour to be dangerous; and thereupon the Secretary of
State may, subject to the provisions of this Act, make such
regulations as appear to him to be reasonably practicable and
to meet the necessity of the case.”
7. In a letter of 15 September 1931 the Secretary of State indicated that he would
use his powers under this section and he enclosed a draft of the Regulations
that he proposed to make “for the protection of the workers employed in
certain processes involving exposure to asbestos dust”. He gave notice in the
letter that he had “formally certified as dangerous the manipulation of
asbestos and the manufacture or repair of articles composed wholly or partly
of asbestos and processes incidental thereto …” The letter further intimated
that the Secretary of State had decided to give effect to recommendations
contained in two reports, “Effects of Asbestos Dust on the Lungs and Dust
Suppression in the Asbestos Industry” by Merewether and Price published in
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March 1930 and the Report of Conferences between Employers and
Inspectors concerning Methods for Suppressing Dust in Asbestos Textile
Factories, which had been published shortly before the Secretary of State’s
letter was sent. That letter continued:
“The draft Regulations follow generally the provisions
recommended in the two Reports already mentioned, with
certain additions and modifications which have been made
after taking into consideration observations submitted by the
General Council of the Trades Union Congress.”
8. Section 82(1) of the 1901 Act provided:
“The regulations made under the foregoing provisions of this
Act may apply to all the factories and workshops in which the
manufacture, machinery, plant, process or description of
manual labour, certified to be dangerous, is used (whether
existing at the time when the regulations are made or
afterwards established) or to any specified class of such
factories or workshops. They may provide for the exemption of
any specified class of factories or workshops either absolutely
or subject to conditions.”
9. The breadth of the anticipated application of the Regulations should be noted.
This subsection foreshadowed their application to a wide range of processes.
It also presaged that processes etc which did not exist at the time the
Regulations were made could come within their embrace when later
established. The potentially wide scope of the Regulations was also reflected
in section 83 of the Act which provided:
“… Regulations made under the foregoing provisions of this
Act may, among other things – … (b) prohibit, limit or control
the use of any material or process;”
10. This broadly based theme was continued in the text of the Regulations
themselves. In the preamble it was directed that they were to apply to
“… all factories and workshops or parts thereof in which the
following processes or any of them are carried on:-
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(i) breaking, crushing, disintegrating, opening and
grinding of asbestos, and the mixing or sieving of
asbestos, and all processes involving manipulation of
asbestos incidental thereto;
(ii) all processes in the manufacture of asbestos textiles,
including preparatory and finishing processes;
(iii) the making of insulation slabs or sections,
composed wholly or partly of asbestos, and processes
incidental thereto;
(iv) the making or repairing of insulating mattresses,
composed wholly or partly of asbestos, and processes
incidental thereto;
(v) sawing, grinding, turning, abrading and polishing, in
the dry state, of articles composed wholly or partly of
asbestos in the manufacture of such articles;
(vi) the cleaning of any chambers, fixtures and
appliances for the collection of asbestos dust produced
in any of the foregoing processes.”
11. The extent of the potential application of the Regulations was mitigated by a
proviso to the preamble which was in the following terms:
“Provided that nothing in these Regulations shall apply to any
factory or workshop or part thereof in which the process of
mixing of asbestos or repair of insulating mattresses or any
process specified in (v) or any cleaning of machinery or other
plant used in connection with any process, is carried on, so long
as (a) such process or work is carried on occasionally only and
no person is employed therein for more than eight hours in any
week; and (b) no other process specified in the foregoing
paragraphs is carried on.”
12. Although this proviso cut down the scope of the Regulations, it gives some
insight into the width of their intended ambit. It carried the clear implication
that the Regulations applied even if the main business of the factory or
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workshop was not the manufacture of asbestos goods. Moreover, the
processes identified in the preamble, other than those listed in the proviso,
were to come within the Regulations even if the work involved in them took
place only occasionally or for limited periods. Also, in relation to those
processes listed in the proviso, including mixing, the Regulations were to
apply unless the work was carried out occasionally and no person undertook
it for more than 8 hours a week. A further proviso, not directly relevant for
present purposes, permitted the chief inspector of factories to suspend or
relax the Regulations, if satisfied that, by reason of the restricted use of
asbestos or the methods of working, they could be suspended or relaxed
without danger to those employed. I say that this is not directly relevant but
it is pertinent to note that one of the circumstances in which the suspension
or relaxation might be authorised was that the use of asbestos was restricted.
If, as the appellant claims, the Regulations applied only to the industry
engaged in the manufacture of asbestos, it is difficult to see how
circumstances could arise in which asbestos use within such an industry
would be restricted.
13. The preamble stipulated that it was the duty of the occupier of factory or
workshop premises to observe Part I of the Regulations. Regulation 2 (which
was in Part I) provided:
“2. (a) Mixing or blending by hand of asbestos shall not be
carried on except with an exhaust draught effected by
mechanical means so designed and maintained as to ensure as
far as practicable the suppression of dust during the
processes.
(b) If premises which are constructed or re-constructed after the
date of these Regulations the mixing or blending by hand of
asbestos shall not be done except in a special room or place in
which no other work is ordinarily carried on.”
14. Asbestos was defined in the Regulations as meaning “any fibrous silicate
mineral, and any admixture containing any such mineral, whether crude,
crushed or opened”. Crude asbestos was the raw mineral as shipped in
containers after it had been mined. Crushed or opened material referred to its
condition after it had undergone processes preparatory to its use. The
Regulations defined preparing as meaning “crushing, disintegrating, and any
other process in or incidental to the opening of asbestos”.
Page 7
The background to the1931 Regulations
15. The parties are agreed that the Merewether and Price Report forms part of the
background against which the 1931 Regulations were made and is therefore
indispensable to any examination of their ambit. The respondent claims that
further material considerations include (i) the relevant provisions of the 1901
Act; (ii) the Secretary of State’s certification pursuant to section 79; (iii) the
processes listed in the preamble; and (iv) the definition of asbestos in the
Regulations. The appellant contends that the Report on Conferences and the
discussions which led to it also played a significant part in the shaping of the
terms of the 1931 Regulations and that these must also be considered. It has
not been suggested by the respondent that this report should not be taken into
account.
16. The appellant points to two other sources which, it claims, provide material
germane to a consideration of the intended scope of the Regulations. The first
of these is a report entitled “Problems arising from the use of Asbestos” –
Ministry of Labour HM Factory Inspectorate November 1967 (36-316). This
suggested that the 1931 Regulations “[did] not apply to lagging and insulation
operations using asbestos”. The respondent objects to any reference to this
document on the ground that it did not feature in the case until the hearing
before this court. The second source identified by the appellant consists of
material relating to the Parliamentary history of the Regulations. This
material demonstrates, the appellant argues, that Parliament’s perspective
was that the 1931 Regulations applied only to the asbestos industry. The
respondent contends that it is not permissible to refer to this material because
the conditions prescribed by Pepper v Hart [1993] AC 593 as to the
admissibility of statements made in Parliament are not satisfied. It is also
submitted that the references in Hansard do not, in any event, assist in
determining the scope of the Regulations.
Section 47(1) of the Factories Act 1937
17. Section 47(1) of the 1937 Act provided:
“In every factory in which, in connection with any process
carried on, there is given off any dust or fume or other impurity
of such a character and to such extent as to be likely to be
injurious or offensive to the persons employed, or any
substantial quantity of dust of any kind, all practicable
measures shall be taken to protect the persons employed against
inhalation of the dust or fume or other impurity and to prevent
Page 8
its accumulation in any workroom, and in particular, where the
nature of the process makes it practicable, exhaust appliances
shall be provided and maintained, as near as possible to the
point of origin of the dust or fume or other impurity, so as to
prevent it entering the air of any workroom.”
18. A number of elements is required to establish liability under the subsection.
Firstly, there must be a process which generates dust or fume or other
impurity. Secondly, the dust or fume etc must be of a character or extent as
to be likely to be injurious or offensive. Thirdly, the dust, fume or other
impurity must be injurious or offensive to those employed. But by way of
alternative to the requirement that it be injurious or offensive, if the dust
given off is substantial this will be sufficient to ground liability. Finally, the
measures to be taken in order to protect against inhalation of the dust, fume
or other impurity must be practicable.
19. Mr McDonald had relied on the second limb of the subsection, ie that the
amount of asbestos dust that was given off in the areas of the power station
where he had been exposed to it was substantial. The first issue between the
parties on this aspect of the case was whether it was sufficient that the volume
of the dust at the time that it was initially generated was substantial,
irrespective of its concentration at the time that Mr McDonald inhaled it or
whether it had to be shown that at the time he was exposed to and inhaled it,
there was a substantial quantity of dust. The appellant argued that the
concentration of dust had to be substantial at the moment of exposure and
inhalation. The respondent submitted that, if the quantity of dust that was
initially liberated was substantial, it was not required under section 47(1) to
show that, at the time Mr McDonald was exposed to it, the amount of the dust
was substantial; it was enough that, at the point of its being given off, it could
be so described.
20. The appellant also argued that no duty was owed to Mr McDonald because
he was not a person employed for the purposes of the subsection. On this
issue the respondent claimed that, during the time that he was exposed to the
dust, Mr McDonald was a “person employed”. It was submitted that to
interpret section 47(1) so as to limit its application to workers actually
engaged in the process of producing the dust or fume would greatly restrict
the scope of the provision and would exclude from protection many who
would be affected by the process. Moreover, it would have been a simple
matter to confine the application specifically to those actually engaged in the
production of the dust or fume by an express provision to that effect. An
example of such an explicit provision was to be found in section 49 of the
1937 Act dealing with protection for eyes.
Page 9
The application of the 1931 Regulations
21. The principal argument of the appellant was that the 1931 Regulations, in
their original conception and subsequent application, were focused on the
asbestos industry and those working in it. The purport of the appellant’s
submission on this point was that section 79 of the 1901 Act envisaged the
designation of a dangerous industry rather than proscription of the use in
industry generally of dangerous material. Only when a trade or industry was
formally nominated as dangerous was it to be subject to the Regulations. That
submission, it was claimed, derived support from the terms of section 82
which focused on factories and workshops where the dangerous industry was
carried on. It was also sustained, Mr Nolan argued, by the title of the
Regulations, “The Asbestos Industry Regulations” and the definition of
asbestos. That definition referred to asbestos in its unprocessed ie its raw,
mineral condition. It did not comprehend processed asbestos products such
as asbestos insulation.
22. It was claimed that the exclusive focus of the Regulations on the asbestos
industry was also indicated by subparagraph (v) of the preamble relating to
sawing, grinding, turning, abrading and polishing in the dry state, of articles
composed wholly or partly of asbestos in the manufacture of such articles.
The express inclusion of the qualification that these processes were confined
to the manufacture of asbestos products made clear, it was said, that the
subject of the 1931 Regulations was the asbestos industry and the production
of materials within that industry, rather than the use of asbestos products in
the work of other industries.
23. For the respondent it was argued that the terms of section 79 and the
certification by the Secretary of State indicated that the Regulations were to
apply whenever and wherever a defined process was carried on in a factory
or workshop. This was in keeping with the mischief which Merewether and
Price had identified and the remedy they had proposed. There was no reason
to adopt a narrow definition of “asbestos industry” and on that basis restrict
the application of the Regulations. The term “asbestos industry” in the title
was used in the wide sense of any industry where one or more processes
referred to in the preamble was carried on.
24. The breadth of the terms of the preamble was considered by the Court of
Appeal in Cherry Tree Machine Co Ltd v Dawson sub nom Jeromson v Shell
Tankers (UK) Ltd [2001] EWCA Civ 101, [2001] ICR 1223. Hale LJ,
delivering the only substantive judgment with which Mantell LJ and
Cresswell J agreed, pointed out in para 7 that the preamble had made it clear
that the Regulations applied to all factories and workshops in which the listed
Page 10
processes took place. She also adverted to the import of the proviso in the
preamble. She held (at para 12) that the trial judge was plainly right to
conclude that, for the exemption in the proviso to apply, it was required both
that the work was carried on only occasionally and that no person was
employed at that work for eight hours or more in any week. That conclusion
made it distinctly difficult for the application of the Regulations to be
confined to factories and workshops where asbestos was manufactured.
Sporadic or occasional work involving the manufacture of asbestos was
inherently unlikely to be a feature of factories where that activity was the sole
or primary undertaking. On this account Hale LJ declined to follow the
decision in the Scottish case of Watt v Fairfield Shipbuilding & Engineering
Co Ltd 1999 SLT 1084. In that case, Lord Gill had felt that it was possible to
give the proviso a satisfactory meaning, notwithstanding his conclusion that
the 1931 Regulations applied only to the asbestos industry. Hale LJ was not
persuaded that this was possible, saying at para 21:
“It is however very difficult to imagine a factory or workshop
whose main business was producing asbestos or asbestos
products to which the exemption could possibly apply, given
that only certain processes, infrequently carried on, are
exempted and only then if none of the other defined processes
is carried on in the same factory.”
25. The argument that the Regulations only applied to the asbestos industry and
to the manufacture of asbestos had also been accepted in the earlier case of
Banks v Woodhall Duckham Ltd, an unreported decision of the Court of
Appeal which had been delivered on 30 November 1995. The Court of
Appeal in Cherry Tree distinguished that case, Hale LJ commenting (at para
25) that the observations of the court in Banks were not essential to the
determination of the case because the trial judge had been unable to make
findings of fact as to the extent to which any of the defendants had exposed
the claimant to asbestos and what if any damage flowed from any such
exposure.
26. The appellant challenged the correctness of the decision in Cherry Tree. It
was submitted that too great an emphasis had been placed on the preamble’s
description of the processes and insufficient regard had been had to the
underlying theme of the 1901 Act and the 1931 Regulations. This was that
an industry was to be regulated rather than processes involving the use of
asbestos. In particular, the preventive measures suggested in the Merewether
and Price Report were directed specifically towards the suppression and
control of the dust involved in manufacturing processes, and steps to be taken
in relation to those employed in the industry (p 17 of the Report).
Page 11
27. The central thesis of the appellant’s case rests on the notion that there was, at
the time the 1931 Regulations were made, a clearly identifiable asbestos
industry; that this industry was engaged solely in the manufacture of asbestos;
and that it was the intention of the Secretary of State, in making the
Regulations to confine their application to that closely defined industry.
Several reasons can be given for rejecting that argument, the first and most
prosaic being that, if that had indeed been the Secretary of State’s aim, it
could have been easily achieved by an unequivocal statement to the effect
that the Regulations only applied to the asbestos manufacturing industry. So
far from stating that, the Regulations made it prominently clear that all
factories and workshops in which certain specified processes are carried out
are covered by the Regulations. The emphasis immediately falls on the
processes rather than the nature of the industry. And this is entirely logical.
If processes other than those involved in the manufacture of asbestos were
known to give rise to the risk of developing fibrosis (as they were at the time
the Regulations were made) why should they be excluded from their ambit?
28. Secondly, the Merewether and Price Report, on which the appellant places
such weight, did not focus exclusively, in my view, on the asbestos
manufacturing industry. The first (and more important) part of the Report is
devoted to an investigation of whether workers exposed to asbestos were at
risk of developing pulmonary fibrosis. That investigation had been
commissioned by the Home Office following the discovery, in
February1928, of a case of non-tubercular fibrosis of the lungs in an asbestos
worker, of sufficient severity to necessitate treatment in hospital (Seiler’s
case). As the covering letter enclosing the Report to the Home Secretary
makes clear, the investigation established that the inhalation of asbestos dust
over a period of years results in the development of a serious type of fibrosis
of the lungs. It was not suggested (nor could it have been) that inhalation of
asbestos dust sufficient to cause fibrosis could only occur in the course of
asbestos manufacture.
29. The first part of the Report was not focused on the asbestos industry as such,
therefore, but on the propensity of exposure to asbestos to cause fibrosis. As
it happens, workers in the textile branch of the asbestos industry were chosen
for study because their exposure was to pure, or nearly pure, asbestos.
Workers in other parts of industry had exposure to a mixture of dusts, of
which asbestos was one. It was considered necessary to choose those whose
exposure was to asbestos alone in order to evaluate the effect of asbestos dust.
At p 7 of the Report, however, the authors highlighted the considerable
number of workers exposed to the influence of mixed dusts of which asbestos
was but one. As Judge LJ said, speaking of the Merewether and Price Report
in Maguire v Harland & Wolff plc [2005] EWCA Civ 1, “the research was
Page 12
confined to asbestos textile workers, but [the Report] explained that workers
in other industries, exposed to asbestos dust, were also at risk” (para 23).
30. The choice of workers in the asbestos textile industry for investigation does
not betoken a view on the part of the authors of the Report that protection for
that category of workers was alone required. They were chosen because they
were known to be exposed to asbestos dust and, since the purpose of the
investigation was to examine whether there was a connection between
asbestos dust and fibrosis, it was logical to focus on them. But the critical
finding was that exposure to asbestos dust gave rise to the serious risk of
grave illness. Confronted by that finding and by the statement that workers
in other areas of industry were exposed to asbestos, there is no obvious reason
that the Secretary of State should decide to confine the application of the
Regulations to the manufacturing arm of the asbestos industry and to leave
unprotected the “considerable number” of other workers exposed to a mixture
of dusts including asbestos.
31. While the second part of the Report dealt with the suppression of dust in the
asbestos industry, it did not suggest that precautionary measures need only
be taken in relation to the manufacture of asbestos. It would be illogical if it
had done so in light of the central finding of the first part – that prolonged
exposure to asbestos, in whatever circumstances that occurred, carried a
grave risk of serious illness. Moreover, the second section of the Report
looked separately at textile and non-textile processes involving use of
asbestos materials. The latter included electrodes with an asbestos covering
and miscellaneous goods containing a proportion of asbestos. These
processes were recognised by the authors of the Report to create significant
exposure to asbestos and thereby a risk to health. At p 19 the authors stated:
“Apart from manufacture, certain work is carried on in
premises subject to the Factory and Workshops Acts, as well
as in other premises, which involves use or manipulation of
asbestos or products containing it. The insulating of boilers,
pipes, engines and parts of ships is the most important. Much
of this work is done on board ship by contractors who employ
a considerable outdoor staff.”
