England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL Friday 2nd February 2001

LADY JUSTICE HALE:

1. These are defendants' appeals against the orders made on 18 February 2000 by Mr R Machell QC, sitting as a Deputy High Court Judge in the Queen's Bench Division, in two separate actions. The claims were brought by the widows of two men who had died prematurely of mesothelioma contracted in the course of their employment. Both had been employed by Shell Tankers UK Ltd ('Shell') in the 1950s as marine engineers. The judge found Shell liable to both in common law negligence. Mr Dawson had also been employed by Cherry Tree Machine Co Ltd ('Cherry Tree') in the 1940s as an apprentice fitter. The judge rejected a claim against Cherry Tree in common law negligence and for breach of section 47 of the Factories Act 1937 but found them liable for breach of regulation 2 of the Asbestos Industry Regulations 1931. The judge gave each defendant permission to appeal on liability. He also gave the claimants permission to appeal on the quantum of general damages but that has since been agreed.

THE CHERRY TREE APPEAL

The facts

2. Mr Dawson was employed as an apprentice fitter by Cherry Tree from June 1945, when he was 15 years old, until August 1949, when he was 19. Cherry Tree manufactured dry cleaners' presses. For the first six months Mr Dawson was not exposed to asbestos. But from 1946 to 1948 part of his job consisted of sealing the platens of the presses with asbestos to stop steam escaping. He would take a 'couple of handfuls' of asbestos flock, put it in a bucket and mix it with water and then apply it. When dry it generated visible dust in the air which got onto his overalls. This would be present for two to three minutes but invisible dust might persist longer. He did this once a week, taking about an hour to seal six machines.

The Regulations

3. The Asbestos Industry Regulations 1931 ('the 1931 Regulations') were made under section 79 of the Factory and Workshop Act 1901:

'Where the Secretary of State is satisfied that any manufacture, machinery, plant, process or description of manual labour, used in factories or workshops, is dangerous or injurious to health or dangerous to life or limb, either generally or in the case of women, children or any other class of persons, he may certify that manufacture, machinery, plant, process or description of manual labour to be dangerous; and thereupon the Secretary of State may, subject to the provisions of this Act, make such regulations as appear to him to be reasonably practicable and to meet the necessity of the case.'

By section 80(1) such regulations might apply to 'all the factories and workshops in which the manufacture, machinery, plant, process or description of manual labour, certified to be dangerous is used . . . or to any specified class of such factories or workshops.'

4. In 1931, the Secretary of State certified as dangerous 'the manipulation of asbestos and the manufacture or repair of articles composed wholly or partly of asbestos and processes incidental thereto' (letter from Michael Delevingne of the Home Office dated 15 September 1931 accompanying draft regulations). He did so because of two reports: the Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry, by E.R.A. Merewether M.D., H.M. Medical Inspector of Factories, and C.W. Price, H.M. Engineering Inspector of Factories ('Merewether and Price') (1930, 34-206, HMSO) and a follow up Report on Conferences between Employers and Inspectors concerning Methods for Suppressing Dust in Asbestos Textile Factories (1931, 35-214, HMSO).
5. Part I of Merewether and Price dealt with 'The Occurrence of Pulmonary Fibrosis and other Pulmonary Affections in Asbestos Workers'. Prompted by a case of non-tubercular pulmonary fibrosis in an asbestos worker, the aim was to study the risk of fibrosis resulting from exposure to asbestos rather than to any other kind of dust. Hence only those workers engaged in processes exposing them to pure asbestos dust, and not to other irritant dusts, were studied and the sample was biased towards those who had been working with such dusts for the longer times. The shocking result was that more than a quarter of those studied showed a definite fibrosis due to asbestos dust. The conclusion was that 'the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs.' (p 9, emphasis supplied) Incidence mounted rapidly after five years' exposure but the disease took longer to manifest itself in those engaged in the less dusty processes.
6. Part II of Merewether and Price dealt with 'Processes Giving Rise to Dust and Methods for its Suppression'. It described the processes involved in producing asbestos textiles and also in the manufacture of other products using asbestos, such as millboard, paper, sheets and tiles, insulation materials and articles, and asbestos covered electric conductors.
7. The preamble to the 1931 Regulations provides that

' . . . they shall apply to all factories and workshops or parts thereof in which the following processes or any of them are carried on'

8. There follows a list of six processes:

'(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 or appliances for the collection of asbestos dust produced in any of the foregoing processes.'

9. In the list of Definitions,

'Asbestos means any fibrous silicate mineral, and any admixture containing any such mineral, whether crude, crushed or opened.'

