Abraham v G. Ireson & Son (Properties) Ltd & Anor [2009] EWHC 1958 (QB)

[2009] EWHC 1958 (QB)Case No HQ09X00269
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/07/2009
Before
THE HON. MRS JUSTICE SWIFT DBE
Between
TERENCE CHARLES ABRAHAMClaimant
Mr Patrick Limb QC (instructed by Thompsons Solicitors) for ClaimantMr Charles Feeny (instructed by DWF LLP) for First and Second DefendantsHearing Hearing date: 13 July 2009
Judgment
[1]This is a claim for damages by Terence Charles Abraham, who was born on 4 August 1940 and is now aged 68 years. He alleges that both defendants exposed him to asbestos dust in the course of his employment with them, negligently and in breach of statutory duty, and that, as result, he developed a malignant right-sided pleural mesothelioma.[2]The quantum of damages has been agreed, subject to the issue of liability, in the sum of £155,000, inclusive of interest.

The issues

[3]The issues to be determined are: a) was the claimant exposed to asbestos dust during the course of his employment with the first and/or second defendants? If so: b) what was the extent of his asbestos exposure? c) did that exposure cause his mesothelioma? d) was that asbestos exposure negligent? In particular, did the claimant’s asbestos exposure with the first and/or second defendants give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of his employment with them? e) did the claimant’s asbestos exposure give rise to a breach of regulation 82 of the Building (Health, Safety and Welfare) Regulations 1948 and/or regulations 20 and/or 21 of the Construction (General Provisions) Regulations 1961?

The claimant’s employment history

[4]Between 4 August 1956 and 4 August 1961, the claimant served a plumber’s apprenticeship with the first defendants (who were formerly known as G. Ireson & Son and G. Ireson & Son Limited). He continued working for the first defendants as a plumber for a further period of about six months after the end of his apprenticeship, i.e. until late 1961 or early 1962.[5]The first defendants were a small firm of general builders. They had a yard at Wellingborough, Northamptonshire, with an office and storage for materials and equipment. Their workforce of tradesmen (carpenters, decorators, plumbers and bricklayers) were based there. There was a carpenters’ workshop in the yard and the first defendants now admit that the yard incorporating the workshop constituted factory premises within the meaning of the Factories Act 1937 and 1961. It is admitted also that the Building (Health, Safety and Welfare) Regulations 1948 applied to the work carried out by them. The claimant was one of only two plumbers employed by the first defendants, the other being Mr Anthony White, who trained him.[6]The first defendants carried out repair and maintenance work at domestic premises in Wellingborough and the surrounding area. The proprietor of the first defendants, Mr Geoff Ireson (now deceased), owned a number of properties which he would renovate and/or convert into flats. A substantial proportion of the first defendants’ work was carried out on the properties belonging to Mr Ireson.[7]After he left the first defendants’ employment, the claimant had a short period of employment (he recalls that it was only a matter of weeks) with a plumbing firm called R.B. Freeman. The firm carried out domestic plumbing work. The claimant remembered carrying out some repair work on council houses in Wellingborough.[8]The claimant began to work for the second defendants some time during the tax year 1962/3 and left during the later part of 1965. He was therefore employed by them for a period of about two to three years. The second defendants were a small plumbing firm employing three or four plumbers. They carried out domestic plumbing work at private houses in the Wellingborough area. They had a yard in Wellingborough which was used primarily for storage purposes, although a small amount of maintenance work was carried out there. It is not suggested that the premises came within the definition of a factory. However, the second defendants admit that the Construction (General Provisions) Regulations 1961 applied to the work carried out by them.[9]The claimant contends that he was exposed to asbestos dust while working for both the first and second defendants. He cannot remember any exposure to asbestos dust during his employment with R.B. Freeman.[10]In 1965, the claimant left the second defendants for better paid work as a lorry driver. He continued to work in that capacity until his retirement in 2005. He had no further asbestos exposure in the course of his working life. At the time of his retirement, he appeared to be in good health. The following year, he developed intermittent pain in the right side of his chest, which persisted. He sought medical advice and underwent various investigations. These resulted in a diagnosis of mesothelioma in July 2008. Despite his condition, he remains in reasonable health and was well enough to give oral evidence. The evidence of asbestos exposure The claimant’s evidence about exposure with the first defendants

The evidence of asbestos exposure

[11]The claimant’s evidence was that, while he was working for the first defendants, he carried out typical domestic plumbing work. He would repair burst or leaking pipes, carry out repairs to lavatory cisterns, remove and replace lavatories and/or bathroom fitments and lay soil pipes and hot and water pipes. He did not do any commercial or industrial plumbing work, nor did he service boilers. He could recall only one job involving central heating during his employment with the first defendants.[12]In his witness statements, the claimant identified two circumstances in which he was exposed to asbestos while working for the first defendants. He described how, when repairing a section of old pipe work or running a section of new pipe work, he would have to solder pipe joints, using a blow lamp. When the joint to be soldered was situated near to a surface (such as a skirting board or a wood, plaster or painted surface) which would be vulnerable to damage from the heat of the blow lamp, he would wedge or hold in place an asbestos scorch pad between the joint and the surface which had to be protected. The scorch pad was approximately A4 size, about ¼-½ inch thick, and composed of multi-layered asbestos cloth with cross-stitching. The claimant said that he would carry the scorch pad with him in his tool bag. Over time, it would become worn and frayed. Eventually, holes would develop (usually in the centre) and the pad would disintegrate and become useless. He said that he would use the pad until it was worn out and then ask his employer for a new one. A pad would last for months, rather than weeks. Indeed, the same pad might last for a year or more. It depended what work was being done.[13]The claimant’s evidence was that the time he spent on soldering would vary according to the job on which he was engaged. If he was installing pipe work for a hot and cold water supply to a new bathroom, he might have to do some soldering work every day for a week. Each joint would take only a few minutes to solder, but there would be numerous joints in a pipe work system. The pipe work would be situated in different locations and the use of scorch pads would not always be necessary.[14]At other times, the claimant might have to do several small jobs in the same week involving soldering and the use of asbestos scorch pads. On some occasions, he would go for a month or two without doing any soldering work at all. The claimant said that, when he was soldering, his face would be no more than an arm’s length away from the pipe being soldered, with the asbestos scorch pad behind the pipe. He did not notice dust coming off the pad as he worked, although he would get a “bit” of dust on his hands when he handled the pad.[15]The claimant said that, sometimes, he would use spare materials which happened to be lying around (such as pieces of tin or hardboard) as improvised heat deflectors, instead of the asbestos scorch pad. If he did use spare materials for this purpose he would discard them immediately after use.[16]The claimant’s evidence was that, during the later period of his employment with the first defendants, he sometimes used asbestos string for caulking (i.e. sealing) the joints of soil pipes. The soil pipes would run up along the outside wall of the house, then pass through the wall into the area of the lavatory and from there up to gutter level. He said that, in the early days, he would use paint and putty or cement as a caulking compound. The claimant said that he would sometimes put newspaper into the joint, but only to stop the materials he was using for caulking from falling out.[17]The claimant’s evidence was that, later in his employment with the first defendants, he began to use asbestos string. The string was wound around a cardboard cylinder and had a diameter similar to that of his little finger. The claimant would cut off a length of string, using a knife, scissors, a hacksaw or tin snips. He said that he would see dust when he cut the string and would get the dust on his fingers and tools. Having cut a length of string, he would feed it around the collar of the joint. He would then tap the string down, using a screwdriver or chisel. Finally, he would pour water over the string so that it would set and seal the joint. He said that the amount of caulking which he did depended on the type of work he was doing. The pipe work would be in six foot lengths with four or five joints to seal on each run.

