Smith v Central Asbestos Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 26 May 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0526-3
In The Supreme Court of Judicature
Court of Appeal
Appeal by Central Asbestos Co. Ltd. from judgment of Mr. Justice Thesiger on 7th and 8th July, 1970.
The Master of the Rolls (Lord Denning),
Lord Justice Edmund Davies and
Lord Justice Stamp.
Mr. J. H. INSKIP, Q. C., and Mr. PETER WEITZMAN (instructed by Messrs. W. H. Thompson) appeared en behalf of the Plaintiffs.
Mr. JOHN STOCKER, Q. C., and Mr. RONALD HOPKINS (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the Defendants.
Asbestos is a mineral, which is mined in Africa. It is useful because it resists fire and does not burn. It comes over here in the form of a fibre. It is ground down into dust and put into bags. The process is dangerous for the men doing it. If they inhale the dust, it gets into their lungs and damages them. They suffer from a disease called asbestosis, which is a form of pneumoconiosis. It reduces the elasticity of the lungs and makes it difficult to breathe in and out. This affects the oxygen in the blood, which in turn affects the heart. The disease follows an inevitable progression. The capacity for work gets less and less. In time the sufferer cannot walk, but only sit. Finally he expires. Sometimes the end is hastened by his developing a malignant growth, which is more painful but kills more quickly. Blue asbestos is the worst for this. It was worked by the defendants.
Ever since 1931 there have been Statutory Regulations prescribing the precautions which employers should take for the protection of their men. The asbestos dust must be prevented from escaping into the air. This must be done by exhaust draughts. The sacks containing the dust must be impermeable. They must be beaten by machines, not by hand. Every man must be provided with a breathing apparatus, that is, a mask which excludes the dust, and must use it. And so forth.
In the present case the defendants were, I am sorry to say, guilty of grave breaches of the Regulations. Time after time, from 1953 onwards, the factory inspectors complained and wrote letters to the defendants: but nothing much was done. The conditions were lethal. As late as 29th December 1961, the factory inspector wrote, saying: "The failure to comply with the requirements of theAsbestos Industry Regulations and the consequent conditions, which are dangerous to the health of employed persons, are a matter for grave concern".
In 1962, the defendants closed down one plant and made modifications to others. This improved matters. But still the defendants broke the Regulations. So much so that in April 1964, they were summoned before the Magistrates. They pleaded guilty and were fined sums of £75, £75 and £20. Things improved for a bit, but in 1967 the factory inspector was still complaining of breaches. The defendants have since closed down and gone out of business. About time, too.
Seven of the workmen who suffered from asbestosis now bring actions for damages. Their claims are resisted by the insurance companies. The defendants admitted at the trial that they were guilty of breaches of statutory duty and that as a result the men got asbestosis. But they said that the men were guilty of contributory negligence because they did not wear their respirators, as they should. The Judge rejected this contention. He said that the defendants did not bring home to the men the danger from asbestos dust, especially the danger from the tiny particles which were invisible. The works manager himself neglected the danger. He actually said to the factory inspector: "It's not as dangerous as you make out. I've got it ('asbestosis') and it does not inconvenience me". So the Judge held that the men could not be blamed for not wearing their respirators all the time. He held that "the sole direct and effective cause was the defendants' breach of statutory regulations". There is no appeal on that point.
The defendants are, therefore, liable for the whole damage, subject only to the Statute of Limitations. Each of these men was employed by the defendants for more than ten years. Each of them was inhaling this dangerous dust all that time. The disease was getting its hold on them insidiously on every working day. Under the old Limitation Act of 1939 they would only be able to claim for damage done in the last three years before writ, see Cartledge v. Jopling (1963 A. C. 758); but this might be small, because most of the damage was done in the previous seven years or more. So the men prayed in aid the Limitation Act, 1963. Three of the men, Smith, Drake, and McCourt satisfied the requirements of that Act. That is admitted. But the defendants say that four of them did not satisfy the requirements. They were Raper, Dodd, Sampson and Roof. Each of them obtained leave ex parte for the purposes of Section 1 of the 1963 Act. But the defendants say that the requirements of Section 1(3)(b) were not fulfilled. They say that the men had knowledge, actual or constructive, of the material facts more than twelve months before the action was brought.
