Hawkes v Warmex Ltd [2018] EWHC 205 (QB)

Case No HQ17A01405[2018] EWHC 205 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 08/02/2018
Before
MR PETER MARQUAND (Sitting as a Deputy High Court Judge)
Between
MR ALAN HAWKESClaimantWARMEX LIMITEDDefendant
Mr Harry Steinberg QC (instructed by Leigh Day) for ClaimantMr Alexander Macpherson (instructed by BLM) for DefendantHearing Hearing dates: 20 & 21 December 2017
JudgmentMr Peter Marquand:Introduction
[1]This claim is brought by Mr Alan Hawkes who is the son and executor of Mrs Doris Hawkes. Mrs Hawkes died in October 2014 from mesothelioma having been exposed to asbestos in the course of her employment. The Claimant says this exposure took place between 1946 and June 1952 whilst Mrs Hawkes was employed making electric blankets at the Defendant’s premises.

The issues

[2]The first issue is a question of fact for me to determine. Were the inner linings of the electric blankets made of asbestos? The Claimant accepts that if I find, as a matter of fact, that they were not, then the claim fails. The burden of proof is on the Claimant and I am to decide the facts on the balance of probabilities.[3]The second issue is whether the Asbestos Industry Regulations 1931 applied to the Defendant’s premises. The third issue is whether section 47 of the Factories Act 1937 was breached and fourthly, was the Defendant in breach of the common law duty owed to Mrs Hawkes.[4]I do not need to decide the issue of causation as it is agreed between the parties that in the event that I find any breach of duty made out then causation follows. The expert evidence of Prof. Twort, consultant physician, in a report dated 28 April 2015 confirms the diagnosis and development of mesothelioma as a result of occupational exposure to asbestos. I also do not need to make any findings on quantum as the parties have agreed the damages at £77,484. Finally, as originally pleaded, there were allegations relating to a short further period of work that Mrs Hawkes undertook for the Defendant in 1962. However, those allegations are not pursued.

Background

[5]Mrs Hawkes was born on 21 November 1925 and left school at the age of 14 in 1939. Her first job was manufacturing aircraft parts at Pye following which she moved to work for Gray-Nicholls, the manufacturer of sporting equipment. She returned to work again for Pye making radios for tanks, but after the war in 1946 she joined Warmex and remained in their employment until June 1952. Between 1952 and 1962 she was a housewife raising her children, Alan and Lesley.[6]In 1962 Mrs Hawkes returned to work with Warmex Ltd for about six months on a part-time basis. Following this she had various other jobs finally assisting her husband in his work. Mr Hawkes was a chef and always worked in catering. Apart from the work at Warmex Ltd, Mrs Hawkes does not identify any other exposure to asbestos.[7]Mrs Hawkes’ employment with Warmex Ltd involved the manufacturer of electric blankets for beds. The blankets consisted of a lining with an electrical wire fed through it, which generated the heat and the lining, together with the wire, were “stuffed” inside a canvas cover which was in turn covered with a softer material. There were switches on the outside of the blanket to control the heat. The central issue in this case is whether or not the inner lining, through which the wire was stitched, was made of asbestos. I will deal with the evidence concerning this issue below.[8]In the first six months of Mrs Hawkes’ work with Warmex Ltd she measured out and cut the correct length of wire. Another person would take the wire to be threaded through the inner lining, which was undertaken at the other end of the room from where she worked. After this period of work, she was moved to threading the wire through the inner lining. Mrs Hawkes in her statement describes using a long needle to thread the wire through that lining. Having undertaken that activity for six months she spent the remainder of her time with Warmex Ltd cutting out the softer covers that the canvas material went into and sewing them together.[9]Unfortunately, in June 2014 Mrs Hawkes developed respiratory symptoms. Initial treatment with antibiotics failed to resolve the problem and she was sent to Addenbrooke’s Hospital. A chest radiograph was abnormal and further investigations were undertaken and Mrs Hawkes was advised that she was suffering from mesothelioma on 7 August 2014. She was advised by her treating clinicians that there was no curative treatment and she only had three to five months to live. Her statement and the statement of Mr Alan Hawkes detail the symptoms and undoubted suffering that Mrs Hawkes went through from the consequences of mesothelioma prior to her death on 23 October 2014 at the age of 88.

The factual evidence concerning whether the inner lining was made from asbestos

[10]I had witness statements from Mrs Hawkes dated 11 September 2014 and 17 October 2014. A statement from Lesley Cornforth, Mrs Hawkes's daughter dated 17 May 2016 and a statement from Margaret Coleman, Mrs Hawkes's sister, dated 8 September 2016. A Civil Evidence Act Notice was served in relation to the statements of Mrs Coleman and Mrs Hawkes. There was also a statement from Mr Alan Hawkes, although that only dealt with quantum matters and is not relevant to this issue. I did not hear oral evidence from any factual witness.[11]The relevant evidence from Mrs Hawkes is: i) She was exposed to asbestos when she worked for Warmex Ltd; ii) The electric blankets consisted of “an asbestos blanket [which I have referred to as the ‘inner lining’] with electrical wire fed through the blanket to generate heat, with the asbestos blanket being stuffed inside a canvas cover…”; iii) That when she moved on to threading “I had a long needle that I used to thread the electrical wire through the asbestos blanket…”; iv) The asbestos blanket was a ‘fluffy’ material; v) When she worked on the threading “bits of asbestos would come off all the time and get on my clothes”; vi) When she went back to work for Warmex Ltd in 1962 “Again I was exposed to asbestos as I have described [in the remainder of her statement]”. She also confirms that Warmex Ltd were still using the same asbestos materials; vii) She states her understanding that during the war Warmex Ltd made airmen’s suits, which was before she worked for them.[12]The relevant evidence from Mrs Cornforth is: i) She remembers that “during this time [Mrs Hawkes] told me that the factory made electric blankets and that the wires in the electric blankets were covered in asbestos. This came up in conversation about the methods they used in the factory…”; ii) She remembers “my mother telling me that the Warmex factory made pilots’ suits that pilots wore during the war. She told me that they were made in the same way as the electric blankets, with asbestos around the wires.” She also confirmed that her mother mentioned to her more than once that asbestos was contained in the electric blankets and the pilots’ suits.[13]I was also referred to extracts from Mrs Hawkes’ general practitioners records from 1997. She had presented to her general practitioner with a nocturnal cough and the doctor had recorded:
“occupation – worked [with] asbestos aged 20 – 26 years.”
This history is also repeated in a letter making a referral to a chest physician and in a response from the Department of Respiratory Medicine. The response states “… She worked in a factory making electric blankets and was exposed to asbestos for approximately 6 years.”

The expert evidence concerning whether the inner lining was made from asbestos

[14]Mr Chris Chambers was the Claimant’s expert and produced a report dated 19 October 2016, participated in a joint meeting of experts and gave oral evidence before me. Mr Graham Glenn was the Defendant’s expert and he produced two letters dated 28 May 2015 and 9 July 2015 as well as an expert report dated 6 July 2016. Mr Glenn also took part in the joint meeting of experts and gave oral evidence.[15]Mr Chambers had been a factory inspector for some 10 years and is qualified in health and safety and occupational health. He has extensive experience of giving expert evidence. Mr Glenn has a degree in mechanical engineering and is a Chartered Engineer and Member of the Institute of Mechanical Engineers. Mr Glenn also has extensive experience of providing expert evidence.[16]What they had agreed on in the joint statement was that it was unlikely that asbestos materials were still used for the manufacture of electric blankets in 1962 (answer 12). Mr Chambers relied upon the evidence of Mrs Hawkes to form the basis of his opinion as well as other publications, patents and his opinion as an expert on the likely make up of the blanket. Mr Glenn had a different view of the materials and he relied on an analysis of a Warmex Ltd electric blanket in addition. I shall deal with these in turn.