The claimant’s evidence about exposure with the second defendants

[18]The claimant’s evidence was that, while working for the second defendants, he spent about 75% of his time doing general plumbing work and about 25% carrying out central heating work, mainly the installation of new central heating systems. He carried out no industrial or commercial plumbing work and no servicing of boilers. Nor did he ever work on pipes lagged with asbestos.[19]The claimant said that he continued to use an asbestos scorch pad in exactly the same way as he had done when working for the first defendants. He was frequently engaged in fitting new bathrooms which would involve the installation of new pipe work. In addition, he had to install new central heating systems in domestic premises. The installation of the associated pipe work would involve soldering, and often, the use of an asbestos scorch pad. He was asked about the recollection of another employee of the second defendants, Alan Ambridge (who worked alongside the claimant), who said that he had sometimes used Asbestolux board offcuts as makeshift heat deflectors. The claimant said that he might have used pieces of Asbestolux board for this purpose, although he was not confident that he had ever done so. He could not remember ever seeing Asbestolux board, although he was aware that it was used for work such as lining garages and to make back plates for gas fires or gas boilers.[20]The claimant said that he continued to use asbestos string for caulking in the same way as he had done during his employment with the first defendants.[21]In his first witness statement, the claimant described how, on occasion, he had to replace gas, coal and oil-fired boilers. The boiler flues were usually made of cast iron. He said that, sometimes, asbestos flues “would have been used” and, in those circumstances, he “would have ended up cutting the asbestos flues”, using a hacksaw. The use of the conditional tense did not make it clear whether the claimant actually remembered carrying out the relevant work. By the time he made his second witness statement, the claimant had seen the witness statement made by Mr Ambridge, who remembered occasionally cutting asbestos flue pipes to size using a hacksaw. The claimant said that he was not sure whether he himself had ever had to cut a flue pipe made of asbestos material but thought he probably had. In oral evidence, the claimant said that he remembered removing old cast iron flue pipes. The job involved cutting the pipe with a hacksaw and/or smashing it with a hammer. This caused quite a lot of dust and soot to be generated. He said that he could not remember removing an asbestos flue pipe although he thought he probably had done so. However, he said that flue pipes were not common at the relevant time as they were in the process of being phased out.[22]The claimant’s evidence was that he had never been given any warnings by either the first or second defendants about the dangers of asbestos. Nor was he given any advice as to the precautions he might take to eliminate or minimise the risk of inhaling asbestos dust. The first defendants Mr White’s evidence about exposure

The first defendants

[23]Mr Anthony White said that he served the final period (about 18 months) of his plumber’s apprenticeship with the first defendants between 1953 and 1955. He was taught his trade by Mr Carl Spademan, who subsequently left the first defendants to set up the second defendants. Mr White remained with the first defendants until 1960 or 1961 when he left to become a HGV driver.[24]After Mr Spademan’s departure, Mr White was the only plumber working full-time for the first defendants; a second plumber was employed on a casual basis. Subsequently, the claimant joined the firm and worked closely with Mr White.[25]Mr White said that he carried out a large number of bathroom conversions which required the installation of pipe work, including soil pipes. He confirmed that, on occasion, it was necessary to protect a skirting board or other surface from the heat of the blow lamp used for soldering the pipe joints. He said that this did not happen very often. When it did, he would use a makeshift heat deflector – a piece of tin, hardboard or whatever was available – to protect the surface. The material would be discarded after use. He said that he had never used an asbestos scorch pad, nor had he ever seen one during his time with the first defendants.[26]Mr White’s evidence was that tradesman working for the first defendants were required to supply their own tools. Large and expensive items of equipment would be provided by the first defendants when required. He said that the first defendants would not have provided a scorch pad and did not do so. If a scorch pad had been used, the employee would have had to buy it and carry it around from job to job in his tool bag. He did not believe that this had occurred.[27]Mr White’s evidence was that he had never used asbestos string for caulking. He would use wetted newspaper which he would force into the joint. He would then apply a small amount of cement on top. He said that he would have shown the claimant this technique. He said that he had used tar string for various purposes, but not asbestos string. He estimated that he would install a soil pipe no more frequently than about once a month and said that the task was generally undertaken in the open air.

