England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATUE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE HOLLAND)

		Royal Courts of Justice Strand London WC2
		2nd April 1996

LORD JUSTICE RUSSELL: In the light of the facts of this case and the public interest in them we propose to read the judgment in open court rather than simply hand it down in written form.

This is the judgment of the Court.

Close by the centre of the city of Leeds in Yorkshire there is a district called Armley. It was there that from the late 19th Century until 1958 the Defendants occupied a factory producing commercial products which involved in the course of their manufacture very extensive use of asbestos. This was regularly crushed and mixed, for example with cotton or cement so as to produce end products such as asbestos mattresses used in connection with heat insulation.

The factory was situated in the midst of an area which was densely populated. Aerial photographs disclose rows of terraced properties. Many were very close to the factory.

Arthur Margereson was born in 1925 and lived in a house about 200 yards or so distant from the factory. Mr Margereson spent his childhood in the property until, in 1943, he enlisted in the army. After war service he returned to Armley to the same house. He died in December 1991 from the lung disease mesothelioma.

Mrs June Marjorie Hancock was another local resident. She was born in 1936 and went to live in a house close by the factory in 1938. Although moving house she remained in the same neighbourhood close by the factory until 1951. She too contracted mesothelioma. She is still alive but sadly very gravely ill suffering from the condition.

On 18 February 1991, prior to his death, Mr Margereson issued proceedings against the Defendants. In them he claimed damages for personal injuries. He alleged that the mesothelioma from which he was suffering had been caused by asbestos dust which the Defendants negligently permitted to escape from their factory into the atmosphere surrounding it, that they had failed to take adequate steps to prevent the dust entering the atmosphere and that, further or in the alternative, the Defendants were strictly liable for the escape of the dust and/or were responsible for a nuisance. No more need be said about strict liability or nuisance for it played no further part in the proceedings. Mr Margereson was first diagnosed as suffering from an asbestos related condition in September 1990. After his death the action was continued in the name of Mr Margereson's widow as his Administratrix.

Mrs Hancock issued proceedings on 5 September 1994. She made essentially the same allegations against the Defendants as Mr Margereson. She had developed symptoms of mesothelioma from late 1992.

The two actions came on for hearing before Holland J sitting at Leeds on 20 June 1995. He had earlier heard the evidence of Mrs Hancock who by then was seriously ill. After 20 June 1995 the Judge received evidence which occupied the Court for the rest of the legal term, something like six weeks. The transcripts of evidence, the documents adduced in evidence, the pleadings and the judgment itself have generated a vast amount of paper. We are grateful to counsel for their concise submissions which have made our task less daunting than might have been the case. The judgment which runs to some 66 pages of transcript was reserved and delivered on 27 October 1995. In each case the Judge found in favour of the respective Plaintiffs on the issue of liability. Subject to those issues damages had been agreed in the case of the Margereson action in the sum of £50,000 and in the case of the Hancock action in the sum of £65,000. The Defendants appeal to this Court.

We deal now with the facts. The evidence was overwhelming to the effect that beyond the perimeters of the factory on all sides asbestos dust was deposited in enormous quantities. That dust had emanated from within the factory walls. It had escaped either through open doors and windows in the factory buildings or from open areas of the factory such as yards and loading bays of which there were eight. The dust was also extracted to an extent from within the factory itself through extraction equipment venting into the atmosphere. The dust was of blue asbestos. It was light and feathery as eiderdown in texture. The Judge found that "at all material times a substantial emission of dust from the factory premises" took place. He also said "yet further contributions were made by causing employees to leave for their adjacent homes covered in dust and by leaving bales of asbestos or asbestos products on loading bays for temporary storage so as to be susceptible to the dust releasing activities of playing children".

As for the interior of the factory premises the Judge found that what might be described as their static condition involved continuing and substantial presence of visual dust which, by the end of the shift, often involved employees being so covered by dust that they acquired nicknames such as "Abominable Snowman" or "Feather Leg".

