McGregor v Genco (FC) Ltd [2014] EWHC 1376 (QB)

Case No HQ13X02951[2014] EWHC 1376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue MANCHESTER DISTRICT REGISTRY, Manchester Civil Justice Centre,, 1 Bridge Street West, Manchester, M60 9DJDate 08/05/2014
Before
MRS JUSTICE PATTERSON
Between
MARIE GEORGINA McGREGORClaimantGENCO (FC) LIMITEDDefendant
David Allan QC (instructed by Irwin Mitchell LLP) for ClaimantCharles Feeny (instructed by Berrymans Lace Mawer) for DefendantHearing Hearing date: 2nd April 2014
JudgmentMrs Justice Patterson :Introduction
[1]The claimant, Marie McGregor, is 58 years old. She has developed malignant mesothelioma of the pleura. She began suffering with symptoms of mesothelioma in May 2012 with shortness of breath and lethargy. Diagnosis was made on the 9th August 2012. The prognosis is poor.[2]The claim is for damages which have now been agreed, subject to the issue of liability, in the sum of £135,000 inclusive of interest.

The issues

[3]The issues to be determined are i) Was the claimant exposed to asbestos dust during the course of her employment with the defendants? If so: ii) what was the extent of her asbestos exposure ? iii) did that exposure cause her mesothelioma ? iv) was that asbestos exposure negligent? In particular, did the claimant’s asbestos exposure from the defendant give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of her employment.[4]When the claim was formulated allegations were made that the defendant was in breach of statutory duty arising under the provisions of the Construction (General Provisions) Regulations 1961, and/or the Construction (Working Places) Regulations 1966, and/or Asbestos Regulations 1969, and/or the provisions of the Factories Act 1961.[5]During the hearing, in response to a question from me, Mr Allan QC confirmed, what appeared to be the case from his skeleton argument, that he was pursuing the case entirely on the basis of a breach of common law duty of care. I do not, therefore, deal with the allegations of breach of statutory duty as alleged in the particulars of claim elsewhere in this judgment.

The claimant’s employment history

[6]The claimant was too ill to attend court. Her evidence was given on commission and recorded on a DVD which I have seen. In that she confirmed her two witness statements and was subject to cross examination by Mr Feeny, counsel for the defendant, and re-examination by Mr Allan QC, her own counsel.[7]The claimant left school at the age of 15 and went to work in Lewis’s Department Store in Ranelagh Street, Liverpool. She worked in the shoe section of the store. She was employed by the British Shoe Corporation which operated a concession on the first floor at Lewis's.[8]The claimant remembered the old escalators at Lewis's being taken out and replaced. The works she thought took place in the mid 1970s. The position of the escalators was moved from the side of the shop to the centre. The shoe section where she worked on the first floor was about 10 feet or so away from the escalators which were being demolished and moved. She was working also within 10 feet or so of where the new escalators were installed in the centre of the shop. The work on the first floor of Lewis's she recalled as going on for between four to six weeks, if not longer.[9]During that time she accepted that the new escalators were installed prior to the removal of the old ones. She recalled the workmen knocking out the sides of the old escalators to dismantle them. She thought that the panels on the sides of the escalators contained asbestos sheets. The workmen wore face masks as they dismantled the elevators. It was very dusty work and she could see dust and particles in the air around where they were working. The masks that the men were wearing were white paper masks that had been arranged by their union.[10]The work took place during the day when the shop was open to the public. The claimant did not recall the area in which the men worked as being boxed off from the rest of the floor. There were no sheets put down to protect the floor or to catch the dust. Her section was an extremely dusty place to work whilst the escalator work was ongoing.[11]During the course of the working day the claimant had to dust the glass shelves upon which the shoes were displayed because of the white dust which settled upon them. She brushed the dust off the shelves and into her hand with a small brush or cloth depending on what she had to hand at the time. She then threw the dust into the dustbin which stirred the dust into the atmosphere.[12]In addition, she dusted the shoes on display which were coated in a fine layer of white dust. The dust was worse in the mornings as the workmen continued working after the claimant had gone home. The claimant estimated that she cleaned the dust away from the shelves and shoes about three or four times a day. The dusting took varying amounts of time. Brushing away the dust in the morning took the greatest amount of time as the dust and fibres had built up overnight.[13]The claimant recalled walking past the workers as they were carrying out the demolition of the escalators at least four times a day. As she walked past she was about one foot away from the escalator work. She had to walk past in the morning to get to the shoe department, again when she was going for her lunch and returning from her lunch break, and, finally, when she left the store at the end of her working day. On occasion, she would stop for a few minutes to see how the escalator work was progressing.[14]When the contractors began installing the new escalators they cut sheets of white board with a power saw and fastened them to the side of the escalators. The claimant was working within 10 feet of where the new escalators were erected in the centre of the shop. It was extremely dusty. She continued to brush white dust from the shoes on display during the course of her shift whilst the installation was continuing.[15]No special precautions were taken to deal with asbestos during the works. The renovation work was not sheeted or boxed off from the rest of the floor. She was never warned about the dangers of asbestos, or given any training about how to deal with asbestos dust or told what to do. She worked between 8am-5pm from Monday- Friday whilst the escalator work took place.[16]The claimant did remember a wooden panel being erected around the holes where the escalators were being removed and installed. The panels were about 3 or 4 foot high. She had no recollection of any other covering.[17]In 1981 the claimant left Lewis's department store in Liverpool and moved to their store in Manchester. She did not come into contact with asbestos during that later period.[18]In 1984 the claimant went to work part time for Timpson selling shoes. She did not come into contact with asbestos. In June of 1985 she gave up work to raise her family.