32. It is therefore unwise to dwell too heavily on some of the wording of the
Regulations themselves in order to try to construct an exclusive emphasis on
the manufacture of asbestos. It is quite clear that the risks of ill health through
exposure to asbestos other than in the course of its manufacture had been
recognised. Moreover, it is unsurprising that the Regulations should refer to
many aspects of manufacture because the Merewether and Price Report had
Page 13
dealt with asbestos textile workers. But that circumstance alone does not
justify the view that it was intended that the Regulations should apply only
to the manufacture of asbestos and that the risks arising from other forms of
exposure should be ignored.
33. The Report on Conferences between Employers and Inspectors concerning
Methods for Suppressing Dust in Asbestos Textile Factories obviously was
concerned with that area of the industry. While the Secretary of State had
regard to that report, there is no reason to suppose that, simply because it
dealt only with that side of the industry, the risks arising from exposure in
other circumstances would be overlooked.
34. A third reason for rejecting the appellant’s claim that the Regulations were
designed to apply to the manufacturing processes of “the asbestos industry”
is that it is at least questionable whether a self–contained asbestos industry
concerned exclusively with manufacturing could be said to exist in isolation
from the use of asbestos in other factory settings. As Merewether and Price
themselves observed (at p 18 of their Report), the asbestos industry had
developed greatly in the years before the report was issued and it continued
to expand rapidly mainly because of the “demands of the motor, electrical,
engineering and building industries and of the increasing attention now paid
to the insulation of steam plant to promote fuel economy.”
35. Unlike many other manufactured products, asbestos frequently required to be
worked, manipulated, mixed and transformed after the supply of the raw
material to the customer. Merewether and Price referred to this at p 19 in the
passage quoted at para 31 above. It appears to me highly doubtful that the
Secretary of State would have concluded that insulation companies which
were not engaged in the manufacture of asbestos but whose workers were
daily exposed to asbestos while manipulating it for application in various
premises should not be regarded as part of the asbestos industry. And, indeed,
in his certification letter, the Secretary of State expressly stated that he had
formally certified as dangerous the manipulation of asbestos as well as the
manufacture or repair of articles composed wholly or partly of asbestos and
processes incidental thereto.
36. In this context, it is appropriate to consider the Parliamentary material relied
on by Mr Nolan as indicating the government’s intention that the 1931
Regulations should apply only to the asbestos manufacturing industry. The
first of these was a reply given on behalf of the Ministry of Labour on 13
March 1930 to a question concerning the number of men and women
employed in the asbestos industry and insured for unemployment. The reply
given was as follows:
Page 14
“Separate statistics of the number of insured persons in the
asbestos industry are not available, as that industry is included
with others in the group ‘Textile industries not separately
specified.’ At the population Census of 1921, the number of
‘occupied’ persons classified as belonging to the asbestos
industry in Great Britain included 2,550 males and 1,327
females, aged 12 and over.” (Hansard (HC Debs) Col 1520 W)
37. On 15 November 1934, in answer to a question about the number of deaths
from asbestosis, the Home Secretary said:
“About 60 deaths have been brought to the notice of the
Department and after investigation are all attributed by the
Senior Medical Inspector of Factories to exposure incurred
previous to the Asbestos Industry Regulations of 1931 which
required elaborate precautions. …. Special inquiry in 1932 as
to other risks in warehouses and certain other processes
revealed no need for any extension of the regulations, but their
effectiveness will continue to be closely watched.” (Hansard
(HC Debs) Col 2122)
38. Finally, Mr Nolan drew our attention to a statement made on 5 December
1966 by the Minister for Labour to the effect that he was revising the
Asbestos Industry Regulations 1931, and intended “to extend their
application to all industries and processes in which asbestos is used”.
(Hansard (HC Debs) Col 197 W).
39. In the well-known passage of his speech in Pepper v Hart [1993] AC 593,
634 Lord Browne-Wilkinson set out the circumstances in which
Parliamentary material could be used as an aid to construction of legislation
in the following terms:
“…. reference to Parliamentary material should be permitted as
an aid to the construction of legislation which is ambiguous or
obscure or the literal meaning of which leads to an absurdity.
Even in such cases references in court to Parliamentary
material should only be permitted where such material clearly
discloses the mischief aimed at or the legislative intention lying
behind the ambiguous or obscure words. In the case of
statements made in Parliament, as at present advised I cannot
foresee that any statement other than the statement of the
Page 15
Minister or other promoter of the Bill is likely to meet these
criteria.”
40. Leaving aside the question of whether the Regulations are ambiguous, it is
quite clear that none of the statements to which the appellant referred partakes
of the quality required. Quite apart from the fact that none bore directly on
the issue of the application of the Regulations to an asbestos manufacturing
industry only, none could be said to disclose the mischief aimed at or the
legislative intention underlying them. And, of course, two of the statements
post-dated the making of the Regulations and are, therefore, at most, an
expression of view as to how they should be construed rather than a true guide
to legislative intent. The respondent is undoubtedly correct, therefore, in the
claim that the conditions for the admissibility of the Parliamentary material
are not present in this instance and is also correct in the assertion that, in any
event, the statements do not assist in giving any real insight into the
legislative intention in making the Regulations.
41. For essentially the same reasons the 1967 report (referred to in para 16 above)
cannot be regarded as an authoritative guide to the proper construction of the
Regulations. This represents, at best, one possible view as to the extent of
their application. The statement that the Regulations do not apply to lagging
and insulation operations using asbestos is not elaborated upon nor is any
reasoned support for it provided. It also contrasts with the memorandum
dated 6 September 1949 from the chief safety officer of the appellant’s
predecessors to regional safety officers, in relation to the lagging of steam
pipes in generating stations. In it the view of the Deputy Chief Inspector of
Factories is recorded as being that the 1931 Regulations applied to the mixing
of asbestos in power stations but did not apply to the removal of old lagging
or the application of insulation.
42. The next reason for rejecting the appellant’s principal argument is that given
by Hale LJ in the Cherry Tree case, namely, that the first proviso in the
preamble is not only otiose but impossible to explain if the application of the
Regulations is confined to the manufacture of asbestos. An industry devoted
exclusively to making this product simply could not avail of the proviso. It
could have no relevance if the appellant’s contended-for interpretation of the
Regulations is correct. The fact that it was included points unmistakably to
the conclusion that it was envisaged that the Regulations would apply to
processes other than the manufacture of asbestos. Allowing an exemption
for work with asbestos which was occasional and carried on for no more than
8 hours per week simply does not make sense if the Regulations were only to
apply to the asbestos industry as the appellant has defined it. This proviso
flatly contradicts the appellant’s claims as to the scope of application of the
Regulations.
Page 16
43. It is, of course, true that, if the Regulations are held to apply to all factories
at which any of the processes is carried on, regulation 2(b) may appear
somewhat anomalous. To require mixing or blending by hand of asbestos to
be carried on in a special room or place in which no other work is ordinarily
carried on might appear to cast a considerable burden on employers engaged
in lagging operations. The respondent confronts this seeming incongruity
head on by saying that since ‘mixing’ work, in its wide sense, gave rise to
dust to which workers were exposed other than those carrying out the work,
it was a sensible and practical measure to stipulate that mixing should be
undertaken in a separate room or place and, pursuant to regulation 2(a),
provided with a suitable exhaust draught.
44. I am not convinced that this provides a complete answer to the claim that
regulation 2(b), if applied to lagging operations and those working in their
vicinity, imposes a duty that would in practical terms be very difficult to
fulfil. Be that as it may, I am of the firm view that regulation 2(b), if applied
to all processes listed in the preamble, is more readily explicable than would
be the exemption in the proviso if the regulation is confined to asbestos
manufacture only. While, therefore, I acknowledge that the terms of
regulation 2(b) lend some support to the notion that the Regulations were
designed to be more restrictive in their application, I do not consider that this
is of sufficient moment to displace the plain meaning to be given to the
preamble in applying the Regulations to all of the processes listed or to
counteract the more obvious anomaly of the existence of an exemption for
the asbestos manufacturing industry which plainly had no relevance to it.
Mixing
45. Active dispute arose as to whether the term “mixing” in the Regulations
should be given a specialised, technical, or its ordinary, meaning. In support
of its argument that it should be given a restricted, technical meaning, the
appellant conducted a close textual analysis of the Merewether and Price
Report, citing instances of where the term had been used in conjunction with
other processes of manufacture. Reliance was also placed on the Report on
Conferences where it was clear, the appellant claimed, that the expression
“mixing” was used in the technical sense of mixing raw asbestos as a
preparatory step to its use in the manufacture of asbestos products.
46. In the Merewether and Price Report at p 11, “mixing” is first in a list of
processes which includes crushing, opening and disintegrating. And at p 21
the process of “mixing” is identified in the same context as the breaking,
crushing, disintegrating, opening and grinding of asbestos and before
reference to the sieving of asbestos. This, the appellant claims, is a reference
Page 17
to the preparatory steps for use of asbestos mineral in product manufacture,
rather than mixing asbestos to create a paste. This claim is fortified, the
appellant says, by the reference on p 31 of the Report to the dusty process of
hand mixing incidental to opening (ie manufacturing) processes.
47. The appellant argues that the recommendations contained in the Merewether
and Price Report correlate directly to the classification of processes in the
preamble to the 1931 Regulations. Thus the first recommendation (relating
to exhaust ventilation at dust producing points) was the foundation for
regulation 1. The reference in this recommendation to the fact that such
measures have not been applied to “hand work” and that “special difficulties
remain to be overcome in some cases eg …. mixing ….” clearly referred back
to “mixing” identified on pp 21 and 31 of the Report. The recommendation
that, unless the problem was surmounted, there should be “general ventilation
of a high standard applied so as to draw the dust-laden air away from the
worker” became regulation 2(a), the appellant claimed, and therefore applied
specifically to “mixing or blending by hand” with this clear technical
meaning.
48. These arguments are founded on the premise that the Merewether and Price
Report and the Report on Conferences were translated directly to the
provisions in the Regulations. This is a false premise for two reasons. First,
the letter of 15 September 1931 indicated that, while the Regulations would
“follow generally” the recommendations made in the two reports, certain
additions and modifications had also been made. Secondly and more
importantly, the Merewether and Price Report and the Report on Conferences
were based on the investigation of the specific conditions which had been
addressed by both reports. As earlier explained, Merewether and Price had
isolated a particular group of asbestos workers for the precise reason that they
wished to evaluate the effect of exposure to asbestos dust alone rather than
the effect of exposure to mixed dusts including asbestos. The Report on
Conferences was concerned with methods for suppressing dust in asbestos
textile factories. But the consideration of the Secretary of State could not be
constrained by the restricted basis on which the reports were prepared. He
should not have – and must be presumed not to have – ignored the risk to
those who worked with asbestos, other than in the manufacturing process,
that the Merewether and Price Report had clearly identified.
49. Although Merewether and Price had, for understandable reasons, chosen
workers whose activities were confined to the manufacture of asbestos, the
significance of their findings went well beyond the impact on that restricted
category of employees. In particular, it was well known, at the time that the
Regulations were made, that mixing of asbestos to create a paste was a
regular feature of lagging. And Merewether and Price’s findings, properly
Page 18
understood, pointed clearly to the risk that chronic exposure to asbestos
would entail, whatever the circumstances in which it occurred. If it had been
intended to exclude from the ambit of the Regulations mixing for the purpose
of creating a paste for lagging, this would have been, in light of
contemporaneous knowledge, a surprising outcome. In any event, it would
have had to be made explicitly clear and it was not. I am satisfied, therefore,
that the term “mixing” in the Regulations should not be given the restricted,
technical meaning for which the appellant contends and that it should be
taken to cover mixing asbestos powder with water such as occurred in this
case.
The appellant’s secondary argument
50. The appellant argued alternatively that, even if the Regulations covered
mixing of asbestos to prepare a paste for lagging, they did not apply to
someone such as Mr McDonald because he was not employed in the
dangerous trade which had been certified by the Secretary of State under
section 79 of the 1901 Act. The appellant submitted that the Regulations
could not have application wider than the statutory power under which they
had been made and that a side note to section 79 stated that the power was to
“make regulations for the safety of persons employed in dangerous trades”.
51. Mr Nolan acknowledged, however, that the House of Lords had held in
Canadian Pacific Steamships Ltd v Bryers [1958] AC 485 that the section 79
power was a wide one and entitled the Secretary of State to make regulations
which could create a statutory duty to protect persons not employed in the
process regulated (in that case a regular crew member of a ship undergoing
repair in dry dock). The nature and extent of any duty under regulations made
pursuant to the section 79 power therefore depended on the terms of the
particular regulations.
52. Although there was no express provision in the Regulations which restricted
their application to persons employed in the process of mixing asbestos for
lagging, the appellant argued that it was implicit that the duty was so limited,
firstly because that was in accord with the structure of the Regulations, which
was to prescribe precautions to be taken in relation to each of the processes
stipulated and, secondly because the mixing process was one of those referred
to in the first proviso of the preamble. Alternatively, if the protection
extended beyond those who were actually involved in the processes, it did
not cover someone who, like Mr McDonald, was not actually employed in
the areas where the processes were taking place but was merely a “casual
visitor” to those areas.
Page 19
53. I do not accept either of these arguments. The fact that precautions are
prescribed in relation to each of the processes involved says nothing to the
question of whether someone has to be involved in the actual process or may
be incidentally exposed to the dust or fume which the process generates. It
would be remarkable if the group to be protected was confined to those who
were carrying out the process but those who were at risk from exposure
because of their proximity to it should remain unprotected. Given that the
Canadian Pacific case had established that section 79 empowered the
Secretary of State to make regulations which afforded protection to workers
not involved in the process, the essential question is whether the 1931
Regulations, as made, had availed of that opportunity. Where the risk of
injury arises from inhalation of dust or fumes (and, of their nature, processes
which generate these do not discriminate as to who inhales them), there does
not appear to me to be any logical reason to exclude those employees who
are liable to be affected by exposure solely because they do not actively work
on the processes.
54. Merewether and Price had adverted directly to this issue at p 20 et seq of their
Report, stating that within the same workroom there could be several
different processes carried on, each producing dust containing asbestos. The
Report recognised that a worker might be exposed to harmful dust created by
a process he was not engaged in:
“In many works several processes are carried on in the same
room. In the absence of effective means of preventing escape
of dust into the air, many workers are subjected to a risk from
which they would otherwise be immune, or to a greater risk
than that arising from their own work.”
55. As Mr Allan QC for the respondent pointed out in his submissions on section
47 of the 1937 Act, many processes within a factory are fully automated. It
could not have been Parliament’s intention, he argued, that, where a fully
automated process was producing dust or fume, no workers exposed to that
dust or fume were protected by the section. For reasons that I will give in the
next section of the judgment, I accept that submission. Using the same basis
of reasoning I consider that the Secretary of State should be taken to have
been principally concerned with protecting workers who were liable to be
exposed to asbestos, rather than with confining protection to those whose job
it was to carry out the processes which generated the risk of exposure.
56. The fact that the mixing process was referred to in the first proviso of the
preamble does not sound directly on whether the Regulations should extend
to employed persons who are not actively involved in that process. The
Page 20
exemption available is perfectly understandable and workable if the
Regulations apply to workers involved in that process and others who, by
reason of their proximity to it, are liable to inhale the dust or fume that it
generates.
57. I shall deal with the appellant’s argument in relation to the claim that Mr
McDonald was not a person employed but merely a casual visitor or sightseer
in the part of the judgment dealing with section 47 of the 1937 Act, to which
I now turn.
The possible application of section 47
58. The respondent has accepted that, in order to establish that there has been a
breach of statutory duty based on the second limb of section 47(1), it must be
shown that: (1) the dust was given off in connection with a process carried
on in the power station; (2) Mr McDonald was “a person employed” within
the meaning of the section; (3) the quantity of dust when given off was
substantial; and (4) Mr McDonald inhaled dust given off by the relevant
process. The appellant agrees with this formulation except in relation to the
third condition. Mr Nolan contends that it must be shown that not only was
the quantity of dust substantial at the point that it was generated by the
process, it must be substantial at the point of inhalation. I shall consider each
of these in turn.
Was the dust given off in connection with a process?
59. The appellant submitted that lagging operations were not part of the process
carried on at Battersea power station. That process was, the appellant
claimed, the generation of electricity. Mr Nolan relied on the judgment of
Stuart-Smith LJ in Banks where he accepted an argument that the lagging of
pipes that may have given rise to dust was not a process being carried on in
the factory, which was the manufacture of steel.
60. In Nurse v Morganite Crucible Ltd [1989] AC 692 the House of Lords
considered the meaning of “process” in section 76(1) of the Factories Act
1961 and the Asbestos Regulations 1969. Lord Griffiths stated at 704:
“The Divisional Court in giving leave to appeal to your
Lordships’ House certified the following point of law of
general public importance:
Page 21
“Whether for the purposes of the Factories Act 1961 and
Regulations thereunder ‘process’ carried on in a factory
means a manufacturing process or other continuous and
regular activity carried on as a normal part of the
operation of the factory.”
My Lords, I am not prepared to answer the question in this form
because the word ‘process’ is scattered throughout many
sections of the 1961 Act, and it appears in many regulations
made thereunder. Your Lordships have not had the opportunity
to consider the meaning to be attached to ‘process’ wherever it
appears and it is possible that it has different meanings in
different contexts. I would confine my opinion to the meaning
of the word ‘process’ where it is used in the 1969 Regulations
and I would answer the certified question by saying that where
the word ‘process’ is used in the Regulations it means any
operation or series of operations being an activity of more than
a minimal duration.”
61. Although Lord Griffiths specifically confined his opinion as to the meaning
of process to its use in the 1969 Regulations, it is clear that he rejected (at
least implicitly) any notion that, to be a process in a factory, an activity had
to be integral to the principal output of the enterprise. In the Nurse case the
business of the factory was the manufacture of crucibles. Asbestos was not
used for any purpose directly associated with that product. If an argument
akin to that presented by the appellant in the present case had been accepted
in Nurse that would have disposed of the appeal. It did not. And it did not
because it was not necessary that, in order to be an activity in connection with
a process, it had to be shown that it was directly involved with the
manufacture of the end product of the factory.
62. In Brophy v J C Bradfield & Co Ltd [1955] 1 WLR 1148 the plaintiff’s
husband had been overcome by fumes from a boiler used to heat the factory.