The evidence of the expertson exposure

[28]I heard evidence from two expert witnesses, Mr John Browne, a consultant engineer, who is very experienced in cases of this kind, was instructed on behalf of the claimant. Dr Alan Jones, who has an academic background with particular expertise in measuring concentrations of asbestos dust and fibres, was instructed by the defendants.[29]Mr Browne’s evidence was that the work described by the claimant - and, in particular, the circumstances in which he was required to use material containing asbestos - was typical of the period of his employment. He said that there had been no need for materials such as asbestos string and asbestos scorch pads to be used since suitable alternatives were available at the time.[30]Both experts confirmed that they were not aware of any research specifically directed at the concentrations of dust generated by the use of asbestos scorch pads. Mr Browne suggested that the use of scorch pads when soldering could be likened to the use of asbestos cloth by welders. He referred to research which demonstrated that high levels of asbestos dust were liberated by the use of asbestos cloth in the course of welding activities such as those carried out in the shipbuilding industry. He said that the level of exposure from the use of asbestos scorch pads would have been significant. Dr Jones accepted that the asbestos cloth used by welders was comparable to the scorch pads described by the claimant in that both were made of flexible material. However, he pointed out that the exposure considered in the research referred to by Mr Browne was very much more intensive and large scale than the work carried out by the claimant, so that the levels of dust generated were likely to be very much higher than those generated by the work described by the claimant.[31]Dr Jones suggested that a more appropriate comparison would be with the levels of asbestos dust generated by the use of asbestos mitts. He accepted that, as Mr Browne had pointed out, asbestos mitts were made of a stronger, less flexible, material than asbestos scorch pads. However, he observed that it would be surprising if the levels of asbestos dust generated by the two types of material differed greatly. He referred to research carried out in 2005, which reported very low asbestos exposure levels for the wearers of asbestos mitts. He suggested that, since the duration of use of asbestos scorch pads during an average shift would be much less than that for asbestos mitts (which would typically be worn throughout a shift), the shift average exposure would be very low indeed. He suggested that the shift average exposure would be in the range 0.005-0.05 fibres per millilitre (fibres/ml) on the days when the work was undertaken.[32]The experts agreed that there was no research on the levels of asbestos dust generated by the use of asbestos string. They agreed also that the level of exposure from the use of asbestos string would be very small.[33]Mr Browne said that Asbestolux board was in common use at the relevant time for the lining of airing cupboards, bath panels and for ceilings and lining garages. He inferred from the fact that Asbestolux offcuts were apparently used as improvised heat deflectors that the cutting of Asbestolux boards must have taken place in the vicinity of where the claimant was working. He said that the levels of exposure to asbestos dust resulting from the cutting of Asbestolux board would depend on the cutting method, but would exceed those resulting from the use of asbestos scorch pads or string by a factor of about ten.[34]Dr Jones considered possible exposure levels from cutting asbestos flue pipes. He concluded that, if the work was done, the levels would have been in the order of an average concentration of 0.13 fibres/ml for a four hour-sampling period. He described the claimant’s overall alleged exposure to asbestos from the use of scorch pads, string and the occasional cutting of asbestos flue pipes as “minimal”. Mr Browne did not agree. His view was that the claimant’s exposure to asbestos had been significant although he did not attempt to quantify it.