Evidence on behalf of the claimant on asbestos exposure

[19]Marie McIver gave evidence that she used to work with the claimant at the Lewis’s store in Liverpool. She was employed within the shoe section from 1971-1985.[20]In the mid 1970s the store underwent renovation when the escalators were moved from the side into the centre of the store. That was a large job and involved work that went on for several months. The store remained open to the public throughout.[21]She had not thought or talked about the works since 1976, when they took place, until she made her witness statement in 2013. The precise period of time that the escalators were out of action was uncertain. People had to use the lifts and stairs in the absence of operational escalators.[22]She recalled the escalator operation as one that created a lot of dust. She recalled wiping and dusting the shoes and the glass display shelves throughout the day because of the covering of dust. It was a task that needed to be carried out a few times each the day during the months that the work took place.[23]She remembered a wooden barrier about 4 feet high as if it was to cordon off the area in which the works were taking place. She could not remember any floor to ceiling covering. She could see what the workmen were doing over the top of the barrier.[24]There was not a problem selling to customers because of the dusty conditions. The sales assistants were not provided with masks to wear whilst work was being undertaken. They were not warned that the work could have adverse effect on their health. She did not complain about the conditions at any time.[25]Mr George Burke, the claimant’s brother, gave evidence. He was employed by the British Shoe Corporation at their concession in the Lewis's department store between 1967 and 1970-71 as the assistant manager of the concession. He had recommended his sister to his boss to work as a sales assistant in the same concession. Their employment at the store overlapped for a short while: less than one year.[26]When Mr Burke left Lewis's store in Liverpool he continued to work for the British Shoe Corporation but as a manager in different locations. He continued to go home to Liverpool because his mother and sister were living there. He would take Sunday and Monday off so that on Mondays he would visit the Lewis’s store in Liverpool to see his sister. On some of those occasions he had lunch with the manager called John Stevenson and, having completed that, would go to visit his sister in the concession. On those visits he would see the stock and the store room. Because of his continued professional involvement with British Shoe Corporation the conditions of work were of interest to him.[27]He recalled that one of the matters mentioned to him by the staff was that they were fed up with cleaning the dust off the shelves. There was an emphasis that the display should be kept spick and span. He went in two or three times during the period of the escalator works in 1976.[28]He had no recollection of seeing any tenting around where the work was being carried out. If there was any it was not very effective. All that he could recollect was a barrier of some three to four feet high separating the work from the shop floor. He thought the barrier was present to protect customers and staff from falling down the hole where the work was taking place.[29]Mr Burke recalled going into the store room and seeing the shoe boxes there with white dust on them. At the time he knew the place was very dirty and dusty but did not know that it was as hazardous, as it has turned out to be. He agreed it was like having builders in the home where dust can get through the tiniest of cracks.[30]The claimant had told him that the workmen wore paper masks as they dismantled the escalators and fitted the new ones but he had no recollection of seeing that. It had not occurred to him to ask for a mask.[31]Josephine Seasman’s witness statement was admitted due to her ill health. She confirmed that she had worked with the claimant in the shoe department in the Lewis’s store. She began working there in 1975 when her youngest child started school. She worked there initially for two days a week.[32]She recalled the renovation work being undertaken shortly after she started working in the shoe department. It was a noisy and dusty operation with the old escalators situated about 10 feet away from where she was based.[33]The area in which the contractors worked was not boxed or tented off. There were timber fences around the holes in the floor which were created by the removal of the old escalators. She assumed that was to prevent anybody falling into that hole. She recalled other members of staff and customers complaining about the noisy and dusty nature of the work. No sheets were put down to protect stock or catch the dust. The dusty nature carried on while the new escalators were installed. She was not provided with a mask to wear whilst the work was being undertaken.

Factual evidence on the part of the Defendant

[34]The defendant called David Molyneux. At the time he was an electrician in the maintenance team. That meant that he could be involved in jobs anywhere within the store. He got married on the 3rd April 1976 and recalled that, at that time, the escalator works were ongoing.[35]He could not recall how long the work took but was aware that it was continuing for quite a long period as there were originally about 30 escalators. They were replaced by about half that number. He estimated that the workmen would have been removing the original escalators near to the footwear concession for about 2-3 months.[36]He recalled timber screens being present from floor to ceiling in all areas where dismantling and installation works were carried out. That was to prevent access to the work areas and especially the large voids left in the floors from where the escalator had been removed. As far as he could remember there was timber studding supporting ply wood or some other type of wooden sheet material as part of the screen. He did not remember the trading floors as being noticeably dusty.[37]He became maintenance manager in 1987 when he became involved in health and safety matters. By that time annual asbestos surveys were carried out within the store. As a result a lot of asbestos in the building, including on pipe work and in the construction of the walls, was discovered. A graded asbestos removal scheme was implemented. Specialist companies were appointed to carry out surveys and to ensure the safe removal of asbestos from the building.[38]Mr Molyneux was asked about the asbestos survey in 2012 which showed that there remained a good deal of asbestos within the store. He could not comment as he left employment in the store in 2005.[39]He agreed in cross examination that as an electrician he would be less concerned about the dusty nature of the displays than a sales assistant.[40]Mr Molyneux recalled the new escalators being brought in over several Sundays. He recalled that four foot barriers were erected around the works to shield the customers.