It was claimed that the lack of ventilation in the boiler room constituted a
breach of sections 4 and 47 of the Factories Act 1937. The Court of Appeal
held that this was not a process within the meaning of those sections. At p
1153, Singleton LJ dealt with the point pithily when he said:
“… upon the facts it does not appear to me that the boiler room
was a workroom within the meaning of section 4 (1) of the Act
or that the fumes were ‘generated in the course of any process
or work carried on in the factory.’ This was a boiler used for
Page 22
heating the factory and I do not think that that section applies
to the facts of the present case.”
63. In Owen v IMI Yorkshire Copper Tube, an unreported decision of Buxton J
delivered on 15 June 1995, the judge felt that the decision in Brophy could
be explained on the basis that when the fumes came from the factory heating
supply and not from any part of the manufacturing process it was not a part
of the process carried on in the factory. For my part, I would not distinguish
Brophy on that basis. I consider that it was, on this point, wrongly decided.
A process in a factory should not be confused with the product that is
manufactured. In factories all manner of processes are carried on which
contribute to the ultimate manufactured product in varying degrees of
closeness. Thus, for instance, the heating system in Brophy was not required,
in the sense of making a direct contribution to the manufacture of tents and
canvas goods (which was the business of the factory). But a heating system
was doubtless required in order that the manufacture of those goods could
take place.
64. The words in section 47(1), “a process” carried on in any factory should be
given their plain and natural meaning. To suggest that they import some
intimate connection with the manufacture of a product introduces an
unnecessary and unwarranted gloss on the subsection. If it is a process that is
a normal feature of the factory’s activity, it is a process for the purposes of
the legislation. I would therefore hold that the lagging work which Mr
McDonald encountered in the power station constituted a process for the
purposes of section 47 and that the first condition necessary to show breach
of subsection (1) of that section has been met.
Was Mr McDonald a person employed?
65. On the question of whether Mr McDonald was a person employed, the Court
of Appeal decided that he was not, either in the sense of being employed at
the factory or in the process of handling asbestos – McCombe LJ at para 59
and the Lord Dyson MR at para 107.
66. As Mr Allan pointed out, an interpretation of the section which restricts its
application to workers engaged in the process producing the dust or fume
would greatly curb the scope of the provision and would exclude from
protection many workers affected by exposure to the substances. And, as he
also submitted, where the purpose of a provision is to protect the health of
workers, a restrictive interpretation should not be adopted unless the wording
compels it – Harrison v National Coal Board [1951] AC 639 per Lord Porter
Page 23
at 650. The wording of the section does not compel a restrictive application.
For the reasons given in paras 27 and 53-55 above, I consider that, in
approaching the interpretation of this subsection, the emphasis should be on
the need for protection rather than on involvement in the process. One could
perhaps understand a more restricted approach where the danger was inherent
to the process or where there was a special risk to those actively involved in
the process but that is not the case here.
67. Section 49 of the 1937 Act provides an example of such a special risk. That
section empowered the Secretary of State to make regulations in relation to a
process which involved a special risk of injury to the eyes from particles or
fragments thrown off in the course of the process, and to require that suitable
goggles or effective screens should be provided to protect the eyes of the
persons employed in the process. The rider that the regulations should be
targeted at those employed in the process in that instance is logical, given that
the risk can be expected to arise only for those who are actually involved in
the process but the same cannot be said for dust or fumes which are liable to
be inhaled by any who encounter them. The absence from section 47 of a
similar rider to that found in section 49 is significant. It reflects the
recognition that the risk of exposure extends beyond those who are involved
in the process of generating the dust or fume which can cause injury.
68. In Morrison v CEGB, an unreported decision of 16 March 1986, Rose J held
that section 63(1) of the Factories Act 1961 (the equivalent of section 47(1)
of the 1937 Act) only extended protection to those engaged in the process.
He held that if it had been intended to extend the protection to those working
in the factory generally, then the section could have been so worded. It does
not appear that Rose J was referred to section 65 of the 1961 Act (the
equivalent of section 49 of the 1937 Act). In the later case of Owen v IMI
Yorkshire Copper Tube Buxton J considered both sections and reached the
opposite conclusion to that of Rose J. He gave five reasons for arriving at that
conclusion, four of which I agree with and find compelling. They are these:
(i) the phrase “in connection with any process carried on” refers to the dust
and fume produced, not to the person operating that process; (ii) the effect of
section 63 was to prohibit accumulation of dust or fume in any workroom at
all, and not merely in the workroom where the process producing them was
carried out; (iii) comparison with section 4 of the 1961 Act showed that
section 63 provided the same ambit of protection as section 4 which, in
material part, provided that adequate ventilation of each workroom, and the
rendering harmless, so far as practicable, of all fumes, dust etc generated in
the course of any process or work carried on in the factory as may be injurious
to health; (iv) since the duty imposed by section 63 was to prevent
accumulation of dust or fume, the protection which it was designed to achieve
Page 24
must extend to all employed in the workroom, not just those engaged in the
process.
69. In the Court of Appeal, the decision of Buxton J in Owen is referred to only
en passant at para 49 and in a footnote to para 56 of McCombe LJ’s judgment.
The learned Lord Justice and the Master of the Rolls preferred to follow the
decision in Banks on this question. Stuart-Smith LJ in Banks had adopted the
line of reasoning of Rose J in Morrison. Although he was aware that Buxton
J had disagreed with Morrison in his judgment in Owen, Stuart-Smith LJ
indicated that he had not seen the judgment in the latter case. He concluded
that the words “persons employed” in section 47 of the 1937 Act related back
to the earlier words, “in connection with any process”. This he found to be
“the natural reading of the words”. I do not agree. There is no reason to
import, in effect, the earlier words as a qualification to the plain and simple
expression, “the persons employed”. As Buxton J pointed out, this would
have the effect of creating a significant gap in the cover of protection for
workers who might, in the course of their employment, inhale dangerous
substances and be at risk of grave illness in consequence. Quite why the
creation of such a significant gap should represent the intention of the
legislature was not addressed or explained by Stuart-Smith LJ nor, with
respect, by the Court of Appeal in the present case.
70. Nor did Stuart-Smith LJ explain, although he adverted to it, why the contrast
between sections 47 and 49 of the 1937 Act did not point clearly to the former
section being interpreted more widely. For the reasons given in para 67
above, I consider that this divergence is significant and clearly betokened an
intention that the application of section 47 should extend to those employed
persons liable to be affected by the dust or fume, not merely to those
employees who were responsible for producing those substances.
71. But if the section applied to persons employed generally, did it apply to Mr
McDonald who was not employed by the occupiers of the power station and
who did not require to go to the areas where he was exposed to asbestos in
order to fulfil the requirements of his own employment? In Massey-HarrisFerguson (Manufacturing) Ltd v Piper [1956] 2 QB 396 the Divisional Court
held that “persons employed” where that expression was used in section 60
of the 1937 Act included not only servants of the occupier, but any other
person who might be called on to do work in the factory, including a painter
employed by an independent contractor. At p 401, Lord Goddard CJ said,
“The test is whether a person is employed in the factory, not whether he is
employed by the occupier.” This approach was approved by the House of
Lords in the Canadian Pacific case – see Viscount Kilmuir at 504. On this
basis, it was unnecessary for Mr McDonald to show that he was employed by
Page 25
the occupiers of the factory. The fact that he was employed by a different
organisation is irrelevant to the application of the subsection to his case.
Casual visitor
72. What of the circumstance that Mr McDonald was not required to go to that
part of the factory where he inhaled the dust which led to the development of
mesothelioma? The answer is supplied, I believe, by the decision of the Court
of Appeal in Uddin v Associated Portland Cement Manufacturers Ltd [1965]
2 QB 582. In that case it was held that section 14 of the 1937 Act applied
where a workman in the factory went to a part of the premises where he had
no authority to go and his arm was caught in a revolving shaft. At 593E Lord
Pearce said, “there is … nothing to justify the gloss that an employed person
is to be protected only so long as he is acting within the scope of his
employment.” The suggestion that Mr McDonald was acting within the
scope of his employment while in the areas where pulverised fuel ash was
collected and stepped outside that scope as soon as he crossed the threshold
of another room in the factory is fanciful. I consider that the second condition
to establish breach of section 47(1) has also been met.
Substantial quantity – at time of giving off or inhalation?
73. The third condition of the subsection that arises in the present case is that a
substantial quantity of dust be present, on the appellant’s case at the time of
inhalation, and, on the respondent’s, at the time that it was given off.
Resolution of the conflict between these two positions must begin with a
close examination of how the requirement is framed in the subsection itself.
The duty to take all practicable measures is triggered when there is given off
any injurious or offensive dust or fume or any substantial quantity of dust of
any kind. The subsection does not stipulate that the quantity of dust must be
substantial at the point of inhalation. The text of the provision therefore
favours the respondent’s claim as to its proper interpretation.
74. It is to be presumed that the greater the quantity of dust given off, the greater
the chance that it will be inhaled before it is dissipated. It is therefore not at
all surprising that practicable measures should be required to be taken at the
point at which the dusts or fumes are given off. On that account also, the
respondent’s position is to be preferred. That interpretation as to the effect of
the subsection also appears to have been accepted by Widgery J in Nash v
Parkinson Cowan Ltd (1961) 105 S J 323 although the judge in that case does
not appear to have been asked to consider the two possible interpretations
advanced on the present appeal.
Page 26
75. Mr Nolan argued that his interpretation was supported by certain statements
made by Singleton LJ in Gregson v Hick Hargreaves & Co Ltd [1955] 1
WLR 1252 where at 1263 he said, “No one could successfully contend …
that if there was given off a considerable quantity of dust at one end of this
100 yards long shop, everyone down to the other end of the shop should be
provided with a mask”. It appears to me, however, these remarks were made
in the context of an examination whether it was practicable to supply masks
rather than on the question of whether the obligation to take practicable
measures arose if the amount of dust was considerable at the time that it was
given off. In a later passage Singleton LJ said:
“On the latter part of section 47(1) on which [counsel for the
plaintiff] relies, he is entitled to say there was given off a
substantial quantity of dust, and thus the employers were under
a duty to take all practicable measures to protect the plaintiff
and others employed against inhalation of the dust.”
76. I consider therefore that the duty to take practicable measures arises
whenever a considerable quantity of dust is given off and that the activation
of the duty is not dependent on its being shown that the quantity of dust was
considerable at the moment of inhalation. In my view, therefore, the third
condition would be satisfied in Mr McDonald’s case if the evidence
established that, at the time the asbestos dust was given off, it was of
substantial quantity.
The evidence about the amount of dust at the time that it was given off
77. The Court of Appeal in the present case held that the trial judge had failed to
make a finding on whether the amount of dust given off was substantial. At
para 62 McCombe LJ said that the judge made no finding on this point
because although he had begun to address the question at the beginning of
para13 of his judgment, by the end of the paragraph “he had strayed off into
the question of whether … Mr McDonald had been exposed to dust ‘likely to
be injurious or offensive’”. At para 109 Lord Dyson MR said, “It is
unfortunate that the judge did not make any finding on this issue of fact and
it is difficult for this court to make good this omission.”
78. McCombe LJ analysed the evidence in relation to the giving off of a quantity
of dust in paras 63 and 64 and the Lord Dyson MR expressed agreement with
that analysis. For reasons that will appear, it is necessary to set out both paras:
Page 27
“63. Mr Allan’s submission in this area is that the evidence
showed that there were substantial quantities of asbestos dust
discharged in the activities at the power station and that it
matters not that such dust may not have been substantial at the
point of inhalation. He submitted that it was common ground
between the experts that the processes at the power station
would have produced a substantial quantity of dust. He referred
to the reports of Mr Raper for Mr McDonald and Mr Glenn for
the first respondent … The first of those references includes a
table of Mr Raper’s compilation referring to the concentrations
of asbestos dust to which Mr McDonald was likely to have been
exposed. Each is based upon Mr McDonald’s ‘proximity’ to the
location of various operations. The table is introduced by the
following:
‘4.31 On the basis of the claimant’s account and in view
of the foregoing [in which Mr Raper had stated his own
understanding of ‘substantial quantities of dust’], I
would estimate the concentrations of asbestos dust to
which the claimant is likely to have been exposed as
shown in the following table…’
The second passage, from the report of Mr Glenn, was in these
terms:
‘If there was work with asbestos insulation in the power
station then there was the potential for anyone close to
that work to be exposed to a high concentration of
asbestos dust, but the dust would disperse as it moved
away from the work area and those in neighbouring areas
would have been subjected to a lower concentration of
dust than those directly involved in the work.’
64. In my judgment, these passages are slender evidence of the
giving off of a substantial quantity of dust. The first is based
upon Mr McDonald’s account which, as the judge found, had
its deficiencies. The second only alludes to a ‘potential’ for
exposure to high quantities of dust based upon proximity of the
person in question to the operation in question. I consider that
that material is not adequate to demonstrate that there was the
giving off of any ‘substantial quantity of dust’ relevant to the
injury said to have been caused to Mr McDonald at these
premises. There simply was not the necessary evidence to
Page 28
establish in this case what quantities of dust were discharged
by work at this power station and in what circumstances so as
to constitute a ‘substantial quantity’ for the purposes of the
section.” (Emphasis added).
79. Mr Allan criticises these passages on a number of grounds. He submits that
there was in fact clear and undisputed evidence that: (1) the insulation at this
power station would have contained asbestos; (2) insulation work was
undertaken at the power station which included mixing asbestos powder in
oil drums, sawing pre-formed sections and removing old lagging by ripping
it off pipework; and (3) the activities of mixing asbestos powder, sawing
asbestos sections and removing old lagging would generate high
concentrations of asbestos dust which, on any view, would amount to
“substantial quantities of dust”.
80. He pointed out that the consultant engineers, Mr Raper and Mr Glenn, in their
joint statement agreed that asbestos would have been present in the lagging
materials within the power station at the material time. Mr McDonald in his
witness statements had described asbestos powder being mixed in oil drums,
the cutting of pre-formed sections and the removal of old lagging. Mr Raper
had stated that these activities would have given rise to high concentrations
of asbestos dust. This opinion did not rest solely on Mr Raper’s assessment
of Mr McDonald’s evidence. He referred to published work by PG Harries
who had measured dust levels in naval dockyards and supported his opinion
by references to the relevant literature.
81. When Mr Raper gave oral evidence these sections of his report were not
challenged, Mr Allan claimed. What was put in issue was the extent of Mr
McDonald’s exposure. It was not surprising, said Mr Allan, that Mr Raper’s
oral evidence about high concentrations of dust was not challenged since
what he had said on the subject was entirely uncontroversial. Moreover, Mr
Glenn, in his report, acknowledged that some types of work with asbestos
insulation can release large amounts of asbestos dust unless appropriate
precautions are taken and he gave a similar opinion in his report to that of Mr
Raper regarding the fact that mixing of asbestos would give rise to high
concentrations of asbestos dust.
82. At the trial, according to Mr Allan, neither the appellant nor the first
defendant disputed that within the power station work was carried out
involving asbestos insulation and this work would cause substantial amounts
of dust to be given off. What was in dispute was the extent and frequency of
Mr McDonald’s exposure. Finally, Mr Allan pointed out that in the Cherry
Tree case it was not controversial that the type of lagging activities described
Page 29
by Mr McDonald gave rise to high concentrations of visible dust (Hale LJ
para 39).
83. For the appellant, Mr Nolan argued that the requirement that there be a
substantial quantity of dust introduced either a qualitative or a quantitative
dimension and suggested that in Anderson v RWE NPower plc (unreported
22 March 2010) Irwin J had inclined to the view that the substantial element
of the requirement involved a qualitative component. At para 43 of his
judgment in that case Irwin J had said, “the phrase ‘substantial dust’ itself
may add little, since in context it almost certainly meant ‘so substantial as to
be likely to be injurious’”. On this approach some foreseeable risk of injury
was imported into the test and its application would have to take account of
prevailing knowledge (or lack of knowledge) of the risk. If this was the
correct approach, Mr Nolan submitted that the test could not have been
satisfied since an unequivocal finding had been made by the trial judge that
the level of Mr McDonald’s exposure was not greater than that thought of at
the material time as being unlikely to pose any real risk to health – see para
4 above.
84. If the substantial element connoted merely a quantitative element, Mr Nolan
claimed that this must mean more than a significant quantity. He referred to
the case of Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 1
WLR 1049 when the plaintiff was found to have had to work in clouds of
silica dust. (It is to be noted, however, that there was no examination by Sir
Raymond Evershed MR of the extent of dust that had to be present for the
requirement of substantial to be met, presumably because it was beyond
dispute that the quantity was indeed substantial. It should also be noted that,
in contrast with the approach of Irwin J in Anderson, the Master of the Rolls
considered that the question of foreseeability of injury was relevant only to
the issue of practicable measures).
85. Mr Nolan submitted that any evidence of the quantity of dust which depended
on Mr McDonald’s account of the working conditions which he encountered
was of limited value since his evidence about his exposure had been rejected
by Judge Denyer QC as unreal and this finding had not been disturbed by the
Court of Appeal. It is important to note precisely what the judge said about
this. At para 11 he said:
“I reject the notion that he was constantly standing in clouds of
asbestos dust when he was there —this is an unreal scenario. I
accept the defendant’s analysis that as you move away from the
centre of activity, levels of harmful dust decline. I accept that
his likely exposure when exposed was not greater than those
Page 30
levels thought of in the 50s and 60s as being unlikely to pose
any real risk to health”.
Two points need to be made about this passage. First the rejection of Mr
McDonald’s account related to his claim that he was standing in clouds of
asbestos dust when, of course, Mr McDonald’s case on section 47 was being
advanced on the basis of the giving off of substantial quantity of dust of any
kind. As the Court of Appeal held, the judge failed to address that question.
The second and related point is that the judge appears to have made his
judgment on the question of the levels of dust on the basis of whether they
gave rise to known risks. He did not address what has been described, for
instance by Sir Raymond Evershed MR in Richards, as the dichotomy in
section 47.
What does substantial mean?
86. The relevant phrase in section 47 is any substantial dust of any kind. I should
start my discussion on this part by saying what this does not mean. It does
not mean a substantial quantity of injurious dust. The so-called dichotomy in
section 47 points clearly away from such an approach. Whether the second
limb of the subsection is triggered calls for a purely quantitative assessment.
It may well be, as suggested in cases such as Richards and Gregson, that the
possibly injurious propensity of the dust has a part to play in deciding what
are practicable measures. But that has nothing to say on the question whether,
in the first instance, there is any substantial quantity of dust of any kind.