The advertisement from 'Popular Science Monthly' dated January 1919

[17]I was referred to a photocopy of a page from a magazine published in the USA in 1919 which commenced with the title “Cold? Press the button – carry an electric stove in your glove, and fight chills with the modern substitute for mustard.” The page has six diagrams on it and text about six “contraptions” that produce heat when an electrical current is passed through a wire incorporated in a blanket. The text that accompanies the pictures describes the piece of equipment and in two of them it makes specific reference to asbestos as follows: i) “All wrapped up in this blanket built with sections of wool, canvas and asbestos with wires stitched in, all he has to do is plug in the electric lighting circuit and sweat out that cold…”, ii) “No more need the motorman blow on chilled fingers… an asbestos pad filled with wires to go in glove or mitten. The motorman hitches up his glove to the car current and is comfortable.”[18]The diagrams are not technical drawings and do not give any details of how the wires are incorporated into the materials nor do they give any indication of the extent of the use of asbestos. Mr Chambers in his report states that this publication shows “the stitching of electrical heating elements through asbestos cloth in exactly the same way that [Mrs Hawkes] recalled in her evidence.” In my judgment that is overstating the position as there is no detailed description of how the wire is incorporated or stitched through, or on the cloth, or what part of the material used was asbestos. There was no evidence that any of the products described went on sale. Mr Glenn said he was not an expert in the use of asbestos in the USA, but accepted that the descriptions of products (a) and (b) referred to above were plausible.

Patent Specification no 555,125 – the heated jacket

[19]Warmex Ltd made an application on 1 January 1942 to patent the design of “electrically heated clothing and the like…” and reference is made to carrying the invention into effect for use of the pilot of an aircraft and drivers of motor vehicles. The “complete specification” which is dated 10 December 1942 uses an example of the jacket for a motorcyclist and there is a diagrammatic representation of that jacket and drawings comprising seven figures. Figure 4 is referred to as showing “an enlarged section of a heating wire” and is described as follows:
“…any suitable form of heating wire can be utilised but it is preferred to utilise a wire such as shown in figure 4 where [there] is an inner cord of asbestos or other similar heat insulating material which has coiled around it the actual heating wire [number omitted], the whole being enclosed in a tube or cover [number omitted] of asbestos or similar material.”
[20]The description of the textiles used in the manufacture of the garment does not include a reference to asbestos. Reference is made to “leather” and “the inner lining of textile or other material” as well as sheets of “metallic foil”. Mr Chambers accepted in cross examination that this patent did not show the use of asbestos cloth. Mr Chambers confirmed in cross examination that he had misinterpreted figure 4 as being a cross-section of the fabric apparently showing a wire being interweaved through a lining material. However, when the text of the specification is read it is absolutely clear that his interpretation is incorrect.

Patent Specification no 709,048 – the 1952 electrically heated blanket

[21]This patent application was made by the American company, General Electric on 1 August 1952 and the complete specification published on 12 May 1954. I can deal with this quite shortly as it describes a method of stitching to enable ducts to be created through which the electrical wiring passes. It does not mention the use of asbestos at all.

Patent specification number 882,467 – the 1958 electrically heated blanket

[22]Warmex Ltd made a patent application on 8 August 1958 with a complete specification being published on 15 November 1961 in relation to improvements to electrically heated blankets “and the like”. This patent application includes diagrams and descriptions of the wiring and fabric materials. The blanket is made up of layers of fabric but stitched to create ducts through which the heating wire passes. The wire is referred to as being formed from a core of multi-fibre plastic “or other insulating material wound round with a helix of multi-stranded metal wires, the whole enclosed in a tubular covering of electrically insulating plastic material…” There is no reference to asbestos in this patent application. ‘The Willing Servants – a history of electricity in the home”[23]I was referred to this publication by the Electricity Council from 1988. It includes a description of using electricity to create heated blankets and on page 86 there is a reference to the use of an insulated resistance wire placed in flying suits to provide warmth to aircrew. This is followed by the following paragraph:
“The first of the post-war blankets were made with asbestos insulated resistors but they were only safe if they were kept dry. If the asbestos became wet there was a risk of a shock and there were a number of fatalities.”
[24]Mr Chambers agreed in cross examination that a heating element needed to be insulated and explained that this could occur in two ways. First, it could be by covering the wire or secondly by threading the wire through an asbestos cloth (as described by Mrs Hawkes). The reference here to 'asbestos insulated resistors' in his opinion could be to either method.[25]Mr Glenn in his report believed that this reference was to insulation of the wire and in cross examination the alternative method expressed by Mr Chambers was put to him. Mr Glenn did not agree that this second method was equally consistent because stitching a wire through an insulating lining would not completely cover the wire and to that extent it was not insulated. Selected written evidence submitted to the Advisory Committee on Asbestos 1976 – 1977 – Turner & Newell asbestos products[26]This document was published by the Health and Safety Executive in 1977. I was referred to the evidence provided by Turner & Newell Ltd, the then largest employer of labour in the UK asbestos industry. Section 4 concerns the production and use of Turner & Newell asbestos products and the subsection 2 details the uses of asbestos textiles and includes the following:
“Cable making Heat resistant electricity supply cable Wire covering Electric blankets Heating tapes”
Heating tapes”[27]Mr Chambers also relies on this as evidence that the electrical resistor wires were insulated with asbestos. In cross examination Mr Chambers said the reference to wire covering here could also be either insulation of the wire itself or the wire passed through an asbestos material as in paragraph 24 above. This document was referred to in the joint statement at a time when Mr Glenn’s opinion was that there was no asbestos within the inner lining of electric blankets and a discussion was had about whether asbestos was an insulator of the supply cable. In cross examination Mr Glenn confirmed that he had assumed that the reference to wire covering was to covering wrapped around the wire. Mr Glenn repeated his opinion that the use of an asbestos lining blanket would not sufficiently cover the wire to be insulation. He did not accept that covering the wire with asbestos was equally consistent with the method described by Mrs Hawkes. He also gave evidence that the cable making referred to was likely to be cables for power stations that had to resist high temperatures and therefore asbestos was used as the heat resistant material around those cables.

The testing of the Warmex Ltd electric blanket

[28]As part of his instruction in this case Mr Glenn identified on the internet an electric blanket made by Warmex Ltd, which he purchased. The experts now both agree that this blanket is likely to post-date the blankets made by Mrs Hawkes and come from the early 1960s. Mr Glenn referred to this in a letter of 9 July 2015 and he had the blanket analysed to see whether it contained asbestos. Mr Glenn referred to the testing of this blanket in his report prepared for the Court, however, by this time he was not able to say conclusively which parts of the blanket had been tested. As a result, the Claimant’s solicitors sought further testing of the blanket and this was undertaken and provided to me on the first day of trial. The company carrying out the analysis, Bradley Environmental, took specimens from the external electric cord, the pink outer layer of the blanket, the hessian second layer and what is referred to as the “inner insulating layer”. No asbestos was detected within any of these four samples. However, a fifth sample from the inner electrical cable did test positive for asbestos, in particular in the form known as chrysotile.[29]In cross examination Mr Glenn stated that the patent specification 882,467 sounded like the blanket that he tested and thought that it corresponded to it over all, in particular there was insulation to the heating wires. Mr Glenn accepted that this could have been an improvement on a previous method but that he did not know that. Mr Glenn said it was likely that the blanket post-dated Mrs Hawkes time at the company and gave no conclusive evidence at all about the blankets she worked on. The inner lining of this blanket he felt could be used to support a heating element but the wire appeared to go through the inner lining only once, although Mr Glenn had not taken the blanket completely apart.

Opinions on consequences of stitching of the inner lining of the blanket

[30]Mrs Hawkes describes in her witness statement using a long needle to thread the electrical wire through the asbestos blanket. She said there was another woman working on the other side of the blanket and they would pass the needle and wire back and forth between each other. Mr Chambers produced two diagrams that he had created giving a pictorial description in cross section and “birds-eye” view. In cross-section he had drawn a central inner lining through which the heating wire passed depicting only a small proportion of the wire on the side of the inner lining closest to the mattress.[31]Mr Chambers explained that he had “come up with” the drawing to assist the court and that he demonstrated a logical way of how an inner asbestos lining could be stitched to hold the wiring. Mr Chambers’ interpretation was that as little of the wire would be at the “bottom” as possible: meaning facing towards the mattress. Mr Chambers explained that this would be because of the risk of mattress fires and the need to minimise heat going down to the mattress because of that risk of fire. He agreed that his postulated mechanism meant that it would be necessary to use the blanket the same way up each time otherwise the majority of the wire would be facing the mattress. You would also want the heat from the upper facing wires to pass up through the bedding. Mr Chambers speculated that there might have been labels indicating a top surface and bottom surface, although there was no evidence of this. It was put to Mr Chambers in cross examination that it would have been more sensible to insulate the wire and he did not answer that question.[32]Mr Glenn gave evidence that the purpose of an electric blanket was to raise the temperature of the bedding to 20°C. He did not believe there was a fire risk unless there was damage to the electrical cable. He also thought that if the asbestos lining was being used as thermal insulation you might increase the fire risk by concentrating the heat and therefore it was more likely that the asbestos was being used as electrical insulation. However, it could be used to dissipate heat evenly and would be more effective than a bare wire. When referred to Mr Chambers’ diagram and the explanation he had given about fire risk Mr Glenn said that warming the mattress was beneficial and fire was not a hazard. The risk of setting light to the bedclothes was higher than the risk of setting light to the mattress and in his opinion the mattress was not considered to be a fire risk. However this was contrary to what he had written in his letter dated 28 May 2015 where he stated that trapping the heat between the electric blanket and mattress by asbestos would probably increase the risk of a fire. However he explained in cross examination that there had to be a fault in the wiring in the first place to increase the risk of fire. Mr Glenn did accept that it was not impossible that the wire Mr Hawkes used was a bare one (i.e. there was no insulation on the wire itself).[33]I have already set out in paragraphs 24, 25 and 27 the experts’ opinions on insulation of the wire itself or by the use of the inner lining. The patent 882,467 does demonstrate the use of an insulated wire but the insulation material there is plastic. The patent 555,125 for the heated jacket also demonstrates an insulated wire, but using asbestos.