Expert evidence

[41]The claimant instructed Mr Ian Glendenning, a chartered engineer, as her expert. The defendant instructed Mr Plumb, a chartered safety and health practitioner. Both experts agreed a joint statement as a result of which neither was called to give evidence as there was no material difference between them. They agreed that the works involving the removal of the escalators took place in 1976. The evidence that the new escalators were installed before the old ones were removed they agreed as being the most practical way to complete the works.[42]They agreed that it was likely that asbestos insulating boards (AIBs) were used in the construction of the escalators that were removed and in the construction of the escalators that were installed in 1976. They agreed that (on the basis of HSE guidance note EH35) breaking and ripping out of AIBs was likely to be associated with the production of asbestos dust concentrations in the order of 5-20 fibres per millilitre in the breathing zone of the operator carrying out the work. Circular sawing of AIBs was likely to be associated with the production of dust with concentrations in excess of 20 fibres per millilitre in the breathing zone of the operator carrying out the works.[43]If the works described took place without the benefit of full enclosure then background concentrations of asbestos containing dust on the first floor of Lewis’s would have been higher than those in general in buildings, including buildings containing asbestos materials that were in good condition and where the asbestos was undisturbed. They agreed that asbestos dust concentration reduced with distance from the source of production. A reasonable rule of thumb was that dust concentrations reduced to 10% of the value at source at 20-30 feet distance.[44]The experts agreed that the occupational hygiene standards at the time were likely to have been those published in HM Factory Inspector Technical Data Note (TDN) 13. The standards for amosite and chrysotile were that exposure was to be regarded as being in excess of the standards if it was in excess of either a) 12 fibres per millilitre as an average over any 10 minute period b) 2 fibres per millilitre as an average over any 4 hour period.[45]No measurements of dust concentrations were taken during the works. It is possible that the claimant was exposed in excess of the TDN 13 standards (in particular the 10 minute standard of fibres per millilitre) but, on the balance of probabilities, that was unlikely.[46]Notwithstanding that, Mr Glendenning expressed the view that precautions to control the risks associated with the exposure to asbestos dust created by the works should have been taken, irrespective of whether or not the claimants exposure was in excess of the TDN 13 standard. Mr Plumb agreed that precautionary measures should have been implemented if asbestos containing dust was likely to be generated. A floor to ceiling enclosure of the works would have been regarded as adequate during the material period. Mr Glendenning agreed but was of the view that the adequacy of the enclosure should have been kept under review and that modifications would have been necessary in the event that dust was escaping in the manner prescribed in the claimant’s witness evidence.[47]In the event that the court found that dust settled on displayed goods then the source of dust seems likely to have been the works involving the demolition and/or construction of the escalators. Mr Glendenning is of the view that it would have been known or could easily have been ascertained that the dust was likely to have contained asbestos. Although a matter for the court, it was foreseeable that workers, such as the claimant, would have been exposed to asbestos dust as a result of the works moving and/or restoring the escalators. Mr Plumb was unable to accept that a retailer ought to have known that excess dust might have contained a proportion of asbestos.[48]The experts disagreed on whether the use of dust masks (if they were used) was a clear indication that the dust produced by the works was hazardous. Mr Plum noted that such masks were often used to relieve workers from non toxic nuisance dust.[49]In Mr Glendenning’s opinion, had the defendant made enquiries in relation to the dust that would have led to the conclusion that dust likely to contain asbestos was escaping and that better enclosure of the works was appropriate to prevent it doing so. Mr Plumb considered that whether the defendant ought to have made enquiries as to the nature of the dust was a matter for the court.[50]If the defendant was or should have been aware that dust settling on the shelves/shoes might contain a percentage of asbestos the experts were agreed that the cleaning up should have been by “dustless methods” such as a vacuum with a high efficiency filter in accordance with the standard at the time.

Family exposure

[51]The claimant was born and grew up in Wavertree in Liverpool. Her father worked for Cammell Laird ship builders when she was younger. She did not know what he worked as. He only lived at home with her mother until the claimant was 5 years old. She did not recall him coming home in dusty overalls. A few years ago the claimant learnt that her father had another family before he married her mother. They live in Portsmouth. They contacted the claimant’s brother and during the course of discussing the family mentioned that the claimant’s father used to work at Cammell Laird.[52]The marriage certificate of the claimant’s parents shows the rank or profession of her father as charge hand (civil engineer). Mr Plumb comments that that description is inconsistent with employment at Cammell Laird. The evidence of the claimant’s brother, George Burke, was that it was uncertain whether her father ever worked for Cammell Laird.

