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Neutral Citation Number: [2005] EWCA Civ 1
Case No: 2004/0802
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MORLAND J
Royal Courts of Justice
Strand
London
WC2A 2LL
26 January 2005
B e f o r e : THE RIGHT HONOURABLE LORD JUSTICE JUDGE, THE RIGHT HONOURABLE LORD JUSTICE MANCE and THE RIGHT HONOURABLE LORD JUSTICE LONGMORE
Between:
JAMES MAGUIRE (PERSONAL REPRESENTATIVE OF THE ESTATE OF TERESA MAGUIRE DECEASED), Respondent - and - 1) HARLAND & WOLFF PLC (2) HARLAND & WOLFF HOLDINGS PLC, Appellants
Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court
Mr Charles Feeny (instructed by Hill Dickinson) for the Appellants
Mr David Allan QC (instructed by John Pickering & Partners) for the Respondent
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Judge:
"the risk of serious injury to Mrs Maguire's health was, and should have been by Harland & Wolff, reasonably foreseeable, indeed obvious, in the period 1961 to 1965."
"The reality of the matter is that … no-one in the industrial world before October 1965 directed his or her mind to the risk of physical injury from domestic exposure to asbestos dust, except in what I will call "the asbestos neighbourhood cases" … It is most unlikely that they (the defendants) would have become aware of the risk from domestic exposure to asbestos dust before about the end of 1965."
We understand that a number of cases of "familial exposure" to asbestos dust have already arisen, and that further such cases may reasonably be anticipated. The different views of experienced High Court judges in the only decided cases involving familial exposure of which we are aware underlines the importance of this appeal.
"Whilst working for Harland & Wolff I worked in the shell; boiler room and engine rooms of ships. There were heavy exposures to asbestos dust whilst I worked in the boiler room and engine rooms.
I also worked close to laggers and scalers who were knocking asbestos lagging off; they were employed by Harland & Wolff. They knocked lagging off for different trades, such as boilermakers and also for pipe fitters. The asbestos lagging they knocked off was left on the floor. It was left to the scalers to clean it up, but this didn't happen until the end of the job. In the meantime, everyone walked through it. When we walked through it dust got on to our shoes and onto our clothes. In the lower parts of the boiler I worked on my knees in amongst asbestos debris.
When the scalers cleaned up they picked up big bits of asbestos and put them in bags and brushed the remainder up dry. It was dusty when they brushed up.
Later on in the job when repairs and alterations to the pipes and boiler had been undertaken, the laggers re-lagged the pipe work and boiler. I worked next to laggers who were lagging. They mixed compo made from asbestos powder in a bucket. Dust came up when they put the powder in the bucket. They put the compo on the pipes and smoothed it down. When they put it on the pipes bits of wet compo fell down and dried where it lay. Then when we walked through it, it disintegrated into dust. In the boiler room there was grating for different levels. Any asbestos cement that landed on a grating fell down between the gratings where it disintegrated into dust. I also saw laggers using preformed sections. They used preformed sections in a semi-circular shape to lag pipe work. The sections contained asbestos. They put two semi-circles around the pipes and then fastened it into place. When they came to a bend in the pipe, they cut it into segments to go around the bend. It was very dusty when they cut the preformed sections. I got dust on my clothes from laggers cutting preformed sections. The bits of preformed sections, which were no good, were just left. Some laggers would put them to one side, but a lot wouldn't and just left them for the scalers to clean up at the end of the job. In the meantime they were disturbed and stood on and more dust was created.
As a boilermaker I used asbestos blankets when burning or welding. The blankets were put over areas, which had to be protected. For example, if we were working near electrical cables, the asbestos blankets were put over the cables so that they were not damaged by our work. They came in various sizes from 2' x 3' upwards. If I wanted a blanket I asked a foreman or charge hand and he sent someone to where I was working with a blanket. I then positioned it where I wanted it. Sometimes I wet the blanket, as this reduced the dust but it meant that the asbestos fibres stuck to me if I touched it. There were times when I was working that I knelt on the blanket, but this only happened infrequently. It was dusty when I put the blanket down and moved it about. It was dusty so that asbestos dust got on my clothes.