Conclusions on asbestos exposure

[35]The claimant was a patently honest and scrupulously fair witness. He was attempting to recall events which had occurred well over 40 years ago. It is not surprising that some details of his employment with the first and/or second defendants eluded him. However, he gave his evidence with great care, making a clear distinction between those matters which he could positively remember and those which might have happened, but of which he had no actual recollection. Insofar as I may not accept any part of his evidence, it is because I find that his recollection was faulty, not that he has attempted in any way to mislead the court.[36]When the claimant was first told by his consultant that he might be suffering from an asbestos-related disease and was asked about possible exposure to asbestos, he could not remember ever having worked with asbestos materials. He then recalled the use of asbestos scorch pads and string.[37]In his witness statements and his evidence-in- chief, the claimant said that he had used asbestos scorch pads during his employment with both defendants. In cross-examination, however, he conceded that it was possible that he had used scorch pads only during his employment with the second defendants. He was adamant that he had not bought scorch pads for his own use, but had been supplied with them by his employers. Mr White’s evidence was that, when he worked for the first defendants, employees had to provide all but the larger items of equipment and that the first defendants did not provide asbestos scorch pads. He himself had never used or seen an asbestos scorch pad. I see no reason to doubt Mr White’s evidence on this point.[38]That evidence, coupled with the claimant’s concession, lead me to the conclusion that the claimant’s use of asbestos scorch pads was confined to his employment with the second defendants. I accept that the claimant used asbestos scorch pads in the circumstances he described and that some asbestos dust would be generated by the handling of the scorch pads while they were in use. However, the frequency with which asbestos scorch pads were used was, I find, limited by a number of factors.[39]First, the soldering of an individual pipe joint would take only a few minutes and, although a run of pipe work might require a large number of joints to be soldered, the work (and therefore the use of a scorch pad) would not be continuous. Nor was the work carried out on a daily basis. According to the claimant, weeks would go by without him doing any soldering at all. The second limiting factor was that the claimant did not always use a purpose-made scorch pad when carrying out soldering work. Sometimes, he would use makeshift items. Even if he used Asbestolux offcuts as heat deflectors (and he was very uncertain about this), he would have discarded them immediately after the work was finished and it seems unlikely that any significant amount of asbestos dust would have been generated by their use. The third limiting factor was that a heat deflector would be needed only when the surface behind the pipe to be soldered required protection because it was painted or for some other reason. Many of the pipes on which the claimant worked would have been situated in places where no scorch pads would be needed.[40]These three limiting factors cause me to conclude that the use of asbestos scorch pads was relatively infrequent. That conclusion is supported by the fact that, according to the claimant, a scorch pad might last for a year or more. If scorch pads had been in constant use in close proximity to the flame of a blow lamp, I would have expected them to deteriorate very much more quickly. For all those reason, I find on a balance of probabilities that the level of exposure to asbestos dust as a result of the use of asbestos scorch pads was intermittent only. I find that, when they were used, the levels of asbestos dust resulting from their use were of a completely different order from the concentrations generated by asbestos cloth used in large scale welding activities. The claimant himself did not recall seeing any dust coming off the pad as he worked. It is impossible to reach any conclusion as to the precise levels of asbestos dust to which the claimant was exposed, which would have varied according to the job being done, but I am satisfied that they were low.[41]The claimant’s evidence was that he began to use asbestos string in the latter part of his employment with the first defendants and continued to use it when employed by the second defendants. I note, however, that, in a telephone conversation with Mr Browne, he told Mr Browne that he believed that he carried out caulking work only while he was employed by the second defendants. However, Mr White’s evidence was that he carried out caulking work (albeit infrequently and usually in the open air) during his employment with the first defendants and instructed the claimant how to perform such work. He denied he had ever used asbestos string for the purpose.[42]Given Mr White’s evidence, I accept that (despite his uncertainty when speaking to Mr Browne) the claimant was required to do caulking work when employed by the first defendants. I find on a balance of probabilities that he used asbestos string in the later part (say, the last year or so) of his time with the first defendants. It may well be that Mr White trained him in a different technique. However, it is probable in my view that, as the claimant got more experienced, he developed his own way of doing things. I find that the occasions when he was required to carry out caulking work for the first defendants were infrequent and that a significant part of the work was carried out in the open air when any dust produced by the use of the string would be readily dispersed. In any event, any exposure from the cutting or manipulation of asbestos string would, as the experts agreed, have been at a low level.[43]I find that, during his employment with the second defendants, the claimant was required to do rather more caulking work than for the first defendants and that he used asbestos string for the purpose. Caulking work would, however, still have occupied only a small proportion of his working day or week and there would be periods when no caulking at all was done. Much of the work would be carried out in the open air while installing soil pipes on the outside of properties. I find on a balance of probabilities that, even during the claimant’s employment with the second defendants, the level of asbestos exposure resulting from the use of asbestos string would have been low.[44]The claimant’s evidence about exposure to asbestos resulting from the cutting and/or removal of asbestos flue pipes was very uncertain. He did not suggest that he had had any such exposure during his employment with the first defendants. He had no clear memory of having carried out this work himself, although he thought he probably had done so. It is possible that he might have had very occasional exposure to asbestos as a consequence of the breaking up – either by himself or others working with him - of flue pipes containing asbestos material and/or the cutting of flue pipes. However, I am unable to make a positive finding that this occurred. Even if it did, it can have happened only on very infrequent occasions. Had such exposure been significant and/or more than very occasional, it is highly likely that he would have remembered it with greater clarity.[45]The evidence about exposure to asbestos dust from asbestos board is even vaguer. It was suggested that, if Asbestolux board offcuts were sometimes used as makeshift heat deflectors, this would imply that Asbestolux board must have been cut and used in places where the claimant was working. However, despite the fact that he was aware of the fact that Asbestolux board was used for certain purposes, the claimant had no recollection of ever having seen it. In those circumstances, I cannot be satisfied that it was ever cut or used in his presence or that he had any exposure to asbestos therefrom.[46]I am satisfied on the evidence that the asbestos exposure the claimant had with the first defendants was very light and occurred intermittently. Although his exposure with the second defendants was somewhat more frequent, it was nevertheless still modest and infrequent. His asbestos exposure could, however, have been avoided altogether since alternative asbestos-free materials were available at the material time.

Causation

[47]Mesothelioma is a disease which is almost invariably (if not always) caused by exposure to asbestos dust and fibres. Although the claimant’s asbestos exposure was modest, the overwhelming likelihood is that it caused his mesothelioma and I so find. Negligence[48]At common law, what has to be foreseen is not the likelihood or probability of damage, but the risk that it may occur. In Koufos v Czarnikow Ltd [1969] 1 AC 350 at 385G-386C, Lord Reid stated:
“The modern rule of tort … imposes a much wider liability. The defendant would be liable for any type of damage which is reasonably foreseeable as liable to happen even in the most unusual case, unless the risk is so small that a reasonable man would in the whole circumstances feel justified in neglecting it. … in tort … the tortfeasor cannot reasonably complain if he has to pay for some very unusual but nevertheless foreseeable damage which results from his wrongdoing.”
As to the extent of the risk, at 422C, Lord Upjohn said:
“The test in tort, as now developed in the authorities, is that the tortfeasor is liable for any damage which he can reasonably foresee may happen as a result of the breach however unlikely it may be, unless it can be brushed aside as far fetched.”
[49]In Page v Smith [1996] AC 155, Lord Ackner said at 170 D-F: “Assuming in favour of the respondent that the circumstances of the accident were such that(1) the risk of injury by nervous shock was remote; and(2) such a risk, although a possibility, would become an actuality only in very exceptional circumstances. Nevertheless, the risk could not be said to be so far- fetched or fantastic as to be "a mere possibility which would never occur to the mind of a reasonable man": per Lord Dunedin in Fardon v. Harcourt-Rivington (1932) 146 L.T. 391, 392. The risk was a real risk in the sense that it was justifiable not to take steps to eliminate it only if the circumstances were such that a reasonable man, careful of the safety of his neighbours, would think it right to neglect it”.[50]Foreseeability of damage in a personal injury claim means only that the risk of some personal injury must have been foreseeable. In Page, Lord Lloyd said at 190B-D:
“The test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the plaintiff to risk of personal injury. If so, then he comes under a duty of care to that plaintiff. If a working definition of 'personal injury' is needed, it can be found in section 38(1) of the Limitation Act 1980: ''Personal injuries' includes any disease and any impairment of a person's physical or mental condition . . .”
. In the present case, therefore, the foreseeable risk need not be that of mesothelioma.[51]The issue in this case is, as identified by Hale LJ in Jeromson, whether the risk of personal injury arising from the claimant’s exposure to asbestos ought reasonably have been foreseen by a careful employer to the extent that the employer should have taken precautions or at the very least sought advice as to what, if any, precautions he should take.[52]As to the foreseeability of injury in areas involving developing knowledge, in Stokes v Guest, Keen and Nettlefold (Bolts & Nuts) Limited [1968] 1WLR 1776 at 1783, Swanwick J said: “…the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions”.[53]In Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 at 415-6, Mustill J (as he then was) said: “Between these two extremes [i.e. “without mishap” and “clearly bad”] is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care… In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow”.[54]In considering the issue of foreseeability of risk, it is necessary to examine the literature about asbestos exposure which was in existence at the material time.

