McDonald v National Grid Electricity Transmission PLC [2014] UKSC 53

Transcription

1 McDonald v National Grid Electricity Transmission PLC [2014] UKSC 53 Asbestos exposure in factories. Malcolm Keen, Solicitor E: Malcolm.keen@blmlaw.com Nick Pargeter, Partner E: nick.pargeter@blmlaw.com 1

2 Summary In a case concerning low dose asbestos exposure in the 1950s, the Supreme Court found that the occupier of a power station visited by the deceased in the course of his employment, and where he was exposed to asbestos, was liable for his mesothelioma under the Asbestos Industry Regulations (i) McDonald shows that the Asbestos Industry Regulations (despite their title) are not confined to the asbestos industry. They can apply to factories in general. However, the significance of Regulation 2(a) on asbestos claims is likely to be restricted by three main elements: (a) The claim must relate to employment before (b) The claimant must have been employed in factory premises (but not necessarily by the occupier). (c) The 1931 Regulations apply to all levels of asbestos exposure. However, heavy exposure is likely to give rise to a known risk of respiratory injury and thus amount to a breach of duty at common law anyway. So McDonald is likely to impact on low-dose exposure cases those which previously would have been limited by nonforeseeability (at common law) and by not likely to be injurious (which incorporates foreseeability) under the Factories Acts 1937 and (ii) McDonald suggests a liability and safety paradox: greater statutory protection (and thus a stricter approach) in factories applying from 1932 to 1970 (under the 1931 Regulations) than from 1970 when the Asbestos Regulations 1969 came into force. (iii) Even in circumstances post-mcdonald where the 1931 Regulations will apply, there is a potential argument based on foreseeability. Is it arguable that there was a threshold limit value (TLV) which should be applied in tandem with the 1931 Regulations? (iv) McDonald is helpful for defendants in respect of common law negligence. It supports the guidance document approach suggested by contemporary literature which can permit some exposure to asbestos. This accords with recent cases such as Macarthy v Marks & Spencer Plc, Hill v John Barnsley, Williams v University of Birmingham, and McGregor v Genco. (v) McDonald is also arguably helpful in respect of evidence of exposure. Even in mesothelioma claims, the court is not bound to take the claimant s witness statements as word for word accurate. (vi) The Supreme Court provided some guidance in respect of section 47(1) of the Factories Act Background Between 1954 and 1959, the deceased, in the course of his employment as a lorry driver, was required to visit the power station occupied by the defendant s predecessor (the defendant) in order to collect pulverised fuel ash for use by his employer. In July 2012, he was diagnosed with mesothelioma. He alleged that his 2

3 condition was caused by exposure to asbestos at the defendant s power station. He brought claims for negligence against his employer and the defendant occupier, and for breach of statutory duty (Regulation 2(a) of the Asbestos Industry Regulations 1931 and section 47(1) of the Factories Act 1937) against the defendant occupier. At first instance, the claims failed. The Court of Appeal dismissed the claims in negligence but found in the claimant s favour in respect of the Asbestos Industry Regulations The deceased died in February (a) The defendant appealed against its liability under the Asbestos Industry Regulations (b) The claimant (the deceased s widow) cross-appealed against the dismissal of the claim under the Factories Act (c) The claim in negligence was no longer pursued. The issues for the Supreme Court were the defendant occupier s liability under: (i) The 1931 Regulations; and (ii) Section 47(1) of the Factories Act Deceased s exposure to asbestos The deceased visited the defendant s power station about twice a month between 1954 and 1957, and about twice every three months between 1957 and Whilst there he visited areas where asbestos dust was generated by lagging work. The deceased described being present when lagging was applied to boilers and pipework. He described seeing laggers mixing asbestos powder with water to make the paste which they then applied to boilers or pipes. He also saw laggers cutting pre-formed sections of asbestos to fit to pipes and boilers, and removing old asbestos insulation from pipework. He claimed to have been in close proximity to such work, with visible clouds of asbestos in the air. At first instance, rejecting the claimant s description of his exposure, the Judge found that: any exposure was at a modest level on a limited number of occasions over a relatively short period of time. The Court of Appeal accepted the Judge s findings of fact as to the level of exposure. Asbestos Industry Regulations 1931 Regulation 2(a) of the 1931 Regulations states, amongst other things, that mixing of asbestos shall not be carried on unless there is an exhaust draught to ensure as far as practicable the suppression of dust. The alleged breach here was mixing asbestos without an exhaust draught. There was no exhaust draught here. The preamble to the 1931 Regulations states that the Regulations will apply to all factories and workshops or parts thereof in which one or more of six listed process are carried on. The first listed process is: breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto; The 1931 Regulations also contain an exception: 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 3

