Nurse v Morganite Crucible Ltd

JurisdictionEngland & Wales
JudgeLord Bridge of Harwich,Lord Templeman,Lord Griffiths,Lord Ackner,Lord Lowry
Judgment Date15 December 1988
Judgment citation (vLex)[1988] UKHL J1215-2
Date15 December 1988
CourtHouse of Lords

[1988] UKHL J1215-2

House of Lords

Lord Bridge of Harwich

Lord Templeman

Lord Griffiths

Lord Ackner

Lord Lowry

Nurse
(Appellant)
and
Morganite Crucible Limited
(Respondents)
(on Appeal from a Divisional Court of the Queen's Bench Division)
Lord Bridge of Harwich

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Griffiths. I agree with it and, for the reasons he gives, I would allow the appeal.

Lord Templeman

My Lords,

2

For the reasons to be given by my noble and learned friend, Lord Griffiths, I would allow this appeal.

Lord Griffiths

My Lords,

3

This is an appeal by the prosecutor from the decision of the Divisional Court who, on a case stated by the Hereford Crown Court, allowed the appeal of the respondent defendants against their conviction on three summonses alleging breaches of the Asbestos Regulations 1969 ( S.I. 1969 No. 690). It is clear from the judgment of the Divisional Court that they only allowed the appeal of the defendants because they rightly held themselves bound by the decision of the Court of Appeal (Criminal Division) in Reg. v. A.I. Industrial Products Plc. [1987] I.C.R. 418. It is I think manifest from the wording of the judgment of Woolf L.J. in the Divisional Court that but for the decision in Reg. v. A.I. Industrial Products Plc, they would have dismissed the appeal. This appeal then is in effect an appeal from the decision of the Court of Appeal in that case.

4

The case stated by the Crown Court is a model of its kind and it states all relevant matters so succinctly that I reproduce it almost in its entirety:

"1. The respondent is one of H.M. Inspectors of Factories appointed by the Health and Safety Executive. 2. On 6 August 1984 the respondent preferred three informations against the appellants alleging offences contrary to section 155(2) of the Factories Act 1961 namely: (i) that the appellants being occupiers of a certain factory within the meaning of the Factories Act 1961 to which the Asbestos Regulations 1969 applied did contravene regulation 8(1) of the said Regulations in that they failed to provide for the use of persons employed approved respiratory protective equipment in that part of the factory into which asbestos dust from a process namely the breaking up and removal of Marinite panels from the roofs of the two larger driers in the Cut Block 380 Department was liable to escape; (ii) that the appellants being occupiers of a factory within the meaning of the Factories Act to which the Asbestos Regulations 1969 applied did contravene regulation 15 of the said Regulations in that asbestos waste from a process to which these Regulations applied namely broken Marinite panels forming part of a pile close to the Concaste building in the said factory was not stored in suitable closed receptacles which would prevent the escape of asbestos dust; (iii) that the appellants being occupiers of a factory within the meaning of the Factories Act 1961 to which the Asbestos Regulations 1969 applied did contravene regulation 9 of the said Regulations in that all floors, ledges and other internal surfaces of the Cut Block 380 Department being parts of a building in which a process to which these Regulations applied namely the breaking up and removal of the Marinite panels forming the roofs of the two larger driers was carried on were not, so far as was reasonably practicable, kept in a clean state and free from asbestos waste and dust. 3. On 22 November 1984 the appellants were convicted of the said offences by justices for the petty sessional division of Worcester County. 4. An appeal against these said convictions was made by the appellants which appeal we heard on 14 February 1985. We were given written statements of all prosecution witnesses and photographs and a 'schedule of main facts and expert evidence.' We heard oral evidence from Mr. Duggan a director of the appellants and called on their behalf. All the facts were agreed and we found the following.

Facts. (1) The appellants occupied premises at Woodbury Lane, Norton, Worcester which were a factory within the meaning of the Factories Act 1961. (2) At these premises the appellants manufactured crucibles. (3) Asbestos was not used in the course of the manufacture of the crucibles. (4) On dates between 25 April and 2 May 1984 the appellants demolished a number of brick driers within 380 Cut Block Department of the factory. (5) Two large driers were forty feet by twelve feet and eight feet high. The walls were of brick construction. The roof was constructed of one-inch Marinite panels (containing asbestos) bolted to steel frames. Approximately 10 to 12.5 tons of rubble was removed during demolition before the intervention of the factory inspector and much remained on site thereafter as shown in the photographs. The driers were themselves buildings. (6) Driers had never been demolished at the factory before. (7) In the course of the demolition the appellants failed to comply with the requirements of the Asbestos Regulations 1969 as set out in the information. 5. It was contended by the appellants that the Asbestos Regulations 1969 did not apply because the demolition of the driers was not a process carried on in their factory. 6. The appellants further contended that 'process' meant a manufacturer's process or other regular activity carried on at the factory and did not include the demolition of a drier. 7. The respondents contended that 'process' should be widely interpreted and included demolition of the driers …. 11. … we accepted the contention of the respondents that the word 'process' in the Regulations meant any activity or operation of some duration. Accordingly, we found that the Asbestos Regulations 1969 did apply to the respondents' premises. This being the only issue raised on the appeal, accordingly we dismissed the appeal.

Question. The question for the opinion of the High Court is whether we were correct in ruling that the Asbestos Regulations 1969 at the material time applied to the demolition of the driers in this factory."

5

The defendants' appeal was dismissed by the Crown Court on 14 February 1985. There matters rested until the decision in Reg. v. A.I. Industrial Products Plc. [1987] I.C.R. 418 was given by the Court of Appeal a year later. On the strength of that decision the defendants were given leave to appeal out of time and the case was accordingly stated by the Hereford Crown Court.

6

I turn straight away to Reg. v. A.I. Industrial Products Plc. The facts in that case were virtually indistinguishable from the present. They were that between Friday, 22 February 1985 and Monday, 25 February 1985 the occupier of a factory demolished a kiln within his factory which resulted in releasing considerable quantities of asbestos dust into the atmosphere. The defence was that the demolition of the kiln was not a "process" to which the Regulations of 1969 applied. In the Crown Court the recorder Mr. Stuart Shields Q.C., ruled that the demolition of the kiln was a process within the meaning of the Regulations and the appellants accordingly changed their plea to guilty and were fined. They appealed to the Court of Appeal with the leave of the recorder on the ground that his ruling was in error and that the demolition of the kiln was not a process in a factory within the Regulations as it was unconnected with the manufacturing processes undertaken in the factory and was an isolated incident. The Court of Appeal accepted this argument and said, at p. 422:

"the word 'process' must be construed according to the meaning to be given it under the Factories Act 1961 …. In our judgment, the word 'process' as used in this section [175] and elsewhere in the Factories Act 1961 connotes some continuous activity...

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