At Harland & Wolff I spent about half of my time in the engine rooms and boiler rooms. The rest of my time I did deck work and shell work. I was exposed to asbestos dust whenever I worked in the boiler or engine rooms. On deck I was exposed to asbestos from the asbestos lagged pipes. I got asbestos dust on my clothes if I brushed against pipes. I was also exposed to asbestos from the asbestos blanket that I used.
There was no system for extracting the dust. There was no segregation between our work and that the work of the laggers or other trades. We were not provided with masks. No efforts were made to damp down the asbestos before it was swept up. We were not warned of the dangers of coming into contact with asbestos dust.
…At each employment at Harland & Wolff I worked as a boilermaker on ship repair. With Harland & Wolff I have always worked on the vessels. I worked in the shell boiler rooms and engine rooms of ships. There was heavy asbestos exposure when I worked in the boiler rooms and engine room. When a vessel came in for repair, lots of different trades went onto the vessel and started work. When I worked on the boiler or engine room asbestos had to be removed to get at the nuts and bolts.
There were laggers and scalers who knocked off asbestos lagging. I generally knocked off the asbestos lagging myself rather than wait for laggers and scalers to get there.
There was asbestos composition over the nuts and bolts. I knocked it off with a hammer and chisel or whatever came to hand. On countless occasions the asbestos was in bad condition. It was dry and crumbly. When I knocked off the lagging it created clouds of dust. There was lots of asbestos dust in the air and I got asbestos dust in my clothes and in my hair.
When we used to take breaks we used to take the break where we worked and even then we got dust on our food.
When I worked on the boilers I removed an asbestos rope on the doors. The doors were about 6' wide and 2' or 3' high. The top of the doors were about 6' from the ground. We had coils of rope that varied from a half inch to an eighth of an inch in diameter. There were bolts around the doors and I looped the asbestos dust (sic) around the bolts making a figure of eight shape. I then cut it when I had finished. Some of the work was above my head height. I held on to the coil rather that leave it on the floor as I wound it around. When I held the coil I got asbestos dust on my clothes. With working above head height, when I put the rope around asbestos fibres came off and on to me."
"From the late 1960s I wore boiler suits to work. When I came home from work I went straight to the bedroom and took my work clothes off and got changed. It was dusty when I took off my work clothes. I left them on the floor and Teresa sorted them out. She washed my work clothes every weekend.
Overalls were brought home every night. I would wear jeans and a pullover at that time. If my clothes were really dirty Tess would put them in a bucket of water. I would have to bring them through the house to get changed. Beneath the overalls I wore dungarees, a working shirt and a hand-knitted pullover and then an ordinary jacket with a big safety pin to fasten the lapels. My mother-in-law knitted me pullovers, which went right up to the neck. I wore pullovers to protect me from the sparks. She also knitted socks for me. The jackets I wore were all suit jackets, which were getting a bit old and shabby.
I wore a shirt for one or two days in winter but changed the shirt daily in the summer. I had a clean pullover daily. The asbestos fibres got stuck in the hand-knitted socks and jumpers. I would take the overalls off either in the bedroom or get changed in the back kitchen. I changed out of my work clothes immediately. There was asbestos dust throughout all my clothes including my shirt, pullover, socks, trousers, vest, all the way down to my underwear. My jacket was covered with asbestos dust. There would be asbestos dust on my face and on my skin."
"The only time when I have been exposed to asbestos is from washing Jimmy's work clothes. When Jimmy came home the first thing he did was go to the bedroom and get changed. The clothes were dusty and dirty. He left them on the floor, and then I sorted them out. If he was going to wear them the following day I put them on the ottoman in the bedroom. If they were going in the wash I either put them in the washing basket or on top of the lid. We had tall thin washing baskets made from plastic with holes in a plastic lid. If the clothes weren't too bad I put them in the basket with the other clothes. However when they were very wet or dusty, or had creosote on them then I turned the lid of the basket upside down and put them in the lid.
