Turner & Newall: Early Organizational Responses to Litigation Risk

AuthorNick Wikeley
Published date01 June 1997
DOIhttp://doi.org/10.1111/1467-6478.00045
Date01 June 1997
INTRODUCTION
Asbestos is now recognized as the single most important cause of occupationally-
related deaths.1Workers who have been exposed to asbestos face the risk,
in later life, of contracting asbestosis, lung cancer or mesothelioma.2In the
United States of America, the first personal injury actions at common law
for asbestosis were instituted and settled as early as the 1930s.3In the United
Kingdom, however, asbestos-related tort litigation is a relatively recent
phenomenon, dating from the early 1960s.4This article examines the
background to
Kelly v. Turner & Newall Ltd. (1950),5the first known claim
at common law in England in respect of asbestosis.
Almost a century ago, the Principal Lady Inspector of Factories had
warned of the potentially hazardous nature of asbestos exposure.6The first
known case of lung fibrosis as a result of the inhalation of asbestos dust
was reported to a government committee considering the scheduling of
industrial diseases in 1907, but no further action was taken.7The first
published account of a fatal asbestosis case appeared in 1924.8Awareness
of the hazards of asbestos was heightened by the publication of a report by
two factory inspectors, Merewether and Price, in 1930.9They concluded that
the inhalation of asbestos dust over a period of years results in the development
© Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA
* Professor of Law, Faculty of Law, University of Southampton, Highfield,
Southampton SO17 1BJ, England
The research on which this article is based would not have been possible without the help of
Chase Manhattan Bank (see, further, n. 5). I also received invaluable assistance from the
librarians and archivists at the Greater Manchester County Record Office, the Lancashire
Record Office, the Modern Records Centre at the University of Warwick, the Rochdale Local
Studies Library and the Working Class Movement Library in Salford. Anthony Ogus, Jenny
Steele, and a JLS referee read an earlier draft and provided new insights, but the usual caveats
apply. Nancy Tait, Laurie Kazan-Allen, Geoff Tweedale, and Clydeside Action on Asbestos
have also assisted. Last, but by no means least, I am indebted to Mrs Irene Taylor (sister of
Nora Dockerty) and Mrs Margaret Owen (Nora Dockerty’s daughter) for their help with this
research, notwithstanding the painful memories it must have evoked.
252
JOURNAL OF LAW AND SOCIETY
VOLUME 24, NUMBER 2, JUNE 1997
ISSN: 0263–323X, pp. 252–275
Turner & Newall: Early Organizational Responses
to Litigation Risk
NICK WIKELEY*
of a serious type of fibrosis of the lungs’.10 Legislative action followed on
three fronts in 1931. First, workers in scheduled asbestos manufacturing
processes became subject to periodic medical examinations.11 Secondly,
asbestosis was recognized under the workmen’s compensation legislation.12
Thirdly, the Home Office issued regulations stipulating basic health and
safety standards for asbestos factories.13
There are a number of explanations for victims’ delay in using the common
law to recover compensation in the United Kingdom. The first set of reasons
are concerned with the nature of the law of tort itself, the most important
being that, until the 1930s, the common law was of no practical significance
to injured workers, leaving aside issues of access.14 Further factors which
discouraged use of the common law were the availability of alternative
remedies, in the form of workman’s compensation and, after 1948, of
industrial injuries benefits, together with a lack of awareness amongst victims
and their dependants of the potential of a common law action, or a fear of
the costs involved.15 These considerations weighed even more heavily in cases
of industrial disease, where victims frequently failed to make the association
between conditions in the workplace and subsequent ill-health.16
A second set of reasons is connected with the nature of asbestos usage
and the characteristics of asbestos-related disease. Three waves of asbestos
disease have occurred; the first was suffered by those directly involved in
the asbestos manufacturing process itself, where the numbers concerned were
relatively low.17 The ‘second wave’ was (is, and will be) experienced by other
workers, typically those employed in insulation, construction, and
shipbuilding who used the finished products. It was only during the Second
World War and afterwards that substantial numbers in this group were
exposed to asbestos dust. Asbestos imports reached their peak in the 1960s,
with the consequence that mesothelioma deaths, currently running at more
than 1,000 a year, are expected to continue rising until about 2020.18 The
‘third wave’ comprises the wider environmental risks posed by asbestos.19
In addition, asbestos-related diseases are notorious for their latency,20 which
meant typically that workers exposed in the 1940s might not suffer any
symptoms until the 1960s at the earliest. This factor, when combined with
the operation of the strict rules which applied to limitation periods before
1964,21 had the practical effect of precluding virtually all civil claims for
asbestos-related disease. The name of Turner & Newall is synonymous with
the asbestos industry in this country, and the litigation in Kelly v. Turner &
Newall Ltd cannot be understood without appreciating the history of the
company and its arrangements for employers’ liability insurance.
A BRIEF HISTORY OF TURNER & NEWALL
The origins of Turner & Newall date back to the latter part of the nineteenth
century.22 The first Samuel Turner (1806–1880) was a leading cotton manu-
253
© Blackwell Publishers Ltd 1997

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