87. The question whether the dust is asbestos or other injurious dust should
therefore not obtrude into the initial assessment of whether the second limb
of section 47(1) is engaged. To do this conflates consideration of the second
limb with considerations that are relevant to the first limb. Proper application
of the subsection requires a staged approach: (i) is the dust, fume or other
impurity which is given off of such a character and given off to such an extent
as to be likely to be injurious or offensive to the persons employed? (ii) if
not, has any substantial quantity of dust of any kind been given off in the
workroom where the claimant was a person employed? (iii) if the answer to
(i) or (ii) is “yes” are there practicable measures which can be taken to protect
the persons employed against inhalation of the dust or fume or other impurity
and to prevent its accumulation in any workroom? And (iv) if the answer to
(iii) is “yes” have they been taken?
88. This staged approach was not followed by the trial judge nor, I am afraid, by
the Court of Appeal, although, in fairness, it does not seem to have been
Page 31
presented to either in quite the stark way that I have expressed it. Indeed, by
the time that the matter came before the Court of Appeal, it may not have
been feasible for counsel to present it in quite that way, given the flow of the
evidence before Judge Denyer QC. Be that as it may, it is clear that the sharp
distinction that should have been drawn between matters required to establish
liability under the first limb and those required to sustain a case under the
second was not maintained. The opening words of para 63 of McCombe LJ’s
judgment and his observation that there was no evidence that any substantial
quantity of dust relevant to Mr McDonald’s injury had been given off
disclose that that clear division between the two limbs was not preserved. Of
course, the question of whether any substantial quantity of any dust caused
or contributed to Mr McDonald’s condition would always be relevant but not
at the stage where what was being decided was if there was a substantial
quantity of dust of any kind.
89. Mr Allan submits that the failure of the trial judge and the Court of Appeal
to approach the application of the second limb properly is not fatal to the
respondent’s case on the cross appeal. In particular, he points to the fact that,
at the time of Mr McDonald’s exposure, no reliable scientific means existed
for measuring the concentrations of dust in the atmosphere. In these
circumstances, he suggests, the assessment of dust levels had to be by
reference to a visible dust cloud, even though the hazardous proportion of the
dust would be invisible to the naked eye. There was enough evidence, he
claimed, to allow this court to conclude that such a visible dust cloud was
present and that, therefore, the proposition that there was a substantial
quantity of dust was made out.
90. The problem with this submission is that there was no examination before the
trial judge or the Court of Appeal of the issue whether the only means of
assessing whether dust levels amounted to substantial was by visible
assessment. Or, at least, if there was, it does not feature in the judgment of
either court. Nor was evidence given of how dense the cloud would have to
appear to be. These, and doubtless many other issues, would have been
canvassed before Judge Denyer QC if there had been a clear confrontation of
the question whether, merely on its appearance, the quantity of dust which
was generated at the time Mr McDonald was in the workroom satisfied the
statutory requirement of being substantial. It is not possible for this court to
conduct retrospectively the type of investigation that would be required to
provide a confident outcome to that debate. I have concluded, therefore, that
the third condition has not been, and cannot now be, satisfied.
Page 32
The fourth condition – has it been shown that Mr McDonald inhaled asbestos dust
which caused his mesothelioma?
91. The undisputed evidence was that anyone who was present in the workroom
where lagging operations were carried out would be exposed to asbestos dust.
It was not disputed that Mr McDonald was so present. While the extent of his
exposure was a matter of controversy, the fact that he was exposed to some
extent was not. Therefore, as Lord Dyson MR pointed out in para 119 of his
judgment, in the absence of any suggestion that he was exposed to asbestos
in any other employment or in the general atmosphere, “causation will have
been established in the conventional way”. I consider that causation has been
established and that Mr McDonald’s estate is entitled to recover appropriate
compensation.
Disposal
92. I would dismiss the appeal and the cross-appeal.
LADY HALE:
93. A just and sensible judge is always prepared to admit that she has been wrong.
But it would not have been comfortable to be the “swing vote” between two
Justices who thought that Cherry Tree Machine Company Ltd v Dawson (sub
nom Jeromson v Shell Tankers (UK) Ltd) [2001] EWCA Civ 101, [2001] ICR
1223 was rightly decided and two who thought that it was wrong. I am
therefore mightily relieved that the unanimous view is that it was rightly
decided. The claimant’s husband in Cherry Tree was employed as an
apprentice fitter in a factory which manufactured dry cleaners’ presses. For
two years, it was part of his job to mix asbestos flock with water in a bucket
and then apply it to the plattens of a press in order to seal them to stop the
steam escaping. He was therefore mixing the asbestos as part of the process
of manufacturing a product containing asbestos. That sort of mixing, as Lord
Reed explains, was covered by the Asbestos Industry Regulations 1931. He
was also engaged in the manufacture of such products and thus undoubtedly
within the class of persons whom the Regulations were designed to protect.
94. The first question in this case is whether the mixing of asbestos with water in
order to form a paste with which to lag pipes and boilers in a power station
was also covered by the Regulations. The second question is whether the
Regulations were designed to protect a person such as Mr McDonald, who
was not employed by the power station but was there in the course of his
Page 33
employment with another employer. Neither question is without difficulty,
as the difference of opinion in this court demonstrates. But it is common
ground that if Mr McDonald’s exposure to asbestos was in breach of a
statutory duty owed to him, the power station will be liable on the basis of
having materially increased the risk of his suffering injury from that
exposure.
95. The Regulations in question were made under section 79 of the Factory and
Workshop Act 1901 (see para 6 above). This gave the Secretary of State
power to do two things: first, to certify that any “manufacture, machinery,
plant, process or description of manual labour, used in factories or
workshops” was dangerous, if he was satisfied that it was “dangerous or
injurious to health or dangerous to life or limb, either generally or in the case
of women, children or any other class of persons”; and second, having so
certified, to “make such regulations as appeared to him reasonably
practicable and to meet the necessity of the case”. Section 82 made it clear
that the regulations could cover any factory or workshop where the certified
manufacture or process took place.
96. The Secretary of State certified as dangerous “the manipulation of asbestos
and the manufacture or repair of articles composed wholly or partly of
asbestos and processes incidental thereto”. The focus was upon the processes
of manipulation and manufacture and not on any particular setting where this
might happen. This focus is carried through into the Preamble to the
Regulations, which directs that they shall apply to “all factories and
workshops or parts thereof in which the following processes or any of them
are carried on”. The only indication in the Regulations that they might not
apply to all such factories or workshops is in the title – The Asbestos Industry
Regulations – coupled with what that might have been understood to mean at
the time.
97. But that understanding is not crystal clear from the Merewether and Price
Report on whose findings and recommendations the Regulations were based.
We can all read that Report, and the Report on Conferences between
Employers and Inspectors concerning Methods for Suppressing Dust in
Asbestos Textile Factories which followed it, and find some words which
appear to support the view which we have taken of the Regulations and some
which point the other way. Part I of the Merewether and Price Report is
devoted to establishing that there is a dose-related risk to health from
exposure to asbestos dust. Part II is devoted to an explanation of the processes
in which asbestos dust might be generated and the methods of suppressing
that dust. The introduction to Part II lists seven main groups of asbestos
products, including at (c) insulation materials. But it also points out that
“apart from manufacture, certain work is carried on in premises subject to the
Page 34
Factory and Workshops Acts, as well as in other premises, which involves
use or manipulation of asbestos or products containing it” (p 19). It cannot
therefore be assumed that the authors were only concerned with the factories
and workshops in which the particular seven products listed as (a) to (g) were
produced. The concluding summary and recommendations include the
comment that “Dust is produced at many kinds of machines, in hand process
work, and in simple incidental operations, particularly in emptying settling
chambers, and in all handling of ‘fiberized’ asbestos” (p 31). The overall
message is clear: asbestos dust is potentially harmful; it is produced when
handling asbestos and in various other manufacturing processes; and steps
should be taken to suppress it.
98. In my view, the title to the Regulations, and the preceding Report, are by no
means clear and unequivocal enough to dispel the plain meaning of the words
of the Preamble to the Regulations, which direct that they shall apply to all
factories and workshops in which the listed processes are carried out. This is
reinforced by the exclusion of places where only some of those processes are
carried on and then only occasionally. The Regulations do only apply to
factories and workshops, and not, therefore, to places such as ships where
processes producing asbestos dust were also known to be carried on. But the
power station with which we are concerned was a factory or workshop to
which the Factories Acts applied.
99. The next question, therefore, is whether mixing asbestos-containing
insulation material in large drums to create insulating paste was a process
covered by the Regulations. Mr Nolan QC, for the defendant, mounted a
vigorous argument that “mixing” in paragraph (i) of the list of processes in
the Preamble had a narrow technical meaning which could not include mixing
such as this. He pointed to the uses of the term “mixing”, in both the
Merewether and Price Report and the Report on Conferences, in the context
of the work of preparing raw asbestos for use. He also pointed to the context,
at the beginning of the list of processes in the Regulations, before the
references to the processes involved in the manufacture of various products.
100. Mr Nolan’s meaning would not have included the mixing of asbestos flock
with water in order to make the paste used to seal the plattens in Cherry Tree,
a process which is also described in the Merewether and Price Report. His
meaning is difficult to reconcile with the Regulations’ definition of
“asbestos” as “any fibrous silicate mineral, and any admixture containing any
such mineral, whether crude, crushed or opened”. As Lord Reed points out
(para 155(v)), mixing of asbestos can take place at three stages within the
asbestos industry: mixing the contents of sacks before crushing; mixing the
crushed material before it is opened; and mixing the opened or fiberized
asbestos with other materials in order to produce asbestos products. But once
Page 35
the meaning is taken beyond the narrow technical meaning for which Mr
Nolan argued, it is difficult to see why mixing “asbestos” (as defined in the
Regulations) with water to make a paste to seal the plattens in a dry cleaning
press is covered but mixing the same asbestos with water to make lagging
paste is not, provided that both processes are carried on in a place covered by
the Factories Acts. The question comes back, therefore, to whether the
Regulations are confined to the industry of making asbestos products, on
which I respectfully differ from Lord Reed for the reasons given earlier.
101. The next question, therefore, is whether Mr McDonald was a person for
whose protection the Regulations were made. The 1901 Act itself made no
mention of civil liability towards anyone. Under section 85(1), breach of the
Regulations was a criminal offence punishable only with a fine. But it was
long ago established that, if statutory duties were created for the protection
of a particular class of persons, who might be injured if those duties were not
observed, then Parliament might not have intended that criminal liability
were the only remedy: see, for example, the classic statement in Groves v
Lord Wimborne [1898] 2 QB 402. Civil liability therefore depends upon
whether the claimant belongs to such a class. But logic suggests that there
must be some limit: the class may be very wide but it is less likely that
legislation creating a criminal offence also intended to impose what is often
a strict civil liability, independent of negligence or the foreseeability of harm,
towards anyone at all who might suffer injury as a result of a breach.
102. Sometimes the statute itself suggests the limit, as with the provisions of
sections 47 and 49 of the Factories Act 1937, which protect respectively
“persons employed” and “persons employed in the process” (see paras 17 and
67 above). Sections 79 and 82 of the 1901 Act do not contain even those
limits. There is the complication, as pointed out in Canadian Pacific
Steamships Ltd v Bryers [1958] AC 485, that the 1901 Act was repealed by
the 1937 Act and Regulations made under it were deemed to have been made
under the corresponding provisions of the 1937 Act; section 60 of the 1937
Act was originally limited to the protection of persons employed in the
regulated processes; but this was amended in 1948 to cover all “persons
employed”. However, as Viscount Kilmuir pointed out, while Regulations
which were ultra vires when made could not be rendered intra vires if the
scope of the later Act were wider, it did not follow that Regulations which
were intra vires when made could become ultra vires if the scope of the later
Act were narrower.
103. Is there anything, therefore, to suggest that the duties imposed in the 1931
Regulations are owed only to persons employed by the factory or workshop
in question, as opposed to persons employed elsewhere who come to the
factory in the course of their employment and may be exposed to asbestos
Page 36
dust as a result? Part II of the Regulations imposes certain duties (breach of
which is also punishable by a fine) upon “persons employed”, but some refer
simply to “persons employed”, others to “persons employed at [specified]
work”, and one provides that “no person” shall misuse or wrongfully interfere
with appliances provided in pursuance of the Regulations. This certainly
suggests a link with employment, but not with any particular employment.
104. Although liability under the Factories Acts is often considered a type of
employers’ liability, it is in fact a species of occupiers’ liability, the duties
being placed upon the occupiers of the factories and workshops to which they
applied. The object of those duties was to protect people from the harm which
they might suffer as a result of the processes being carried on there. As was
pointed out by both Lord Goddard LC and Streatfeild J in Massey-HarrisFerguson (Manufacturing) Ltd v Piper [1956] 2 QB 396, it is often the people
who are not regularly employed in the factory in question who are most in
need of the protection offered by duties of this sort. The test which they
adopted was whether a person was employed in the factory, not whether he
was employed by the occupier. This test was approved by the House of Lords
in the Canadian Pacific Steamships case.
105. The court in both those cases clearly regarded the decision in Hartley v
Mayoh & Co [1954] 1 QB 383 as something of an exception to the general
principle. There it was held that there was no liability under the Electricity
Supply Regulations towards a fireman attending a factory fire who was
electrocuted because of faulty wiring. It is noteworthy that, first, the occupier
was only held responsible for 10% of the damages, the remainder being the
responsibility of the electricity company; second, that the occupier was held
liable in common law negligence anyway; and third, that no authorities, other
than the general principle in Groves v Lord Wimborne, are cited for the
proposition in any of the judgments in the Court of Appeal.
106. Mr Allan QC, for the respondent claimant, suggested that the test of a “person
employed” is a person who attends the factory in the course of his
employment, with the possible proviso that he does so in connection with the
processes carried on there, rather than solely in connection with his
employer’s business. Mr McDonald met that test. He was there on a regular,
although not frequent, basis in order to collect the pulverised fuel ash
generated by the power station’s processes. I accept, of course, that at the
time the Regulations were made, it was not known that a fatal disease might
be caused by exposure to a single fibre of asbestos. The Merewether and Price
Report was concerned with what was then seen as a dose-related risk of
developing asbestosis. But the Report also acknowledged that “the
appropriate methods for suppression of dust may only be fully determined
when the harmful effects of comparatively low concentrations of asbestos
Page 37
dust are duly appreciated” (p 31). The message was clear: asbestos dust is
harmful and the then known methods must be employed to protect workers
from it. I see no difficulty in regarding Mr McDonald as a person employed
in the power station, albeit not by the power station, who was entitled to such
protection as the Regulations then required.
107. It follows that I agree with Lord Kerr and Lord Clarke that the appeal should
be dismissed.
108. In those circumstances, it is not strictly necessary to express a view on the
cross-appeal, but in my view it should be allowed. As I am in a minority of
one on this issue, I will explain my reasons very briefly. All the conditions
required by the “substantial quantity” limb of section 47 of the Factories Act
1937 (see para 109) are made out. I agree, for the reasons given by Lord Kerr,
that the lagging operations were a process carried on at the power station. I
also agree with him that Brophy v JC Bradfield & Co Ltd [1955] 1 WLR 1148
was wrong to hold that a factory’s heating system was not a process carried
on in the factory for this purpose. I agree with both Lord Kerr and Lord Reed
that the persons protected are not limited to those employed on the process in
question. For the reasons given earlier, I agree with Lord Kerr that the
claimant was a “person employed” and thus protected by section 47. And I
agree with both Lord Kerr and Lord Reed that the quantity of dust must be
substantial at the time when it is given off and not necessarily at the time
when it is inhaled. I remind myself that causation is not in issue in this case.
109. Where I respectfully disagree is in their conclusion that there was no evidence
that the quantity of dust given off at the relevant time was substantial. I agree
with Lord Kerr that this limb of section 47 requires only a quantitative
assessment of the amount of dust of any kind being given off at the relevant
time. The relevant time is not when Mr McDonald was exposed to the dust
or in the room where the lagging work was being done. It is when the dust
was given off. This issue was not addressed by the trial judge, who was sidetracked into issues of foreseeability and whether the dust was likely to be
injurious, which are relevant to negligence and to the first limb of section 47,
but not to the second. Nor, with respect, was it addressed by the Court of
Appeal in the passages quoted by Lord Kerr (at para 78). They were
concentrating on the evidence of Mr McDonald’s exposure and not on the
evidence of the quantity of dust given off when it was given off. The evidence
of both experts as to the amount of dust likely to have been given off by the
various lagging activities carried on at the power station (summarised by
Lord Kerr at paras 79 to 81) was entirely uncontroversial. In my view it shows
that the amount of dust given off was substantial. The question then is
whether practicable measures could have been taken to protect persons
employed from inhaling the dust. But that issue has not been raised by the
Page 38
appellant defendant, who has throughout argued that the section does not
apply, rather than that there was nothing the appellant defendant could
reasonably have done about it. The burden was upon the appellant defendant
to make such a case and the appellant defendant has not.
110. Hence I would have allowed the claimant/respondent’s cross-appeal in
addition to dismissing the defendant/appellant’s appeal.
LORD CLARKE:
111. Lord Kerr and Lord Reed have reached different conclusions on the question
whether the appellant was in breach of regulation 2(a) of the Asbestos
Industry Regulations 1931 (“the Regulations”). Lord Kerr concludes that it
was, whereas Lord Reed concludes that it was not. I prefer the reasoning and
conclusion of Lord Kerr on this question, which is the critical question in this
appeal.
112. Lord Kerr concludes that the Regulations should be given a broad
construction. He refers in paras 6 to 14 to the statutory basis for and to the
provenance of the Regulations. He refers to sections 79 and 82 of the Factory
and Workshop Act 1901 and to a letter from the relevant Secretary of State
dated 15 September 1931 enclosing a draft of the Regulations. He notes the
breadth of the anticipated application of the Regulations and the express
provision in section 82(1) that processes which did not exist at the time could
come within the Regulations in the future. Thus section 83 provided that
regulations made under the Act might, among other things, (b) prohibit, limit
or control the use of any material or process. At para 10 Lord Kerr quotes
from the preamble to the Regulations, of which para (i) is of particular
relevance here. It provided that the Regulations were to apply to
“all factories and workshops or parts thereof in which the
following processes or any of them are carried on:
(i) breaking, crushing, disintegrating, opening and grinding of
asbestos, and the mixing or sieving of asbestos, and all
processes involving manipulation of asbestos incidental
thereto; …”
The remaining sub-paragraphs are set out by Lord Kerr in para 10 above.