Were asbestos textiles “fluffy”?

[34]At the conclusion of Mr Chambers’ evidence I asked him whether the “fluffy” material described by Mrs Hawkes was typical of an asbestos textile. Mr Chambers replied that it was consistent with an asbestos textile. In his evidence in chief Mr Glenn said that he had never come across asbestos cloth being described as “fluffy”. In cross examination Mr Glenn was asked why he had not referred to this before. In his report Mr Glenn repeats what Mrs Hawkes put in her witness statement but said that he did not think the description of the material would be relevant and said that he had never come across fluffy asbestos. He thought it was highly unlikely that the inner lining was asbestos although there must be a possibility but that he saw no reason why it should be. After the conclusion of the evidence the Claimant introduced at a very late stage, with the agreement of the Defendant, an extract from the Health and Safety Executive website entitled “loose fill asbestos” that demonstrated and described “a loose fluffy insulation material (similar to candy floss)”. I can say now that I did not find this information helpful as although it indicates that asbestos may come in a form that is “fluffy”, it is not evidence of whether asbestos textiles, such as the inner lining proposed, which would have had to be strong enough to withstand stitching with a wire or cable, would be consistent with the description of “fluffy”.

The experts on the issue of asbestos in the electric blanket

[35]Both Mr Steinberg and Mr Macpherson sought to undermine the credibility of the opposing party’s expert. Mr Chambers, having been sworn, gave evidence in chief confirming the accuracy of his written evidence but until cross examination did not identify that he had misinterpreted the diagram referred to in paragraphs 19 and 20. His misinterpretation was a key part of his opinion that the inner lining was made of asbestos both in his report and the joint statement. Although I was surprised that this mistake in particular had not been corrected in his evidence in chief I do not take much from it on the question of credibility. However, it does call into question the possibility of confirmation bias as it is abundantly clear when reading the patent specification that figure 4 is a wire and not a cross-sectional image of layers of material. I suspect Mr Chambers saw that diagram, which seemed consistent with Mrs Hawkes’ evidence and his own theory and accepted it without considering the full detail of that piece of the evidence.[36]Mr Glenn was cross examined by Mr Steinberg and he had to concede that his initial view that there was no asbestos in the electric blanket he had had tested was not correct, that his initial instructions to have the blanket analysed had not been retained and that his answer in the joint statement that there was no asbestos in the tested blanket was no longer correct. Mr Glenn's answers to the question about why he had not referred to the “fluffy” material also raised an issue about his credibility. Mr Glenn had opened the electric blanket himself before the first testing took place, which I found surprising given at the time he did so there was at least the possibility that it contained asbestos.[37]Neither expert could claim to be an expert in “electric blankets” and both of them had entered into quite a lot of speculation about what may or may not have happened in 1946 – 1952 in this particular factory. I am not critical of that, to be clear, but where there is speculation I must be careful to see whether it is consistent with the evidence. I found Mr Chambers somewhat more reluctant to answer questions clearly than Mr Glenn and I was somewhat concerned that both experts were attempting to argue the position about whether or not the inner lining was made of asbestos. In my view, this is explained by the starting positions they took and their approach to their role in this case, which they identified when they gave evidence. Mr Glenn’s starting position was derived from his letter 28 May 2015 where his opinion was that it was unlikely that asbestos would be contained within an electric blanket for a number of reasons. This opinion was then reinforced when the first set of results of the testing of the electric blanket he purchased had been received, which he set out in his letter of 9 July 2015. However, the failure to ensure that each element of the blanket had been analysed (and a failure to record the instructions) also raises in my mind the question of confirmation bias. In cross examination Mr Glenn said that he and Mr Chambers often had to deal with cases where there was little evidence and that his belief was that Mrs Hawkes was mistaken about describing a sheet of asbestos, there was no independent evidence of this and that as an expert he had to look beyond Mrs Hawkes’ statement and look for some supporting evidence, which he could not find. Mr Chambers on the other hand had reached his conclusions (albeit not exclusively) on the erroneous interpretation of figure 4 which then fell away, so that he accepted in cross examination that he relied on the evidence of Mrs Hawkes. He then sought to show how the other evidence was consistent with it.[38]To be clear, I do not suggest that either of the experts deliberately sought to mislead the court. However, I do approach both experts’ evidence where they are not in agreement with a degree of caution on the issue of whether or not the inner lining was made of asbestos for the reasons that I set out above.

Were the inner linings of the electric blankets made of asbestos?

