This post is by Max Archer.
Common law duties in the 1940s
C was the son and executor of Mr Hawkes’ estate. She died in October 2014 from mesothelioma. C alleged that she was exposed to asbestos between 1946 and 1952 while making electric blankets at W’s factory premises.
The electric blankets consisted of a lining with an electrical wire fed through it, which generated the heat. The lining was stuffed inside a canvas cover which was in turn covered with a softer material. There were switches on the outside of the blanket to control the heat. Mrs Hawkes used a needle to thread the wire through the lining.
C’s case was that the inner lining was made of asbestos and that, as she worked, bits of the lining asbestos fibre would come off and settle on her clothes. C contended that W was therefore negligent and in breach of various statutory duties.
The Judge held that C had failed to prove that the lining was made of asbestos. There was no oral factual evidence as Mrs Hawkes had died by the time of the trial.
The claim therefore failed on the facts. But the most interesting part of the case was how the Court dealt with D’s duties as a factory owner and employer in the 1940s and 1950s.
Asbestos Industry Regulations 1931
The preamble to the 1931 Regulations provide as follows:
“. . . they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on: …
(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;”
C’s case was that the stitching or threading of the inner lining and all the manipulation of the inner lining by hand came within paragraph (ii) of the preamble. D argued that it did not.
The Judge – notwithstanding the width given to the 1931 Regulations by McDonald v National Grid  UKSC 53 – that they did not apply. He held that paragraph ii referred to the manufacture of yarn or cloth wholly or partly made from asbestos, not the manufacture of products made with asbestos textiles. ‘Finishing a textile’ did not include turning that asbestos textile into a product.
He went on to find that had the regulations applied they would have been breached.
The Factories Act 1937: ‘substantial quantities’ of dust
As to s.47 of the Factories Act 1937, the first question the judge asked was whether the process that D was carrying out involved ‘substantial’ quantities of dust. This is the so-called ‘second limb’ of s.47.
The Judge found that there were not substantial quantities of dust. He relied upon Harries’ paper, “Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards” published in 1971. He had heard the experts on this point, but found that the experts could only help by discussing the levels of asbestos dust, which in themselves are not sufficient to indicate whether the dust would be visible or considerable. He found that the most reliable evidence came from the Harries paper in respect of sewing. The peak concentration recorded for that activity was 10 fibres per ml, a level that the judge felt would have been unlikely to be visible.
The finding under the first-limb of s.47 was different. In order to satisfy the first limb, the court must be satisfied that the dust which is given off of ‘is of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed.’
The judge analysed this provision and the common law claim together.
Common Law (and the ‘first limb’ of s.47)
This is perhaps the most important part of the decision.
It was agreed between the parties that, at the relevant time between 1946 and 1952, it was not known that mesothelioma was a potential consequence of asbestos exposure and it was certainly not known that very low levels of asbestos fibre could cause the disease.
This said, C argued that W ought to have been aware of the annual reports of the Chief Inspector of Factories, by 1938 asbestos was referred to in these reports as ‘highly dangerous’ and reference was made in 1949 to preventing inhalation as far as possible.
The Judge engaged in a detailed discussion of the authorities including Jeromson v Shell Tankers  EWCA Civ 101, Maguire v Harland & Wolff plc  EWCA Civ 01 and Williams v The University of Birmingham  EWCA Civ 1242.
Of particular note is the judge’s treatment of whether was any conflict as between Williams and Jeromson. He held that there was no conflict, the formulation to be applied to determine the breach of duty question is consistent with what was said in Jeromson, namely what needs to be reasonably foreseeable is asbestos related injury, not mesothelioma itself. He held that Williams was confined to the factual context of 1974, in which, on the basis of TDN 13, it was believed that there was a level at which the exposure to asbestos did not create a risk of asbestos related injury. Thus Williams was tightly confined to its context and the formula from Jeromson was accepted.
As to the application of this test, the Judge found that W should have known by 1946 to 1952 that asbestos was regarded as highly dangerous and that inhalation should be prevented as far as possible. Asbestos related injury of some sort was a reasonably foreseeable consequence of exposure to asbestos dust, even at low levels of exposure. W had no way of measuring the levels of asbestos dust in the air in its factory. Mrs Hawkes’ evidence was that bits of lining were coming off of the blankets and getting on her clothes. This was more than minimal and enough to require W to consider practical measures to protect employees against inhalation of fibres. Unless the employer could be confident that the dust was not coming from asbestos materials, in a factory known to be working with asbestos, it should not matter in terms of breach of duty whether the visible dust was or was not asbestos. Further, it could not have been established at the time what it was or in what amount. The presence of dust in the air triggered a duty to take precautions or to take advice.
W had not done so and – if the lining had contained asbestos – it would have been in breach of its common law duty of care and s.47 of the Factories Act 1937 to protect its workers from dust that was likely to cause harm.
While the claim failed on the facts, it is difficult to see this case as anything other than a significant blow to the insurance industry.
The Court held that the processes did not fall within the ambit of the Asbestos Industry Regulations 1931, but the other causes of action (more typically seen in modern litigation) would all have been made out. The most important ruling is that a notionally low level of exposure – which was expressly held to be below ‘substantial’ – would have been in breach of the common law duty of care and s.47 of the Factories Act in the 1940s.
This is the type of point that many claimants have been seeking to make since Williams. This case represents another significant departure from the rather mechanical application of artificial ‘safety standards’ taken in a wave of other post-Williams decisions. This seems to be the result of this Court carefully considering the available historical literature in full and in context.
Claimants will be hoping that the Court of Appeal in Bussey takes a similar approach.