This was an appeal by the appellant Defendants against the decision of the Court of Appeal in which they held that the Defendants were liable for breach of statutory duty under Asbestos Industry Regulations 1931 regulation 2(a). The respondent Claimant cross appealed against the decision that the Defendants were not in breach of their statutory duty under the Factories Act 1937 section 47.
The Claimant died of mesothelioma shortly before the hearing in the Supreme Court. Mr McDonald was a lorry driver who, as part of his employment, would attend Battersea Power Station to collect 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 roughly twice every three months. The power station did not contain asbestos in its raw sense but did contain asbestos based lagging. While at the power station the Claimant would visit other areas and so, it was argued, came into contact with asbestos dust generated through the lagging. In order to create the lagging paste, asbestos powder was mixed with water in large drums. At first instance the judge found that the Claimant’s exposure had been modest.
Two issues were before the Supreme Court:
- The applicability of regulation 2(a) of the Asbestos Industry Regulations 1931 to factories not involved in the manufacturing of asbestos products; and
- Whether the Defendant had breached its statutory duty under section 47 of the Factories Act 1937.
On the first ground of appeal their Lordships were divided by a majority of 3:2; Lords Kerr and Clarke, and Lady Hale held that regulation 2(a) did apply in the instant case whereas Lords Neuberger and Reed held that it did not. On the second ground, the court rejected the Claimant’s argument that the Defendants had breached their duty under section 47 by a majority of 4:1 (Lady Hale dissenting).
The majority of the court took the opinion that the 1931 Regulations were not confined to a clearly identifiable asbestos industry and extended to all industries where certain specified processes were carried out. The decision in Shell Tankers UK v Jeromson  EWCA Civ 101 (also known as the decision in Cherry Tree) was applied. Following on from this reasoning, the majority held that the term ‘mixing’, as contained in the preamble to the 1931 Regulations, was not to be given a restrictive, technical, meaning but a broad meaning which included mixing asbestos powder with water for the purpose of making a paste. In contrast Lord Reed (with whom Lord Neuberger agreed) took the opinion that, on a reading of the Regulations, combined with the historical background and subsequent legislation, the Regulations were not intended to apply to power stations and the term ‘mixing’ had a technical meaning.
When addressing the cross appeal it was accepted that to succeed under section 47 that the Claimant must show: (1) that the dust was given off in connection with a process carried on in the power station; (2) that he was a ‘person employed’ within the meaning of the section; (3) the quantity of dust given off was substantial; and (4) that he inhaled the dust given off by the relevant process. The majority held that, based upon the trial judge’s conclusions, the Claimant had not been exposed to a substantial quantity of dust. All members of the panel accepted that process should be given its ordinary meaning. In addressing a ‘person employed’, the emphasis should be on the need for protection rather than the involvement in a process and that it was sufficient that the Claimant was employed in the station rather than by the station’s operator. When addressing substantial, the court rejected the Defendant’s submission that it must be substantial at point of inhalation as opposed to at the time of giving off.
The majority decision has essentially confirmed the earlier decision of the Court of Appeal in Cherry Tree (Shell Tankers UK v Jeromson  EWCA Civ 101), where Lady Hale, then Hale LJ, gave the leading judgment.
The essential issue, that is whether the Asbestos Industries Regulations could be applied to factories, not within the asbestos industry, but where processes as described in the Regulations were in fact being carried out, could plausibly be argued either way, as evidenced by this finely balanced decision. Ultimately, the difference is one of basic approach; that is the majority’s liberal approach or the minority’s conservative approach. The liberal approach essentially considers that there is no good reason why the Regulations should not be applied beyond the situations originally envisaged where the same risk is present and where all other facts necessary to prove a breach of the Regulations are established. Whereas the minority take the view that, in the context of penal legislation, the same should only be applied in the explicit context in which it came into force otherwise there could be inadvertent criminal liability. This view is reinforced by the result of the cross-appeal, where it was accepted that there had been no breach of the Factories Act (which would be the legislation with which the Defendant’s predecessors would have sought to comply). There is no evidence, or reason, to believe that they ever considered that the Asbestos Industry Regulations 1931 would apply to their premises.
The dismissal of the cross-appeal, albeit with Lady Hale dissenting, appears less debatable, although Lord Kerr left the door open to an extent, referring to the lack of evidence of visible dust. However, to find that the mere visibility of dust would make it substantial would not be consistent with the approach under the Factories Act. Intermittent and moderate exposures were tolerated under the Act and this was, in fact, the finding at first instance in the Cherry Tree case.
In practical terms, whilst this was always an interesting issue, the decision will have little effect on future cases. The Asbestos Industry Regulations were repealed with the coming into force of the Asbestos Regulations 1969. It is likely that more and more mesothelioma claims will relate to exposures in the 1970s and 1980s, where very different issues will arise. Further, the Asbestos Industry Regulations became of lesser relevance after 1965, and the publication of the risk of mesothelioma from low level exposures.
It is clear from considering the processes within the Asbestos Industry Regulations 1931 that most will only have been carried out within asbestos factories and probably the only significant exception is that seen in this case and the Cherry Tree case; that is the mixing of asbestos in other factory premises. This case will, therefore have relevance in practical terms to claims pre-1965 where mixing in factory premises is approved.
It may be that this decision will be ultimately considered most significant in relation to changing judicial trends and the acceptance of a more conservative approach to liability in personal injury claims by the minority. It is reasonable to consider that for most of the past decade the approach of the appellate courts, in particular in the context of disease claims, has been a liberal one usually resulting in liability either for breach or causation. Despite this, a different trend may be emerging which might encourage Defendants to approach the appellate courts with more hope.
Issues relating to asbestos exposures in the 1970s and 1980s and mesothelioma claims are discussed in the pro-vide webinar “Mesothelioma – a new generation of claims”.