[39]My finding is that the Claimant has not proved on a balance of probabilities that the inner linings of the electric blankets that Mrs Hawkes worked on between 1946 and 1952 were made of asbestos. The reasons for coming to this conclusion are as follows: i) I am satisfied that there was asbestos within the Warmex Ltd factory at the time Mrs Hawkes worked there. In 1997 she gave this information to her general practitioner when there was no suggestion that she had an asbestos related disease. She also confirmed to her daughter Mrs Cornforth that there was asbestos present in the factory; ii) I am satisfied that the advertisement from ‘Popular Science Monthly’ dated January 1919 demonstrates that in the USA electrical wires were used to heat asbestos-containing blankets and that this therefore means it is feasible that the description provided by Mrs Hawkes of the use of an asbestos inner lining is correct. They are not technical drawings and cannot be relied upon to any further extent in my judgment; iii) The 1942 patent 555,125 – the heated jacket. As asbestos is mentioned as being used as heat insulating material in the wire, it might be expected that it would be specifically referred to if it was incorporated as part of the “textile or other material”. My conclusion is that the patent demonstrates that asbestos was used as a heat insulator inside and around the electrical wire and not as a textile inner lining for the garment through which the wire was fed; iv) The patent from 1942, 555,125 for the jacket clearly records that asbestos was used within and around an electric wire as the heating element within the garment. The blanket that Mr Glenn purchased demonstrated asbestos in the heating element. The later patent for an electric blanket 882,467 used an insulated wire, although the insulation was plastic. None of those blankets or garments used an inner lining of asbestos textile. Although it is possible that the company could have changed the method used when it produced electric blankets and then subsequently changed the methodology back to using an insulated wire (initially using asbestos and subsequently using plastic) it seems to me more likely that a method of heating the garment in 1942 would be used shortly after the war to make heated blankets and then that insulated wire method would be updated with the new material, namely plastic. I do not see that changing the method from stitching a wire through the inner lining to creating a conduit within the blanket makes any difference to the conclusion that I have reached. In fact I would have thought that if a conduit had been created within an asbestos textile that would have more satisfactorily insulated a bare wire than the method proposed by Mr Chambers; v) I find the method of insulation proposed by Mr Chambers of stitching or threading a wire through an asbestos blanket unlikely to have been adopted. It seems to me that it poses problems because it would require any electric blanket to be always the “right way up”, assuming that Mr Chambers’ suggestion that the asbestos was to guard against fire is correct. It also does not insulate the wire on those surfaces where the wire is not in contact with the asbestos. Although I have to bear in mind what I said about the credibility of both experts I do find Mr Glenn’s opinion on this aspect makes logical sense. For these reasons as well, I find that the references to “wire covering” in the evidence from Turner & Newell and “insulated resisters” in “The Willing Servants – History of Electricity in the Home” to be references to covering the wire itself with asbestos and not threading or stitching wire through an asbestos blanket. That is also the common-sense reading of those documents; vi) Mr Chambers’ diagram was his attempt to represent pictorially what Mrs Hawkes described and to make that consistent with his view that the asbestos inner lining was used to reduce the risk of fire. I find it impossible to decide whether the asbestos was used to reduce the risk of fire or as a heat insulator although I note that within the patent for the jacket it is referred to as a heat insulator. I have already indicated that I do not accept the method that Mr Chambers proposed. His diagram does not help me for that reason and also because it is to some extent “circular” as it relies upon Mrs Hawkes’ evidence of stitching through the inner lining; vii) I do not take into account the experts’ opinions on whether or not asbestos textiles could be “fluffy”. They gave contradictory evidence and I do not think it is safe to rely on either of their views on this point, for the reasons I have already explained; viii) Mrs Cornforth’s evidence was that the wire was covered with asbestos. Her evidence was not tested in court but it is consistent with my findings in relation to the other evidence that was available, in particular the 1942 patent and the electric blanket that was tested. She does not support the Claimant's case that the inner lining was made of asbestos. Presumably, the Claimant would have called her to give oral evidence if she was going to say that when she referred to covering of the wire, she had been told it was threading the wire through the inner lining; and ix) Mr Macpherson referred me to previous cases of litigation involving asbestos in particular Sloper v Lloyds Bank [2016] EWHC 483 (QB) at paragraph 60 onwards where observations are made about the inherently fallible process of attempting to remember events in the distant past. Mr Steinberg urged me not to treat such cases as legal authority and I do not, but the observations they contain are relevant. Mrs Hawkes does recount certain details in her statement that indicate it may be generally accurate, such as the name of the company’s owner and the name of his wife and daughter. Mrs Cornforth states her mother was a “very detailed sort of person”. However, the events in question started 70 years before Mrs Hawkes provided her witness statement. She provided that witness statement in no doubt the very difficult circumstances that she found herself in shortly before her death. To my mind it is perfectly understandable that she made an error in determining the source of asbestos and I conclude that she did, although that does not mean I reject all of her evidence. The evidence that is more reliable is derived from the patents and the use of asbestos for insulation of the wire itself. Mrs Hawkes’ evidence is not consistent with that evidence. Furthermore, even if Mrs Hawkes believed the fluffy inner lining was made from asbestos then on the basis of her evidence it would still have been in use in 1962 (see paragraph 11(vi)) above and this is inconsistent with the experts’ agreed position that asbestos would not have been in use at that time. That position may need to be qualified, as it may be that asbestos was in use then as a wire covering, as the subsequent testing of the blanket has implied, but it does not alter the position over the evidence concerning the inner lining. For these reasons I do not accept Mrs Hawkes’ evidence that the inner lining was made of asbestos.[40]Mr Steinberg urged me to apply Ockham’s razor. Taking everything together, I conclude that the use of an inner lining made from asbestos is not the explanation that is most consistent with the evidence. The simplest explanation is that it was the wire that was insulated by being covered with asbestos. The Claimant has not proved his case.[41]The parties agreed that if I found that the blanket was not made of asbestos that would dispose of the case. I will however, go on to deal with the further issues raised.

Asbestos Industry Regulations 1931

[42]If the inner lining had been made of asbestos then the Claimant’s case is that there would have been a breach of the Asbestos Industry Regulations 1931. These Regulations were made under the Factory and Workshop Act 1901 following a report prepared by Merewether and Price: “Report on Effect of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry” published in March 1930 and “Report on Conferences between Employers and Inspectors Concerning Methods for Suppressing Dust in Asbestos Textile Factories” published in 1931. These Regulations have been analysed by the Supreme Court in McDonald v National Grid Electricity Transmission plc [2015] 1 AC 1128 (neutral citation [2014] UKSC 53).[43]The relevant extract from the Regulations is the Preamble and is as follows: “. . . they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on:(i) breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto;(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;(iii) the making of insulation slabs or sections, composed wholly or partly of asbestos, and processes incidental thereto;(iv) the making or repairing of insulating mattresses, composed wholly or partly of asbestos, and processes incidental thereto;(v) sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed wholly or partly of asbestos in the manufacture of such articles;(vi) the cleaning of any chambers, fixtures and appliances for the collection of asbestos dust produced in any of the foregoing processes. Provided that nothing in these Regulations shall apply to any factory or workshop or part thereof in which the process of mixing of asbestos or repair of insulating mattresses or any process specified in (v) or any cleaning of machinery or other plant used in connection with any process, is carried on, so long as (a) such process or work is carried on occasionally only and no person is employed therein for more than eight hours in any week; and (b) no other process specified in the foregoing paragraphs is carried on.” (i) breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto; (ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes; (iii) the making of insulation slabs or sections, composed wholly or partly of asbestos, and processes incidental thereto; (iv) the making or repairing of insulating mattresses, composed wholly or partly of asbestos, and processes incidental thereto; (v) sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed wholly or partly of asbestos in the manufacture of such articles; (vi) the cleaning of any chambers, fixtures and appliances for the collection of asbestos dust produced in any of the foregoing processes.[44]Asbestos is defined as “any fibrous silicate mineral, and any admixture containing any such mineral, whether crude, crushed or opened”. Asbestos textiles is also defined as “yarn or cloth composed of asbestos or asbestos mixed with any other material”.[45]The Claimant’s case is that the stitching or threading of the inner lining and all the manipulation of the inner lining by hand comes within paragraph (ii) of the preamble. The Defendant says it does not.[46]In McDonald v National Grid Mr McDonald worked for a company collecting ash from Battersea Power Station. Whilst undertaking this work he would go into areas of the power station where pipes were being lagged with asbestos. The evidence was that he came into contact with the asbestos when it was being mixed with water in order to carry out the lagging. Two related issues were: first, whether the Asbestos Industry Regulations 1931 applied to Battersea Power Station as it was not involved in the manufacture of asbestos but rather in the use of asbestos products. Secondly, was the process of “mixing” referred to paragraph (i) of the preamble a technical description of an activity carried out by the asbestos industry or should it be given its natural and ordinary meaning.[47]I take the following key points from McDonald v National Grid: i) The application of the Regulations is broad and anticipates covering processes that were not in existence at the time the Regulations were made (Lord Kerr paragraph 9); ii) The proviso cuts down the scope of the Regulations but indicates that they will apply even if the main business of factory or workshop is not the manufacturer of asbestos goods (Lord Kerr paragraph 12 and Baroness Hale paragraph 98); iii) The emphasis of the Regulations is on the processes rather than nature of the industry (Lord Kerr paragraph 27); iv) The Merewether and Price Report was not restricted to the asbestos manufacturing industry and as such there is no justification for considering that the Regulations should only apply to the manufacture of asbestos and that the risks arising from other forms of exposure should be ignored (paragraphs 28 to 33 Lord Kerr); v) As the Merewether and Price Report observed, the asbestos industry had developed and asbestos was frequently worked, manipulated, mixed and transformed after the supply of the raw material to the customer. “It is doubtful that the Secretary of State would have concluded that insulation companies which were not engaged in the manufacture of asbestos but whose workers were daily exposed to asbestos while manipulating it for application… should not be regarded as part of the asbestos industry.” (Paragraph 35 Lord Kerr); vi) A plain meaning is to be given to the preamble in applying the Regulations to all of the processes listed (paragraph 44 Lord Kerr); vii) “The purpose of the Regulations was surely to protect workers from the consequences of asbestos dust. I do not myself see why that protection should be limited to those affected by asbestos dust in the process of manufacture and repair and not those affected whenever a defined process was carried on in a factory or workshop.” (Lord Clarke paragraph 117); and viii) The Secretary of State cannot be presumed to have ignored the risk to those who worked with asbestos, other than in the manufacturing process, that the Merewether and Price Report had clearly identified and mixing should not be given a restricted technical meaning (Lord Kerr paragraph 48 to 49). Baroness Hale also rejected the technical application to the word “mixing” (paragraph 100). Lord Clarke said that the word “mixing” should be given its ordinary and natural meaning (paragraph 120).[48]Applying McDonald, in my judgment, the Asbestos Industry Regulations do not apply to the stitching or threading of the inner lining (on the assumption that the inner lining was made from asbestos). My reasons for reaching this conclusion are as follows: i) The Regulations apply to the Warmex Ltd factory or workshop as a matter of principle but in order to be applicable one of the six processes set out in the preamble must apply; ii) As the Claimant alleges, the only applicable process is set out in paragraph (ii). Reading that paragraph in conjunction with the definition of “asbestos textiles” leads me to conclude that the scope of this paragraph is the manufacture of yarn or cloth wholly or partly made of asbestos. It does not cover the manufacture of products made with those textiles; iii) Paragraphs (iii) to (v) concern processes involved in manufacturing products (or “articles” as referred to in paragraph (v)). The yarn or cloth in paragraph (ii) is also a product. If there had been an intention to cover articles or products manufactured from asbestos textiles the Regulations would have said so; iv) The natural and ordinary meaning of finishing a textile does not include turning that textile into a product; v) Threading or stitching a wire through a piece of asbestos textile cannot in my view be considered to come within the ordinary and natural meaning of the 'finishing' process of an asbestos textile. This remains the case even if I include handling or manipulation of the inner lining itself in order to carry out the stitching; vi) Not every activity associated with asbestos is caught by the Regulations notwithstanding the need to interpret the Regulations broadly. For example, there is reference in McDonald to doubt over whether removing asbestos lagging would come within the Regulations (Lord Kerr referring to Baroness Hale's judgment in Jeromson v Shell Tankers (UK) Ltd [2001] EWCA Civ 101). Lord Reed in the dissenting judgment in McDonald also refers to sawing preformed lagging as not coming within the Regulations as paragraph (v) only covers “sawing” where that goes to the manufacture of the article itself. A factory that used components made from asbestos without modification in the production of another product would not be caught either; and vii) The Report on Conferences between Employers and Inspectors Concerning Methods for Suppressing Dust in Asbestos Textile Factories reviews the processes involved in manufacturing textiles from asbestos. It does not cover the use of those textiles to form products. It does not cover any form of stitching or cutting for example.[49]Mr Steinberg said I would have to be brave to not follow the Supreme Court in McDonald. In my view I am following the Supreme Court McDonald when, notwithstanding the fact that the Regulations apply not just to those factories where asbestos was manufactured in its crude form, the Supreme Court was clear that one of the six processes needed to be engaged. For the reasons I have given above I do not think that it is plausible to fit the activity described by Mrs Hawkes, even with the possible associated handling of an asbestos inner lining in addition to the stitching/threading, within the definition of finishing an asbestos textile.[50]If I had found that the Regulations were applicable then I would have found a breach of regulation 1 (d) which requires:
“an exhaust draft effected by mechanical means which prevents the escape of asbestos dust into the air of any room in which persons work, shall be provided and maintained for – … (d) Work benches for asbestos waste sorting or for other manipulation of asbestos by hand” … (d) Work benches for asbestos waste sorting or for other manipulation of asbestos by hand”
[51]If the inner lining had been made of asbestos then bearing in mind the principles in McDonald I would have found that the stitching/threading and associated manipulation would have satisfied this part of the Regulations. Mr Macpherson urged me to apply a very restrictive interpretation of the definition of asbestos referring back to the raw material used in manufacture. However, that approach is not consistent with the approach of the Supreme Court in McDonald. Mrs Hawkes in her evidence identifies that there was no such mechanical ventilation and notwithstanding the reservations I have previously outlined about her evidence I would have accepted that position in the absence of evidence to the contrary.