Page 39
113. Then in paras 11 and 12 Lord Kerr refers to one of the provisos to those
provisions:
“Provided that nothing in these Regulations shall apply to any
factory or workshop or part thereof in which the process of
mixing of asbestos or repair of insulating mattresses or any
process specified in (v) or any cleaning of machinery or other
plant used in connection with any such process, is carried on,
so long as (a) such process or work is carried on occasionally
only and no person is employed therein, for more than eight
hours in any week, and (b) no other process specified in the
foregoing paragraphs is carried on.”
I agree with Lord Kerr that, although the proviso cut down the scope of the
Regulations, it also gave some insight into their intended ambit. In particular,
it carried the clear implication that the processes identified in the preamble,
other than those listed in the proviso, were to come within the Regulations
even if the work involved in them took place only occasionally or for limited
periods. Also, as Lord Kerr observes, in relation to the processes listed in the
proviso, including mixing, the Regulations were to apply unless the work was
carried out occasionally and no person undertook it for more than eight hours
a week.
114. The preamble provided that it was the duty of the occupier of relevant
premises to observe Part I of the Regulations, which included regulation 2.
Regulation 2(a) and (b) provided:
“2. (a) Mixing or blending by hand of asbestos shall not be
carried on except with an exhaust draught effected by
mechanical means so designed and maintained as to ensure as
far as practicable the suppression of dust during the
processes.
(b) In premises which are constructed or reconstructed after the
date of these Regulations the mixing or blending by hand of
asbestos shall not be done except in a special room or place in
which no other work is ordinarily carried on.”
115. The essential issue between the parties is whether the regulation 2(a) covered
only the asbestos industry and was concerned with asbestos in its raw
unprocessed condition, as submitted on behalf of the appellant, or whether it
extended to processed asbestos products, as contended on behalf of the
Page 40
respondent. In powerful judgments, Lord Reed espouses the former view,
whereas Lord Kerr espouses the latter.
116. Both Lord Kerr and Lord Reed refer extensively to the Merewether and Price
Report and other relevant pointers. I entirely accept that a critical part of the
Regulations was concerned with processes in the manufacture and repair of
items containing asbestos. This is plain from paras (i) to (vi) of the preamble
quoted by Lord Kerr at para 10 and, indeed, can be seen from the title to the
Regulations, namely the Asbestos Industry Regulations. However, the
question is whether that expression should be given a wider or narrower
meaning. It seems to me that the better view is that it should be given a wider
meaning.
117. The purpose of the Regulations was surely to protect workers from the
consequences of asbestos dust. I do not myself see why that protection should
be limited to those affected by asbestos dust in the process of manufacture
and repair and not those affected whenever a defined process was carried on
in a factory or workshop.
118. All depends upon whether the process carried on in the present case was
within para (i) of the preamble to the Regulations quoted above. In short, was
it within the expression “mixing or sieving of asbestos, and all processes
involving manipulation of asbestos incidental thereto”? Asbestos was defined
as meaning “any fibrous silicate mineral, and any admixture containing any
such mineral, whether crude, crushed or opened.” As I read his judgment,
Lord Kerr accepted these submissions made on behalf of the respondent
(summarised at his para 23). (1) Consistently with the mischief identified by
Merewether and Price and the remedy they proposed, the terms of section 79
and the certification of the Secretary of State indicated that the Regulations
were to apply whenever and wherever a defined process was carried on in a
factory or workshop. (2) There was no need to adopt a narrow definition of
“asbestos industry” and on that basis restrict the application of the
Regulations. The title was used in the wide sense of any industry where one
or more of the processes referred to in the preamble was carried on.
119. I agree. As I see it, the specific question which must be answered is that
identified by Lord Reed in paras 151 and 152. As he says in para 151, the
expert evidence given at the trial indicated that insulation material containing
“opened” or “fiberized” asbestos were widely used until the 1960s for lagging
boilers and pipework. Such material commonly contained fiberized asbestos,
mixed with other substances such as calcium silicate or cement. The
insulation material could either be pre-formed or mixed with water and
applied in the form of a paste. Pre-formed sections were sawed by hand in
Page 41
order to profile them for fitting. The mixing of the paste involved bags of
powdered insulation material being emptied into open-topped containers for
mixing with water. Lord Reed concludes in para 152 that, having regard to
that evidence, it appears likely, on the balance of probabilities, that the
insulating material used by the laggers was an admixture containing fiberized
asbestos and was therefore “asbestos” as defined in the Regulations. The
question posed by Lord Reed is whether the activities of the laggers fell
within the Regulations.
120. I agree with Lord Reed that that is indeed the question. It appears to me, at
any rate on the face of it and if the language is given its ordinary and natural
meaning, that the conclusion that the material was an admixture amounts to
a conclusion that there had been a mixing of asbestos within the meaning of
para (i) of the preamble. Equally, as I see it, there was a “process of mixing
of asbestos” within the meaning of the proviso quoted above, although the
proviso would not apply on the facts because the conditions were not both
satisfied. For my part, I do not think that the principle noscitur a sociis leads
to the conclusion that the word mixing should be given other than its ordinary
and natural meaning.
121. I turn briefly to the authorities. I agree with Lord Reed that in Watt v Fairfield
Shipbuilding & Engineering Co Ltd 1999 SLT 1084 Lord Gill confined the
scope of the Regulations too narrowly. I also agree with him that the first case
in which a detailed consideration of the background to the Regulations was
Cherry Tree Machine Co Ltd v Dawson (sub nom, Jeromson v Shell Tankers
(UK) Ltd) [2001] EWCA Civ 101; [2001] ICR 1223, which has been
discussed in some detail by both Lord Kerr and Lord Reed and in which Hale
LJ gave the only reasoned judgment, with which Mantell LJ and Cresswell J
agreed. Both Lord Kerr and Lord Reed accept that it was correctly decided,
although Lord Reed expresses disagreement with some of the dicta in Hale
LJ’s judgment.
122. As I read that judgment, Hale LJ approached the construction of the
Regulations in the way that I have sought to do. I refer to only two aspects of
her judgment in addition to those referred to by Lord Kerr. First, she said at
para 24 on p 1232 that none of the arguments in Banks v Woodhall Duckham
Ltd (which was an unreported decision of the Court of Appeal dated 30
November 1995) or Watt was “sufficiently persuasive to combat the natural
and ordinary meaning of the words used”. Hale LJ approached the issue of
construction by reference to the natural and ordinary meaning of the words
used and was not persuaded that the title to the Regulations, namely the
Asbestos Industry Regulations, led to any different conclusion. At para 20
she described the most powerful of the submissions to the contrary as being
the title to the Regulations but said that there were two even more powerful
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points in reply. The first was that the Regulations were expressed to apply to
any factory or workshop where the defined processes took place and the
second was a point on the proviso much as referred to above. Secondly, at
para 25, Hale LJ expressed some doubt as to whether the Regulations applied
to the work of knocking off old lagging but that they were more likely to have
applied to the laggers’ work in mixing asbestos to form new insulation. I
respectfully share those views of Hale LJ (for the reasons she gives) and the
views of Lord Kerr on ‘mixing’ at paras 45 to 49 and prefer them to the
different views of Lord Reed.
123. I would only add that I also share the views of Lord Kerr expressed at paras
27 to 35 of his judgment. In particular, if the Secretary of State had intended
to limit the Regulations to a narrow view of the asbestos industry, he could
easily have done so, whereas, as Hale LJ observed, the Regulations made it
clear that all factories and workshops in which certain specified processes
were carried out were covered. If the purpose of the Regulations was to
protect workers from asbestosis dust, why exclude these workers? I adopt
Lord Kerr’s approach to the Merewether and Price Report at his paras 28 to
35 without repeating it here. I would only underline the statement of Judge
LJ quoted by Lord Kerr at his para 29, that “the research was confined to
asbestos textile workers, but [the report] explained that workers in other
industries, exposed to asbestos dust, were also at risk.” The critical finding
was that exposure to asbestos dust gave rise to grave illness.
124. For these reasons, like Lord Kerr, I would hold that the Regulations applied
to the work being done by the laggers. I agree with Lord Kerr and Lord Reed
that it is not necessary for a person in the position of Mr McDonald to show
that he was employed by the occupier or in the process in connection with
which the dust or fume is given off. The question remains, however, whether
he was employed at the factory. As Lord Kerr explains at paras 72 and 73, it
is not necessary that the employee should be acting in the course of his
employment: Uddin v Associated Portland Cement Manufacturers Ltd
[1965] QB 582, per Lord Pearce at 593E.
125. Lord Kerr notes at para 71 that, at any rate for the purposes of section 60 of
the 1937 Act, “persons employed” included any person who might be called
on to do work at the factory, including a painter employed by an independent
contractor: see for example Massey-Harris-Ferguson (Manufacturing) Ltd v
Piper [1956] 2 QB 396. On the other hand, after referring to those cases,
Lord Reed observes at para 217 that the expression does not extend to a
fireman who enters a factory in order to put a fire out (Hartley v Mayoh &
Co [1954] 1 QB 383), or to a police constable who enters a factory in pursuit
of a felon (Wigley v British Vinegars Ltd [1964] AC 307, 324 per Viscount
Kilmuir), although he is a person and he is employed. Lord Reed adds that
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in Canadian Pacific Steamships Ltd v Bryers [1958] AC 485, 504 Viscount
Kilmuir considered that the phrase applied to “any person who is employed
in the factory whether the direct servant of the occupier or a servant of an
independent contractor so long as he is employed upon work in that factory”.
He adds that in the later case of Wigley v British Vinegars Ltd, concerned
with a window cleaner employed by an independent contractor, Viscount
Kilmuir said, at p 324:
“In my view, the true distinction is between those who are to
work for the purposes of the factory and those who are not.
Clearly, maintenance of the factory is work for the purpose of
the factory, while the arrest of a felon or the putting out of a
fire is not, though it may benefit the factory indirectly. Window
cleaning is part of the maintenance of the factory and in my
view the deceased was within the protection afforded.”
126. Lord Reed recognises that these principles tend to give rise to the drawing of
fine distinctions without any compelling rationale. The present case might be
regarded as an example. As he puts it at para 218, it could perhaps be argued
that Mr McDonald was employed for the purposes of the power station, either
on the basis that one of those purposes was the sale of the ash, and he was
employed collecting ash which had been sold, or on the basis that the ash was
a by-product which the power station had to dispose of, and he was employed
removing it. However, Lord Reed prefers the contrary view as being more
persuasive on this basis. Mr McDonald was not in reality working for the
purposes of the power station. He was working solely for the purposes of his
employer, the Building Research Establishment. It was the purchaser of the
ash which was a by-product of the power station, and it employed Mr
McDonald to collect the ash in his lorry. A customer of a factory can hardly
be regarded as working for the purposes of the factory.
127. I am bound to say that I prefer the former view. It appears to me that a lorry
driver who goes to a factory to collect its produce is in a real sense working
for the purposes of the factory, albeit as the employee of someone else. The
collection of goods is essential to the operations of the factory. The driver is
much closer to the painter or the window cleaner than the fireman or the
policeman. I therefore prefer the view of Lord Kerr. I would hold that, in the
relevant sense and at the material time, Mr McDonald was employed in the
factory.
128. For these reasons I would hold that the appellant was in breach of the duty
contained in regulation 2(a) and that, provided that the relevant causal link
was established, the respondent’s estate is entitled to recover appropriate
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compensation. As to causation, the position is summarised by Lord Dyson
MR in para 119 of his judgment as follows:
“As I understand it, the only evidence of Mr McDonald’s
exposure to asbestos dust is of exposure from the activities at
the National Grid’s factory. There is no suggestion that he was
exposed to asbestos dust in the course of any other employment
during his working life. It follows that, unless he was exposed
to asbestos dust in the general atmosphere, the mesothelioma
must have been caused by the dust to which he was exposed at
the National Grid’s factory. If he was not exposed to asbestos
dust in the general atmosphere, causation will have been
established in the conventional way. If he was exposed to
asbestos dust in the atmosphere, then he will succeed on the
basis that the National Grid materially increased the risk of Mr
McDonald contracting mesothelioma: see Sienkiewicz v Greif
(UK) Ltd [2011] UKSC 10, [2011]2 AC 229.”
129. For these reasons I would dismiss the appeal. I do not wish to say anything
about the cross-appeal.
LORD REED (with whom Lord Neuberger agrees)
Introduction
130. Mr McDonald was diagnosed with mesothelioma in 2012, and died from the
disease in 2014. His only known exposure to asbestos occurred when he was
employed by the Building Research Establishment between 1954 and 1959
as a driver and, in the course of that employment, drove a lorry to Battersea
Power Station from time to time in order to collect pulverised fuel ash for use
in the experimental production of building materials. In order to collect the
ash, Mr McDonald had to drive his lorry beneath a chute outside the power
station from which the ash was released. He was not exposed to asbestos
during that process.
131. The evidence that he was exposed to asbestos during his visits to the power
station comes from two written statements made by him, on which he was
not well enough to be cross-examined. In his first statement, he said that there
was generally a queue of vehicles waiting for deliveries, and that it was his
habit to park his lorry and go into the power station for about an hour. He had
to deal with paperwork and talk to the manager about his delivery. He got to
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know the workers in the power station, and they would show him around. He
would also have lunch in the power station. He generally waited in the power
station until it was time for him to collect the ash and leave.
132. In his second statement, he said that once inside the power station it took him
five minutes to walk to the manager’s office. There were usually other people
waiting to speak to the manager. Once his paperwork was completed he
would speak to the workers who were dealing with his delivery about any
delays. He also used the lavatories in the power station.
133. In both statements, he described being present when thermal lagging was
applied to boilers and pipework, and seeing the laggers mixing asbestos
powder with water in order to make the lagging paste which they then applied
to the boilers or pipes being insulated. He also saw laggers cutting pre-formed
sections of asbestos to fit to pipes and boilers, and removing old asbestos
insulation from pipework. He claimed to have been in close proximity to such
work, with visible clouds of asbestos in the air.
134. Aspects of this account were challenged by the appellants, who are the
successors of the former occupiers of the power station, and their codefendant at the trial, the Department for Communities and Local
Government, which is the successor of Mr McDonald’s employer. It was
common ground that the ash plant was separate from the power station, and
did not have any lagged pipes or boilers. If Mr McDonald had to enter the
power station at all, it would only be to go to the offices. The offices,
lavatories and canteen would not be dusty environments. There was no need
for Mr McDonald to go inside the boiler house or the turbine house, where
there would be lagging of boilers and pipes. If he did so, he went there as a
casual visitor. It was very unlikely that Mr McDonald would have been
standing in close proximity to clouds of asbestos.
135. The trial judge, HH Judge Denyer QC, accepted the defendants’ analysis of
the real extent and duration of Mr McDonald’s visits to the power station. He
concluded that “any exposure was at a modest level on a limited number of
occasions over a relatively short period of time”, and that “his likely exposure
when exposed was not greater than those levels thought of in the 50s and 60s
as being unlikely to pose any real risk to health”.
136. The question which arises on this appeal is whether the appellants are liable
in damages for breaches by their predecessors of regulation 2(a) of the
Asbestos Industry Regulations 1931 (“the 1931 Regulations”) and section
47(1) of the Factories Act 1937 (“the 1937 Act”). The judge rejected Mr
Page 46
McDonald’s claims under both heads, and also a claim in negligence. The
Court of Appeal allowed the appeal in so far as the claim was advanced under
the 1931 Regulations. The appellants appeal against that decision. There is a
cross-appeal against the dismissal of Mr McDonald’s claim under the 1937
Act. The claim in negligence is no longer pursued.
137. I approach the questions raised in the following three parts, before concluding
that the appeal should be allowed and the cross-appeal dismissed:
1. The historical background to the making of the 1931
Regulations and the enactment of the 1937 Act.
2. An analysis of the Regulations against the backdrop of certain
earlier documents and the relevant authorities, as well as
subsequent legislation made on the basis of the understanding
of the Regulations which I favour. I conclude this part by
considering whether Mr McDonald was within the scope of
the Regulations in any event.
3. An analysis of section 47(1) of the 1937 Act and its
application to Mr McDonald’s case.
138. Although the legislation in question was repealed long ago, the questions
raised as to its interpretation are of continuing practical significance. As the
facts of this case demonstrate, the consequences of exposure to asbestos may
not become apparent for many years. When they emerge, the resultant claims
are often of substantial value and of considerable importance to the
individuals affected, to the insurance industry and to the Government (which
has succeeded to potential liabilities, particularly as a result of the
nationalisation of industries in which asbestos was used). The ambit of the
legislation is therefore a matter of general public importance.
Part I: the Historical Background
139. It is important to understand at the outset that the connection between
asbestos and mesothelioma was unknown when the 1931 Regulations and the
1937 Act were conceived and introduced (and, for that matter, during the
period when Mr McDonald visited the power station). The legislation was
not designed to protect against the risk of mesothelioma: a risk consequent
upon exposure to any quantity of asbestos dust, however infrequent the
exposure may be, and however insubstantial the quantity of dust to which the
person is exposed. The legislation has to be interpreted in the same way as
any other legislation, and not distorted in order to provide compensation to
those who were not intended to fall within its protection. It should also be
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interpreted without any preconception that it must have been intended to
maximise the protection afforded to workers: then as now, legislation
concerned with health and safety reflected a compromise between competing
interests and objectives.
The Factory and Workshop Act 1901
140. The 1931 Regulations were made under section 79 of the Factory and
Workshop Act 1901 (“the 1901 Act”). Part IV of the 1901 Act was headed
“Dangerous and Unhealthy Industries”. It contained two groups of
provisions. The group relevant for present purposes was headed “Regulations
for Dangerous Trades”. It included section 79, which provided that where the
Secretary of State was satisfied “that any manufacture, machinery, plant,
process or description of manual labour used in factories or workshops is
dangerous or injurious to health or dangerous to life and limb”, he might
certify “that manufacture, machinery, plant, process or description of manual
labour to be dangerous”. On such certification, the Secretary of State might
make such regulations as appeared to him to be reasonably practicable and to
meet the necessity of the case.
