In this post, Aliyah Akram summarises and comments on the decision of HHJ Curran QC, in which he gave judgment against all three defendants in a case arising out of the death of a bricklayer who had been exposed to asbestos while working in factories
The decision on apportionment and costs (unreported but available on Westlaw and Lawtel) is also noteworthy. Although liability was established against all three defendants, because the Claimant lost on the only disputed issue in relation to D1 (which was whether D1 had employed the Deceased), the Claimant was ordered to pay D1’s costs. However, the Judge held that since D2 and D3 had sought unsuccessfully to take advantage of the Claimant’s argument on this issue, they had to pay the Claimant’s costs of the exercise.
Ronald Walker QC acted for the First Defendant.
Mr Hill was exposed to asbestos when he stripped out industrial furnaces which were lined with asbestos insulation. Working in the furnaces produced clouds of dust and Mr Hill and his colleagues had no more than Martindale masks or scarves across their faces to protect themselves. The evidence showed that most of the dust would have been brick dust, but there would also have been small quantities of asbestos dust.
Those small quantities of asbestos dust were enough to cause Mr Hill to develop mesothelioma, which proved to be fatal. A claim was brought against three defendants.
The First Defendant
It was claimed that Mr Hill was employed by the first defendant, a company which constructed and maintained industrial furnaces. To succeed against the first defendant the Claimant needed to establish its liability as an employer because both the first defendant and its insured were insolvent and the Claimant could only recover from the Financial Services Compensation Scheme on an employer’s liability basis.
But the first defendant denied that it had employed Mr Hill and argued instead that he was the employee of an independent contractor which in turn supplied labour to the first defendant. It noted that Mr Hill had, before his death, described himself as employed by the independent contractor rather than by the first defendant. On the other hand, it was accepted that the first defendant employed Mr Hill’s supervisors and exerted a high degree of control over the manner in which he carried out his work.
The court agreed with the first defendant, Mr Hill had not been an employee and so the employer’s liability claim against the first defendant failed. For the purposes of this case summary the reasoning is not analysed in any detail, but it should be noted that the judgment gives clear and helpful analysis of the circumstances in which a contract of employment might arise with the end user of services.
The Factory Defendants
The other two defendants were described as the ‘factory defendants’. Both were involved because the first defendant had sent Mr Hill to work in their factories in the early 1970s. In the second defendant’s factory, he worked on extending furnaces used in the manufacture of gun barrels for tanks and in the third defendant’s cast nickel factory he carried out maintenance work on their furnaces.
The factory defendants raised a number of ultimately unsuccessful defences.
Challenge 1: section 63, Factories Act 1961
The factory defendants argued that the 1969 Asbestos Regulations had replaced section 63 of the Factories Act 1961 which provides that:
“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 its entering the air of any workroom.”
In rejecting this argument, the judge held that s. 63 contemplates two categories of dust: (1) dust of such a character and extent as when then foreseeably likely to be injurious to persons employed within the factory and (2) any substantial quantity of dust of any kind. The two categories are commonly referred to as the first limb and the second limb. (It was the second limb of the equivalent provision in the Factories Act 1937 which was under consideration in McDonald v National Grid  UKSC 53.) While the Regulation 3(3) of the 1969 Regulations had replaced s.63 insomuch as it related to dust which might foreseeably have caused danger to health it did not alter the obligations in relation to substantial quantities of dust.
The second defendant also argued that the work carried out by the deceased was not a process within the meaning of s. 63 as the extension of the furnaces was a “one-off” to enable the manufacture of longer gun barrels rather than a form of routine work or maintenance. This argument was pretty swiftly dismissed as the judge noted that s. 63 refers to “any process carried on”.
Challenge 2: section 29 of the Factories Act 1961
The factory defendants also argued that the deceased’s place of work was not unsafe for the purposes of s.29 of the Factories Act 1961 because the safety of the workplace related to its physical structure and attributes having regard to activities which are constantly and regularly carried out there rather than unusual or irregular which creates a hazard of an exceptional kind.
This argument was despatched with similar speed. The judge found that the furnaces were necessary and intrinsic parts of the factory premises and since the deceased worked in both factories for some weeks their work was regular and thus workplace was unsafe.
Challenge 3: common law liability
Lastly both factory defendants argued that a common law liability should not arise because they had reasonably engaged a third-party contractor, the first defendant, to carry out the work. Again this defence was dismissed. The judge held that a duty of care would arise where a factory occupier has control over its premises and the authority to dictate what is or is not done within them. The clouds of dust being produced by the deceased’s work were an obvious risk to health and safety which the factory defendants should have guarded against.
This was a case of shifting loyalties. When it suited the factory defendants they joined cause with the claimant to argue that the first defendant had employed Mr Hill. Equally when it suited the first defendant to argue that the factory defendants would be liable for Mr Hill’s exposure to asbestos they supported the claimant’s submissions.
Ultimately for claimant lawyers this case shows that they can be creative with regard to who they bring claims against and on what basis and that doing so can increase the likelihood of a successful claim.
End Note: see also Hawkes v Warmex  EWHC 205 for an application of s.47 of the Factories Act 1937, the equivalent provision to s.63 of the Factories Act 1961.