Section 47 Factories Act 1937 and the Common Law

[52]In the event the inner lining were made of asbestos, the Claimant also brings a claim on the basis of a breach of Section 47 Factories Act 1937 which states:
“In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to such extent as to be likely to be injurious or offensive to the persons employed, or any substantial quantity of dust of any kind, all practicable measures shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom, and in particular, where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the point of origin of the dust or fume or other impurity, so as to prevent it entering the air of any workroom.”
[53]In McDonald Lord Kerr at paragraph 73 sets out the proper application of this section as follows:
“Proper application of the subsection requires a staged approach: (i) is the dust, fume or other impurity which is given off of such a character and given off to such an extent as to be likely to be injurious or offensive to the persons employed? (ii) if not, has any substantial quantity of dust of any kind been given off in the workroom where the Claimant was a person employed? (iii) if the answer to (i) or (ii) is “yes” are there practicable measures which can be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulation in any workroom? And (iv) if the answer to (iii) is “yes” have they been taken?”

The second limb of s47

[54]It is convenient to consider the second limb of the subsection first. “Substantial” has been interpreted as meaning “lots of dust” and more recently “a considerable quantity of dust” and the point at which the assessment of that should be undertaken is when the dust is produced, not when it is inhaled. In Ebbs v James Whitson & Co [1952] 2 QB 877 Bagnall J considering section 63 of the Factories Act 1961 (the same wording as section 47 of the 1937 Act) stated:
“‘Substantial’, in my view, does not mean merely ‘not negligible’: there must be, to use a common phrase, ‘a lot of dust’; and it must be substantial when given off, not substantial merely by accumulation over a period.”
[55]In McDonald Lord Kerr at paragraph 76 stated:
“I consider therefore that the duty to take practicable measures arises whenever a considerable quantity of dust is given off and that the activation of the duty is not dependent on its being shown that the quantity of dust was considerable at the moment of inhalation.”

The factual evidence of the amount of dust and any measures to control it

[56]The evidence of Mrs Hawkes is as follows: i) When she was doing the threading her face was right over the blanket and bits of asbestos would come off all the time and get on her clothes. She could see dust in the air from the asbestos blankets; ii) Even when not working with asbestos she was working close to people who were working with it and she could “see asbestos particles floating about everywhere so I was always exposed to it in the factory”; iii) At the time she did not know it was dangerous and they had no masks or protection. There was no extraction other than windows; iv) The factory was 70 feet long or perhaps 100 feet long and about 30 to 40 feet wide. When working on the blanket covers she was facing people who were working on the asbestos blankets.[57]Mrs Coleman states “I don't remember whether the factory was dusty.”