The certification
141. In accordance with section 80 of the 1901 Act, notice was given of a proposal
to make the 1931 Regulations in a letter issued by the Home Office dated 15
September 1931. The letter narrated that, as required by section 79, the
Secretary of State had formally certified as dangerous:
“the manipulation of asbestos and the manufacture or repair of
articles composed wholly or partly of asbestos and processes
incidental thereto”.
142. It will be necessary at a later point to return to that letter. For the present, it
is to be noted that the certification, which was critical to the scope of the
power to make regulations, concerned the manipulation of “asbestos” – a
term which, as I shall explain, is descriptive of fibrous silicate minerals – and
the manufacture or repair of articles composed wholly or partly of those
minerals.
Page 48
Part 2: the 1931 Regulations
143. The 1931 Regulations, which were subsequently revoked and replaced by the
Asbestos Regulations 1969 (SI 1969/690, “the 1969 Regulations”), are
entitled “The Asbestos Industry Regulations”. That title suggests that the
Regulations are concerned with something identifiable as the asbestos
industry, rather than with the use of the products of that industry in the work
of other industries. That is as one might expect from the terms of the
certification, which as I have explained concerned the manipulation of
asbestos, and the manufacture and repair of articles composed wholly or
partly of asbestos, rather than the use of asbestos products.
144. The Regulations begin with a preamble in which the Secretary of State directs
that they are to apply to all factories and workshops or parts thereof in which
the following processes or any of them are carried on:
“(i) breaking, crushing, disintegrating, opening and grinding of
asbestos, and the mixing or sieving of asbestos, and all processes
involving manipulation of asbestos incidental thereto;
(ii) all processes in the manufacture of asbestos textiles, including
preparatory and finishing processes;
(iii) the making of insulation slabs or sections, composed wholly or
partly of asbestos, and processes incidental thereto;
(iv) the making or repairing of insulating mattresses, composed
wholly or partly of asbestos, and processes incidental thereto;
(v) sawing, grinding, turning, abrading and polishing, in the dry
state, of articles composed wholly or partly of asbestos in the
manufacture of such articles;
(vi) the cleaning of any chambers, fixtures and appliances for the
collection of asbestos dust produced in any of the foregoing
processes.”
145. A proviso to the preamble excludes the application of the 1931 Regulations
to:
“… any factory or workshop or part thereof in which the
process of mixing of asbestos or repair of insulating mattresses
or any process specified in (v) or any cleaning of machinery or
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other plant used in connection with any such process, is carried
on, so long as (a) such process or work is carried on
occasionally only and no person is employed therein for more
than eight hours in any week, and (b) no other process specified
in the foregoing paragraphs is carried on.”
As the proviso indicates, occasional exposure to asbestos dust was not
thought at that time, unlike the present, to involve a significant risk to health.
A further proviso permits the Chief Inspector of Factories to suspend or relax
the Regulations, if satisfied that, by reason of the restricted use of asbestos or
the methods of working, they could be suspended or relaxed without danger
to those employed.
146. A number of terms used in the Regulations are defined. In particular,
“asbestos” is defined as meaning:
“any fibrous silicate mineral, and any admixture containing any
such mineral, whether crude, crushed or opened.”
147. In relation to the obligations imposed by the 1931 Regulations, it is necessary
in particular to note regulations 1(a) and 2.
148. Regulation 1(a) requires an exhaust draught, preventing the escape of
asbestos dust into the air, to be provided for
“manufacturing and conveying machinery, namely:-
(i) preparing, grinding or dry mixing machines;
(ii) carding, card waste-end, ring spinning machines,
and looms;
(iii) machines or other plant fed with asbestos ;
(iv) machines used for the sawing, grinding, turning,
abrading or polishing, in the dry state, of articles
composed wholly or partly of asbestos.”
“Preparing” is defined as meaning:
“crushing, disintegrating, and any other process in or incidental
to the opening of asbestos”.
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A proviso states that regulation 1 does not apply inter alia “to mixing or
blending by hand of asbestos.”
149. Regulation 2 provides:
“(a) Mixing or blending by hand of asbestos shall not be carried
on except with an exhaust draught effected by mechanical
means so designed and maintained as to ensure as far as
practicable the suppression of dust during the processes.
(b) In premises which are constructed or reconstructed after the
date of these Regulations the mixing or blending by hand of
asbestos shall not be done except in a special room or place in
which no other work is ordinarily carried on.”
The interpretation and application of the 1931 Regulations
150. Questions are raised in this appeal as to the scope of the 1931 Regulations:
in particular, whether they applied to the power station by virtue of the
activities carried on there by the laggers, and whether they imposed a duty
which was owed to Mr McDonald.
151. In order to decide whether the Regulations applied to the power station, it is
necessary in the first place to consider whether “asbestos”, as defined, was
used by the laggers working there. There is no direct evidence (other than
that of Mr McDonald) as to the composition of the material that they used. It
appears however from expert evidence given at the trial that insulation
materials containing “opened” or “fiberized” asbestos were widely used until
the 1960s for lagging boilers and pipework. Such materials commonly
contained 15% fiberized asbestos, mixed with other substances such as
calcium silicate or cement. The insulation material could be either preformed, or mixed with water and applied in the form of a paste. Pre-formed
sections were sawed by hand in order to profile them for fitting. The mixing
of the paste involved bags of powdered insulation material being emptied into
open-topped containers for mixing with water.
152. Having regard to that evidence, it appears likely, on a balance of probabilities,
that the insulating material used by the laggers was an admixture containing
fiberized asbestos, and was therefore “asbestos” as defined by the
Regulations. The question then arises whether the activities of the laggers fell
within the ambit of the Regulations.
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153. Considering the preamble defining the scope of the Regulations, paragraphs
(ii), (iii), (iv) and (v) do not apply: each of them is concerned with the
manufacture or repair of products composed wholly or partly of asbestos.
Paragraph (vi) is also inapplicable: it is concerned with the cleaning of
appliances used for the collection of dust produced in the processes described
in paragraphs (i) to (v). The only remaining possibility is paragraph (i), and
in particular “the mixing … of asbestos”. Do those words include the mixing
in a power station of insulation material, containing fiberized asbestos, with
water?
154. As noted earlier, paragraph (i) of the preamble concerns “breaking, crushing,
disintegrating, opening and grinding of asbestos, and the mixing or sieving
of asbestos, and all processes involving manipulation of asbestos incidental
thereto”. That provision uses a number of ordinary English words, such as
“opening” and “mixing”, but it is apparent that some of them, at least, are
being used in a technical sense embedded in the industrial practice of that
period. Opening asbestos, for example, is evidently different from opening a
window, or opening an account. Some guidance as to the meaning of
paragraph (i) can be obtained from the Regulations themselves, and other
assistance from the reports which preceded their introduction.
155. I shall discuss the reports at a later point, but it may be helpful to anticipate
that discussion to the extent of summarising what is said in the reports about
some of the terms found in the Regulations. In summary:
i) “Opening” asbestos means splitting the raw mineral into fibres.
ii) The first stage in the opening or “fiberizing” of asbestos is for the
mineral to be “crushed”. This flattens out and breaks up the mineral.
iii) After crushing, the mineral is sieved, for the purpose of grading it,
prior to its being opened.
iv) Waste asbestos products are fiberized by being “disintegrated” or
“broken up”.
v) “Mixing” can take place at three stages within the asbestos industry
(an expression which I shall define in the next paragraph). Before
crushing, the contents of several sacks of the raw mineral may be
mixed on the floor beside the crushing machine. This is described as
“rough mixing”. After crushing, the crushed material may be mixed
prior to being opened. This is referred to as “mixing or blending”.
After opening, the fiberized asbestos may be mixed with other
materials in order to produce a variety of asbestos products, including
insulation materials. At all these stages, the mixing may be done by
hand or mechanically, although in 1931 mixing or blending in the
asbestos textile industry was normally carried out by hand.
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vi) “Grinding” can refer to a method of cleaning machinery used for the
“carding” of opened asbestos, or to a process used to trim and smooth
asbestos products which have been cut or sawn.
156. It appears from this summary that the terms used in paragraph (i) are related,
in that they all describe processes employed in the early stages of producing
products composed wholly or partly of asbestos. I shall refer to factories and
workshops where such products are made as the asbestos industry, reflecting
the title of the 1931 Regulations. It is important to bear in mind, first, that
that description encompassed in 1931 the production of a very wide range of
products of which asbestos formed a component, as I shall later explain in
greater detail, and secondly, that factories where such products were made
were not necessarily devoted wholly or mainly to their manufacture.
157. The Regulations themselves also suggest a relationship between the
processes grouped together in paragraph (i) of the preamble. That is
consistent with regulation 1(a)(i), which groups together “preparing”
(defined as meaning “crushing, disintegrating, and any other process in or
incidental to the opening of asbestos”), “grinding” and “dry mixing”. In each
of these contexts, the principle of interpretation, noscitur a sociis, suggests
that “mixing” was a process related to other processes carried on by the
asbestos industry, in the wide sense in which I have used that expression,
rather than a process carried on in any premises where use was made of
insulation materials containing asbestos that required to be mixed with water.
158. In my view, seven other considerations support this interpretation of the term
“mixing” as used in paragraph (i) of the preamble and regulations 1 and 2:
i) Extending the noscitur a sociis principle beyond paragraph (i), all the
other processes contemplated by paragraphs (ii) to (vi) are
undoubtedly processes carried on in the course of manufacturing or
repairing asbestos products of different kinds. It follows that if
paragraph (i) applied to any factory or workshop, of any kind, where
insulating materials containing asbestos were mixed with water to
form lagging paste, it would have a far wider scope than the other
paragraphs. Indeed, given the expert evidence that insulating materials
containing asbestos were in common use when the first part of the
power station was built, between 1929 and 1935, paragraph (i) of the
preamble would on that basis extend the scope of the Regulations to a
substantial proportion, if not the majority, of the factories and
workshops in the United Kingdom.
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ii) If paragraph (i) of the preamble was intended to encompass the mixing
of insulation materials containing asbestos with water in any factory
or workshop, so that the 1931 Regulations would not be confined to
the asbestos industry as I have described it, it would defy logic that
paragraph (v) should apply only when the specified processes are
carried out in the manufacture of asbestos articles. Since the processes
listed in that paragraph would give rise to asbestos dust whether they
were carried out in the manufacture of such articles or not, it would be
nonsensical to restrict the scope of paragraph (v) unless paragraph (i)
were similarly restricted. To give a concrete example, Mr McDonald
described being in the proximity of asbestos dust generated by the
sawing of pre-formed sections of insulation containing asbestos. That
activity does not fall within the scope of the 1931 Regulations, because
the articles are not being sawed “in the manufacture of such articles”,
and paragraph (v) therefore does not apply. That being so, what logic
would there be in the mixing of the lagging paste falling within
paragraph (i)?
iii) The interpretation of paragraph (i) of the preamble which I have
suggested is consistent with the title of the Regulations: “the Asbestos
Industry Regulations”. That title makes sense if the Regulations apply
to factories and workshops producing products composed wholly or
partly of asbestos. If on the other hand paragraph (i) were construed as
applying to any factory or workshop where asbestos-based lagging
materials were used, that title would be inappropriate and misleading.
iv) When regulation 1(a)(i) refers to “mixing machines”, it is clear that it
is concerned with mixing in the context of manufacturing: regulation
1(a) expressly applies to “manufacturing and conveying machinery”.
That is also consistent with the other types of machinery described in
regulation 1(a), which are all employed in the asbestos industry as I
have described it.
v) If regulation 2 is understood as being concerned with “mixing or
blending by hand” in the asbestos industry, paragraph (b), which
requires the provision of a dedicated room for mixing or blending by
hand of asbestos, can be seen to be related to a number of other
regulations which make similar provision in relation to particular
processes, or particular plant, employed in that industry: for example,
the making or repairing of insulating mattresses composed wholly or
partly of asbestos (regulation 3(i)), storage chambers or bins for loose
asbestos (regulation 4(a)), and chambers or apparatus for dust settling
and filtering (regulation 4(b)).
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vi) To give regulation 2(b) a wider interpretation would have
consequences for industry generally which would be so inconvenient
that it is difficult to imagine that they were intended. In particular, if
the mixing of insulation materials containing asbestos with water, in
order to form the paste widely used to insulate pipework and boilers,
constituted “mixing or blending … of asbestos”, it follows that any
factory or workshop where lagging of that kind was used, constructed
after 1931, would have to have a room dedicated to the exclusive use
of laggers. It seems unlikely that the Secretary of State can have
intended to impose that burden upon industry, and there is no
indication that anyone ever supposed that the Regulations had that
effect.
vii) Finally, it is important to bear in mind that non-compliance with the
Regulations was a criminal offence, by virtue of section 85 of the 1901
Act. In dubio, penal legislation should normally be construed narrowly
rather than widely.
159. If the mixing of lagging paste is not “mixing” within the meaning of
paragraph (i) of the preamble, is it nevertheless one of the “processes
involving manipulation of asbestos incidental” to the processes mentioned in
that paragraph? Clearly not. Although the mixing of lagging paste might
involve the manipulation of asbestos, that manipulation would not be
incidental to one of the processes mentioned in paragraph (i).
160. As against the analysis set out above, it has been argued that the first proviso
to the preamble to the Regulations implies that their application cannot be
restricted to the asbestos industry. It is said to be very difficult to imagine a
factory or workshop whose main business was producing products composed
wholly or partly of asbestos to which the exemption could possibly apply,
given that only certain processes, occasionally carried on, are exempted, and
only then if none of the other defined processes is carried on in the same
factory. I shall consider this argument at a later point.
The letter dated 15 September 1931
161. Further assistance in the interpretation of the 1931 Regulations can be
obtained from two reports which preceded them. The relationship between
the Regulations and the reports was explained in the Home Office letter dated
15 September 1931, to which I referred earlier.
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162. The letter explained that the proposed regulations followed upon an inquiry
conducted by the Factory Department of the Home Office, whose report,
“Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos
Industry” was published in 1930 (34-206, HMSO). That report has been
referred to in these proceedings as the Merewether and Price Report. The
letter stated that Part II of the Report had recommended a number of
precautionary measures for the prevention of inhalation of asbestos dust “by
workmen employed in the industry”, the most important of which was the
use of exhaust ventilation in both the textile and non-textile sections of the
industry.
163. The letter went on to state that it was evident from the Report that further
inquiry would be necessary before a decision could be reached as to the best
methods to be applied to the various machines in use. A conference was
therefore arranged with representatives of the asbestos textile industry and,
as a result, a committee consisting of representatives of the manufacturers
and of the Factory Inspectorate was set up to consider the best methods for
the suppression of dust “in this section of the industry”. That committee made
a series of recommendations in its report, “Report on Conferences between
Employers and Inspectors concerning Methods for Suppressing Dust in
Asbestos Textile Factories”, published in 1931 (35-214, HMSO). I shall refer
to that report as the Conferences Report.
164. The letter explained that the Secretary of State had decided to give effect to
the recommendations contained in these two reports, and that the draft
regulations generally followed the provisions recommended, with some
additions and modifications.
The Merewether and Price Report
165. The Merewether and Price Report is of great assistance in understanding the
processes to which the Regulations referred, the terminology used in the
Regulations, and the mischief which the Regulations were intended to
address. For these reasons, I shall consider the Report, and the subsequent
Conferences Report, in greater detail than would otherwise be appropriate.
166. As its title indicates, the Merewether and Price Report was concerned with
“the asbestos industry”. It reported the results of an investigation which was
instituted, following the discovery in 1928 of fibrosis of the lungs in an
asbestos worker named Seiler, in order to determine “whether the
supervention of this disease in an asbestos worker was an exceptional
occurrence, or evidence of a grave health risk in the industry.” (p 5).
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167. While the object of the investigation concerned the asbestos industry
generally, the nature of the investigation necessitated a focus upon workers
as nearly as possible exposed to pure asbestos dust: that is to say, those
employed in the textile branch of the industry, those employed in the branch
manufacturing insulating materials from practically pure asbestos, and those
employed in some preliminary processes in other branches. The results were
analysed on a number of bases, including the processes in which the workers
were employed. For that purpose, a number of different processes within the
asbestos industry were identified, and “similar processes” were grouped
together. The first group of similar processes was “crushing, opening,
disintegrating and mixing” (p 11). The implication is that “mixing” was a
process within the asbestos industry, related in a relevant way to crushing,
opening and disintegrating. That is consistent, as I have explained, with the
grouping of these processes together in paragraph (i) of the 1931 Regulations
and in regulation 1(a).
168. Processes were also grouped together for the purpose of determining the
levels of dust which they generated. For that purpose, one group was
“opening and handling fibre, without local exhaust ventilation”. This group
was described as including opening, sieving, shovelling or otherwise
handling asbestos fibre, and sack filling by hand in a settling chamber (p 12).
Opening and sieving both fall within the ambit of paragraph (i) of the
Regulations, as I have explained, and shovelling or otherwise handling
asbestos fibre, and sack filling by hand, would also appear to fall within
paragraph (i) as “processes involving manipulation of asbestos incidental
thereto”. “Manipulation of asbestos by hand” and “the filling or emptying of
sacks” also fall within the ambit of regulation 1(d) and (e) respectively.
169. Analysing the statistics in this way, it was concluded:
i) that there was a correlation between the dustiness of processes, and the
length of time during which workers were employed in those
processes, and the incidence of fibrosis; and
ii) that “it seems necessary for the production of generalised fibrosis of
the lungs that a definite minimal quantity of dust must be inhaled”,
with the important implication that “the reduction of the concentration
of dust in the air in the neighbourhood of dusty asbestos processes will
cause … the almost total disappearance of the disease” (p 15).
The outcome of the investigation was thus to establish “the existence of a
definite occupational risk in the asbestos industry” (p 16). The risk took the
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form of “a distinct type of fibrosis of the lungs” (p 16). It was found that “the
incidence rate is highest in the most dusty processes and amongst those
longest employed” (p 17).
170. Part II of the report contained the recommendations to which the letter of 15
September 1931 referred. It began by noting the recent development and
rapid expansion of “the asbestos industry”, mainly because of the demands
of other industries, and the increasing attention paid to the insulation of steam
plant to promote fuel economy (p 18). Asbestos products were divided for
convenience into seven main groups:
“Textiles
(a) Yarn and cloth.
Non-Textiles
(b) Millboard, paper, asbestos-cement sheets, tiles, and other
building materials, sheet material of rubber or bituminous
mixtures containing asbestos.
(c) Insulation materials and articles.
