Shell Tankers UK Ltd and Another v Jeromson and Another
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE HALE,MR JUSTICE CRESSWELL,LORD JUSTICE MANTELL |
| Judgment Date | 02 February 2001 |
| Neutral Citation | [2001] EWCA Civ 101 |
| Docket Number | Case No: 2000/6389/B3 2000/0409/A3 2000/0431/B3 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 February 2001 |
[2001] EWCA Civ 101
Lord Justice Mantell
Lady Justice Hale and
Mr Justice Cresswell
Case No: 2000/6389/B3
2000/0408/A3
2000/0409/A3
2000/0431/B3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr R F Owen QC (Instructed by Messrs Peter Rickson & Partners Solicitors) for the First Appellant
Mr Colin Mackay QC and Mr Alan Cooper (instructed by Norton Rose Solicitors) for the Second Appellant
Mr D Allan QC (instructed by Messrs Thompsons) for the Respondent Ruth Mary Dawson
(and instructed by Messrs Pannone & Partners) for the Respondent Betty Irene Jeromson
These are defendants' appeals against the orders made on 18 February 2000 by Mr R Machell QC, sitting as a Deputy High Court Judge in the Queen's Bench Division, in two separate actions. The claims were brought by the widows of two men who had died prematurely of mesothelioma contracted in the course of their employment. Both had been employed by Shell Tankers UK Ltd ('Shell') in the 1950s as marine engineers. The judge found Shell liable to both in common law negligence. Mr Dawson had also been employed by Cherry Tree Machine Co Ltd ('Cherry Tree') in the 1940s as an apprentice fitter. The judge rejected a claim against Cherry Tree in common law negligence and for breach of section 47 of the Factories Act 1937 but found them liable for breach of regulation 2 of the Asbestos Industry Regulations 1931. The judge gave each defendant permission to appeal on liability. He also gave the claimants permission to appeal on the quantum of general damages but that has since been agreed.
THE CHERRY TREE APPEAL
The facts
Mr Dawson was employed as an apprentice fitter by Cherry Tree from June 1945, when he was 15 years old, until August 1949, when he was 19. Cherry Tree manufactured dry cleaners' presses. For the first six months Mr Dawson was not exposed to asbestos. But from 1946 to 1948 part of his job consisted of sealing the platens of the presses with asbestos to stop steam escaping. He would take a 'couple of handfuls' of asbestos flock, put it in a bucket and mix it with water and then apply it. When dry it generated visible dust in the air which got onto his overalls. This would be present for two to three minutes but invisible dust might persist longer. He did this once a week, taking about an hour to seal six machines.
The Regulations
The Asbestos Industry Regulations 1931 ('the 1931 Regulations') were made under section 79 of the Factory and Workshop Act 1901:
'Where the Secretary of State is satisfied that any manufacture, machinery, plant, process or description of manual labour, used in factories or workshops, is dangerous or injurious to health or dangerous to life or limb, either generally or in the case of women, children or any other class of persons, he may certify that manufacture, machinery, plant, process or description of manual labour to be dangerous; and thereupon the Secretary of State may, subject to the provisions of this Act, make such regulations as appear to him to be reasonably practicable and to meet the necessity of the case.'
By section 80(1) such regulations might apply to 'all the factories and workshops in which the manufacture, machinery, plant, process or description of manual labour, certified to be dangerous is used … or to any specified class of such factories or workshops.'
In 1931, the Secretary of State certified as dangerous 'the manipulation of asbestos and the manufacture or repair of articles composed wholly or partly of asbestos and processes incidental thereto' (letter from Michael Delevingne of the Home Office dated 15 September 1931 accompanying draft regulations). He did so because of two reports: the Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry, by E.R.A. Merewether M.D., H.M. Medical Inspector of Factories, and C.W. Price, H.M. Engineering Inspector of Factories ('Merewether and Price') (1930, 34–206, HMSO) and a follow up Report on Conferences between Employers and Inspectors concerning Methods for Suppressing Dust in Asbestos Textile Factories (1931, 35–214, HMSO).