The literature

[55]Some of the harmful effects of asbestos had been recognised since the end of the nineteenth century. However, the publication in 1930 by the Home Office of a Report on the effects of asbestos dust on the lungs and dust suppression in the asbestos industry, written by two Inspectors of Factories, Merewether & Price, was an important landmark in the understanding of the dangers associated with the inhalation of asbestos dust. The medical section of the Report established a clear link between longstanding, heavy exposure to asbestos dust and the onset of asbestosis. In other words, it established that the disease was dose-related.[56]The Report contained no information about what might be a “safe” level of asbestos exposure. The message to be drawn from it was that asbestos was harmful and the only safe precaution was to suppress it. In their Summary and Recommendations, the authors of the Report stated:
“The appropriate methods for suppression of dust may only be fully determined when the harmful effects of comparatively low concentrations of asbestos dust are duly appreciated.”
[57]In a letter submitting the Report to the Secretary of State, the Chief Inspector of Factories said that the medical investigations had:
“… established the facts that the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs, that the development of the disease varies in direct proportion to the length of the exposure to the dust and that susceptibility to the diseases is not affected either by age or sex”
. The letter proposed that the remedy was “the suppression of dust”.[58]The workers examined for the purpose of the 1930 Report had been involved in manufacturing processes involving exposure to pure (or almost pure) asbestos and the focus of the Report was the asbestos textile industry. However, the Report referred to the fact that workers in other industries who were exposed to asbestos dust were also at risk.[59]As a direct result of the 1930 Report, the Asbestos Industry Regulations 1931 were brought into effect in 1933 and remained in force until the introduction in 1970 of the Asbestos Regulations 1969. The 1931 Regulations imposed strict obligations on occupiers of factories and workshops in which certain defined processes involving the manipulation of asbestos were carried out. The Regulations provided an exemption in circumstances where a process was carried on occasionally only and where no person was employed upon it for more eight hours in any week.[60]Concern about the general effects of dust led to the imposition of further statutory obligations on factory occupiers. Section 47 of the Factories Act 1937 imposed an obligation on them, within the limits of practicability, to protect employees against dusts which were “likely to be injurious” or “of any substantial quantity”. In his Annual Report for 1938, the Chief Inspector of Factories commented on the new provisions and observed:
“One of the greatest problems facing industry today is that of dust… We are but on the threshold of knowledge of the effects on the lungs of dust generally … There can be no doubt that dust if inhaled is physiologically undesirable. Moreover, dust that is thought today to be harmless may, following research, be viewed in another light tomorrow. It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous”
. Reference was made in the Report to a suggested association between asbestos exposure and lung cancer although the available evidence was said to be insufficient to enable any conclusions safely to be drawn.[61]The 1943 Annual Report of the Chief Inspector of Factories, published in October 1944, referred to fatalities as a result of asbestosis. The average age at death from asbestosis was recorded as 46.4 years. There could be no doubt that the dangers of exposure to asbestos dust included that of a premature death through asbestos-related disease.[62]In 1945, the Chief Inspector of Factories wrote a letter to those involved in shipbuilding and ship repairing, dealing with the risks of exposure to substantial concentrations of dust from asbestos insulation work. Similar advice was given to the operators of power stations in 1949 and 1954. The letter of 1945 stated:
“I would, however, emphasise, that while asbestos dust may not have any apparent effects at first, experience shows that, particularly if the workers are exposed to the dust in substantial concentrations, serious results are apt to develop later. It is therefore important that, even if the work will only be temporary, all reasonably practicable steps should be taken to reduce the risk to a minimum”
. The letter demonstrated, not only that the Inspector of Factories was concerned about the exposure of workers other than those involved in the asbestos industry, but also that he was exhorting employers to avoid even short term exposure to their employees, bearing in mind the risk of a cumulative effect over a working life.[63]The 1949 Annual Report of the Chief Inspector of Factories, published in February 1951, contained a lengthy passage under the heading “Asbestos Regulations”. This referred, inter alia, to the dangers of exposure to asbestos dust arising in workplaces outside the asbestos industry:
“Those firms which have had long experience with the product and realize how the incidence of asbestosis arises are fully alive to the many problems involved, and from the inspection point of view, it is very necessary to keep an ever watchful eye for the new use of asbestos in some manufacturing or other process, for example, on ships or buildings where the work may be undertaken by someone not fully realizing the necessity of preventing as far as possible the inhalation of asbestos fibre and dust [my emphasis]”
. The claimant’s expert, Mr Browne, placed a great deal of emphasis on the underlined passage. He suggested that any employer who was (or should have been) aware of the contents of Annual Reports of the Chief Inspector of Factories should, from the time of publication of the 1949 Report, have been alerted to the fact that exposure to asbestos, however light, must be eliminated or, at the least, reduced as far as possible, since there was no known “safe” level of asbestos exposure.[64]Up to that point, concern about the dangers associated with asbestos exposure had been focussed mainly on the risk of asbestosis. However, a paper by Professor Doll, published in 1955, confirmed the link between lung cancer and a lengthy period of heavy exposure to asbestos dust. In many cases, the conditions of lung cancer and asbestosis coincided in the same individual.[65]In 1960, a booklet, Toxic Substances in Factory Atmospheres, was published by the Ministry of Labour. This document contained a section on “maximum permissible concentrations” of various substances used in industry, including asbestos. It stated: “While systems of control should be as effective as it is practicable to make them, it is desirable to have some guide to which the efficiency of the control measures can be related. In the List at the end of this booklet there are set out figures of maximum permissible concentrations of certain substances used in industry. For each substance a figure of concentration in atmosphere is given. If this concentration is exceeded, further action is necessary to achieve satisfactory working conditions. … The concentrations given … relate to an average concentration for a normal working day. They are based on the last available information at the present time, and are subject to annual review in the light of existing scientific knowledge”.[66]The maximum permissible concentration for asbestos was identified as 5 million particles per cubic foot of air (mppcf). While there are difficulties in converting mppcf (a US measurement) to fibres/ml (the traditional UK unit), Dr Jones said that 5 mppcf approximates to a UK equivalent of 30 fibres/ml. The booklet was re-issued on two subsequent occasions. In both subsequent versions (the second of which was published in 1966), the maximum permissible concentration identified remained the same as in 1960. In 1970, with the introduction of the Asbestos Regulations, a reduced control limit was specified and, since then, further significant reductions have been made.[67]In 1960, an important paper by Wagner and others, Diffuse Pleural Mesothelioma and Asbestos Exposure in North-Western Cape Province, was published in the British Journal of Industrial Medicine. This paper identified a potential link between exposure to asbestos dust and the development of pleural mesothelioma. In 1962, Dr Wagner and others wrote a letter to the British Medical Journal, in which they pointed out, inter alia, that, in a number of cases of mesothelioma they had examined, the exposure to asbestos dust appeared to have been “minimal” only. An article, Asbestos and Malignancy, published in the British Medical Journal in 1964, reviewed the research up to that time and expressed the view that some individuals who had died as a result of mesothelioma had had only “slight” exposure to asbestos dust. The paper concluded: “Until we know the answers to some of the questions posed by the recent findings all exposure to asbestos dust should be considered as hazardous, and supervision should be extended to insulation workers in ships, factories, and domestic buildings, who may be intermittently but nevertheless heavily exposed to asbestos dust”.[68]The 1964 Annual Report of the Chief Inspector of Factories recorded the growing evidence of an association between asbestosis and lung cancer and also between exposure to asbestos and the occurrence of mesothelioma. It suggested (no doubt correctly) that earlier cases of mesothelioma had probably been erroneously diagnosed as lung cancer. However, neither that Report nor the Annual Report for 1965 specifically drew attention to the existence of a risk of injury to employees from light or intermittent asbestos exposure.[69]The suggestion that mesothelioma might be caused by only light asbestos exposure had hitherto been confined to medical publications. However, in 1965, the dangers of mesothelioma came to public attention as a result of two papers published simultaneously in the USA and the UK by Newhouse and Thompson. The UK paper, Epidemiology of Pleura and Peritoneum following exposure to Asbestos in the London Area, published in the British Journal of Industrial Medicine, was given wide publicity by a national newspaper in an article which appeared on 31 October 1965. The paper recognised the link between asbestos exposure and mesothelioma. It also reported on the occurrence of mesothelioma in persons with no occupational exposure to asbestos, such as those who had lived within a short distance of an asbestos factory or who had suffered asbestos exposure as a result of contact with a relative’s working clothes. The authors concluded: “There seems little doubt of the risks of both occupational and domestic exposure to asbestos”.[70]It was at about the time of the publication of the Newhouse and Thompson paper that the claimant’s employment as a plumber came to an end. It is not, therefore, necessary to deal with the subsequent literature in any detail. Suffice it to say that, from 1965 onwards, the recognition that even small doses of asbestos dust could give rise to the deadly disease of mesothelioma grew steadily, giving rise eventually to the stringent regulatory code which is in place today.