Conclusions on asbestos exposure

[53]I deal first with the extent of asbestos dust exposure to the claimant through her father. It is clear from what has just been set out that i) it is uncertain whether Mr Burke ever worked for Cammell Laird; ii) if he did work there he was unlikely to have worked as a civil engineer which means that, on the balance of probabilities, it is unlikely he had exposure to asbestos dust in the Cammell Laird factory.[54]The claimant’s history does not suggest that she would have had any exposure to asbestos dust through her father.[55]I find, therefore, on the balance of probabilities that the claimant had no exposure to asbestos dust in her family home through her father.[56]There was a time of some months during 1976 when the old escalators in Lewis’s department store were being stripped out and replaced by new escalators in a new location within the store. The works involved the sawing of considerable quantities of asbestos insulation boards. The engineers agree that asbestos insulation boards will have been used in the construction of both new and old escalators. That is reinforced by asbestos surveys carried out subsequently which confirm extensive use of asbestos materials in the new escalators.[57]All the evidence is that the Liverpool store remained open throughout the escalator works. During that time of several months the engineers agree that the escalator work will have generated much dust. A major issue of fact is the extent to which the escalator works were partitioned off from the rest of the store. Mr Molyneux states that there was floor to ceiling boarding but does not remember any kind of airtight screening with polythene or similar and does not recall seeing any dust during the works. I would not expect him to be as observant about the covering of dust on the shoes or shelves or generally. Further, as an electrician he will be exposed to a more dusty environment than a sales assistant and will, therefore, regard it as more the norm.[58]In contrast, the evidence of the claimant, Marie McIver and Jacqueline Seasmen is unanimous that such was the escape of dust that the shelves and shoes needed to be wiped clean several times during the day. That was to preserve the quality on offer to the customer but had the side effect that for a period of several months the claimant was exposed on a frequent basis to small levels of asbestos dust. I found the evidence of the claimant and her witnesses on the presence of dust in the shoe department more convincing than that of Mr Molyneux.[59]As to protecting the public from the area of the works all witnesses, including Mr Molyneux, recalled a three to four foot fence around the work. I have no reason to doubt that evidence.[60]The remaining issue is whether there was any further inner protective boarding and, if so, what was its nature? On the balance of probabilities I find that there was a further barrier. I come to that conclusion because, first, of the evidence of Mr Molyneux as to the erection of inner timber screens to prevent access to work areas. Mr Molyneux was convincing on their presence. In addition, Lewis’s as a commercial operation wanted to keep trading and it was common sense for them to take steps to keep the intrusion of the works to a minimum to preserve their custom. It would make sense for a department store, to which the public continued to have access during the entirety of the time of the works, to shield the public from the large voids that were created as a result of the escalator works by more than just a protective fence which left the works exposed as described above.[61]However, I do not regard the fact that inner boarding was present as being determinative of whether that system of protection was adequate or appropriate to shield staff and the public from asbestos dust.[62]It is clear that the inner barrier was not airtight. Mr Molyneux says that he cannot recall any airtight screening or polythene. The inner screening provided prevented the risk of people falling down the void which existed whilst the works occurred but did not prevent the escape of dust. I accept the evidence that the shoe boxes in the store room on occasions were covered with white dust and that the sales people had to clean the shelves and the shoes several times during the working day. The staff mentioned to Mr Burke that they were fed up with cleaning the dust off the shelves. For the duration of the works in 1976 I find that a dusty atmosphere became part of the working environment within the first floor shoe department.[63]It is telling that the claimant recollects observing certain of the workmen wearing masks. I accept that evidence. She is clear that the workmen wore paper masks as they dismantled the elevators. That work was very dusty and she could see dust and particles in the air around where the men were working. They had been supplied with those masks by their union. I find the claimant to be an honest and fair witness. She was attempting to recall events which had occurred almost 40 years ago. It is not surprising that some details of her evidence on her employment or the employment of her fellow employees were not precise. When she gave her evidence it was with care and in a way which I found convincing. In so far as I may not accept any part of her evidence it is because I find that her recollection is faulty and not because she has attempted, in any way, to mislead the court.[64]The evidence of the claimant and her witnesses is consistent with the use of asbestos insulation board during the course of the works. There is no evidence to establish that activity involving asbestos insulating board occurred every day but it is clear that a regular dust nuisance was created and maintained for most of the time that the works were taking place despite there being some sort of inner floor to ceiling barrier. That means that, on the balance of probabilities, the claimant was subjected to exposure of asbestos dust during her employment by the defendant at Lewis’s department store in 1976.

Causation

[65]Mesothelioma is a disease which is almost invariably caused by exposure to asbestos dust and fibres. Although the claimant’s asbestos exposure was modest, in that it was for a period of no more than several months during 1976, on the balance of probabilities the likelihood is that it caused her mesothelioma and I so conclude.[66]Dr Rudd in his report of the 2nd May 2013 comments that the risk of mesothelioma increases in proportion to the dose of asbestos received. On the basis of the evidence given by the claimant her employment would have increased the risk that she would develop mesothelioma above the background level in the general population. Whilst there appears to have been a family history of mesothelioma, in that her mother suffered from the same disease which suggests the possibility that the claimant may have had higher than average susceptibility to the carcinogenic effects of asbestos, that does not invalidate the conclusion that the exposure which occurred when the claimant worked at Lewis’s materially increased the claimant’s risk of developing the disease. The latency between the claimant’s first exposure and the clinical manifestation of the disease is about 36 years.