In the early days he wore what we call dungarees, which were basically jeans. They were trousers without a bib and brace. He wore a working shirt and a pullover. He wore an ordinary jacket. He changed his underwear daily. He changed his shirt every one or two days. Daily in summer and perhaps every two days in winter. He had a clean pullover every day. He wore the same in summer and winter. He wore pullovers to the neck to protect him from the sparks.
The dust and fibres seemed to stick to the hand knitted socks and jumpers.
Our first house in Rockfield Road was a flat in a big house. There was a main living room and a bedroom. At that time, I took clothes to the washhouse but they would not let us take dirty overalls. I washed Jimmy's work clothes at home. I washed every weekend. I took them into the back yard. I shook them out and emptied the pockets and straightened out the turn-ups. I brushed them with a little hand brush to get the worst of the dust off. I did this in the yard because the clothes were dirty and dusty. He got dust in his turn-ups, in his pockets and everywhere. I shook the dust out of his jumpers and socks. He also had a cap for work. He wore either a cloth cap or corduroy cap. I washed the cap, which was also covered in dust. I breathed in the dust when I shook out his clothes. I then left the clothes in a bucket to soak overnight with washing soda. The following morning I scrubbed them in the yard. I had extra buckets of water to swill them off. I rinsed them out and then hung them to dry.
When we moved to Sandy Street it was another flat and I used the same procedure for washing his work clothes. By the time we moved to Nith Street , we had our daughter, Christine. We bought a boiler, which had a handle with an agitator. We mainly got this for washing Christine's nappies. I still washed the overalls in the yard as they were too dirty to wash in the boiler."
"During this period, the claimant would have been regularly (defined by me as being more than once a week but less than daily) exposed to asbestos fibres which were brought into the family home by her husband and …, on the balance of probabilities, depending on factors such as the extent of his contamination with asbestos contaminating dust and the particular circumstances of the disturbance of the contaminating asbestos fibres she would have been at least moderately and sometimes heavily exposed to airborne asbestos fibres."
"If the dust on the [Mr Maguire]'s clothing had contained between 15-50% of asbestos fibres depending on what asbestos-based materials he had encountered and/or had been using … we are agreed that all other factors being equal, a person who shook overalls, which were contaminated with dust containing between 15-50% asbestos fibres, could have been exposed to an average asbestos fibre concentration in the range 30-100 fibres/ml [millilitres]."
The experts then continue:
"Having taken account of this supposition … RBC [Mr Clark] concluded that on the balance of probabilities the claimant would have been at least moderately and sometimes heavily exposed to airborne asbestos fibres as a consequence of encountering and/or handling her husband's asbestos-contaminated work clothing. RHB [Mr Beauchamp] takes the view that while such a conclusion might be valid in those situations when the claimant's husband had returned home from work with his work clothing obviously covered with asbestos-containing dusts, it cannot be concluded that the claimant would have been exposed to such levels on every occasion that she encountered and/or handled her husband's asbestos-contaminated work clothing. RBC agrees."
I shall return to Mr Clark's categorisations of moderate and heavy exposure at paragraph 33.
"the extent to which the claimant would have been exposed to asbestos fibres, which originated from her husband's asbestos-contaminated work clothing, when she encountered and/or handled such clothing, would have depended on the degree to which his work clothing was contaminated with asbestos-containing dusts when he arrived home."
This reflected the practical realities. The most careful efforts now to establish the precise extent of Mrs Maguire's undoubted exposure to asbestos dust during 1961 to 1965 would, at best, amount to no more than informed speculation.
"There was nothing in the specialist safety, medical or factory inspectorate literature to alert Harland & Wolff to the risk of secondary exposure."