It was never disputed by the Defendants that the steps taken by them to alleviate the problems of dust contamination were woefully inadequate.

The existence of the eight loading bays and the conditions prevailing there became important features of the two cases. A number of witnesses gave evidence that when they were children regular visits were paid to the loading bays of the factory, and indeed to the open yards where the children found bales of asbestos dust attractive to their childlike propensities. Witnesses, including Mrs Hancock herself spoke of such visits. During the course of them children would jump up and down on the bales. Sometimes the bales would burst open. Dust, covering the whole of the loading bays was a common feature and doors leading to the factory interior were frequently left open. Dust fibres clung to mesh over the windows. One witness spoke of children playing "snowballs" using dust acquired in the areas that were open to them.

The overall picture presented by the evidence relating to the areas where children regularly played was that the concentration of asbestos dust in those areas was of a very high order indeed, much higher of course than that encountered in the streets and houses surrounding the factory, although they too suffered a measure of contamination.

We take the opportunity at this stage of our judgment, to correct a misapprehension about these proceedings which gained some publicity before we embarked upon this appeal. The cases were said to be test cases, that a considerable number of other claimants were awaiting the outcome and that effectively the judgment on these appeals would determine the result of many other claims involving residents living outside the perimeters of this and other factories where asbestos dust accumulated. It is important to observe that Holland J expressly disavowed these propositions and, for our part, we confine our observations to the two cases which we are reviewing recognising that that was the approach of the trial Judge and not seeking to preempt in any way other claims which may or may not result in findings one way or another.

We turn now to what we regard as the only legal issue in the appeals. What was the duty owed to Mr Margereson and to Mrs Hancock? The answer is to be found almost entirely in the speech of Lord Lloyd in Page v Smith [1996] 1 AC at page 190 when he said :

"The test in every case ought to be whether the Defendant can reasonably foresee that his conduct will expose the Plaintiff to the risk of personal injury. If so, then he comes under a duty of care to that Plaintiff. If a working definition of "Personal Injury" is needed, it can be found in Section 38 (1) of the Limitation Act 1980. "Personal Injuries" includes any disease and any impairment of a person's physical or mental condition".

We add only that in the context of this case we take the view that liability only attaches to these Defendants if the evidence demonstrated that they should reasonably have foreseen a risk of some pulmonary injury, not necessarily mesothelioma.

A great deal of scientific evidence from witnesses with medical expertise as well as many published works were adduced in the court below. This judgment would become unacceptably lengthy if we were to set out extracts from the evidence led before the Judge upon this aspect of the case. We shall content ourselves by referring to the conflicting submissions made on each side before referring briefly to the burden of the evidence. Mr William Woodward QC, on behalf of the Defendants submitted that it was not until about 1933 that, on the Judge's findings, his clients could be regarded as fixed with adequate knowledge of the potentially dangerous qualities of asbestos so as to create the duty of care toward those other than employees working within the confines of the factory. The danger, submitted Mr Woodward, was confined to the condition of asbestosis which all the medical evidence indicated was a condition of gradual onset over a prolonged period of time. Mesothelioma, on the other hand, was a condition which could develop very quickly in consequence of the inhalation of asbestos dust, though the symptoms might take decades to manifest themselves. Thus, so the argument ran in the case of Mr Margereson, his Administratrix could not discount the real possibility that he acquired mesothelioma when playing as a child within the loading bays and at a time prior to 1933 when, so far as mesothelioma was concerned, there was no culpable lack of foresight on the part of the Defendants because they did not know and had no reason to believe that that particular risk as opposed to the risk of asbestosis existed.

Mr Woodward sought to derive support for these submissions from passages to be found in the Judgment of the trial Judge.