Negligence

[67]At common law what has to be foreseen is not the likelihood or probability of injury, but the risk that it may occur. In Koufos v Czarnikow Limited [1961] 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.”[68]Foreseeability of damage in a personal injury claim means only that the risk of some underlying personal injury must have been foreseeable. In Page v Smith [1996] AC 155 Lord Lloyd said at [190] B-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.”
[69]The risk in this case is, as identified by Hale LJ (as she then was) in Jeromson v Shell Tankers [2001] EWCA Civ 101, whether the risk of personal injury arising from the claimant’s exposure to asbestos ought reasonably to 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.[70]In areas of developing knowledge the position was stated by Swanwick J in Stokes vGuest, Keen and Nettlefold ( Bolts and Nuts) Limited [1968] 1WLR 1776 at 1783 to be, “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 obliged to take more than average or standard precautions.”[71]In Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405 at 415 - 416 Mustill J ( as he then was) said :
“Between there two extremes…. 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 a category of those against which an employer can and should take care……….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.”
[72]To examine the issue of foreseeability it is necessary to consider the legislation and publications at the relevant time which I now do.

The Legislation and Publications

[73]Some of the harmful affects of asbestos dust were recognised at the end of the 19th century. In 1930 the report of Dr Merewether and Price entitled ‘Report on effects of asbestos dust on the lungs and dust suppression in the asbestos industry’. That recognised a clear link between heavy exposure to asbestos dust and the onset of asbestosis. It led to the Asbestos Industry Regulations in 1931. They 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.[74]Concern about the general effects of dust led to further statutory obligations on factory occupiers. Section 47 of the Factories Act 1937 imposed an obligation on such occupier to protect, within the limits of practicability, employees against dust which was “likely to be injurious” or “of any substantial quantity”.[75]In his annual report in 1938 the Chief Inspector of Factories commented on the new provisions and observed that one of the greatest problems facing industry at that time was that of dust. He continued, “…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.”[76]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 to be drawn with any safety.[77]The 1943 report of HM Chief Inspector of Factories contained an analysis of fatal cases of asbestosis and the shortest duration of exposure to asbestos was 6 months.[78]The Building (Safety, Health and Welfare) Regulations 1948 made under the Factories Act 1937 required at Regulation 82 that:
“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 be 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.”
[79]By 1949 HM Deputy Chief Inspector of Factories was stating, “In regard to dusty processes which are outside the application of the regulations all possible steps should be taken against the inhalation of dust and the standards of the regulations should be followed as far as practicable.”[80]The link between exposure to asbestos and lung cancer was highlighted in 1955 with a paper entitled “Mortality from lung cancerin asbestos workers” by Richard Doll published in the British Journal of Industrial Medicine.[81]By 1960 the Ministry of Labour published the guidance booklet, “Toxic Substances in Factory Atmospheres”. The booklet contained the following advice:
“Substitution The problem is how to prevent exposure to a toxic dust or fume. The best solution is there to be no such dust or fume and for harmless substances to be used instead. This should always be the first possibility to be explored. Total enclosure and related methods If substitution proves to be impossible or only partially possible, and a toxic material must be used, the next best protection against inhalation is to ensure that no injurious dust… can escape into the atmosphere of any work room. This can be ensured by total enclosure of the process or plant, which will again reduce danger to an absolute minimum.”