That finding is unchallenged. Quite apart from the absence of any warnings of familial risk in the literature, Mr Clark was unable to identify a time prior to 1965 when, as a matter of prudent practice, careful employers began to address the danger of asbestos-related injury in the families of their employees. There is no evidence in this case, and indeed there was none in Gunn, which suggested that, prior to 1965, the risk described by Morland J as "obvious" gave rise to any echoing concern among responsible employers for the safety of members of the family of employees who worked with asbestos dust, or indeed among those with wider responsibility for safety and health generally.
"This industrial disease of the lungs due to the inhalation of asbestos dust, although only recognised and accepted recently as an entity of serious import, has been, during the past few years, the object of much careful investigation in various countries … Asbestosis is a new disease which illustrates only too clearly that the march of civilisation does not solely confer benefits on the world, but also harasses man with new problems and perplexities and with new diseases, or by the dissemination of diseases long thought circumscribed."
"One of the greatest problems facing industry today is that of dust … There can be no doubt that dust inhaled is physiologically undesirable. Moreover, dust that is thought today to be harmless may, following research, be viewed in another light tomorrow. It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous."
The Report also acknowledged the "suggestion" in a number of medical publications which appeared to identify a relationship between asbestosis and lung cancer, but Dr Bridge concluded that the body of knowledge was not sufficiently extensive "for it to be safe to draw conclusions".
"As some toxic materials can be absorbed through skin, exposed parts of the body should as far as practicable be covered by protective clothing. Contaminated clothing should be changed and hands, face and any other exposed parts of the body should be thoroughly washed at the end of the working day."
"The recent increase in the number of cases diagnosed … may be partly due to mounting interest in the disease and partly to the long interval between first exposure and development of the tumour … The increasing proportion of the population exposed to asbestos during the past 30 years may be expected to give rise to an increasing occurrence of mesothelial tumours."
The critical conclusion was that:
"There seems little doubt of the risk of both occupational and domestic exposure of asbestos".
"A disquieting "new" occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind-the-scenes activity by a British scientist … A remarkable report … has brought this whole matter to the surface."
By the time all this material had become available, Mr Maguire had ceased to work for Harland & Wolff.
"Whereas the ceiling limit places a definite boundary which concentrations should not be permitted to exceed, the time weighted average limit requires an explicit limit to the excursions that are permissible above the listed values."
In short, although the figures from the 1960 paper were repeated, the 1968 document read as a whole demonstrates a much greater perception of risk than the earlier document. In Gunn, Waterhouse J appeared to believe that the effect of the two publications was identical: so did Morland J in the present case. If either of them did, he was drawing a mistaken conclusion from the figures in the later paper, rather than focussing on the text itself.
"Although the risk of mesothelioma associated with occupational exposure to asbestos is well documented, the risk posed by environmental and domestic exposure is uncertain … Although previous reports have documented an increased risk of asbestos-related diseases among household contacts of asbestos industry workers, to our knowledge this is the first to provide data on actual lung fibre burden."
This report suggested that household contamination can result in "bystander exposure levels similar to those found in the industrial setting" and provided evidence that injury could be related to levels of exposure corresponding to those endured by employees in the course of their working days.
"There is nothing in the law that circumscribes the duty of care by reference to the factory wall … If the evidence shows with respect to a person outside the factory that he or she was exposed to the knowledge of the defendants, actual or constructive, to conditions in terms of dust emissions not materially different to those giving rise within the factory to a duty of care, then I can see no reason not to extend to that extra-mural neighbour a comparable duty of care."
Basing himself on that principle, the judge was left in
"no doubt that in the immediate vicinity of the premises factory conditions in terms of dust emission were at various points effectively replicated so as to give rise to like foresight of potential injury to those exposed for prolonged periods."
" A pre-condition of the existence of such a duty of care to the deceased must be acceptable evidence that, prior to the end of the period of [Mr Gunn's] exposure to asbestos, a prudent employer ought reasonably to have foreseen that there was a risk of some physical injury to the deceased as a result of the exposure."