(d) Brake and clutch linings.
(e) Packing and jointings.
(f) Asbestos-covered electric conductors – electrodes, cables
and wiring, coils for electric machinery.
(g) Miscellaneous, including moulded electrical and other
goods, etc.” (p 18)
171. In relation to group (a), the Report noted that some asbestos textile products
were produced for use in the manufacture of other products, including
products in groups (c), (d), (e), (f) and (g) (p 19). In relation to group (c), the
Report stated:
“Insulation materials include fiberized asbestos; ‘magnesia’,
so-called containing about 15% of fiberized asbestos and 85%
of magnesia, and other finely divided mixtures composed
partly of fiberized asbestos, used as insulating cements or
plasters; fiberized asbestos stiffened into thick sheets, like
mats, for lining bulkheads of ships; shaped sections and slabs,
moulded from fiberized asbestos or mixtures containing it, or
built up of corrugated asbestos paper so as to enclose air cells;
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mattresses, made of asbestos cloth and filled with fiberized
asbestos, magnesia, or other filling.” (p 19)
172. The Report noted that work involving the use of asbestos products was
carried on in other premises besides factories, the most important being
insulation work, much of which was carried on by contractors (p 19). The
Report did not discuss any risks which might be associated with such work,
which could only have been fully addressed by legislation of wider scope
than regulations made under the Factories Acts.
173. Some conclusions can be drawn from this discussion about the sense in which
the Report referred to “the asbestos industry”. As the groups of products
indicate, it comprised factories and workshops which manufactured products
(or repaired insulating mattresses) composed wholly or partly of asbestos.
The manufacturing process employed at the factory did not however
necessarily involve the use of the raw mineral. It might, as at factories
producing articles in group (a), or it might not, as at factories producing
articles in group (e). Nor did the manufacturing process necessarily involve
the use of fiberized asbestos: as the Report stated, fiberized asbestos was used
in large quantities in the manufacture of groups (a) to (c), but to a much
smaller extent in some of the other factories and workshops (p 19). As I shall
explain, the factory might therefore be one where substantial quantities of
asbestos dust were produced, or it might not.
174. In relation to the processes and preventive measures required, the Report
focused on the dust-producing processes. In relation to group (a), the Report
stated:
“Asbestos, suitable for yarn, has usually to be crushed, and in
all cases ‘opened’ (‘fiberized’) before it is ready for carding.
These preparatory processes are effected by machinery, but
entail much handwork. Separating (to remove iron) and grading
or sieving follow crushing, but precede opening. Material for
yarn is not usually treated in disintegrators, but in most
factories these machines are used for fiberizing waste asbestos
yarn, etc. Crushing flattens out and breaks up the mineral
without damaging the fibres. It is accomplished either in a large
edge runner, or in a small pan mill of the mortar mixing type.
The material is emptied upon the floor close to the machine,
the contents of several sacks sometimes being spread on the
floor to obtain a rough ‘mixing’.” (pp 20-21)
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This description of the preparatory processes encompasses crushing,
disintegrating, opening, sieving and “rough mixing”.
175. “Mixing or blending” of the crushed asbestos was a further process,
preparatory to “carding”:
“Crighton openers, enclosed centrifugal machines, are used for
opening crushed asbestos, preparatory to carding. Careful
mixing or blending of crushed material is effected by spreading
it evenly in layers on the floor over a considerable area – cotton
may be added at this stage if required – and when feeding,
taking a vertical cut through the mass … Mixing is a great
hindrance to elimination of hand work; it is asserted that poor
yarn results if it is not done and that machine mixing has been
tried and gave less satisfactory results. If retained, it should be
done at a higher level than the opener, under a large exhausted
canopy and the mixture fed at a series of chutes.” (p 21).
One sees here the alternatives addressed in the Regulations – mixing
machines, dealt with in regulation 1(a), and mixing or blending by hand, dealt
with in regulation 2 – and the background to the requirement that they should
each be carried on with an exhaust draught.
176. In relation to the non-textile sector, the Report noted that fiberized asbestos
was not used in some of the factories, and that exposure to dust might be
slight or even negligible (p 26). Fiberizing was almost exclusively confined
to works in groups (b) and (c), ie works manufacturing millboard and similar
products, and works manufacturing insulation materials. Dust was evolved in
factories or departments where fiberized asbestos was prepared for
subsequent use or for sale, and also in departments where fiberized material,
or dry mixtures containing it, were manipulated in preliminary manufacturing
processes. Finishing processes involving abrading or cutting could also be a
source of dust, but such dust might contain only a small percentage of
asbestos.
177. In relation to group (c), the Report explained that fiberized asbestos was a
component of many insulating materials which might also contain other
materials. It stated:
“In many small works the materials are mixed ‘dry’, by hand,
in an open manner, involving sack emptying and filling,
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shovelling and weighing. Enclosed rotary mixers could
apparently be used for such work with exhaust applied at
feeding points and the material discharged and bagged under
enclosed conditions. If hand work is retained, exhaust should
be applied.” (p 27)
178. The mixing of fiberized asbestos with other materials was also an aspect of
the manufacture of some products in groups (f) and (g). In particular, the
production of moulded goods could involve the mixing of asbestos paste
using dry materials. The mixing of asbestos putty also involved the handling
of dry materials (p 30).
179. Relating this discussion to the preamble to the Regulations, it will be recalled
that the first proviso excludes the application of the Regulations to any
factory or workshop, or – it is important to note – any part of a factory or
workshop, where any of the following processes is carried on:
(1) the process of mixing asbestos;
(2) the repair of insulating mattresses;
(3) sawing, grinding, turning, abrading and polishing, in the dry
state, of articles composed wholly or partly of asbestos in the
manufacture of such articles; and
(4) any cleaning of machinery or other plant used in connection
with any such process.
The exclusion is subject to two conditions. First, the process or work must be
carried on occasionally only, and no person must be employed in it for more
than eight hours a week. Secondly, no other process specified in the preamble
to the Regulations must be carried on in the place in question.
180. It is difficult to envisage circumstances in which the proviso would apply to
factories or workshops producing goods in groups (a), (b) or (c), since, even
if there were parts of such factories where only the activities mentioned in
the proviso were carried on, it seems unlikely that those activities would be
carried on only occasionally. In some factories producing goods in groups
(e), (f) and (g), on the other hand, the position might be different. Given the
variety of products which such factories might produce, and the variety of
processes involved, it is possible to envisage situations where the first or
second proviso might apply. Such factories might for example produce a
range of goods, most of which did not include asbestos, but which required
the occasional mixing of asbestos, or some other process, such as grinding,
or the repair of insulating mattresses, which was mentioned in the proviso.
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The report contains little discussion of factories of that kind, since for obvious
reasons it focused upon factories where the risk to health from asbestos dust
was greatest. The point is however illustrated by the discussion of factories
producing cable and wiring, of which the report stated:
“Asbestos-covered cable and wiring constitutes a small
percentage of the output of the cable factories …The amount
of dust evolved is small, and special precautionary measures
are apparently not required.” (p 30)
181. Returning to the Report, the section headed “Summary and Recommendations”
began by noting that “asbestos factories and workshops cover a great variety of
processes” (p 31). It observed that “the asbestos manufacturers” were
confronted with the necessity of attaining conditions “in their industry” which
would ensure much less dust in the atmosphere than could be tolerated in many
comparable trades not using asbestos (p 31). As in the remainder of the Report,
the focus of the recommendations was entirely on the asbestos industry, using
that expression in the sense that I have explained.
182. The specific recommendations foreshadow the provisions of the Regulations.
In particular, regulation 1(a) reflected recommendation 1(a), which was that
exhaust ventilation should be provided for:
“Dust-producing machines, eg
(i) Crushing, disintegrating, teasing and other opening
machines; sieving machines; fibre grinding machines;
dry mixing machines; rolls fed with dry mixings.”
Regulation 2(a) was one of a number of regulations that reflected
recommendation 1(e), which was that exhaust ventilation should be
provided for:
“Various hand operations, eg sack emptying and filling,
weighing, mixing””
Regulation 2(b) was one of a number of regulations that reflected
recommendation 7, which was that new factories should be laid out so as to
avoid exposing workers to risk from processes upon which they were not
engaged.
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The Conferences Report
183. The Conferences Report was prefaced by a letter from the Chief Inspector of
Factories to the Home Secretary dated 10 April 1931, which explained that
the recommendations reflected an important assumption, namely “the
existence of a critical limit of dust concentration below which workers may
be employed without injury to health”. As I have explained, that assumption
is contradicted by more recent knowledge.
184. In the introductory section of the Report, it was noted that successful
experiments had been carried out involving the application of exhaust to
various processes, including “mixing and blending (in opening processes)”
(p 6). It was also noted that the safe concentration of dust in workrooms had
been taken, on the basis of the Merewether and Price Report, to be the
conditions arising from flyer spinning of asbestos fibres. That criterion was
said to be “simple to apply to processes such as mixing, blending … which
are obviously more dusty than flyer spinning” (p 6). The recommendations
focused upon the application of exhaust ventilation at dust-producing points,
so as to meet that criterion.
185. The body of the Report set out the agreements arrived at. They were listed
under headings, mostly descriptive of particular processes. The first heading
was “Crushing, – including preliminary Sack Emptying, Rough Mixing on
Floor near Crushers, Feeding and Discharging”. Rough mixing of raw
asbestos prior to crushing was therefore included within “crushing”. It was
agreed that a mechanical exhaust draught should be applied. This is reflected
in regulation 1(a), which requires mechanical exhaust ventilation which
prevents the escape of asbestos dust to be applied to “preparing”, defined as
meaning “crushing, disintegrating and any other process in or incidental to
the opening of asbestos”.
186. The second heading was “Mixing and Blending of Crushed Asbestos”. It was
agreed that this process, which was at the time carried on by hand in the
textile industry, should also be subject to mechanical exhaust ventilation.
Such ventilation had recently been applied by using an exhaust pipe above
the mixing area. Although much dust was removed, it was unclear whether
this arrangement would fully meet the case. That is reflected in regulation
2(a), which requires mixing or blending by hand of asbestos not to be carried
on except with an exhaust draught so designed and maintained as to ensure
“as far as practicable” the suppression of dust. Although it is not discussed in
the Report, one might infer that it was because of the limited efficacy of
exhaust ventilation of mixing or blending by hand that regulation 2(b)
requires the provision of a dedicated room for that activity in premises
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constructed after the date of the 1931 Regulations. It was also noted in the
Report that enclosed mixing machines might be developed in the future. That
possibility was addressed by regulation 1(a), in so far as it applies to “dry
mixing machines”.
Further agreements dealt with other specific processes used in the asbestos
textile industry. In each case, a relationship can be seen between the
agreement and a corresponding provision of the Regulations.
187. The Report did not deal with the mixing of opened asbestos with other
materials: as I have explained (and as was noted in the Report, in its
discussion of mattress making), mixtures of asbestos and other materials
were not normally used in the textile branch of the asbestos industry. The
mixing process involved would however fall within the ambit of either
regulation 1(a) or regulation 2, depending on whether the mixing was carried
out mechanically or by hand.
Did the 1931 Regulations in general, and regulation 2(a) in particular, apply?
188. In summary therefore, it could hardly be clearer, when regard is had to (1)
the Reports which preceded the certification under section 79 of the 1901
Act, (2) the terms of that certification, (3) the recommendations which the
1931 Regulations were intended to implement, and (4) the terms of the
Regulations themselves, that the Regulations in general did not apply to the
power station by virtue of the work being carried on there by the laggers, and
that regulation 2(a) in particular did not apply to that work. In the first place,
the Regulations applied only to factories and workshops in which one or more
of the processes listed in the preamble was carried on: the term “mixing”, as
employed in paragraph (i) of the preamble, had a technical meaning, and
described particular processes carried on in the asbestos industry. Those
processes were, first, mixing or blending of crushed asbestos preparatory to
its being opened, and secondly, mixing of opened asbestos with other
materials as part of the process of manufacturing asbestos products such as
the insulation material used by laggers. Those processes were not carried on
at the power station. The Regulations therefore did not apply to it: it was not
a place where “mixing”, within the meaning of paragraph (i), was carried on.
Secondly, for the same reason, regulation 2(a) did not apply to the work
carried on by the laggers, as it did not involve “mixing or blending by hand
of asbestos” within the meaning of the Regulations.
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The authorities
189. That conclusion is consistent with the authorities in which the scope of the
1931 Regulations has been considered. It appears to have been only in
relatively recent years that any suggestion was made that the Regulations
might apply in circumstances such as those of the present case. The point was
however argued in the case of Banks v Woodhall Duckham Ltd, Court of
Appeal (unreported), 30 November 1995, which concerned a pipe fitter who
suffered injury after being exposed to asbestos dust while working in various
premises. They included a steel works where he was exposed to dust created
by laggers using insulation materials containing asbestos, which they mixed
with water to create a paste. A claim under the 1931 Regulations failed, in
the first place, because the claimant’s evidence was rejected. The court also
accepted submissions to the effect that the Regulations were concerned with
processes carried on in the asbestos industry, understood as meaning
processes in the manufacture of asbestos products, and processes preliminary
to such manufacture, and did not apply to the lagging of pipes in the steel
industry.
190. The same conclusion was reached by Lord Gill in the Outer House of the
Court of Session in Watt v Fairfield Shipbuilding & Engineering Co Ltd 1999
SLT 1084, in which the pursuer had been exposed to asbestos dust while
working on board ships under construction in shipyards. As in the present
case, the source of the dust was insulation material. Lord Gill considered that
“the Regulations related to those processes by which the raw material was
treated in the course of its being manufactured into asbestos products of
various kinds”. That was also the interpretation for which the appellants
argued in the present appeal. Although I agree with Lord Gill’s decision on
the facts of the case, I would not define the scope of the Regulations as
narrowly as that: as I have explained, the asbestos industry is not confined,
for these purposes, to factories or workshops where the raw mineral is treated,
but includes, for example, those which manufacture products classified in the
Merewether and Price Report as falling into groups (d), (e) and (f).
191. The first case in which a detailed consideration of the background to the
Regulations was undertaken was Cherry Tree Machine Co Ltd v Dawson (sub
nom, Jeromson v Shell Tankers (UK) Ltd) [2001] EWCA Civ 101; [2001]
ICR 1223. So far as relevant, the case concerned a claim under the 1931
Regulations arising from a person’s employment in a factory which
manufactured dry cleaners’ presses. The manufacturing process involved the
use of fiberized asbestos, mixed with water, to form a seal around the platens
of the presses: the asbestos sealant was designed to prevent steam from
escaping when the presses were used. An appeal by the employer against a
finding of liability under regulation 2 was dismissed.
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192. That conclusion is consistent with my interpretation of the Regulations. The
presses were, in the language of the Regulations, articles composed partly of
asbestos. The mixing of asbestos in the factory formed part of the process of
manufacturing the presses. As Hale LJ observed at para 11, the process was
similar to the asbestos putty mixing which had been mentioned in the
Merewether and Price Report.
193. Hale LJ also observed at para 20 that the scope of the Regulations is not
confined to factories and workshops whose only or main business is the
processing of raw asbestos or the manufacture of products made out of raw
asbestos, as Lord Gill had considered in the case of Watt. She accordingly
rejected a submission that the Regulations applied only to the “asbestos
industry”, understood in the sense which Lord Gill had favoured. As she
observed at para 20, nowhere in the Regulations was it said that they applied
only to factories and workshops whose only or main business was the
processing of raw asbestos or the manufacture of products made out of raw
asbestos. Furthermore, as she observed at para 22, the Merewether and Price
Report clearly contemplated the mixing of asbestos in the manufacture of a
wide variety of products, not just “asbestos products” in the narrow sense that
had been argued for.
194. I respectfully agree with that interpretation of the Regulations. As I have
explained, the construction favoured by Lord Gill would be inconsistent with
the intention to implement the recommendations of the Merewether and Price
Report, since it would effectively confine the scope of the Regulations to
groups (a) to (c) of the factories and workshops mentioned in the Report, and
leave groups (d) to (g) out of account. The broader understanding of “the
asbestos industry” which I have explained is also important in understanding
the provisos to the preamble to the Regulations: since the Regulations applied
to all factories or workshops any part of whose business was the making of
asbestos products (or the repair of insulating mattresses), the enactment of a
proviso exempting factories or workshops, or parts of them, which carried
out certain types of work only occasionally is not difficult to understand.
195. Hale LJ was also critical of the observations made in Banks, and followed in
Watt, to the effect that the Regulations did not apply to the mixing of lagging
paste by laggers. As I have indicated, her criticisms of the reasoning in those
cases were well-made, and were necessary to her decision: in particular, her
rejection of the argument that the Regulations were confined to processes
involving the use of raw asbestos. In so far as her observations went beyond
what was necessary for the decision of the appeal, and suggested that it was
“more likely” (para 25) that the Regulations applied to the mixing of lagging
paste by laggers, they were obiter, and I would respectfully take a different
view, for the reasons I have explained.
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196. In the present case, it was argued before the Court of Appeal, as before this
court, that “mixing”, within the meaning of the 1931 Regulations, meant
mixing prior to opening (ie what I have described as “rough mixing” and
“mixing or blending”), but did not include the mixing of fiberized asbestos
with other substances. On that basis, it was argued that the case of Cherry
Tree had been wrongly decided. McCombe LJ, with whose reasoning on this
matter the other members of the court agreed, saw force in the submission,
but considered that the court was bound by the decision in Cherry Tree.
197. As I have explained, I construe the term “mixing”, in the light of the
Merewether and Price Report and its recommendations, as including mixing
prior to opening, but also as including the mixing of fiberized asbestos with
other substances, provided it is carried out by the asbestos industry: that is to
say, provided it forms part of the process of producing a product composed
wholly or partly of asbestos. On that basis, the case of Cherry Tree appears
to me to have been correctly decided, as I have explained. The decision (as
distinct from some observations which were strictly obiter) does not however
entail that the work of laggers falls within the scope of the Regulations.
Consistently with the decisions (as distinct from some of the reasoning) in
Banks and Watt, I consider that such work is beyond the scope of the
Regulations.