4 or any process specified in (v) or any cleaning of machinery or other plant used in connection with any such 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 Regulations - Supreme Court s findings The majority (Lord Kerr, Lady Hale, Lord Clarke) found that the 1931 Regulations applied here, the defendant was in breach of Regulation 2(a), and dismissed the defendant s appeal. The majority Lord Kerr, Lady Hale and Lord Clarke agreed that mixing in the Regulations should not be given a restricted, technical meaning - it should be taken to cover mixing asbestos powder with water in order to form a paste with which to lag pipes and boilers in a power station. The majority also considered that the Regulations applied to the deceased here notwithstanding that he was not employed in the lagging process. The Regulations applied to a person employed elsewhere but who visited the factory in the course of his employment. The minority Lord Reed (with whom Lord Neuberger agreed), in a very well-reasoned judgment involving a detailed analysis of the 1931 Regulations and their historical background, considered that it could hardly be clearer that the Regulations in general did not apply to the power station by virtue of the work being carried on there by the laggers, and that regulation 2(a) did not apply to this work. (Lord Reed had regard in particular to: (i) the Reports which preceded certification of the Regulations under section 79 of the Workshop 1901 Act (the Act under which the Regulations were made); (ii) the terms of that certification; (iii) the recommendations which the 1931 Regulations were intended to implement; and (iv) the terms of the Regulations themselves.) The term mixing in paragraph (i) of the preamble had a technical meaning, and described particular processes carried on in the asbestos industry. Those processes were (i) mixing or blending of crushed asbestos preparatory to its being opened, and (ii) mixing of opened asbestos with other materials as part of the process of manufacturing asbestos products such as the insulation material used by laggers. Those processes were not carried on at the power station. The Regulations therefore did not apply to it: it was not a place where mixing, within the meaning of paragraph (i), was carried on. For the same reason, regulation 2(a) did not apply to the work carried on by the laggers, as it did not involve mixing or blending by hand of asbestos within the meaning of the Regulations. In addition, for Lord Reed the deceased was not a person employed in the power station for the purposes of the 1931 Regulations. Lord Reed also noted the Asbestos Regulations 1969 and stated that: 4

5 It is nevertheless a matter of legitimate comment that the interpretation of the [1931] Regulations which is favoured by Lord Kerr is inconsistent with the basis on which the 1969 Regulations were made. Section 47(1) of the Factories Act 1937 Section 47(1) of the Factories Act 1937 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 an 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 the inhalation of the dust or fume or other impurity and to prevent it accumulating in any work room, 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 work room. [emphasis added] Section 47(1) applied in two situations: (a) where the dust or fume was likely to be injurious or offensive to the persons employed; and (b) where there was given off any substantial quantity of dust of any kind. It was common ground that the dust here was not of such a character and to such an extent as to be likely to be injurious or offensive. The Court of Appeal found that the evidence was not sufficient to show that there was given off a substantial quantity of dust. Section 47(1) Supreme Court s findings By a majority (Lord Kerr, Lord Reed and Lord Neuberger), the claimant s cross appeal was dismissed. (Lord Clarke was silent on section 47(1)). The first issue was whether dust was given off in connection with a process. Lord Kerr found that the words in section 47(1) should be given their plain and natural meaning. To suggest that they imported some intimate connection with the manufacture of a product introduced an unnecessary and unwarranted gloss on the subsection. If it was a process that was a normal feature of the factory s activity, it was a process for the purposes of the legislation. The lagging work here constituted a process for the purposes of section 47(1). Lady Hale was clear that lagging was a process. Lord Reed (with whom Lord Neuberger agreed) also considered that section 47(1) was not confined to persons employed in the particular process in question. The phrase refers to persons employed in the factory. The second issue was whether the deceased was a person employed. 5