For present purposes it is unnecessary to reflect whether this direction would have been more complete if it had included reference to the need for the employer to take reasonable steps to avoid such physical injuries. In practical terms there was no essential difference between the way in which Waterhouse J directed himself in Gunn, and Morland J's self-direction in the present case.
"No acceptable evidence has been adduced … that anyone engaged in ship building or industry generally, or having relevant responsibilities in that field, did in fact foresee the risk of any injury to an employee's wife from the employee's own exposure to asbestos dust."
He noted that the consultant engineer called on behalf of Mrs Gunn, Mr W.M. Finch, formerly an inspector of factories between 1964 and 1969, and thus, as a matter of certain inference, someone familiar with the language and conclusions of the 1959 annual Report, agreed that "No-one in industry would have addressed his mind to the risk … prior to the making of the 1969 Regulations". Mr Beauchamp who gave evidence in Gunn, as in this case, told the judge that it had not occurred to him in the 1960s that there was any problem about laundering working clothes exposed to asbestos. Indeed it was not until the 1969 Regulations that he appreciated the problem of familial or secondary exposure to asbestos. None of the evidence adduced in the present case produced different or contradictory insights.
Lord Justice Mance:
"The lawyers' question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question." (Donoghue v. Stevenson [1932] AC 562, 580, per Lord Atkin)
"It is also relative to the particular individual affected. This raises a serious additional difficulty in the cases where it has to be determined, not merely whether the act itself is negligent against someone, but whether it is negligent vis-à-vis the plaintiff."
He went to say that "This is a crucial point in cases of nervous shock" - such being the nature of the injury in Bourhill itself. In Caparo v. Dickman [1990] 2 AC 605, 651, Lord Oliver echoed the same thought:
"It has to be borne in mind that the duty of care is inseparable from the damage which the Plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular Plaintiff damage of a particular kind which he has in fact sustained."
"The defendant will be liable to pay for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless a reasonable man would in the whole circumstances feel justified in neglecting it. …. [I]n tort there is no opportunity for the injured party to protect himself in that way [i.e. by directing the other's attention to any unusual risk], and the tortfeasor cannot reasonably complain if he has to pay for some very unusual but nonetheless foreseeable damage which results from his wrongdoing."
Further, the ease with which steps could have been taken to obviate a foreseeable risk is relevant in considering whether there has been a breach of duty.
"Contaminated clothing should be changed and hands, face and any other exposed parts of the body should be thoroughly washed at the end of the working day."
This, he said, should have alerted a reasonably prudent employer to the risks of secondary exposure. The judge went on to express the more general conclusion that by 1961
"the difficulties related to and the threats posed by asbestos were sufficiently well-known and sufficiently uncertain in their extent and effect for employers to be under a duty to reduce exposure to the greatest extent possible (see the judgments of Buxton J in [Owen v. I.M.I. Yorkshire Copper Tube 15 th June 1995] at p.41, of Mr Machell QC in [Jeromson v. Shell Tankers UK Ltd. 1 st February 2000] at p.30 and of Hale LJ also in Jeromson's case [on 2 nd February 2001 at para. 51]."
He added that:
"from at least the publication of the report of Merewether and Price in 1930 [on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry], the appellants were or should have been aware of the risk of serious injury to health from inhalation from [sic] asbestos dust",
and that
"Certainly by the late 1940s the incidence of lung cancer from exposure to asbestos dust was recognised" (para.34).
"Furthermore, it appears that the risk falls most heavily on those longest employed and on those engaged in the more dusty processes."
After discussion of the limited evidence then available in this area, they continued:
"To sum up, therefore, it appears probable that concentration of dust and length of exposure as factors in the production of fibrosis are interdependent within certain limits. Whilst it seems necessary for the production of generalised fibrosis of the lungs that a definite minimal quantity of dust must be inhaled, the lower the concentration of dust in the air breathed, the longer the lapse of time before the fibrosis is fully developed, and within a certain limit, the higher the concentration of dust, the sooner the fibrosis becomes fully developed and the more intense the involvement of the lung tissue."