The expert evidence on the amount of dust

[58]The experts were agreed on the following points in relation to the period between 1946 and 1952: i) Employers were not able to measure dust concentrations in the atmosphere; ii) There was no literature on asbestos dust concentrations; iii) There were no published limits or standards concerning asbestos dust; and iv) The only method of analysing the quantity of dust in the air was a visual one.[59]Both experts relied upon a publication entitled “Asbestos Dust Concentrations in Ship Repairing: A Practical Approach to Improving Asbestos Hygiene in Naval Dockyards” published by PG Harries in 1971. This paper was a survey of asbestos fibre concentrations associated with work involving asbestos insulating materials in naval ships. Dr Harries took samples from the “general atmosphere” and “breathing zone” whilst the various activities were undertaken. The relevant extract is set out below: General Atmosphere Breathing Zone No of samples Mean fibres/cm3 Range No of samples Mean fibres/cm3 Range Ripping cloth untreated 2 33 23-43 5 7 0.3-16.5 Stitching cloth - - - 12 3.4 0-10 Fitting cloth over lagged pipes - - - 7 22 0.3-43[60]The experts agreed that the result for “mean fibres” was a “time weighted average”. What this means is that it is an average concentration over the time that the sample was taken. Therefore, if an activity was undertaken infrequently during the sampling period it would be possible to have high peak concentrations of asbestos but the mean/average might be low, depending on the length of the sampling period. The longer the sampling period and the less frequent the activity, the lower the mean.[61]I was also referred again to the evidence from Turner & Newell in particular the section on page 129 referring to the use of asbestos textiles by customers. The extract that is relevant states:
“dust levels can be notably higher in premises, especially in small ones, whose main business is substantially outside the asbestos industry… The main processes which may create dust are: handling, hand and mechanical cutting, sewing,…”
[62]In his report Mr Chambers’ conclusion was that the exposure from “handling cutting and sewing of asbestos cloth' would be at a peak of 40 fibres per ml. This was based on the Harries paper looking at the figures for fitting of asbestos cloth to lagged pipework and sewing. He said the mean exposure was likely to have been up to 20 fibres per ml 'from handling the cloth”. He concluded that when not working directly with the asbestos cloth the concentrations would have been 10% of those generated at source. During cross-examination Mr Chambers, when asked whether the figures from the Harries paper were going to be equivalent to Mrs Hawkes situation, stated it was the best evidence available. His explanation for the lower figures for stitching of asbestos cloth was that this often took place “towards the top of the ship”. He agreed that ripping was dustier than stitching but pointed out that in his view, as the figures were time weighted averages, one or two rips over 30 minute period might lead to a lower mean level but that it was helpful in his opinion to estimate the amount of dust given off by that activity. He said that he had been in lots of textile factories and they were dusty places and that dust would be generated by Mrs Hawkes passing the needle by hand. By implication, Mrs Hawkes would have handled cloth as well as stitching it and he thought that ripping the cloth was broadly similar to what Mrs Hawkes did and that cutting and handling would be the dusty processes. His view was that the asbestos cloth would have been purchased on rolls although he did not know that he thought it was most likely. There was a discussion about whether the cloth would have been vacuumed before being used but Mr Chambers said he thought that was unlikely (vacuuming would reduce the amount of dust). His conclusion in his experience was it was most likely that the asbestos was brought to the factory on a roll and cut to size, although he confirmed it was his supposition. Mr Chambers concluded that he thought a weighted average of 7 fibres per ml was not unreasonable for Mrs Hawkes’ exposure, but on occasions it would be at a higher level and he thought 40 fibres per ml likely. In response to questioning from me Mr Chambers said that he thought asbestos at 40 fibres per ml would result in visible dust although at 12 fibres he commented that it was difficult to relate visibility to be fibre count.[63]Mr Glenn was of the opinion that care should be taken by adopting measurements taken during intensive work on board ships to the activities undertaken by Mrs Hawkes. He referred to the measurements reported by Harries relating to sewing. He thought it unlikely that Mrs Hawkes was ever required to work in a cloud of visible dust. In the joint statement he referred to the level of asbestos dust measured while ripping untreated cloth which Harries reported as “a vigorous procedure” creating general dust concentrations of 33 fibres per ml and breathing zone levels of seven fibres per ml. Mr Glenn said that Mrs Hawkes was not required to rip cloth. He agreed that sewing created dust and that he thought Harries had been as accurate as he could be. When questioned on whether the number of people present would increase the mean figure of fibres per ml Mr Glenn said that in terms of neighbourhood exposure that would be correct. In response to my question Mr Glenn said his belief was that 40 fibres per ml without any other dust would not be clearly visible. It may be possible in specialist lighting. In practice his opinion was that other dust would be present at 40 fibres per ml and a significant cloud would be seen. At 12 fibres per ml he did not believe that dust would necessarily be seen, but he could not be certain.[64]I preferred the evidence of Mr Glenn to that of Mr Chambers. I felt Mr Chambers was uncertain in his answers and notwithstanding the reservations about the Harries paper and the possibility of various other workers within her proximity he seemed reluctant to accept the figures of fibres released for sewing when this seems the closest analogy to Mrs Hawkes’ activities. He also included a lot of speculation about what further activities would have been undertaken resulting in a higher fibre count. We do not know where the sewing took place in the Harries paper, nor do we know whether other activities involving handling of the textile are included, anymore than we do with Mrs Hawkes. Mr Glenn on the other hand accepted the points put to him and gave the answers with more confidence and I thought in response to my questions was fair indicating that at 40 fibres per ml a significant cloud of dust would probably be seen.[65]My conclusion on this issue is that the Claimant has failed to prove, on the balance of probabilities, that there was a substantial amount of dust. This is for the following reasons: i) I have particularly in mind that it is not the concentration of asbestos that is relevant to this finding but the amount of dust in general; ii) I do not take into account the evidence of Mrs Coleman. Her comment that she did not remember whether the factory was dusty cannot be taken to support the proposition that it was not dusty; iii) Mrs Hawkes describes seeing dust in the air. There is no description of the quantity and I think it likely that she would have provided some further indication of the amount of dust if had been at a significant level. She also describes it as “asbestos particles floating about everywhere' but again this in my view does not amount to enough to satisfy the test of a considerable amount of dust. Similarly bits of asbestos getting on her clothes do not give an indication of a significant amount. I accept what she states at face value in the absence of contrary evidence, but I am not satisfied that these features alone or in combination satisfy the test in section 47; iv) The experts could only help by discussing the levels of asbestos dust, which in themselves are not sufficient to indicate whether the dust would be visible, let alone considerable. Mr Glenn was of the view that if the asbestos had been at the level of 40 fibres per ml, in particular in combination with other dust, then a significant cloud would have been seen. In the absence of any further evidence the most reliable evidence comes from the Harries paper and the results from the activity of sewing. The peak concentration recorded for that activity was 10 fibres per ml. There is no evidence that material was cut or ripped in the factory. Even allowing for some margin, in my judgment if the inner lining had been made of asbestos I do not find that the activities undertaken by Mrs Hawkes would have resulted in peak levels in excess of 10 fibres per ml. This level of asbestos dust in itself would have been unlikely to be visible. As McDonald makes clear the issue is the amount of dust given off at source. The activities of others within the factory would not alter the obligation on the employer in relation to Mrs Hawkes even if she no longer undertook the particular activity giving off the dust as those undertaking it would be creating a similar level of dust from the same activity; and v) Taking all the points above in combination I do not find that there was substantial dust given off associated with the activities of stitching/threading the inner blanket.[66]I will deal with the consequences if I had found that substantial dust had been produced below at paragraph 101.

