SARAH WITHAM (as Executrix of the Estate of Neil Witham (Deceased)) v STEVE HILL [2020] EWHC 299 (QB)

Steven Snowden QC and John Paul Swoboda appeared on behalf of the Claimant in this matter.

Neil Witham died at the age of 55 from mesothelioma leaving behind his wife (the Claimant) and his two foster children. At the heart of the dispute between the parties in this case was the width and breadth of the Fatal Accidents Act 1976 and the proper method to quantify the dependency if it fell within the scope of the Act.

The matter came before Mr Anothony Metzer QC, sitting as a Deputy High Court Judge, to determine the issue of quantum. Neil (the deceased) and Sarah (the Claimant) had, long prior to Neil’s development of mesothelioma, decided to foster two children, a biological brother and sister (A and B) who both had disorders on the autistic spectrum. Although A and B attended school it was necessary for one parent to look after the children as their sole occupation (and this was a condition of the fostering agreement with the local authority). Neil was to be the carer so that Sarah could pursue her rewarding and challenging career as a specialist paediatric diabetes nurse. As a result of Neil’s untimely death, caused by the Defendant’s negligence, Sarah gave up work so as to look after her foster children. As a result, she lost her career. The principle question for the court was whether this loss was a dependency within the meaning of the Fatal Accident’s Act with it being argued for the Claimant that there was a recoverable dependency (albeit with unusual factual circumstances) whereas that Defendant argued the claim advanced was beyond the scope of the Act and was an illegitimate attempt to bypass the fact that the foster children were not recognised dependants as defined in the Act.

Mr Metzer QC, having considered the authorities cited, accepted that section 3(1) of the Act, which defines recoverable dependency, was“a wide gateway and if the dependant can establish that pecuniary loss resulted from the death then that would meet the requirements…”. He further found that the dependency was the Claimant’s and was not an illegitimate ‘relabelling’ of A and B’s irrecoverable dependency. In this regard he accepted that even though A and B were involved in the dependency (as the care Neil would have provided was to them) it was nevertheless the Claimant’s loss and not A and B’s: the children in fact suffered no loss as their foster mother (the Clamant) replaced the care provided by their deceased foster father, and that when looking at the reality of the situation the court was entitled to consider a pecuniary loss suffered by all members of the family even though some of the members of the family might not be recognised dependants. Finally the judge rejected the submission that the Claimant’s loss was a loss ‘incidental’ to the relationship of husband and wife as he found Sarah and Neil did not foster A and B for business reasons, nor for the state funds which were paid upon fostering, but rather as a family decision, which is to say it was a decision they made as a husband and wife acting in the capacity as a husband and wife.

When valuing the dependency, the judge decided to use the cost of replacement care of the services Neil would have provided, rather than the Claimant’s lost earnings, as the measure of the loss. It was in issue whether the dependency should be valued by adopting the commercial rate for replacement care or whether there should be a 25% discount to the commercial rate. The judge accepted that the situation under the Fatal Accidents Act is different to that where an injured Claimant receives care on a gratuitous basis from family or friends. The former involves a valuation of the services provided by the deceased, which is to be done by reference to the commercial rate and does not require the valuation of the services now provided (which is what is done in a PI claim where there is a discount typically of 25% where the care is provided gratuitously). The judge found support for this approach in the authorities, particularly Knauer v MOJ [2014] EWHC 2552 and Daly v General Steamship Navigation [1981] 1 WLR 120. Houscroft v Burnett [1986] 1 All ER 332 CA was distinguished as a) Daly (supra) was not cited and b) it was a PI case to which different principles applied.

On this basis the learned judge made an award of £929,857.22. The Defendant was refused permission to appeal by the judge. It is not known whether the Defendant will seek to renew their application for permission to appeal before the Court of Appeal.

The Asbestos Industry Regulations 1931 and s. 47/63 Factories Acts

This post is by James Beeton.

It is commonly pleaded by claimants in asbestos litigation that their work in a factory was covered by both the Asbestos Industry Regulations 1931 and s. 47/63 of the Factories Acts. I have never seen a defence question the assumption that both sets of statutory provisions can in principle cover the same work. But that assumption may not be right.

This suggestion is of limited practical importance, since a defendant who would have been liable under s. 47/63 Factories Acts will usually also be liable under the Asbestos Industry Regulations 1931. But it will be relevant in at least one situation: namely, where a case falls within the exemption from liability in the Preamble to the Asbestos Industry Regulations 1931, which applies where no person was employed for eight hours or more in any week in the part of the factory in which the asbestos processes were carried out.