"As shown previously, if a certain, and as yet unknown, amount of asbestos dust is trapped in the lungs, death due to the development of asbestosis is an inevitable sequel ….
If only the slightest exposure to the dust results ultimately in death, then the scope of the necessary preventive measures is summed up in one word – prohibition – for, practically speaking, it is impossible to prevent such exposure. Fortunately, however, there is evidence that an appreciable amount of dust must be incarcerated in the lungs to produce a serious degree of fibrosis. Inquiries into the relative dustiness of various processes and the relative incidence of asbestosis amongst workers in these processes provides [sic] data which go far to confirm this point of view."
"We are but on the threshold of knowledge of the effects on the lungs of dust generally and I have referred in my reports from year to year to the enquiries made into cases of illness and death alleged to be due to the inhalation of dust. While Section 47 of the Factories Act 1937 may be thought somewhat ambiguous in its reference to "a substantial quantity of dust of any kind," it is, I think, an admirable one in that it requires precautions even before it is possible to say specifically that the dust in question is harmful to a recognisable pathological extent. There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought to-day to be harmless may, following research, be viewed in another light to-morrow. It is not many years ago when the dust of Asbestos was regarded as innocuous, while to-day it is recognised as highly dangerous."
"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."
"We note that, notwithstanding the general perception that such diseases were associated with chronic and/or heavy exposures to asbestos-containing dusts, HM Factory Inspectorate had drawn attention to and warned of the dangers of the consequences of lesser exposures to such dusts on a number of occasions."
They referred in this regard to the Chief Factory Inspectors' reports for 1938 and 1949 and his letter of August 1945.
"SUBSTITUTION
The problem is how to prevent exposure to a toxic dust or fume. The best solution is for there to be no such dust or fume and for a harmless substance to be used instead. That should always be the first possibility to be explored. ….
TOTAL ENCLOSURE AND RELATED METHODS
If substitution proves to be impossible or only partially possible, and a toxic material must be used, the next best protection against inhalation is to ensure that no injurious dust or fume can escape into the atmosphere of any workroom. ….
PERSONAL PROTECTIVE EQUIPMENT
Where practicable, it is preferable to rely on "built in" safety precautions rather than personal protective equipment. But there are a very few cases where toxic dust or fume is generated and cannot be adequately controlled by any of the methods referred to in the preceding sections. ….
"PERMISSIBLE CONCENTRATIONS
While systems of controls should be as effective as it is practicable to make them, it is desirable to have some guide to which the efficiency of the control measures can be related. In the List at the end of this booklet there are set out figures of maximum permissible concentrations of certain substances used in the industry. For each substance a figure of concentration in atmosphere is given. If this concentration is exceeded, further action is necessary to achieve satisfactory working conditions. The List also serves as a general indication of the relative degrees of toxicity of these substances.
The concentrations given are based on those formulated by the Committee on Threshold Limits of the American Conference of Governmental Industrial Hygienists, and also used by the International Labour Office as a basis for papers published in its Model Code of Safety Regulations. The figures relate to average concentrations for a normal working day. They are based on the last available information at the present time, and are subject to review in the light of existing scientific knowledge."
"Later, the serious effects arising from continued inhalation of asbestos (in silicate) and coal dust became apparent and in recent years experience has shown that a number other dusts produced as a result of industrial processes are capable of causing a reaction in the lungs. Moreover it is now becoming increasingly doubtful whether it is safe to assume that any finely divided dust is harmless if inhaled in sufficient quantity over a sufficient period.