At page 44 he referred to what he described as the "seminal report" of Dr E R A Merewether and Mr C W Price. The report was published in 1930 and was entitled "Effects of asbestos dust on the lungs and dust suppression in the asbestos industry". The full report is amongst our papers and was before the Judge. It runs to some 34 pages. It was a Home Office report. Mr Woodward submitted that its real purpose was to highlight the risks of asbestosis amongst asbestos workers, whereas Mr Robin Stewart QC on behalf of Mrs Hancock referred, as he did the Judge, to the first page of the report which the Judge cited. That spoke of local effects following the inhalation of dust including pulmonary and bronchial catarrh, asthma, bronchitis, fibrosis and secondary changes such as emphysema local or diffuse. The report pointed out that fibrosis was recognised to be the most important lesion and it is true to say that the Judge seemed to regard the report as the trigger for the Asbestos Industry Regulations 1931. They came into force in March 1933.

We think there is some force in Mr Woodward's submissions that the Judge regarded the Merewether and Price report as something of a watershed in relation to the fixing of a date when the Defendants were culpable and before which they lacked the necessary foresight to found a cause of action.

Mr Stewart, on the other hand, drew our attention in his supplementary skeleton argument to a great deal of additional written material which the Judge considered and which ante-dated the Merewether and Price report. Indeed, so submitted Mr Stewart, there was an abundance of evidence before the Judge that prior to the turn of the century there was published material that exposure to asbestos dust could and did cause damage to the lungs of those exposed to it. Accordingly, the Plaintiffs and each of them contend that 1933 was not the year at or about which the Defendants acquired or should have acquired the requisite knowledge as to the potential danger of asbestos dust. The true date was much earlier; certainly long before Mr Margereson's birth date. His activities as a child, therefore, as well as Mrs Hancock's were at a time when the Defendants were on actual or constructive notice as to the potential pulmonary damage that exposure to asbestos dust could bring about.

We reject therefore, as did the Judge, that the Plaintiffs failed to show culpability on the part of the Defendants by virtue of their knowledge of the risk prior to 1933. The information which should have operated upon the Defendants' corporate mind was in existence long before Mr Margereson's birth date.

The final question to be posed and answered was whether any distinction could be sensibly drawn between employees working within the factory and the Plaintiffs involved in this litigation. As the Judge put it "did the factory wall pose such a barrier that risk of injury to persons on the further side of such arising from the emissions of asbestos dust amount at worst to no more than 'a mere possibility which would never occur to the mind of a reasonable man'". The Judge said "there is nothing in the law that circumscribes the duty of care by reference to the factory wall ... if the evidence shows with respect to a person outside the factory that he or she was exposed to the knowledge of the Defendants, actual or constructive, to conditions in terms of dust emissions not materially different to those giving rise within the factory to a duty of care, then I can see no reason not to extend to that extramural neighbour a comparable duty of care". We agree. The Judge added "I have no doubt that in the immediate vicinity of the premises factory conditions in terms of dust emission were at various points effectively replicated so as to give rise to like foresight of potential injury to those exposed for prolonged periods".

It was for the Judge to assess the concentration of the exposure and the time element involved at the loading bays when children including both Plaintiffs engaged in playful activities as earlier described. It was for the Judge to say whether the conditions encountered by the children, including the Plaintiffs, were comparable with the conditions within the factory. It was for the Judge to say whether any steps were taken to reduce the potential for dust emission at the loading bays. It was for the Judge to say whether, on the evidence, he was satisfied on the balance of probabilities that in the case of each Plaintiff the mesothelioma was contracted when the children were playing in the conditions described in the loading bays. Quite plainly in our view the Judge was entitled to find as he did that the conditions at the loading bays were such that, superimposed upon the conditions in the neighbourhood as a whole, it was more probable than not that mesothelioma was then contracted.

Despite the submissions of Mr Woodward which in our judgment from time to time verged on the ingenious by way of his interpretation of the facts we are abundantly satisfied that the findings of the Judge as ultimately reflected in the judgment were essentially findings of fact. There is in our view no warrant for interfering with those findings of fact. Each was open to the Judge on the material before him. Once they were made the Plaintiffs were entitled to succeed upon such elementary legal principles as we have indicated. The appeals will be dismissed.

Order: Appeals dismissed with costs; legal aid taxation of respondents' costs; leave to appeal to the House of Lords refused.