6 Lord Kerr found that the deceased was a person employed for the purposes of section 47(1). Lady Hale agreed that section 47(1) was not limited to those employed on the process in question. The deceased was a person employed. Lord Reed and Lord Neuberger found that the deceased was not a person employed here. The deceased was not working for the purposes of the power station. He was working solely for the purposes of his employer. A customer of a factory can hardly be regarded as working for the purposes of the factory, even if he goes there in person to collect the article purchased; and a person whom he employs to collect the article from the factory can hardly be in a different position. Therefore the Court of Appeal was correct to reject the claim under section 47(1). The third issue was substantial quantity. Lord Kerr was clear that the duty to take practicable measures arose when a substantial quantity of dust was given off not that the quantity had to be substantial at the point of inhalation. In respect of whether there was a substantial quantity of dust here, Lord Kerr considered that the necessary investigation to decide this could not now be conducted. The third condition could thus not be satisfied. Lady Hale agreed with Lord Kerr that the quantity of dust must be substantial at the time when it is given off, not when inhaled. Lady Hale stated that considering substantial requires only a quantitative assessment of the amount of dust given off. Lady Hale (in a minority of one) considered that the amount of dust here was substantial and would have allowed the claimant s cross-appeal. Lord Reed and Lord Neuberger agreed that the quantity must be substantial when dust is given off. Conclusion The Supreme (by a majority of three to two) dismissed the defendant s appeal. By a majority of three to one, the Supreme Court dismissed the claimant s cross appeal. The defendant was liable for the deceased s mesothelioma under Regulation 2(a) of the Asbestos Industry Regulations Comment McDonald shows that the Asbestos Industry Regulations (despite their title) are not confined to the asbestos industry. They can apply to factories in general. The reason why this is significant is that liability under Regulation 2(a) does not require knowledge of the risk of harm (i.e. foreseeability). So liability could potentially result from exposure to a level of asbestos not known by the defendant at the time to pose a risk of harm. However, the application of Regulation 2(a) is likely to be restricted by a three main elements: (i) The Asbestos Industry Regulations 1931 came into force on 1 March 1932 (though regulation 2(a) came into force on 1 September 1932) and were repealed on 14 May 6

7 1970 when the Asbestos Regulations 1969 came into force. So the claim must relate to employment before 14 May (ii) The place of work. The claimant must have been working in factory premises. (iii) The 1931 Regulations apply to all levels of asbestos exposure. However, heavy exposure is likely to give rise to a known risk of respiratory injury and thus amount to a breach of duty at common law anyway. So McDonald is likely to impact on low-dose exposure cases those which previously would have been limited by nonforeseeability (at common law) and by not likely to be injurious (which incorporates foreseeability) in the Factories Acts 1937 and In addition, the precise wording of the 1931 Regulations is important. Section (i) of the Preamble states that the Regulations apply to breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto; However, section (v) of the Preamble states that the Regulations apply to sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed wholly or partly of asbestos in the manufacture of such articles; So sawing asbestos articles is covered by the Regulations only if the sawing is taking place during the manufacture of an asbestos product. This leads to the result that there could be liability under the 1931 Regulations in respect of a claimant, in the vicinity of laggers, who is exposed to asbestos dust as a result of mixing asbestos and water, but there would not be liability in respect of the same claimant as a result of asbestos exposure from the sawing of pre-formed sections. Different results today The implications of the Supreme Court s broad interpretation of the scope of the 1931 Regulations are potentially significant in relation to cases of transient exposure in factories and workshops in the 1950s and 60s. For example, in Asmussen v. Filtrona United Kingdom Ltd [2011] EWHC 1734 (QB), the claimant, who developed mesothelioma, was exposed to asbestos in two periods: (i) from when she tested cigarette filter papers in a laboratory and visited the factory floor to collect samples to test. The first factory contained steam pipes lagged with asbestos 20 feet above the factory floor; and (ii) from when the claimant was based in the laboratory but made frequent visits to the factory floor. The Court found that the defendant was not liable because her exposure to asbestos was very low and according to the standards of the time was not sufficient to give rise to a foreseeable risk of injury. In Asmussen, the Court focused on one particular incident when she walked under the place where another employee was lagging pipes during the first period. The Court did not consider potential liability under the 1931 Regulations. It is arguable that after McDonald, in such a situation liability under the 1931 Regulations could be a possibility. Liability and safety paradox McDonald suggests a liability and safety paradox: greater statutory protection (and thus a stricter approach) in factories applying from 1932 to 1970 (under the 1931 Regulations) than from 1970 when the Asbestos Regulations 1969 came into force. In McDonald the defendant occupier was liable in respect of exposure which at the time was not be known to be harmful. Regulation 2(3) of the Asbestos Regulations 1970 states: 7