Subsequent legislation
198. It is noteworthy that subsequent legislation was made on the basis of the
understanding of the 1931 Regulations which I have explained. In 1967 the
Ministry of Labour and HM Factory Inspectorate published a memorandum,
“Problems arising from the use of Asbestos” (36-316), which noted that the
Regulations applied to around 300 factories. In the majority of those
factories, only a very small proportion of employees were employed on
asbestos processes. The principal forms of employment subject to the
Regulations were said to be the production of asbestos cement products,
asbestos textiles and brake linings for motor vehicles (para 10).
199. A table listed factories and warehouses handling asbestos where the
Regulations did not apply. These included electricity generating, where the
relevant activity was identified as lagging and de-lagging (Table 4). The same
table also listed generating stations amongst the places where contractors
carrying out work involving the use of asbestos could be found. The
memorandum stated in terms that “the Asbestos Industry Regulations do not
apply to lagging and insulation operations using asbestos” (para 13). It noted
that other employees working in the neighbourhood of lagging and insulation
operations must also undergo considerable exposure to asbestos (para 13).
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The memorandum referred to evidence of an increasing incidence of
asbestosis, particularly amongst laggers, who tended to be excluded from the
scope of the Regulations (para 18). It also referred to evidence linking
exposure to asbestos to various types of cancer, including mesothelioma.
200. The Government responded by informing Parliament that it intended to
introduce regulations to “cover all the industries and processes in which
asbestos is used, including occupations such as lagging and de-lagging,
thermal and sound insulation” (Hansard, 10 July 1967, col 88). The 1969
Regulations were subsequently made. They applied specifically to electrical
stations (regulation 3(1)) as well as to a wide range of other premises. They
applied to “every process involving asbestos or any article composed wholly
or partly of asbestos, except a process in connection with which asbestos dust
cannot be given off” (regulation 3(2)), and imposed obligations on employers
as well as occupiers (regulation 5(1)).
201. This material cannot be used as an aid to the interpretation of the 1931
Regulations. It is nevertheless a matter of legitimate comment that the
interpretation of the Regulations which is favoured by Lord Kerr is
inconsistent with the basis on which the 1969 Regulations were made.
Was Mr McDonald within the scope of the 1931 Regulations in any event?
202. The parties addressed the question whether, even assuming that the 1931
Regulations applied to the activities of the laggers at the power station, any
duty was owed to Mr McDonald, since he was not employed in the process
which generated asbestos dust.
203. The Regulations were made under section 79 of the 1901 Act, the terms of
which have been quoted. That Act was repealed by the 1937 Act, which
however contained a saving proviso in section 159(1), the effect of which
was that the 1931 Regulations were deemed to have been made under section
60(1) of the 1937 Act. The 1937 Act was in turn repealed by the Factories
Act 1961 (“the 1961 Act”), which contained a similar proviso in paragraph 1
of Schedule 6. The result was to deem the 1931 Regulations to have been
made under section 76(1) of the 1961 Act, which provides:
“Where the Minister is satisfied that any manufacture,
machinery, plant, equipment, appliance, process or description
of manual labour is of such a nature as to cause risk of bodily
injury to the persons employed or any class of those persons,
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he may, subject to the provisions of this Act, make such special
regulations as appear to him to be reasonably practicable and
to meet the necessity of the case.”
204. In Canadian Pacific Steamships Ltd v Bryers [1958] AC 485, the House of
Lords took as its starting point, in deciding whether the plaintiff fell within
the scope of regulations made in 1931 under section 79 of the 1901 Act, the
terms of section 79 itself, on the basis that the 1937 and 1948 Acts could not
give a wider meaning to the regulations than they had borne when they were
made (it was assumed that the power conferred by section 60(1) of the 1937
Act as amended was no narrower than the power conferred by section 79 of
the 1901 Act). Section 79 of the 1901 Act was construed as empowering the
Secretary of State to make regulations which enured for the benefit of persons
employed in the factory, even if they were not employed in the process which
caused the danger or injury to health or the danger to life and limb and thus
brought about the certificate. As Viscount Kilmuir LC observed at p 501, it
was obvious that such a process, unless regulated, might be dangerous to
others whose ordinary work in the factory brought them into regular
proximity to the danger.
205. Bearing in mind that the Regulations are now deemed to have been made
under section 76(1) of the 1961 Act, the position is equally clear: that section
refers generally to “the persons employed”, a form of words which was
considered in the Canadian Pacific Steamships case to enable regulations to
be made which protected persons who were employed in the factory but not
in the relevant processes. There is nothing in the Regulations themselves that
indicates an intention to restrict the scope of the duty to those directly
engaged in the specified processes. Such an intention appears unlikely, since
the Merewether and Price Report had made it clear that the risk to health
caused by asbestos dust was not confined to those directly employed in the
relevant process, but also affected other workers in the same workroom.
206. It was also argued in the present appeal that no duty was owed to Mr
McDonald in any event, since he was not a “person employed” in the power
station. It will be necessary to return to that question in the context of the
duty imposed by section 47(1) of the 1937 Act.
Part 3: Section 47(1) of the 1937 Act
207. It is necessary next to consider the cross-appeal, which concerns the effect of
section 47(1) of the 1937 Act. It provides:
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“In every factory in which, in connection with any process
carried on, there is given off any dust or fume or other impurity
of such a character and to such extent as to be likely to be
injurious or offensive to the persons employed, or any
substantial quantity of dust of any kind, all practicable
measures shall be taken to protect the persons employed against
inhalation of the dust or fume or other impurity and to prevent
its accumulating in any workroom, and in particular, where the
nature of the process makes it practicable, exhaust appliances
shall be provided and maintained, as near as possible to the
point of origin of the dust or fume or other impurity, so as to
prevent it entering the air of any workroom.”
208. Section 47(1) applies in two situations. The first is where there is given off
any dust or fume or other impurity of such a character and to such extent as
to be likely to be injurious or offensive to the persons employed. Mr
McDonald did not pursue any case based upon that branch of the provision.
The second situation is where there is given off “any substantial quantity of
dust of any kind”. Mr McDonald relied upon that branch of the provision.
Was there “any substantial quantity of dust”?
209. The first issue which arises is whether, on the evidence, it has been
established that there was any substantial quantity of dust given off in the
power station at any relevant time. In that regard, a difficulty arises for Mr
McDonald from the absence of reliable evidence as to the quantity of dust
given off during his visits to the power station. The trial judge made no
finding on the point. The Court of Appeal concluded that, on the evidence,
Mr McDonald had failed to establish that a substantial quantity of dust had
been given off. This court does not in my view have a proper basis for
reaching a different conclusion. It follows that the claim under section 47(1)
must be rejected.
Was Mr McDonald a “person employed”?
210. A further question which was argued was whether in any event any duty was
owed under section 47(1) to Mr McDonald. Was he one of “the persons
employed”, within the meaning of the section? It was argued on behalf of the
appellants that he was not. Reliance was placed on the decisions of Rose J in
Morrison v Central Electricity Generating Board (unreported), 15 March
1986, and of the Court of Appeal in Banks v Woodhall Duckham Ltd
(unreported), 30 November 1995, where the view was taken, as a matter of
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grammatical analysis, that the words “the persons employed”, in section
47(1), referred back to the phrase “in connection with any process carried
on”. That decision was followed by the Court of Appeal in the present case.
211. I am unable to agree with that construction. The verb which governs the
preposition “in”, in the phrase “in connection with any process carried on”,
is not “employed” but “given off” (“in connection with any process … there
is given off”). It is therefore the dust that must be connected to the process,
rather than the persons employed. An alternative possibility, that the words
“the persons employed” might refer back to the phrase “in the factory”, must
also be rejected: the verb which governs the preposition “in”, in the phrase
“in every factory”, is not “employed” but “taken” (“in every factory … all
practicable measures shall be taken”).
212. Greater assistance can be obtained from considering section 47(1) in the
context of the 1937 Act as a whole. In the Morrison case, Rose J contrasted
section 63 of the 1961 Act (the successor provision of section 47 of the 1937
Act) with section 14(1) (the obligation to fence dangerous machinery), which
imposed a duty with regard to “every person employed or working on the
premises”. The same contrast could also be drawn between sections 14(1)
and 47(1) of the 1937 Act. On the other hand, as Buxton J observed in Owen
v IMI Yorkshire Copper Tube (unreported), 15 June 1995, the difference
between those provisions is less striking than the difference between section
47(1) of the 1937 Act and section 49. The latter provision, which is concerned
with the protection of the eyes, imposes a duty in respect of “the persons
employed in the process”. Given that sections 47 and 49 appear in the same
group of sections, the use of that limiting phrase in one section but not in the
other is a strong reason for believing that the scope of section 47(1) was not
intended to be limited, by implication, in the same way as section 49 was
limited by express provision.
213. Apart from these textual pointers, it is also necessary to consider what
Parliament is likely to have intended. The phrase “the persons employed”
identifies the persons to whom the statutory duty is owed. The duty is to take
specified precautions in every factory in which, in connection with any
process carried on, there is given off any dust or fume (or other impurity) of
a particular description: either the dust or fume must be of such a character
and extent as to be likely to be injurious or offensive to the persons employed,
or the quantity of dust must be substantial. In such circumstances, there is a
duty to take all practicable measures to protect the persons employed against
inhalation of the dust or fume, and to prevent its accumulating in any
workroom.
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214. Considering first the situation where injurious or offensive dust or fumes are
given off, it would not make sense for the duty to be confined by law to the
persons employed in the process in question. Although those persons would
be most directly exposed to the dust or fumes, and would therefore be at the
greatest risk of harm, it is perfectly possible that other persons might also be
liable to inhale the dust or fumes and would also be at risk. There might, for
example, be other persons working in the workroom where the dust or fumes
were generated – a problem which had been highlighted by the Merewether
and Price Report – or persons who passed through the workroom in the course
of their employment. If they inhaled the dust or fumes and suffered injury,
why should they not fall within the scope of the statutory duty? To confine
the duty in such a way as to exclude a priori a category of persons who were
liable to suffer the injury sought to be guarded against would be inconsistent
with the apparent intention to protect those at risk.
215. In the light of that consideration, and also the contrast between sections 47(1)
and 49, the phrase “the persons employed” should not therefore be construed
as being restricted to the persons employed in the process in connection with
which the dust or fume is given off. The only feasible alternative is that the
phrase is intended to refer to the persons employed in the factory.
216. If that is the correct construction of the phrase in its application to the first
situation addressed by section 47(1), it seems to me that it must also be the
correct construction in relation to the second situation, where a substantial
quantity of dust is given off. There is nothing in the section to suggest that
the phrase has two different meanings, depending upon which of the
alternative situations exists.
217. The question then arises whether Mr McDonald was one of the “persons
employed” in the power station. There are numerous authorities on the
meaning of the phrase “the persons employed”, where used in the Factories
Acts. It is clear that the phrase is not confined to the employees of the
occupier of the factory: see, for example, Massey-Harris-Ferguson
(Manufacturing) Ltd v Piper [1956] 2 QB 396, where it was held to extend
to a painter, employed by an independent contractor, carrying out painting
work in a factory. It does not however extend to a fireman who enters a
factory in order to put a fire out (Hartley v Mayoh & Co [1954] 1 QB 383),
or to a police constable who enters a factory in pursuit of a felon (Wigley v
British Vinegars Ltd [1964] AC 307, 324 per Viscount Kilmuir), although he
is a person and he is employed. In Canadian Pacific Steamships Ltd v Bryers
[1958] AC 485, 504 Viscount Kilmuir considered that the phrase applied to
“any person who is employed in the factory whether the direct servant of the
occupier or a servant of an independent contractor so long as he is employed
upon work in that factory”. Those words are however themselves little
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clearer than the statutory phrase. In the later case of Wigley v British Vinegars
Ltd, concerned with a window cleaner employed by an independent
contractor, Viscount Kilmuir said at p 324:
“In my view, the true distinction is between those who are to
work for the purposes of the factory and those who are not.
Clearly, maintenance of the factory is work for the purpose of
the factory, while the arrest of a felon or the putting out of a
fire is not, though it may benefit the factory indirectly. Window
cleaning is part of the maintenance of the factory and in my
view the deceased was within the protection afforded.”
The other members of the House agreed.
218. It can fairly be said that the test laid down in Wigley, like the differently
expressed test laid down in the Canadian Pacific Steamships case, can result
in the drawing of fine distinctions without any compelling rationale beyond
the need to draw a line somewhere. The present case might be regarded as an
example. It could be argued that Mr McDonald was employed for the
purposes of the power station, either on the basis that one of those purposes
was the sale of the ash, and he was employed collecting ash which had been
sold, or on the basis that the ash was a by-product which the power station
had to dispose of, and he was employed removing it. The contrary view
appears to me however to be more persuasive. Mr McDonald was not in
reality working for the purposes of the power station. He was working solely
for the purposes of his employer, the Building Research Establishment. It was
the purchaser of the ash which was a by-product of the power station, and it
employed Mr McDonald to collect the ash in his lorry. A customer of a
factory can hardly be regarded as working for the purposes of the factory,
even if he goes there in person to collect the article purchased; and a person
whom he employs to collect the article from the factory can hardly be in a
different position. Although the sale of such articles would no doubt be one
of the purposes of the factory, and the sales staff would therefore fall within
the scope of the legislation, the collection of the articles by or on behalf of
purchasers is not in the same position.
219. On that ground, as well as on the basis that it had not been proved that any
substantial quantity of dust was given off, the Court of Appeal was correct to
reject the claim under the 1937 Act. It also follows that the claim under the
1931 Regulations would have to be rejected for the same reason, even if,
contrary to my conclusion, the Regulations had applied to the work being
carried on by the laggers.
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Does a claim lie only if a substantial quantity of dust was inhaled?
220. A further issue which was argued is whether, as was maintained on behalf of
Mr McDonald, a claim lies under section 47(1) whenever (a) a substantial
quantity of dust is given off in connection with a process carried on in a
factory, (b) there has been a failure to take all practicable measures to protect
the persons employed against inhalation of the dust, and (c) a person
employed has suffered injury caused by inhalation of dust given off by the
relevant process. It was argued on behalf of the appellants that it was not
enough that the injury should have been caused by the inhalation of any of
the dust: in order to have a claim under the section, the dust must have been
substantial in quantity at the point when it was inhaled by the claimant.
221. It was argued on behalf of the appellants that, as a matter of textual analysis,
when section 47(1) imposed a duty to take all practicable measures to protect
the persons employed against inhalation of “the dust”, those words could only
mean the substantial quantity of dust said to give rise to the duty, with the
implication that the duty was only to protect against inhalation of a
substantial quantity of dust.
222. That argument appears to me to be fallacious. It is plainly correct that the
words “the dust” refer to the substantial quantity of dust given off. There is
therefore a duty to protect the persons employed against the inhalation of that
dust. It does not however follow that the duty applies in respect of a particular
person only if that person is individually liable to inhale a substantial quantity
of the dust. One might as well argue that, if a manufacturer sold “a substantial
quantity of ginger beer” which was contaminated with snails, and was under
a duty to take precautions to prevent customers from consuming “the ginger
beer”, it followed that the duty was only to protect against the consumption
of a substantial quantity of the ginger beer.
223. It might alternatively be argued that the duty imposed by section 47(1) in
respect of “any substantial quantity of dust” is in reality unlikely to have been
intended to confer a right of action upon an employee who suffered injury as
a result of inhaling an insubstantial quantity of dust. In support of that view,
it might be said that Part IV of the 1937 Act, and section 47(1) in particular,
are intended to protect the health of employees. Section 47(1) begins by
addressing the situation where dust is given off of such a character and to
such an extent as to be likely to be injurious to health. The part of section
47(1) concerned with “any substantial quantity of dust” cannot therefore be
concerned with dust which is known to be inherently harmful to health, since
that danger has already been addressed. Its concern must be the risk to health
which exists where any dust is given off in substantial quantity. That risk
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derives from the high concentration of dust in the air which is inhaled. Once
the dust has become dispersed in the atmosphere, that risk disappears.
224. This argument can be analysed:
(1) as restricting the category of person to whom a duty is owed
under the relevant limb of section 47(1) to persons employed
who inhale dust which is substantial in quantity, or
(2) as restricting the type of injury for which a claim can be brought
under the relevant limb of section 47(1) to injury which is
caused by the inhalation of dust which is substantial in quantity.
The first is an argument about the scope of the statutory duty. The second is
an argument about remoteness of damage. Each is in my opinion fallacious.
225. Considering first the scope of the duty, this has already been discussed. It
depends on the meaning of “the persons employed”. For the reasons
explained earlier, those words must refer to all the persons employed in the
factory.
226. So far as remoteness is concerned, when Parliament enacted section 47(1) it
imposed on employers a duty to take all practicable measures “to protect the
persons employed against inhalation of the dust”, whenever any substantial
quantity of dust was given off in connection with any process carried on in a
factory, and imposed civil liability for a breach of the duty which caused
injury. It did not impose liability only if the breach caused injury in a
particular way. As Lord Reid said in Grant v National Coal Board [1956]
AC 649, 661:
“I cannot see why it should matter just how the accident was
caused provided that it was in fact caused by a breach of the
section. I see no ground for imputing to Parliament an intention
to make the mineowner liable for some of the consequences of
breach but to relieve him of liability for others.”
227. If therefore there was a breach of the duty imposed by section 47(1), in that
a substantial quantity of asbestos dust was given off in connection with a
process carried on in the power station and all practicable measures were not
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taken to protect the persons employed against inhalation of the dust, and if a
person employed suffered physical injury caused by the inhalation of the
dust, it cannot matter that the precise illness, or the way in which it was
caused by the inhalation of the dust, was not foreseeable at the time when the
statute was enacted: Hughes v Lord Advocate [1963] AC 837.
228. The point is illustrated by the case of Gregson v Hick Hargreaves & Co Ltd
[1955] 1 WLR 1252, where the plaintiff had suffered illness as a result of
inhaling noxious particles of silica which formed part of a substantial quantity
of dust given off by a process. The presence of the silica, and its harmfulness,
had not been known at the time. The defendants’ argument that they should
not be held liable was rejected. Jenkins LJ observed at p 1266 that the duty
of employers was to take all practicable measures to protect their workpeople
from the inhalation of dust, and their duty to do that did not depend on the
question whether the dust was known or believed to be noxious or not.
229. Finally, in relation to this branch of the appeal, I should record that no issue
was raised as to whether the dust generated by the work carried out by the
laggers in the power station was given off “in connection with any process
carried on” there, within the meaning of section 47(1).
Conclusion
230. For the reasons I have explained, I would allow the appeal and dismiss the
cross-appeal.