Total enclosure and related methods

[82]In the same year an important paper was published in the British Journal of Industrial Medicine by Wagner and others. That noted an association between the occurrence of the inevitably fatal complaint known as mesothelioma and exposure to crocidolite.[83]In 1962 Smither, Gilson and Wagner wrote a letter to the British Medical Journal in which they highlighted how there appeared to be no correlation between the severity of any pulmonary asbestosis and the occurrence of mesothelioma. In a number of cases the exposure to asbestos dust was minimal and the only histological evidence of asbestos exposure was the presence of a few bodies and fibres in the lung tissue.[84]In 1965 in an article entitled “Mesothelioma of Pleura and Peritoneum,” by Newhouse and Thompson published in the British Journal of Industrial medicine it was stated, “There seems little doubt that the risk of mesothelioma may arise from both occupational and domestic exposure to asbestos. Wagner and Others (1960) describe patients with no exposure other than living as a child in the vicinity of asbestos mines.”[85]On the 31st October 1965 the Sunday Times contained an article by Dr Byrne, then medical correspondent, reporting on the Newhouse and Thompson report. Under the headline “Scientists track down a killer dust disease” the article included the following:
“A disquieting new occupational disease capable of killing not only the exposed workmen but also perhaps his womenfolk and people living near his place of work is the subject of intensive behind the scenes activity by British Scientists, experts on industrial health and representatives of at least two Government Ministries…”
[86]In August 1966 mesothelioma arising from occupational exposure to asbestos was prescribed as an industrial disease.[87]That year the Ministry of Labour published “Dust and Fumes in Factory Atmospheres”. The introduction included the following, “In all circumstances the aim should be to reduce the concentration of dust or fume in the atmosphere to the lowest practicable level.”[88]Under a sub-heading “basic principles of protection” the first essential was said to be an awareness that a potentially dangerous material was in use….and that in all cases where there is a risk from dust the importance of scrupulous cleanliness of walls, floors and ceilings was an essential background to keeping clean the air of the factory. The method of cleaning was to ensure that the dust was collected and not dispersed into the atmosphere again.[89]In August 1967 the Chief Inspector of Factories report for 1966 was published. That included the following, “It has been estimated that in the United Kingdom around 20,000 people are directly employed on various processes using asbestos or asbestos products. An unknown but probably significantly greater proportion is likely to be occupationally exposed to asbestos used by others. Of necessity precaution must precede absolute proof of the relative hazard of the different sorts of asbestos. At present, crocidolite seems to be especially associated with the occurrence of mesothelioma, but no-one can say that other forms of asbestos may not be indicated. Only epidemiological studies extending over many years can provide the answers. Whilst such studies are proceeding, the only safe course is to eliminate the escape of asbestos dust in the air.”[90]In November 1967 HM Factory Inspectorate issued a booklet entitled “Problems arising from the use of asbestos- Memorandum of the Senior Medical Inspector’s Advisory Panel.” That included the following, “This growing evidence linking many mesothelioma tumours, both of the peritoneum and pleura with exposure to asbestos, apparently of slight degree or remote in time, constitutes in our opinion one of the most serious aspects particularly from a public health point of view, of the asbestos problem.”[91]In March 1968 the Asbestos Information Committee (AIC) published their leaflet “Asbestos- safety and control”. That gave advice under the heading “Guidance for Employers” as follows:
“Portable dust extraction units are available at various prices depending on the size from about £100… Wetting dust when cleaning up, vacuum cleaning etc should be part of the normal practice of good factory and site hygiene. … Asbestos dust should, as far as possible, be damped and collected by vacuum rather than brushing or positive pressure methods and should be put into impermeable bags or containers for disposal in an appropriate disposal area. …”
[92]In June 1968 the British Occupational Hygiene Society published hygiene standards for crocidolite asbestos dust. That document included comments on cancer risks associated with exposure to asbestos dust (including mesothelioma) as follows, “There can be little doubt that these risks will be least in the lowest concentration… but the quantity of relationship between asbestos and cancer risk is not known, nor is it known exactly why these two are related, nor even whether all kinds of asbestos created presents a risk. Consequently it is not possible at this time to specify an air concentration which is known will be free of risk in this respect.”[93]In June 1969 the British Occupational Hygiene Society and the Asbestosis Research Council held a joint conference on the control of asbestos in a working environment. That commented on cases of mesothelioma that, “they did not appear for about 20 years or more after first exposure, and could be initiated by short exposure, possibly to low concentration of fibres… we would not assume that all mesotheliomas were associated with crocidolite”.[94]In May 1970 the Asbestos Regulations 1969 revoked the 1931 Asbestos Industry Regulations. The new regulations applied to every process involving asbestos and any article composed wholly or partly of asbestos wherever such processes were undertaken in factories.[95]In March 1970 HM Factory Inspectorate issued Technical Data Note 13 (TDN13) entitled “Standards for Asbestos Dust concentration for use with the Asbestos Regulations 1969”.[96]In December 1970 the Department of Employment published Health and Safety at Work booklet 44 entitled “Asbestos: Health Precautions in Industry”. That states, “Asbestos, however, is a dusty substance and it is unfortunate that the dust of this very useful mineral can be highly injurious to those who inhale it in sufficient quantities. The danger came to light with somewhat disconcerting suddenness in the second half of the 1920s… still more recently a relationship has been demonstrated between exposure to certain types of asbestos and the occurrence of mesothelioma,… mesothelioma has developed in some individuals with short periods of exposure. It is still a rare tumour amongst the general population, but not uncommon amongst those exposed to asbestos dust.”[97]Under the heading “cleaning” there is the following:
“Dust lying on floors, ledges and plant surfaces can become a source of air contamination when it is disturbed by draughts or by workroom activity and thus re-enters the atmosphere from which it originally settled. This settled dust can be a serious and persistent cause of harmful concentrations if it is not removed by efficiently directed cleaning. It has long been known that simple sweeping can prove to be an ineffective way of removing a dangerous industrial dust. It tends to waft the finest and most dangerous particles into the air from which it is deposited on more inaccessible ledges. The problem is not confined to asbestos, and equipment is available which enables cleaning methods to be applied which do not themselves raise dust.”
[98]In the 1971 Annual Report of HM Chief Inspector of Factories there was recognition that the worst situation facing industry were probably in demolition work where large quantities of asbestos needed to be removed.[99]In 1971 HM Factory Inspectorate issued Technical Data Note 24 concerning respiratory protective equipment use against asbestos. It contained a table with advice on the choice of respiratory equipment not to be work dependant upon the concentration of chrysotile or amosite fibres.[100]In June 1973 the Department of Employment issued Health and Safety at Work Booklet 6E “Safety in Construction Work: Demolition”. That included the following, “Danger to health can be unsuspected until illness has actually overtaken a worker. Insidious health hazards frequently arise during demolition, and during construction work, from exposure to dangerous fumes and dust. Dust from… various materials containing asbestos, create dangers… inhalation of dust or fumes should be prevented by the use of such means as ventilation, damping down with water and/or suitable respirators. Respirators should be of a type approved by HM Chief Inspector of factories.”[101]In 1974 the Department of Employment published a revision to TDN13.[102]In August 1975 the Employment Medical Advisory Service of the Health and Safety Executive published a leaflet entitled “Asbestos and You”. The leaflet contained the following, “If you work with asbestos in its dry and dusty state, there is a health risk unless you take sensible precautions…. Precautions; the asbestos regulations 1969 require the provision of exhaust ventilation at processes giving rise to asbestos dust so as to prevent contamination of the workplace. On jobs where it is not possible to prevent contamination of the workplace approved dust respirators and protective clothing must be worn.”[103]In December 1976 the Health and Safety Executive issued Guidance Note EH10 entitled “Asbestos- Hygiene standards and measurement of airborne dust concentrations”. That included, “Exposure to all forms as asbestos dust should be reduced to the minimum that is reasonable practicable.”[104]In 1977 the Health and Safety Commission published an interim statement by the Advisory Committee on Asbestos entitled “Asbestos Health Hazards and Precautions”. The committee was a government appointed committee announced on the 18th May 1976. The statement included the following, “The committee is aware of widespread public anxiety and uncertainty about the health risks from asbestos…. Asbestos in Existing Buildings Present evidence suggests the dangers from asbestos in buildings are likely to arise only when products containing asbestos are damaged, either accidentally or during maintenance or repair and the asbestos fibres are released and dispersed in the air.”