The claimant’s case on knowledge

[71]On behalf of the claimant it is contended that the defendants should have appreciated that the asbestos dust to which they exposed the claimant gave rise to a risk of injury that, was more than, in the words of Lord Upjohn, “far fetched or fantastic”. By the mid-1950s, the association between asbestos dust and the risk of pulmonary injury was well-known and employers should have been aware that there was no “safe” level of asbestos exposure. That being the case, all possible steps should have been taken to eliminate or reduce to a minimum their employees’ exposure to asbestos dust. There would have been no difficulty in eliminating the claimant’s exposure to asbestos dust altogether.[72]In support of his submissions, Mr Patrick Limb QC relied on a passage from the judgment of Buxton J (as he then was) in Trevor Owen v IMI Yorkshire Copper Tube (unreported, 15 June 1995). Having considered the relevant literature, he said at 41 E-G:
“On the basis of these widely-published documents, and also having regard to the evidence of Mr Browne, I find that a reasonably informed employer would have been aware from at least 1949 that care should be taken with asbestos; that he would have known from the middle 1950s that exposure to asbestos should be kept to the lowest possible level; and that from 1965 he should have known that there was a new and uncertain hazard, in the shape of mesothelioma, that made reduction in exposure levels imperative. At the same time such an employer should have very actively pursued the use of alternative materials for asbestos which, I find, were available by the mid-1960s.”
[73]Mr Limb QC pointed out that the judgment of Buxton J has subsequently been endorsed by the Court of Appeal in Shell Tankers UK Limited v Jeromson; The Cherry Tree Machine Company Limited & Another v Dawson [2001] PIQR P265. Giving the judgment of the Court, Hale LJ (as she then was) said: “51. Having reviewed the literature, the judge referred to the different conclusions reached at first instance, by Waterhouse J in Gunn v Wallsend Slipway & Engineering Company Ltd, 7 November 1988, and by Buxton J, as he then was, in Owen v IMI Yorkshire Copper Tube, 15 June 1995. He could not agree with Waterhouse J 'that the literature justifies the conclusion until 1960, that asbestosis was attributable only to heavy and prolonged exposure'. He preferred the formulation of Buxton J that from the beginning of Mr Owen's employment in 1951, 'the difficulties related to and the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible.' He did so 'in the context of the absence of any means of knowledge of what constituted a safe level of exposure'. He accepted Mr Allan's submission that 'a reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure.' In an uncertain state of knowledge, the risk could not (in the words of Lord Upjohn in Czarnikow Ltd v Koufos [1969] 1 AC 350, at p 422C) be 'brushed aside as far fetched’. 52. The point which impressed the judge was the certain knowledge that asbestos dust was dangerous and the absence of any knowledge, and indeed any means of knowledge, about what constituted a safe level of exposure. Mr Mackay's argument relies heavily on the explosion of knowledge which took place during the 1960s. Only then did it become apparent that mesothelioma could result from very limited exposure. In particular, it was only then that knowledge began to develop of the risks to those outside the workplace, such as the wife washing her shipyard worker husband's overalls (as in Gunn) or people living near to asbestos works. But just as courts must beware using such later developments to inflate the knowledge which should have been available earlier, they must beware using it to the contrary effect. The fact that other and graver risks emerged later does not detract from the power of what was already known, particularly as it affected employees such as these, working in confined spaces containing a great deal of asbestos which might have to be disturbed at any time. There is no reassurance to be found in the literature that the level of exposure found by the judge in this case was safe and much to suggest that it might well not be so. The judge was entitled to conclude that a prudent employer would have taken precautions or at the very least made inquiries about what precautions, if any, they should take”.[74]Mr Limb argues that the defendants in this case could not safely have assumed that the levels of asbestos exposure to which the claimant was being subjected were safe and should have taken appropriate precautions, or should, at the very least, have made enquiries about what precautions, if any, they should take.