8 References in these Regulations to asbestos dust shall be taken to be references to dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons. And the 1970 Regulations were accompanied by a guidance document (TDN13) suggesting that some level of exposure was acceptable. In McDonald the defendant was liable in respect of a level of exposure which at the time was not be known to be harmful. Circumventing McDonald Even in circumstances post-mcdonald where the 1931 Regulations will apply, there is a potential argument based on a threshold limit value (TLV) which should be applied in tandem with the 1931 Regulations. Regulation 2(a) refers to as far as practicable the suppression of dust. This arguably ought to be interpreted in the context of the standards at the time, following Baker v Quantum. This was arguably not properly explored by the Supreme Court. Whilst there is no TLV in the 1931 Regulations per se, it is arguable that a proper statutory interpretation of the Regulations would reveal that the Regulations were not intended to mandate absolute protection from asbestos dust, and that exposure below a certain level was intended to be permissible. Regulation 2(a) The 1931 Regulations were based on the Merewether and Price Report in Lord Reed in McDonald noted that: It was also noted that the safe concentration of dust in workrooms had been taken, on the basis of the Merewether and Price Report, to be the conditions arising from flyer spinning of asbestos fibres. That criterion was said to be simple to apply to processes such as mixing, blending which are obviously more dusty than flyer spinning (p 6). The recommendations focused upon the application of exhaust ventilation at dustproducing points, so as to meet that criterion. Is the criterion a safe limit? Wikeley, 1992, examined knowledge of the harmful effects of asbestos in the 1930s and 40s. 1. Wikeley noted that Merewether and Price concluded that both the degree of fibrosis which was produced, and the speed with which it developed, were directly proportional to the intensity of the exposure experienced. Wikeley stated that: In particular, they found that a group of workers known as spinners took longer on average to develop fibrosis, and seemed to be exposed to lower concentrations of dust. They therefore suggested that the spinners level of exposure should be regarded as the dust datum, and that higher concentrations of dust should be reduced by the application of dust-suppression measures. This recommendation formed a fundamental part of the thinking behind the subsequent safety regulations. This suggests that guidance was aimed at reducing exposure to an acceptable level, and of course the illness in mind was asbestosis. Wikeley considered that one weakness in the 1931 Regulations was that: 1 N. Wikeley, The Asbestos Regulations 1931: A Licence to Kill?, Journal of Law and Society, 19, 3,

9 they were based on the premise, derived from the Merewether Price report, that the only risk to health posed by asbestos was asbestosis caused by heavy asbestos exposure above the dust datum. In his 1998 paper, Bartrip 2 noted that something which struck Merewether was the relatively very low incidence of fibrosis amongst spinners. Bartrip noted that from this Merewether judged that in order to prevent the full development of the disease within the space of an average working lifetime, it was necessary to reduce the concentration of dust in the air of the workrooms to a figure below that pertaining to spinning. Bartrip considered that: The thrust of the Merewether-Price report and of all subsequent moves towards the establishment of the 1931 regulations was that one thing alone was necessary to solve the acknowledged problem of fibrosis among asbestos workers. This was the reduction of dust levels to below the "dust datum". It can be noted that Merewether and Price described relative levels of dustiness, with spinning being assigned the value 1. Burdett, 1998, considering measurements made by Goodall at the J.W. Roberts Ltd factory at Armley in Leeds in 1938, noted that: This means that the historic datum level established in 1930 based on not exceeding the dust levels in spinning areas, was equivalent to a personal exposure of about 20 f ml - 1, and a static exposure of 10 f ml -1. It is arguable that it is only the personal exposure figure which is relevant. So the dust datum (the value 1 in Merewether and Price) for personal exposure would be greater than 20 fibre/ml. Navarro in explained the implications of Merewether and Price. The removal of dust to certain levels would cause a great increase in the length of time before workers developed a disabling fibrosis, and the disease would almost totally disappear as measures of dust suppression were perfected. So the spinners level of exposure should be regarded as a dust datum the level that would prevent the full development of the disease amongst asbestos workers within the space of an average working lifetime. As noted above, this was arguably not properly explored by the Supreme Court. This could be an argument which a brave litigant might wish to raise in a future case concerning the application and interpretation of the 1931 Regulations. Common law negligence McDonald is helpful for defendants in respect of common law negligence. Common law negligence was not in issue in the Supreme Court. So it is strongly arguable that the Court of Appeal s view in McDonald remains extant. Common law negligence turns upon the general state of knowledge at the time in question. Guidance literature is 2 P. Bartrip, Too little, too late? The Home Office and the Asbestos Industry Regulations, 1931?, Medical History, 1998, 42, A. M. Navarro, Shaping Industrial Health: the Debate on Asbestos Dust Hazards in the UK, , in E.R. Ocana (ed), The Politics of Healthy Life, An International Perspective,