2. THE FACTS RELATING TO RAPER, SAMPSON AND ROOF
At the outset I would say this, that the employers did do one good thing. They had the men regularly examined every two years by an expert consultant. The consultant gave written reports to the company, who gave copies to the men. The men were also examined from time to time by doctors appointed by the Ministry as the pneumoconiosis medical panel. These doctors also sent reports to the men telling them the result of the examinations.
Edward Raper
Raper entered the employment of the defendant in 1956 when he was aged 43. He received no adverse report until 4th September 1963, when the consultant reported:
"Lungs. This man has definitely asbestosis. I would like to see his old pictures to see if this has progressed".
Raper was feeling fit and continued at work until the next report on 26th April 1966, when the consultant reported:
"Lungs. There is definite interstitial fibrosis in both lungs consistent with asbestosis".
Raper continued at work until the Autumn of 1966, when he felt ill and was sent by his own doctor to the Brompton Hospital. The doctor there told him that he had asbestosis and ought to change his job. He left the defendants. He has not worked since 14th September, 1966.
On 31st January 1967, the Pneumoconiosis Panel examined him, told him that he was suffering from pneumoconiosis, and suspended him from work. On 25th April 1967, he issued his writ.
James Sampson
Sampson entered the employment of the defendants in 1957. He received no adverse report until 26th April 1966, when the consultant reported:
"This is a large fat man, but even allowing for technical differences, his diaphragmatic pleura is thickened on the night side and there are appearances highly suggestive of an early stage of asbestosis".
Sampson then went to see his own doctor, who sent him to Guys. They told him there was something on the X-rays, but nothing toworry about. So he continued at his work.
On 16th March, 1967, he again went to Guys. The doctor there told him that he had got asbestosis, and ought to give up work for the defendants, and should apply for disablement benefit. On 7th June 1967, the Pneumoconiosis Panel found that he was suffering from pneumoconiosis (asbestosis) and suspended him from work. On 8th March, 1968, he issued his writ.
Donald Roof
Roof entered the employment of the defendants in 1956, when he was only 16. He received no adverse report until 26th April 1966, when the consultant reported:
"Lungs. There is quite definite interstitial fibrosis and infiltration in both lower lobes. The appearances are consistent with asbestosis".
Roof went to his own doctor, who sent him to the chest clinic at St. Andrew's Hospital. They told him that he had asbestosis, but did not tell him to give up work or to apply for disablement benefit. So he continued at his work.
Just after Christmas 1966, Roof had a cold on his chest. His doctor sent him to the Chest Clinic, who reported to the Pneumoconiosis Panel on 9th February 1967:
"He has been working in an asbestos factory in Bermondsey for the past twelve years. He inhales a lot of dust, although he is supplied with a mask, he wears it only occasionally. He now complains of a cough with sputum for the past six weeks with shortness of breath for the past few months. On examination his general condition was good. No abnormal physical signs were heard in the chest…. I wonder if there is an element of pneumoconiosis in this film".
On 2nd May, 1967, the Pneumoconiosis Medical Board examined him but he was not told the result until 2nd June 1967, when theytold him that he was suffering from pneumoconiosis and should not continue to work as an asbestos mill labourer. So he left the defendants. On 29th May 1968, he issued his writ.
THE LAW RELATING TO SAMPSON, RAPER AND ROOF
In order to fulfil the requirements of the 1963 Act, each of these men must prove that he did not know, actually or constructively, a "material fact" of a "decisive character" until within the last twelve months before he brought his action. The Statute defines "Material Facts" in Section 7(3). One of them is the "extent" of the injuries. Each of the men knew for some years that he had asbestosis, or that it was suspected, but, nevertheless, he did not know how serious it was except within the last twelve months. So he did not know the "extent".
Next, each of the men had to prove that the material fact, i.e., the "extent", was of a "decisive character" within Section 7(4). In order to see whether a material fact is of a "decisive character", you have to ask whether it would be...
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