Asbestos in Existing Buildings

[105]In October 1979 HMSO published the final report of the Advisory Committee on Asbestos.[106]The period when the claimant’s employment at Lewis’s department store ended was around 1981. I do not consider therefore the development of legislation and guidance further.

Claimant’s Submissions on Negligence

[107]Mr Allan QC submits that the duty was upon the employer to ensure that the claimant’s place of work was safe. That cannot be judged with the benefit of hindsight. The appropriate standard against which to judge the issue was that which was relevant in 1976.[108]By 1976 there was a clear obligation on an employer that where work was being carried out which generated large quantities of dust the defendant had an obligation to make the place of work safe. Elementary enquiries would have revealed that that was not the position here.[109]The common law requirement is whether there is a risk of injury. It is only if that risk is so far fetched that it is entitled to be disregarded.[110]By 1976 it was known that there was a real risk of injury as a result of slight exposure to asbestos dust.[111]The starting point was to take all reasonable practicable measures to reduce the levels of dust. It would be odd if what had been the position in 1960 was displaced by the publication of TDN13 in 1970. Between 1966 and 1970 there was “an explosion of knowledge”. It cannot be the case that an employer would be under a lesser duty in 1976 than between 1960-1970. TDN13 has to be seen in the context of a message given over the years that the only good practice was to reduce the risk to the minimum which was reasonably practicable.[112]As a result there was a clear duty on the defendant to make enquiries about the risks from the level of dust generated. Had that been done there would have been established the likelihood of risk from asbestos dust exposure.

Defendant’s Submissions on Negligence

[113]Mr Feeny submits that the central issue is whether it was reasonably foreseeable to the defendant that the claimant might be at risk of injury when she worked for them in the 1970s, in particular during 1976.[114]TDN13 has been the subject of considerable criticism. However, that is not to be laid at the door of the defendant. Rather, it represents the standard of knowledge at the time.[115]The levels within the TDN are relevant because they are an indication as to what levels would be regarded as not being liable to cause a danger.[116]The question is whether the practice that was followed by the defendant was obviously bad. It was a reasonable standard if it was a generally accepted practice to follow unless either the generally accepted practice was plainly wrong or the particular employer had more knowledge of risk.[117]As Lord Justice Aikens said in Williams v University of Birmingham and Another [2011] EWCA Civ 1242 at [37], “I would adopt the same approach in relation to the standards by which the University is to be judged in the present case. What is not acceptable now may have been regarded as acceptable in 1974. As Simon J summarized the position in Lilian Rose Asmussen v Filtrona United Kingdom Limited (but substituting "the University" for "the employer" to apply to this case):
“…the foreseeability of injury has to be tested against the standard of the well-informed [University] who keeps abreast of the developing knowledge and applies [its] understanding without delay, and not by the standard of omniscient hindsight. [A University] can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take precautionary steps unless (a) the practice is clearly bad practice, or (b) in the light of developing knowledge about the risks involved in some location or operation a particular [University] acquired greater than average knowledge of the risks”.”
[118]In particular, also, the defendant relies upon [61] of the judgment in Williams. That reads, “In my view the best guide to what, in 1974, was an acceptable and what was an unacceptable level of exposure to asbestos generally is that given in the Factory Inspectorate's "Technical Data Note 13" of March 1970, in particular the guidance given about crocidolite. The University was entitled to rely on recognised and established guidelines such as those in Note 13. It is telling that none of the medical or occupational hygiene experts concluded that, at the level of exposure to asbestos fibres actually found by the judge, the University ought reasonably to have foreseen that Mr Williams would be exposed to an unacceptable risk of asbestos related injury.”[119]The defendant submits that the decisions in Williams and Lillian Rose Asmussen v Filtrona United Kingdom Limited [2011] EWHC 1734 are the most relevant here. However, they are still of limited assistance because they, too, are dependant upon the facts as found in each of those cases.[120]The mere fact of dust does not prove that there was inadequate separation of the works from the trading floor. This was not a mainstream situation. There had been nothing identified which indicated the works constituted an obvious hazard as opposed to a nuisance. The evidence of Mr Burke was telling when he was asked what a reasonable employer would have done. His reply was that it never crossed his mind there was a risk to health.[121]Mr Glendenning’s evidence was premised on the basis that if enquiries were made the risk would have been discovered. But there was nothing to put the defendant on enquiry here. The position was one that would be regarded as a nuisance and an inconvenience but measured by the standards of the time no more than that.