10 relevant to knowledge. Despite some authorities (such as Cherry Tree/Jeromson and Maguire v. Harland & Wolff Plc [2005] EWCA Civ 01) suggesting that the duty at common law is to reduce exposure to the greatest extent possible, the Court of Appeal in McDonald fell on the side of the guidance document approach suggested by contemporary literature which can permit some exposure to asbestos. As McCombe LJ acknowledged in respect of guidance documents in 1960 and 1969/1970: both of which still indicated that some exposure to asbestos dust could be accepted as tolerable, This view accords with recent cases such as Macarthy v Marks & Spencer Plc, Hill v John Barnsley, Williams v University of Birmingham, and McGregor v Genco. Evidence of exposure McDonald is also arguably helpful in respect of evidence of exposure. The claimant s witness statement described clouds of asbestos dust in the air. The Court of Appeal s acceptance of the Judge s decision to reject this underlines the required approach to witness statements admitted under the Civil Evidence Act Even in mesothelioma claims, the court is not bound to take the claimant s witness statements as word for word accurate. It is arguable that the Supreme Court has not changed this finding. Lady Hale and the Jeromson/Cherry Tree vs. Banks dichotomy In Banks v Woodhall Duckham, 30 th November 1995, the Court of Appeal considered that the 1931 Regulations did not apply to lagging of pipes in a steel works. The claimant was a pipefitter whose work included knocking lagging off pipes. The Court of Appeal also found that the 1931 Regulations did not apply to the occupier because it did not manufacture asbestos products. In Jeromson v. Shell Tankers UK Ltd [2001] EWCA Civ 101 (also known as The Cherry Tree), the Court of Appeal considered Regulation 2(a) applied the key Regulation in McDonald. From 1946 to 1948 one of the deceased had been exposed to asbestos whilst working for the defendant manufacturer of dry cleaners presses. His work involved sealing the presses with asbestos to stop steam escaping. He mixed asbestos with water in a bucket and then applied it. When dry, this generated visible dust in the air which got onto his overalls. He did this once a week, for about an hour. The Court of Appeal found: (i) The Regulations are expressly applied to any factory or workshop where the defined processes take place. Nowhere is it said that the Regulations apply only to factories and workshops whose only or main business is the processing of raw asbestos or the manufacture of products made out of raw asbestos. (ii) The exception when the work was carried on occasionally only and that no person was employed for eight hours or less in any week did not apply. The deceased s work was regular not occasional. (iii) Regulation 2 : the obligation to provide an exhaust is absolute unless it is not practicable to do so. There is no question of reasonable practicability. In any event, the known danger was dust and the required precaution was both known and 10

11 practicable. The Court of Appeal considered that it was not necessary to consider foreseeability. The defendant was liable. In McDonald, all the Supreme Justices found that Jeromson was correctly decided. The majority considered that Jeromson supported a wide interpretation of the 1931 Regulations. Interpretation of section 47 of the Factories Act 1937 Section 47(1) (and its equivalent in the Factories Act 1961, section 63) has been characterized as setting out two distinct conditions, either of which gives rise to a duty on the employer to take all practicable measures to protect employees. In respect of the second limb, substantial quantity of dust of any kind, McDonald shows that the dust must be substantial at the time it is given off, not when inhaled. McDonald also suggests that that section 47(1) is not confined to persons employed in the particular process in question. It refers to persons employed in the factory. There is less guidance on what substantial actually means. 11