Effects of Dust on the Lungs
Our present knowledge enables us to classify the dusts producing demonstrable effects on the lungs into certain broad groups as follows:
1. Those dusts, such as silica and asbestos, which produce a pneumonicosis ….
5. Dusts which are thought to cause or predispose to cancer of the lung. In assessing whether or not a particular dust found under certain conditions is likely to prove harmful to those exposed, a number of factors needs to be considered. The factors concerning the material and process which can be assessed with some degree of accuracy are:
(1) the chemical composition of the dust;
(2) the range in size of the dust particles present in the air and the frequency with which the different sizes occur;
(3) the concentration of the respirable dust at the breathing level;
(4) length of exposure and whether exposure was intermittent or continuous.
Additional factors which may have an important bearing upon the effects of dusts, but which in some respects are more difficult to determine, are the physical demands of the work, individual susceptibility, the healthiness or otherwise of the lungs, and the habits and circumstances of the individual and his methods of working.
…..(3) Concentration of the dust. There are many variables involved in relating exposures to different concentration of dust and the lung response which may follow. It is necessary, however, to have some guide to which the efficiency of control measures can be related and the Department has accordingly, recently published a booklet containing a table based on the latest scientific knowledge showing the maximum concentrations of certain dusts expressed as particles per cubic centimetre, which if exceeded in factory atmospheres indicate that working conditions cannot be considered to be satisfactory.
(4) Length of exposure. Harmful effect from dusts that cause permanent injury to the lung by fibrosis may not result until the person has been exposed for many years. On the other hand exposure to dusts which are irritants need to only be of very short duration to produce symptoms and signs of illness. It is generally thought that where the total mass of dust inhaled is the same, intermittent exposure to dust is less harmful than continuous exposure. This view is based on the recognised ability of the lungs, aided by other physiological mechanisms, to dispose of much accumulated dust during dust-free periods.
Additional factors. Many other factors may play their part in deciding what degree of injury may be sustained by any particular individual. The physical demands of the work may dictate the quality and quantity of the respiratory effort. Among the variables encountered is that of personal susceptibility: persons with healthy lungs are found to react differently to dust even if exposed to what appear to be the same environmental conditions, while the presence of any lung disease will also have an influence.
…..Protection against inhalation of dust. Section 47 of the Factories Act, 1937, requires that where dust of fume likely to be injurious or offensive or any substantial quantity of dust is given off, all practicable measures shall be taken to protect the workers against inhaling it.
…..Where it is essential to use a material giving rise to a potentially injurious dust protection is obtained by preventing the escape as far as possible of any of the dust into the atmosphere of the workroom.
…..Apart from measures which are designed to remove as much dust as possible at its source, there are other considerations in the protection of the workman from the inhalation of dust. A certain amount of "background" dust inevitably disperses in the air of the workrooms, settling on beams, ledges, benches, the floor and on the workers' clothing. Such dust is easily disturbed by the vibration of machinery, the passage of trucks and even by the movements of the workers themselves, so that is becomes airborne once again and is liable to be breathed by the workers. It is therefore essential that every effort should be made to prevent dust accumulating in the workroom by frequent cleaning by safe methods. Dry sweeping or cleaning which only serves to increase the dust in the air should be avoided whenever moist or wet methods can be used, and under many Codes of Regulations for Dangerous Trades daily cleaning of floors and benches by wet methods is obligatory. A built-in piped vacuum cleaning system, used regularly, is an excellent method of preventing accumulations of dust in the workrooms, but experience has shown that the mobile type of vacuum cleaner may allow some of the smallest and most dangerous particles to pass through the fabric of the filter bag and return to the air of the workroom. The overalls and protective clothing of the workers have been shown to be another source of airborne dust, particularly when the nature of the process is such that splashes of solid material in solution or suspension may fall on to the clothing. The liquid quickly dries out, particularly in a warm working environment, leaving the solid material adhering to the cloth, which is reduced to fine dust by the workers' normal movements and readily becomes airborne. These considerations should in no way be taken to lessen the importance of protective clothing as a means of preventing dust from being deposited on the worker or on his clothing. Without protective covering, the worker would be exposed to more dust and for a much longer time as his ordinary clothes, carrying contamination, would be worn outside working hours. What is clear, however, is that protective clothing should be of suitable material and, most important, should be frequently laundered."