Part I of Merewether and Price dealt with 'The Occurrence of Pulmonary Fibrosis and other Pulmonary Affections in Asbestos Workers'. Prompted by a case of non-tubercular pulmonary fibrosis in an asbestos worker, the aim was to study the risk of fibrosis resulting from exposure to asbestos rather than to any other kind of dust. Hence only those workers engaged in processes exposing them to pure asbestos dust, and not to other irritant dusts, were studied and the sample was biased towards those who had been working with such dusts for the longer times. The shocking result was that more than a quarter of those studied showed a definite fibrosis due to asbestos dust. The conclusion was that 'the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs.' (p 9, emphasis supplied) Incidence mounted rapidly after five years' exposure but the disease took longer to manifest itself in those engaged in the less dusty processes.
Part II of Merewether and Price dealt with 'Processes Giving Rise to Dust and Methods for its Suppression'. It described the processes involved in producing asbestos textiles and also in the manufacture of other products using asbestos, such as millboard, paper, sheets and tiles, insulation materials and articles, and asbestos covered electric conductors.
The preamble to the 1931 Regulations provides that
' … they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on'
There follows a list of six processes:
'(i) breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto;
'(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;
'(iii) the making of insulation slabs or sections, composed wholly or partly of asbestos, and processes incidental thereto;
'(iv) the making or repairing of insulating mattresses, composed wholly or partly of asbestos, and processes incidental thereto;
'(v) sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed wholly or partly of asbestos in the manufacture of such articles;
'(vi) the cleaning of any chambers, fixtures or appliances for the collection of asbestos dust produced in any of the foregoing processes.'
In the list of Definitions,
'Asbestos means any fibrous silicate mineral, and any admixture containing any such mineral, whether crude, crushed or opened.'
Mr Owen QC, on behalf of Cherry Tree, argued that this referred to asbestos in its raw mineral state, rather than to products manufactured out of asbestos. However, it is clear that asbestos flock falls within that definition. Merewether and Price refer to 'so-called "fiberized" asbestos, i.e. opened or broken-up material in a fine flock-like condition'(p 18). They also point out that 'Dust is produced … in all handling of "fiberized" asbestos.' (p 31).
There is no definition of 'mixing' in the Regulations. Merewether and Price describe the process of mixing asbestos material in asbestos textile factories by spreading it on the floor; but they also give a number of examples where 'fiberized material or dry mixtures containing it are manipulated in preliminary manufacturing processes' in non textile factories:
'The wet mixtures for millboard, paper, and asbestos-cement products are prepared in a beater, as used in paper mills. Dry fiberized asbestos is emptied into the beater trough, the sacks being shaken to some extent. Evolution of dust occurs before the material becomes mixed with the circulating water.' (p 26)
'Fiberized asbestos or "magnesia" is a component of many insulating compositions which may also contain clay, kieselguhr, fossil meal, flax, hemp or jute waste and other materials. The proportion of asbestos in the final product varies widely. In many small works the materials are mixed "dry", by hand, in an open manner, involving sack emptying and filling, shovelling and weighing…' (p 27)
'Preparatory processes in paste making [for covering electrodes] include … (ii) handmixing of the ground materials at a bench, involving emptying out of dry material into pans.' (p 30)
'Other processes of comparatively minor importance, e.g. asbestos putty mixing, in which there is handing and feeding of dry material in preparatory processes, will call for precautions as previously described for similar work.' (p 30)
This is what Mr Dawson was doing, albeit on a small scale, in order to produce the paste to seal the dry cleaning presses. The judge rejected an argument that the Regulations contemplated only a mixing of asbestos with asbestos rather than with water. He held that the 'plain meaning' (by which he may have meant the natural and ordinary meaning) of the word 'mixing' could not be so restricted. Hence the Regulations did apply to the process. In my view, in the absence of a definition of 'mixing' in the Regulations or of clear evidence of a restricted technical meaning to which the Regulations were intended to apply, the judge was right to reach that conclusion.
After the list of processes, the preamble to the Regulations makes an exception:
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