Discussion and Conclusions on Negligence

[122]What should the defendant have concluded from the relevant literature at the time? As Swift J said in Abraham v Ireson & son [2009] EWHC 1958, “It is true that the message to be drawn in particular from 1930 report and from the extracts from 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 of whether it should have alerted an employer whose employees 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.”[123]On the facts here I have found that the claimant’s exposure to asbestos was for a relatively short period, a matter of months in 1976 during the escalator works, and was light. The question is whether the carrying out of the escalator works should have alerted the defendant to the fact that the claimant might be at risk of injury when she worked for them in 1976.[124]There was some argument as to whether the defendant would be liable because, as a footwear retailer, the defendant was not in a comparable position to a factory occupier. The defendant accepted though that the test was one of common law foreseeability. That is the correct approach and I reject any other.[125]The experts agreed at paragraph 10 of their joint statement that if the works took place without the benefit of full enclosure then background concentrations of asbestos containing dust on the first floor of the shop where the claimant worked would have been higher than those in general in buildings, including in buildings containing asbestos materials that were in good condition and undisturbed. The experts agreed that by occupational hygiene standards at the time, published in TDN13, the standards for amosite and chrysotile were that exposure would be in excess of a safe standard if it was higher in relation to either material of: a) 12 fibres/millilitre as an average over any 10 minute period b) 2 fibres/ millilitres as an average over any 4 hour period.[126]There are no dust measurements here. In their absence the experts agree that it is possible that the claimant was exposed to in excess of the TDN13 standards (in particular the 10 minute standard of 12 fibres/ millilitre), notwithstanding that they agree that, on the balance of probabilities, that was unlikely.[127]The experts agreed that precautionary measures should have been implemented if asbestos containing dust was likely to be generated by the works. They agreed that a floor to ceiling enclosure of the works would have been regarded as adequate during the material time. Mr Glendenning added that the adequacy of the enclosure should have been kept under review and that modifications should have been undertaken in the event that dust was escaping as described by the claimant.[128]I have found that, on the balance of probabilities, that there was a floor to ceiling enclosure. It is common ground that at the material time that would be regarded as adequate protection albeit one that would not be acceptable by current day standards. It is important though, as the various authorities make clear not to look back with the rose tinted glasses of hindsight and consider the position by the standards operative in 1976.[129]That then raises the issue as to whether there was a further duty to make enquiries as to risk as the works progressed. These were works of short duration. Absent any particular circumstance to alert the defendant to an enhanced or different risk as the work progressed I do not think that there was. The protection erected by the defendant was not “clearly bad.”[130]I have found that the consistent escape of small amounts of dust was sufficient to cause a nuisance to the sales staff in the footwear section. However, there is no clear evidence about the amount of dust and the plain fact is that Lewis’s department store continued to trade during the entirety of the operations that were carried out. In those circumstances, I can find nothing that indicated that there should have been an understanding of the risk which was caused by the operations or anything to alert the defendant that the precautions that they adopted were inadequate and required alteration. I agree with the submission made by the defendant that there was nothing to put the defendant on notice sufficient for them to make an enquiry.[131]The masks that were worn by some of the workmen carrying out the work on the escalators were said by Mr Glendenning to have been a clear indication of the dust produced by the work was hazardous. Mr Plumb disagreed on the basis that disposable paper dust masks were often used to relieve workers from non toxic nuisance dust. Given my previous findings, the fact that some workmen wore masks would not have been sufficient to have put the defendant on a duty to make enquiries.[132]In the circumstances I am unable to accept that during 1976 when the escalator work was being carried out that the defendant should have appreciated that the claimant was at risk of an asbestos related injury and that their failure to appreciate and take what would now be regarded as appropriate precautions or to make enquiries about the nature of the dust was negligent.

Conclusions

[133]Whilst I have enormous sympathy for the claimant, who clearly contracted mesothelioma as a result of asbestos exposure at work, it is with regret, but without any hesitation, that I find that her claim against the defendant must fail.[134]I therefore dismiss this claim.

Cited in 1 later judgment