The last five sentences were cited in the part of the joint experts' report quoted by Morland J.
Lord Justice Longmore:
(1) the judge had found that Mrs Maguire had intermittently suffered substantial exposure to asbestos dust both when her husband returned from work at the end of the day and on the occasions when she brushed down, shook and washed her husband's clothes;
(2) between 1960 and 1965 an employer, who exposed his employee to substantial quantities of asbestos dust, was in breach of his common law duty of care to his employee (quite apart from any breach of statutory duty by way of breach of the Asbestos Regulations in force at the relevant time);
(3) Harland and Wolff had conceded they were in breach of their common law duty to Mr Maguire by exposing him to asbestos dust between 1960 and 1965;
(4) it was but a short step to hold that they owed a common law duty of care to members of Mr Maguire's household (and, in particular, his wife) not to expose them to substantial quantities of asbestos dust, even though such exposure was considerably less extensive than the husband's exposure;
(5) once it was held that there was such a duty, Harland and Wolff were in breach of that duty because
(i) they never considered what a safe level of exposure would be; and
(ii) they were content to take the risk not only that Mr Maguire would suffer asbestos-related disease (which, thankfully, he has not) but also that his wife (or other family member) might do so, which has, in fact, sadly now happened.
"I find that a reasonably informed employer would have been aware from at least 1949 that care should be taken with asbestos; that he would have known from the middle 1950s that exposure to asbestos should be kept to the lowest possible level . . . ."
(page 41 of the judgment on page 81 of our bundle)
". . . . from the start of Mr Owen's employment the difficulties related to and the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect for employers to be under a duty to reduce exposure to the greatest extent possible."
(page 59 of the judgment and 99 of our bundle).
"While systems of controls should be as effective as it is practicable to make them, it is desirable to have some guide to which the efficiency of the control measures can be related."
In other words it is only when it is impracticable to reduce exposure to dust, that permissible concentrations can have any relevance in relation to employees.
"A disquieting "new" occupational disease capable of killing not only the exposed workman but also perhaps his womenfolk and even people living near his place of work is the subject of intensive behind-the-scenes activity by British scientists, experts on industrial health and representatives of at least two Government Ministries."
The article then referred to the Newhouse and Thompson paper and also to research in Belfast and continued
"The Chief Inspector of Factories has set up a committee of experts to review urgently all the evidence on the medical problems of asbestos exposure.
The Ministry of Pensions is about to make mesothelioma of the pleura a "prescribed" disease eligible for industrial benefit.
This is payable, however, only where the victim contracts a disease in the course of employment. No compensation is due to the dependants of a woman who gets the tumour from contact with the dust brought home by her husband."
ORDER:
1. The appeal is allowed.
2. The Application of the Respondent for leave to appeal to the House of Lords is refused.
3. The Respondent shall pay the Appellants' costs of the appeal and of the action on the standard basis subject to a detailed assessment if not agreed.
4. The Respondent shall by 4 p.m on 16 February 2005 pay to the Appellants £10,000 on account of these costs.
5. The Respondent shall return to the Appellants the sum paid on account of damages and costs pursuant to the Order of Mr Justice Morland on 26 March 2004. The enforcement of this part of the Order shall be stayed,
(a) Until 4 p.m on 25 February 2005 ; and
(b) If by that time, the Respondent has lodged a Petition for leave to appeal to the Appellate Committee of the House of Lords until the determination of that Petition or if the Respondent makes an application for public funding in respect of an appeal to the House of Lords until the determination of that Application and if successful until the determination of the petition by the Appellate Committee; and
(c) If the Appellate Committee give leave to appeal, until the determination of that appeal.
(Order does not form part of approved Judgment)