Franklin v The Gramophone Company Ltd [1948] 1 KB 542 dealt with the Grinding of Metal (Miscellaneous Industries) Regulations 1925. These were originally made under s. 79 Factory and Workshop Act 1901 but were continued in force under s. 159 of the Factories Act 1937. In this respect, their legislative history mirrors the Asbestos Industry Regulations 1931.

The Grinding Regulations covered listed processes involving the grinding and glazing of “metals”, a term which was not defined (but which did not include “gold, platinum, or iridium”). Similarly, the Asbestos Industry Regulations 1931 covered processes listed in the Preamble involving “asbestos”, defined in broad terms as “any fibrous silicate mineral, and any admixture containing any such mineral, whether crude or crushed or opened.”

Both sets of Regulations applied to factories and workshops to which the Factory and Workshop Act 1901 (and later, the Factories Act 1937) applied and provided protections against exposure to dust generated in the processes they covered.

But, in Franklin it was held that the general protection of s. 47 Factories Act 1937 was superseded by the provisions of the Grinding Regulations. Scott LJ said at pp. 551–552:

“The conclusion seems to me inescapable that the regulations No. 904 must of necessity be construed as saying to the occupier of any factory where relevant processes were conducted: “Carry these regulations out honestly and carefully and you will have complied with all the statutory requirements incumbent on you and your factory.” If so, their particular provisions must supersede the general provisions of s. 47 and be substituted for them.”

Evershed LJ said at p. 560:

“As a matter of the construction of the regulations, deemed to be made by virtue of s. 60, do they so “modify” the terms of s. 47 as to constitute an exhaustive code for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on? In my judgment, Yes.”

This meant that the defendant was able to take advantage of an exemption from liability contained in the Grinding Regulations which would not have been available had the s. 47 duty applied.

This was not an outlier decision. The same conclusion had also been reached in respect of the alleged modification of the general duty to fence “every dangerous part of any machinery” in s. 14(1) of the Factories Act 1937 by reg. 10 of the Woodworking Machinery Regulations 1922, which only prescribed a certain form of fencing for circular saws. In Miller v William Boothman & Sons Ltd [1944] KB 337, the Court of Appeal held that the introduction of the Woodworking Regulations had superseded the absolute obligation in s. 14(1).

Special regulations may preserve the application of general duties under the Factories Act 1937 where they do this expressly. So, in Quinn v Horsfall & Bickham Ltd [1956] 1 WLR 652, the Horizontal Milling Machines Regulations 1928 had a proviso saying that they did not prejudice the application of s. 10 of the Factory and Workshop Act 1901 (which became the general duty to fence dangerous machinery in s. 14(1) of the Factories Act 1937). This meant that the relevant duty under the 1937 Act was not modified by the Regulations.

A parallel may be drawn here between the substitution provisions of reg. 3(3) of the Asbestos Regulations 1969, the proper construction of which led to the conclusion that only one limb of the general duty in s. 63 of the Factories Act 1961 had in fact been superseded in Heynike v 00222648 Ltd [2018] EWHC 303 (QB). But there is no equivalent proviso in the Asbestos Industry Regulations 1931 (nor was there in the Grinding Regulations).

Although special regulations may modify the duties imposed by the Factories Act 1937, they only do so to the extent that they deal with a specific danger. In Benn v Kamm & Co Ltd [1952] 2 QB 127, the claimant was injured by a machine covered by the Horizontal Milling Machine Regulations 1928. But those Regulations only covered the cutters of the machine and not the part that had injured him. This meant that the general duty to fence off dangerous machinery under s. 14(1) Factories Act 1937 continued to apply to part of the machine that had injured him. Similarly, the exclusionary effect of the Grinding Regulations only provided an exhaustive code “for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on”. The Asbestos Industry Regulations 1931 only covered “all factories and workshops or parts thereof” in which the listed processes involving asbestos were carried on. In principle, they would not therefore cover (i) other parts of the factory or (ii) any other processes involving asbestos. These would still be covered by s. 47/63.

In conclusion:

  1. Section 47/63 does not apply to any process covered by the Asbestos Industry Regulations 1931; but
  2. Section 47/63 does not add much (if anything) to the protections in the Asbestos Industry Regulations 1931;
  3. The only obvious exception is where the Asbestos Industry Regulations 1931 provide a gap in protection which would not exist under s. 47/63 (such as the 8-hour exemption from liability);
  4. Other parts of the factory and other processes involving asbestos will still in principle be covered by s. 47/63.