Maguire v Harland & Wolff Plc

Lord Justice Judge

This is an appeal by Harland and Wolff Plc and Harland and Wolff Holdings Plc (Harland &Wolff) against the decision of Morland J handed down on 26 March 2004 at Manchester, holding them liable to Teresa Maguire, a lady then in her late sixties, for personal injuries and consequential loss and damage.

Mrs Maguire married her husband, James, on 23 December 1961. She became ill in 2000. Mesothelioma was diagnosed. Her condition steadily deteriorated, and sadly, in May 2004, shortly after Morland J's judgment in her favour, she died. Her husband, who cared for her throughout her illness, now continues this action as her personal representative.

When Mr and Mrs Maguire began married life he worked as a boiler-maker at Harland & Wolff's shipyard in Liverpool. This employment continued until 1965, but ended before April that year. It is conceded by Harland & Wolff that during the course of his employment, Mr Maguire suffered fault exposure to asbestos-containing dust (asbestos dust). Fortunately his employer's breach of statutory duty and negligence has not produced ill-health in him and he has made no personal claim for damages.

Mrs Maguire was not employed by Harland & Wolff. They therefore owed her none of the specific duties which are owed by an employer to an employee. In essence the claim on her behalf arises from her own exposure to the asbestos dust brought to their home at the end of each working day by her husband. This "familial" or secondary exposure to asbestos dust, which had its source at her husband's place of work, caused the illness which culminated in her death.

At trial Morland J addressed the question whether, given the state of actual or imputed knowledge in the period 1961–1965, Harland & Wolff ought reasonably have foreseen that Mrs Maguire was at risk of pulmonary injury, not necessarily mesothelioma, from the amount and frequency of exposure to asbestos dust. He concluded that they should have done so, commenting:

"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."

This decision is irreconcilable with the reasoning of Waterhouse J in Gunn v Wallsend Slipway and Engineering Company Ltd, unreported, 7th November 1988, who, on very similar facts, concluded:

"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.

The hearing before Morland J was completed in a single day. No oral evidence was given. The judge was presented with agreed bundles of documents. Mrs Maguire herself was unfit to attend the hearing, and her husband's responsibilities as her carer meant that he, too, was unable to do so. Written statements were provided by both Mr and Mrs Maguire. The judge was asked to consider and attach whatever weight he thought appropriate to them. There was, however, no evidence to contradict these statements, and the judge could find no reason to believe that the recollections of Mr and Mrs Maguire were either exaggerated or inaccurate.

The starting point is Mr Maguire's statement, where he describes conditions at work. He said:

"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...