The first limb of section 47 and the Common Law duty

[67]It was agreed between Counsel that first limb of the Factories Act added nothing to the common law position in that it was necessary in both to demonstrate reasonable foreseeability of injury and that this was equivalent to “to such extent as to be likely to be injurious or offensive”, the phrase used in the Factories Act.[68]The common law formulation of the duty is set out in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1WLR 1776 at page 1783: “…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”.[69]In order to understand what follows it is necessary to record an issue agreed between the parties. In 1947-1952 it was not known that mesothelioma was a potential consequence of exposure to asbestos and it was certainly not known that very low levels of asbestos fibre (possibly even one fibre) could cause the disease.[70]In Jeromson v Shell Tankers [2001] EWCA Civ 101 Hale LJ as she then was gave the leading judgment. This case concerned two employees who died from mesothelioma following exposure to asbestos in the 1950s when employed as marine engineers. The parties had agreed on the legal principles and Hale LJ quoted the judge’s reliance on Margereson v Roberts [1996] PIQR P358 at 361 and the House of Lords decision in Page v Smith [1996] AC 155. It did not matter if at the relevant time if it was not understood that the diseases thought to be caused by asbestos did not include mesothelioma – “it is sufficient if any personal injury to the primary victim is foreseeable”. The quote from Stokes v Guest that I set out above was also referred to. In the section “identifying the issue” Hale LJ stated at paragraph 37:
“However, where an employer cannot know the extent of any particular employee’s exposure over the period of his employment, knows or ought to know that exposure is variable, and knows or ought to know the potential maximum as well as the potential minimum, a reasonable and prudent employer, taking positive thought for the safety of his workers, would have to take thought for the risks involved in the potential maximum exposure. Only if he could be reassured that none of these employees would be sufficiently exposed to be at risk could he safely ignore it.”
[71]Mr Macpherson sought to argue that the extract that I have quoted was not in fact a statement of Hale LJ but rather the submission made by leading counsel on behalf of Shell as the first sentence of that paragraph refers to such a submission (which I have not reproduced). In my judgment Mr Macpherson is wrong because first, the submission was that what was relevant was the mean concentration and the extract I have quoted rejects that submission. Secondly, if it were the defendant’s submission it would have been contrary to the defendant’s interests and thirdly, the use of the word “however” indicates that it is the opinion of Hale LJ following that submission. I am reinforced in that conclusion by paragraph 40 which is as follows:
“… Whatever the descriptive words used in a context where precise measurement [of the exposure to asbestos] is not possible, the question remains whether the actual exposure found by the judge was such that the reasonable and careful employer taking positive thought for the safety of his workers would have identified enough of a risk for him either to take precautions or to take advice.”
[72]In Jeromson, the judge’s conclusion, having reviewed various contemporaneous documents and publications was upheld by the Court of Appeal, namely the judge was entitled to conclude there was foreseeable harm flowing from the exposure at the relevant time.[73]The Claimant also relies on Maguire v Harland & Wolff plc [2005] EWCA Civ 01. Mrs Maguire had died from mesothelioma following exposure to asbestos fibres from her husband’s work clothing, when he worked for the defendant. The claimant lost the claim on the basis that the condition was not reasonably foreseeable for the wives of employees. However, Lord Justice Judge, giving the leading judgment, reviewed Jeromson and stated that as between employer and employee, there will be a breach of duty if there is a failure to reduce the employee’s exposure “to the greatest extent possible”, which he stated should be read as “practicable”, the word used in section 47 of the Factories Act 1937.[74]The Defendant relies in particular upon Williams v The University of Birmingham [2011] EWCA Civ 1242. Mr Williams, who had died by the time the case was heard, had been a student at the University and been conducting experiments concerning the speed of light in the tunnels in the basement of the science department. Whilst in the tunnel he had been exposed to dust including asbestos and he developed mesothelioma and died. One of the issues to be decided was the legal approach to mesothelioma cases. Lord Justice Aikens gave the leading judgment and at paragraph 31 set out the four well-known elements for the claimant to succeed and continued:
“.. the claimant must show, first, that the defendant owed the victim a duty of care not unreasonably to expose him to asbestos fibres and the consequent risk of asbestos related injury, including mesothelioma. Secondly, the claimant must show that the defendant was in breach of that duty by being negligent in exposing the victim to asbestos fibres and consequent asbestos related injury that was the reasonably foreseeable result of that negligence.”
[75]It is not necessary to quote the third and fourth elements and at paragraph 32 Aikens LJ continued:
“It is the second of these elements that is important in relation to the first two issues raised in this appeal. On the assumption (accepted at the trial) that the claimant has proved that the University owed Mr Williams a duty of care not unreasonably to expose him to asbestos fibres, how does a court approach the issue of whether the defendant was in breach of that duty? The answer must be comparing what steps the defendant took to prevent the victim from being exposed to asbestos fibres with an objective standard of what reasonable steps should have been taken to avoid reasonably foreseeable injury in the factual circumstances prevailing at the time. The ‘reasonably foreseeable injury’ in this case must be that of contracting mesothelioma.”
[76]At paragraph 36 Aikens LJ confirmed that the reasonable conduct must be judged by reference to the state of knowledge and practice as at 1974. At paragraph 61 it was concluded that the best guide in 1974 was the “Technical Data Note 13” of March 1970 and that none of the experts concluded that at the level of exposure found by the judge that the University ought reasonably to have foreseen that Mr Williams would be exposed to an unacceptable risk of asbestos related injury. The conclusion was that there was no breach of duty because the risk of mesothelioma was not reasonably foreseeable by the reasonable employer in 1974.[77]Williams apparently conflicts with Jeromson. Mr Steinberg pointed out that Jeromson is not referred to in Williams. In McCarthy v Marks & Spencer [2014] EWHC 3183 at paragraph 90 David Pittaway QC (sitting as a Judge of the High Court) followed Williams on the basis that the probable exposure to asbestos was below the level at which protective equipment was required. In Woodward v Secretary of State for Energy and Climate Change [2015] EWHC 3604 (QB) HH Judge Platts (sitting as a Judge of the High Court) followed Williams concluding that the standards were set out in Technical Data Note 13 which set an exposure limit and the claimant was not able to prove that those exposure limits had been exceeded. HHJ Yelton (sitting as a Judge of the High Court) in Bussey v Anglia Heating Ltd (unreported, 12 May 2017) was invited not to follow Williams but did so, concluding that if Williams is correct then the claimant cannot succeed in a claim before 1970 if the exposure is below the level in Technical Data Note 13. In Oldham v DEFRA (unreported, 20 April 2017, HHJ Maloney QC) considering the case of the development of asbestos-related lung disease (not mesothelioma) from exposure in the 1950s and early 1960s followed Jeromson on the basis that it related to the marine engineering environment.[78]I do not see a conflict in the two cases. In the quote from paragraph 31 of Williams Aikens LJ, when setting out the four elements the claimant is required to prove refers to the second element as:
“exposing the victim to asbestos fibres and consequent asbestos related injury [my emphasis] that was the reasonably foreseeable result of that negligence”
. At paragraph 40 of the judgment in the section headed “breach of duty – law” Aikens LJ disagrees with a statement made by the trial judge, which is that the University had a duty to take all reasonable measures to ensure Mr Williams was not exposed to a material increase in the risk of mesothelioma. Aikens LJ states:
“…the duty of care must be to take reasonable care (including measures if necessary) to ensure that Mr Williams was not exposed to a foreseeable risk of asbestos related injury [my emphasis].”
[79]He concludes that the trial judge had confused the question of reasonable foreseeability in the test for breach of duty with the test for causation. Further on at paragraph 44 Aikens LJ, when dealing with the judge’s conclusions on the degree of exposure to asbestos fibres and working on the assumption that it was more than de minimis, states it was necessary to ask further questions:
“…that is whether, given the degree of actual exposure, it ought to have been reasonably foreseeable to the University (with the knowledge reasonable university should have had in 1974) that, as a result, Mr Williams would be likely to be exposed to the risk of personal injury in the form of contracting mesothelioma. To determine that question, it seems to me the judge had to make findings about (1) the actual level of exposure to asbestos fibres to which Mr Williams was exposed; (2) what knowledge the University ought to have had in 1974 about the risks posed by that degree of exposure to asbestos fibres; (3) whether, with that knowledge, it was (or should have been) reasonably foreseeable to the University that, with that level of exposure, Mr Williams was likely to be exposed to asbestos related injury [my emphasis]…”
[80]In other words, the formulation to be applied to determine the breach of duty question is consistent with what was said in Jeromson, namely what needs to be reasonably foreseeable is asbestos related injury, not mesothelioma itself. In Williams the factual context was that in 1974, on the basis of the Technical Data Note 13, it was believed, or at least a reasonable occupier/employer in general terms was entitled to believe, that there was a level at which the exposure to asbestos did not create a risk of asbestos related injury. In Williams the injury that materialised was mesothelioma and the comments within Williams that refer to the reasonably foreseeable risk of mesothelioma need to be seen in this factual context.[81]The Defendant also relied on Abraham v Ireson & Son and Stanley Reynolds [2009] EWHC 1958 (QB) a decision of Swift J. Mr Abraham worked as a plumber between 1956 and 1962 using an asbestos pad to protect items from his blow torch and cut asbestos string and asbestos board. Swift J found the exposure was light and intermittent. Applying Jeromson and analysing the contemporaneous publications, she found that the employers were not in breach of the common law or the relevant statutes. This decision was before Williams, but in light of what I have already decided nothing turns on that point. What Abraham shows is what has to be decided is the state of knowledge at the time in question and the amount of dust, as a matter of fact.[82]I need to look at the factual context at around 1946 to 1952 in light of the legal position as I have analysed it above.[83]In the Merewether and Price Report the Summary and Recommendations for Part II “Processes Giving Rise to Dust and Methods for its Suppression” state:
“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. Very dusty processes will not fail to be recognised, but in processes such as spinning and weaving, in which in other textile trades special methods for dust control are not required, due precautions are also necessary.”
[84]I have already discussed the Asbestos Industry Regulations 1931 above but it is important to note the proviso or exceptions in the preamble that provide the Regulations do not apply if certain activities are only performed infrequently or for a limited number of hours per week. The implication is there must have been a consideration that some level of exposure was acceptable.[85]The “Report on Conferences between Employers and Inspectors Concerning Methods for Suppressing Dust in Asbestos Textile Factories” published in 1931 in the introduction states that “… In some textile processes, the amount of dust normally evolved appears to be too small in the light of present knowledge to warrant special recommendations being made for its suppression…” This is referred to as the “dust datum” although the introduction goes on to state:
“it is however desirable to emphasise that this limit is clearly provisional and is subject to alteration in the light of further medical experience”
. In the body of the document it states that “if particular processes appear to give rise to dust in excess of that associated with [flyer spinning], the Committee regard the need for preventative measures as established.”[86]The “Annual Report of the Chief Inspector of Factories” published in 1938 on page 63, when referring to section 47 of the Factories Act 1937 states:
“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. On the other hand where dust from a material can be shown to be relatively harmless the substitution of such material for a harmful one is a most valuable measure of protection.”
[87]I was shown extracts from the third edition of a publication entitled “The Works Engineer” by WRJ Griffiths. The third edition was published in 1951 and page 272 refers to silicosis and in particular sandblasting and states that the remedy is to eliminate that process altogether. Immediately following the section on precautions it states:
“Asbestosis is a disease similar to silicosis except that the latter is caused by breathing fine silica dust into the lungs and the former by breathing fine asbestos fibre. The results are much alike. The remedy is the complete covering of the machines, efficient dust exhaust systems, and liberal exhaust ventilation in the workshop.”
[88]I was all so referred to a publication entitled “Factory Well-Being” by C Conway Plumbe with a forward by GP Barnett, HM Chief Inspector of Factories. The publication date is 1949. In the foreword it states:
“…the aim of the employer in these more enlightened days should be to provide not only the bare minimum of amenities as laid down by law, but the means whereby to develop healthy and contented groups of workers.”
[89]Chapter 8 deals with silicosis and asbestosis. On page 55 it states:
“…asbestosis, though different from silicosis medically, is very similar in general terms. I t is caused by inhalation of minute particles of asbestos. Precautions are the same and equally necessary. The dust must on no account be inhaled.”
[90]The “Annual Report of the Chief Inspector of Factories” published in 1949 at page 144 contains a discussion of the Asbestos Industry Regulations and refers to the necessity of preventing “as far as possible the inhalation of asbestos fibre and dust”. The text goes on to discuss the attempts that industry had made to enclose processes involving asbestos and ventilate the enclosed spaces. It also covers spraying of asbestos and the necessity of preventative measures.[91]A publication from 1960 from the Ministry of Labour entitled “Toxic Substances in Factory Atmospheres” offers suggestions on reducing exposure to such substances. The first step is substituting the hazardous substance for one that is not hazardous. It then goes on to describe various other measures to reduce exposure ending with a section entitled “permissible concentrations”. The list includes asbestos and refers to the permissible concentration as five million particles per cubic foot of air.[92]The experts were able to agree the following relevant additional matters: i) It was not until around 1960 that the medical connection was made between asbestos fibres and mesothelioma; ii) The modern way of measuring the concentration of asbestos in the air is as fibres per millilitre (ml) (which is the same as a centimetre cubed (cm³)). There is no reliable way of converting millions of particles per cubic foot of air to fibres per ml. iii) From 1960 the idea of a minimum level of exposure to asbestos became established. iv) In March 1970 the publication of Technical Data Note 13 established a minimum safe level of exposure in fibres per ml; v) As time moved on the permissible level of exposure to asbestos decreased.[93]The Claimant’s submissions were that in 1946 to 1952 there was an appreciation that asbestos was dangerous and the risks of exposure even to low levels were unknown and therefore anyone paying attention to the various publications would have known that there was no 'safe' level of exposure. Mr Steinberg relied upon in particular the judgment in Jeromson and the seriousness of the consequences of the exposure to asbestos. Mr Macpherson submitted that Jeromson did not say that for all activities all reasonable steps should be taken and that Jeromson needed to be seen in the context of a finding of a substantial exposure to asbestos. The test is as set out in Stokes namely the reasonable employer following mainstream guidance. Mr Macpherson also submitted that the general drift is for standards to improve and therefore it must follow that a higher level of exposure to asbestos would have been permissible at the time in question, which is then reduced throughout the 1960s and 70s onwards. I am to apply a reasonable standard and that expecting all asbestos dust to be cut out is a standard that is higher than the one that is to be applied.[94]This discussion proceeds along the basis that the inner linings were made of asbestos, which have already found they were not. The first issue to determine is whether asbestos related injury was reasonably foreseeable. As I have already stated, it is not necessary for the development of mesothelioma to be reasonably foreseeable. Furthermore, was the amount of dust such that the reasonable and careful employer taking positive thought for the safety of his workers would have identified enough of a risk for him either to take precautions or to take advice, as per Jeromson?[95]Warmex Ltd ought to have been aware of the publication of the annual reports of the Chief Inspector of Factories prior to 1952 at a minimum. By 1938 asbestos is referred to as “highly dangerous” and in 1949 reference is made to preventing inhalation “as far as possible”. This is a development from the 1931 position of not being so sure about the danger of lower level exposure. My conclusion is asbestos related injury was reasonably foreseeable as a consequence of exposure to asbestos dust, even at low levels. However, some level of exposure is still contemplated by “as far as possible” and from the contemporaneous materials some level of exposure would have been accepted. The materials do not go so far as to say asbestos dust must be eliminated completely.[96]Warmex Ltd would have had no way of knowing what level of asbestos was in the air. The only method open to them would be a visual analysis. I have already in paragraph 65(iv) above addressed the likely concentration of asbestos fibres. However, I do not think that this helps determine the response that a reasonable and careful employer should have made because at the time an employer could not measure the amount or nature of the dust. If the inner linings were made of asbestos and they left “bits” on the clothing of those doing the threading and dust in the air, as Mrs Hawkes describes, then the question is: was it incumbent upon Warmex Ltd, bearing in mind the need to take positive thought for the safety of its workers, to consider doing something about that in the form of taking preventative measures? The Claimant does not advance a case on substitution.[97]Practically, in the absence of the ability to measure the amount and nature of the dust, how was an employer working with asbestos to gauge the dust levels unless they were minimal (which would include “light and intermittent” as per Abraham)? It would seem that the correct response to more than minimal dust where an employer could not be confident it was not coming from a source of asbestos, would be to consider that a risk was posed and this satisfies the test in the Factories Act and referred to as step (i) in paragraph 73 of McDonald (see paragraph 53) as well as the common law test of reasonable foreseeability.[98]The amount of dust to trigger the duty under the first limb of the test in section 47 of the Factories Act must be lower than “substantial” otherwise there is no point in the two-limb test. If “bits” of inner lining were coming off all the time and getting on her clothes during the stitching process I view this as more than minimal and enough to require Warmex Ltd to consider practicable measures to protect employees against dust inhalation (and this would be consistent with the obiter comments in Maguire). Although it might be said that “bits” are not “dust” I think one can infer from Mrs Hawkes’ evidence this at some level was a friable material producing “bits” and associated dust.[99]It does not matter what is known now, the employer was only able to base its response on visual inspection and information available at the time. Unless the employer could be confident (in light of what was known at the time) that the dust was not coming from the asbestos materials, in a factory known to be working with asbestos, it does not matter in terms of breach of duty that the visible dust may not have been in fact asbestos. It could not have been established at the time what it was or in what amount. In this case I have already concluded it would be unlikely to have been visible asbestos (paragraph 65(iv)) but rather a combination of dusts. It also does not matter in my view that the “threshold” for taking action might be at a lower fibre count (if it could have been measured) than the ones that became established as safe levels (erroneously) subsequently. The fibre count could not have been known at the time, but what was known was that asbestos was dangerous and all that could be relied upon was a subjective assessment of dust levels.[100]The common law obligation goes further than the production of dust at source and the dust generally in the atmosphere and visible in the air would also in my judgment have triggered the common law duty to take precautions or to take advice for the reasons I have given above.[101]Mrs Hawkes’ evidence was that no measures were taken to reduce the level of dust. I accept her evidence on this point in the absence of any evidence to cast doubt upon it (paragraph 56(iii)). I also need to determine if practicable measures were available (step 3 in para 73 of McDonald – see paragraph 53). Mr Glenn in his report said there were none, but in my view he reached that conclusion on his belief that the level of asbestos would have been below a threshold requiring action. In the joint statement Mr Glenn states he cannot suggest any means to reduce the escape of dust from a blanket: I find that hard to accept. Mr Glenn says it is nonsense to say Mr Hawkes should have worn a respirator but he does not explain why. He justifies the absence of supervision or monitoring on the basis that any risk was not within the Defendant’s knowledge at the time, but as I have already found it ought to have been within the Defendant’s knowledge. Mr Chambers sets out measures such as changes in working practices, extraction and personal respirators, which he says were available. The contemporaneous literature supports the availability of measures to control exposure. I conclude a range of practicable measures would have been available. I have had no evidence on their cost, inconvenience or effectiveness. However, it seems to me that some measures would not have been costly or inconvenient, such as a change in working practices and would have had an effect to reduce the exposure to the greatest extent practicable. As the employer cannot measure the dangerous dust, the only response to more than minimal dust must be to reduce it as far as practicable. Warmex Ltd had no measures in place and if the inner lining was made of asbestos they should have taken precautions or taken advice based on the evidence of Mrs Hawkes of the amount of dust, as what she describes is more than minimal. These failures would have been a breach of both the Factories Act and the common law.

Conclusion

[102]Mrs Hawkes died in 2014 from mesothelioma following occupational exposure to asbestos between 1946 and 1952. I have found that the Claimant has not proved on the balance of probabilities that the inner linings of electric blankets on which she and others worked were made from asbestos and accordingly, as agreed between the parties the claim fails. I realise that this outcome will be disappointing for the Claimant and for other members of Mrs Hawkes’ family. It is well-known that mesothelioma is a horrible disease and one can have nothing but sympathy for anyone who has developed it and for family members who have a loved one suffering from the disease. However, on the basis of the evidence before me, as I have stated, the claim against Warmex Ltd must fail.

Cited in 2 later judgments