The defendants’ case on knowledge

[75]For the defendants, Mr Charles Feeny submitted that any dust exposure which the claimant might have had was well below the levels which were considered foreseeably hazardous before the publication of the Newhouse and Thompson paper in 1965. He suggested that the levels of exposure to which the claimants in Owen and Jeromson were found to have been subjected were far higher than that described by the claimant.[76]Mr Feeny argued that neither the first nor the second defendants could have been aware up to the end of the claimant’s employment with them in 1961/2 or 1965 respectively, of the risk posed to him by asbestos exposure of the levels described. Those levels could not possibly have given rise to the risk of a dose-related disease, even cumulatively. Before the risk of mesothelioma resulting from small doses of asbestos was generally recognised in 1965, no one would have considered that the claimant was at any risk from the low level exposure to which he was exposed. Nor did the defendants have any special reason for concern. In particular, there was no evidence that any other of their employees had suffered from any asbestos-related condition. Discussion and conclusions on

Negligence

[77]It was contended on the claimant’s behalf that the first defendants (as factory occupiers) and both defendants (as firms undertaking building operations to which the 1948 or 1961 Regulations applied) should have informed themselves of the provisions of the Factories Acts 1937 and 1961, of the contents of the Annual Reports of the Chief Inspector of Factories and of the information about asbestos published by the Home Office and the Ministry of Labour. That information would have included the 1930 Report, the Asbestos Industry Regulations 1931 and the 1960 booklet, Toxic Substances in Factory Atmospheres. It would not, however, have included the letters to those involved in shipbuilding, ship repairing or the operation of power stations. Nor would it have included the paper published by Wagner and othersin 1960, highlighting the link between asbestos and mesothelioma.[78]The defendants did not seek to argue that they had had no obligation to inform themselves about the risks of asbestos from the various publications I have mentioned. Their case was that, even taking into account the contents of those documents, they could not have foreseen a risk of injury resulting from exposure of the level described by the claimant.[79]Given that it is accepted that the defendants should have been aware of the relevant literature, what should they have concluded from it? It is true that the message to be drawn, in particular from the 1930 Report and from the extracts from the 1938 and 1949 Annual Reports of the Chief Inspector of Factories which I have quoted, was that asbestos dust was highly dangerous and that its inhalation was to be prevented as far as possible. However, that message was delivered in the context of the known risk of asbestosis and of occupational exposure to significant quantities of asbestos dust. The question is whether it should have alerted an employer whose employee’s only exposure to asbestos exposure was light and intermittent (as I have found the claimant’s exposure to have been) to the possibility that he might be at risk of contracting an asbestos-related injury.[80]The approach of Buxton J in Owen, as approved by the Court of Appeal in Jeromson, might suggest that the question should be answered in the affirmative, given the uncertainty as to what levels of exposure were safe and what were not. However, both Owen and Jeromson must be viewed in the context of the findings of significant exposure made by the judges in those cases, exposure which was far in excess of that of the claimant in the present case.[81]In Owen, the judge found that the processes carried out in the casting shop (where the majority of Mr Owen’s exposure occurred) produced:
“substantial amounts of dust, of which asbestos would have inevitably, have been a component”
. The expert evidence was that the concentration of asbestos would on many occasions have exceeded by a substantial amount the concentrations which would have given rise to a breach of the Asbestos Regulations 1969. Employees in the casting shop had suffered conditions associated with prolonged exposure to asbestos. Although Mr Owen was not employed permanently in the casting shop, the judge found that he frequently went there in the course of his duties as a result of which he would have been exposed to asbestos dust.[82]In Jeromson, the judge at first instance found that: “… marine employers employed by Shell were liable and likely to encounter intense concentrations of asbestos dust, on a regular basis. In the most part, these exposures would be for minutes rather than hours, but on occasion, both at sea and in dry dock, the exposures would be for hours and at an even higher intensity”.[83]He went on to say : “If the exposure had indeed been “limited, intermittent or occasional”…then a different conclusion might have been justified.However, on my findings, the exposures, or potential exposures, in these cases, albeit relatively brief, were substantial and regular. Although it might have been anticipated that, with these levels of exposure, the development of asbestosis would take years to develop (if at all), I accept the submissions of Mr Allan that a reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there would never be sufficient cumulative exposure”.[84]The opening words of the passage quoted above demonstrate that the judge considered that the degree of exposure was relevant to the question of foreseeability of risk. That view was confirmed by the words of Hale LJ at paragraph 35 of her judgment in Jeromson: “The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk”.[85]Having considered the relevant literature with care, I consider it highly unlikely that an employer whose employee’s only exposure to asbestos dust arose as a result of the infrequent use of asbestos string and/or asbestos scorch pads (even with the occasional removal of an asbestos flue pipe) would have believed, on reading the literature (including the 1949 Annual Report), that he was or might be exposing that employee to risk of an asbestos-related injury. Indeed, some degree of actual reassurance might have been afforded by the contents of the 1960 booklet. It is true that the booklet stressed the importance of keeping contamination of the workplace to a minimum and did not profess to set a “safe” level of asbestos exposure. Nevertheless, the level at which the maximum average permissible concentration of asbestos dust over a working day was set was so much in excess of the levels to which the claimant was likely to be exposed that it may well have encouraged the defendants to believe (if they considered it) that the levels of asbestos dust to which the claimant was being exposed gave rise to no risk of injury. It seems to me that it was not until after the publication of the Newhouse and Thomson paper in 1965 at the earliest that employers could have been aware that asbestos exposure at the levels to which the claimant was subjected gave rise to a risk of injury.[86]The position would of course be different if the employers had had any special degree of knowledge or personal experience which would or should have alerted them to the potential risk. There is no evidence that this was the case here. Moreover, I consider it unlikely, even if the first and/or second defendants had sought advice as to the use of asbestos string or scorch pads during the period of the claimant’s employment with them, that they would have been advised to take any precautions. It is possible that a cautious Factory Inspector might have advised them to eliminate their use. However, I consider that, having regard to the fact that, at that time, asbestos products were still in use in domestic and other everyday settings, the response would in all probability have been that there was no need for the defendants to be concerned about any risk of injury from the use of those products.[87]In the circumstances, I am unable to accept that, during the period of the claimant’s employment with them, the first and/or second defendants should have appreciated that the claimant was at risk of asbestos-related injury and that their failure to do so and to take appropriate precautions for his safety was negligent. Breach of statutory duty The regulations[88]As against the first defendants, the claimant alleges a breach of regulation 82 of the 1948 Regulations. As against the second defendants, a breach of regulation 20 of the 1961 Regulations is alleged. Both regulations are in identical terms:
“Where in connection with any grinding, cleaning, spraying or manipulation of any material, there is given off any dust or fume of such a character and to such extent as to be likely to be injurious to the health of persons employed all reasonably practicable measures shall taken either by securing adequate ventilation or by the provision and use of suitable respirators or otherwise to prevent inhalation of such dust or fume.”
A breach of regulation 21 of the 1961 Regulations was also alleged against the second defendants. However, the claimant did not seek seriously to counter the second defendants’ denial that regulation 21 applied to the work being undertaken by them and I am satisfied that it did not.

The parties’ cases

[89]Mr Limb submitted that the word “injurious” in regulations 82 and 20 was an objective term. In support of that contention, he relied on the recent decision of the Court of Appeal in Baker v Quantum Clothing Group [2009] EWCA Civ 499. In that case, the court approved the previous Court of Appeal decision in the case of Larner v British Steel [1993] ICR 551 to the effect that the obligation to ensure that a place of work was “safe” for the purposes of section 29 of the Factories Act 1961 was absolute, subject only to the defence of reasonable practicability. At paragraph 76 of her judgment, Smith LJ said: “Larner is binding on this court and I am pleased that that is so because I respectfully agree with it. Further, if the safety of a place of work is to be judged objectively without reference to reasonable foresight of injury, it must follow afortiori that it must be considered without reference to what society might at that time have thought was an acceptable degree of danger for employees to have to face”.[90]Mr Limb argued that, in the same way, “injurious” should be construed objectively, regardless of the state of knowledge of the defendants at the material time under consideration. The phrase used in the two regulations is of course not “injurious”, but “likely to be injurious”. Mr Limb submitted that the phrase “likely to be injurious” similarly involved no element of foreseeability.[91]Mr Feeny submitted by contrast that the phrase “likely to be injurious” plainly imported some degree of knowledge. He referred to a passage in the unreported case of Knox & others v Cammell Laird Shipbuilders Limited [1990], in which Simon Brown, J (as he then was) followed decisions in Wallhead v Ruston & Hornsby Limited [1973] 14 KIR 285, Brookes v J & P Coates (UK) Limited [1984] 1 All ER 702 and Morrison v Central Electricity Board (an unreported decision of Rose J (as he then was) dated 15 March 1986), to the effect that the concept “likely to be injurious” pre-supposed a degree of knowledge on the part of the employer. Discussion and conclusions on

Breach of statutory duty

[92]I do not accept Mr Limb’s submission that, in the light of the decision in Baker, Simon Brown J’s construction of “likely to be injurious” is unlikely to survive. It seems to me that the phrase “likely to be injurious” is a very different concept from that of “safe”. The words “likely to” plainly imply that a degree of foreseeability is required. Otherwise, as Mr Feeny observed, it is difficult to see why the word “injurious” alone was not used.[93]Liability under regulations 82 and 20 is limited by “reasonable practicability”. If “likely to be injurious” is, contrary to my view, an objective concept, it seems to me that knowledge of risk must nevertheless be relevant to the issue of “reasonable practicability”. That view is supported by the reasoning of Smith LJ in Baker: see paragraph 80-89 of her judgment. At paragraph 83 she said:
“As a matter of common sense, if the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all. If, on the other hand the employer ought to have known of the risk but did not and therefore never applied his mind to it, the burden on the employer, seeking to make out the defence, would be to show that it would not have been reasonably practicable for him to avoid or reduce the risk even if he had thought about it.”
[94]Since I have rejected the contention that, during the period of the claimant’s employment with them, the first and/or second defendants should have appreciated that the claimant’s asbestos exposure was such as to place him at risk of injury, it follows that they cannot have been aware that the asbestos dust was “likely to be injurious” to the claimant. Furthermore, since, as I have found, they did not know - and cannot reasonably have been expected to have known - of the risk of injury arising from the claimant’s exposure to the dust, it cannot have been reasonably practicable for them to take any steps to protect him from it.[95]It follows therefore that I find that the defendants were not in breach of the statutory duties owed to the claimant.

Judgment

[96]Whilst I have the greatest sympathy for the claimant, who, as I have found, contracted the deadly condition of mesothelioma decades ago as a result of asbestos exposure at work, I find that his claim against both defendants must fail and I therefore give judgment for the defendants.

Cited in 6 later judgments