Mr Owen QC, on behalf of Cherry Tree, argued that this referred to asbestos in its raw mineral state, rather than to products manufactured out of asbestos. However, it is clear that asbestos flock falls within that definition. Merewether and Price refer to 'so-called "fiberized" asbestos, i.e. opened or broken-up material in a fine flock-like condition'(p 18). They also point out that 'Dust is produced . . . in all handling of "fiberized" asbestos.' (p 31).

10. There is no definition of 'mixing' in the Regulations. Merewether and Price describe the process of mixing asbestos material in asbestos textile factories by spreading it on the floor; but they also give a number of examples where 'fiberized material or dry mixtures containing it are manipulated in preliminary manufacturing processes' in non textile factories:

'The wet mixtures for millboard, paper, and asbestos-cement products are prepared in a beater, as used in paper mills. Dry fiberized asbestos is emptied into the beater trough, the sacks being shaken to some extent. Evolution of dust occurs before the material becomes mixed with the circulating water.' (p 26)

'Fiberized asbestos or "magnesia" is a component of many insulating compositions which may also contain clay, kieselguhr, fossil meal, flax, hemp or jute waste and other materials. The proportion of asbestos in the final product varies widely. In many small works the materials are mixed "dry", by hand, in an open manner, involving sack emptying and filling, shovelling and weighing. . .' (p 27)

'Preparatory processes in paste making [for covering electrodes] include . . . (ii) handmixing of the ground materials at a bench, involving emptying out of dry material into pans.' (p 30)

'Other processes of comparatively minor importance, e.g. asbestos putty mixing, in which there is handing and feeding of dry material in preparatory processes, will call for precautions as previously described for similar work.' (p 30)

11. This is what Mr Dawson was doing, albeit on a small scale, in order to produce the paste to seal the dry cleaning presses. The judge rejected an argument that the Regulations contemplated only a mixing of asbestos with asbestos rather than with water. He held that the 'plain meaning' (by which he may have meant the natural and ordinary meaning) of the word 'mixing' could not be so restricted. Hence the Regulations did apply to the process. In my view, in the absence of a definition of 'mixing' in the Regulations or of clear evidence of a restricted technical meaning to which the Regulations were intended to apply, the judge was right to reach that conclusion.
12. After the list of processes, the preamble to the Regulations makes 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 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.'

The judge held that for this exemption to apply, it was required both that the work is carried on 'occasionally only' and that no person is employed for eight hours or more in any week. Otherwise the words 'occasionally only' would be otiose. Mr Dawson's work was regular and so could not be regarded as occasional. Again, in my view, he was clearly right to do so.

13. The duties of occupiers of factories and workshops to which the Regulations apply are contained in Part I of the Regulations. Regulation 2 provides:

'(a) Mixing or blending by hand of asbestos shall not be carried on except with an exhaust draught effected by mechanical means so designed and maintained as to ensure as far as practicable the suppression of dust during the processes.'

The judge applied the approach of Boreham J in Brooks v Coates [1984] 1 All ER 702, at 718:

'I take practicable in this context to mean a precaution which could be taken or undertaken without practical difficulty.'

There would have been no practical difficulty in providing an exhaust draught to suppress the dust. Hence he held that there was a breach of regulation 2.

Do the Regulations apply at all?

14. The primary contention advanced by Mr Owen is that the Regulations applied only to the 'Asbestos Industry' and thus not to the incidental use of asbestos in other industries. The judge acknowledged that 'at first blush, it is a surprising contention that this operation was covered by these Regulations.' However, having decided that the operation did fall within the processes defined, he regarded this as the inevitable conclusion from the provision that the Regulations applied to all factories and workshops in which such processes were carried on.
15. It is apparent that the judge was not referred to any previous authority on the point. Two have since been found in which the court accepted arguments similar to those advanced by Mr Owen in this case. Banks v Woodhall Duckham & Others, dated 30 November 1995, is an unreported decision of this Court and thus binding upon us unless the relevant observations are obiter or the case is distinguishable. Watt v Fairfield Shipbuilding & Engineering Co Ltd 1999 SLT 1084 is a decision of the Court of Session in Scotland.
16. The claimant in Banks had been employed for most of his life as a pipefitter. He was found to be suffering from bilateral diffuse pleural thickening. He sued three of the pipefitting contractors by whom he had been employed for a total of seven out of his thirty years' working life, together with British Steel as occupiers of the premises where he worked for the first defendants in the 1950s:

'He was erecting pipes, breaking into old pipe, general pipework. If he broke into old pipework, that involved knocking the lagging off where there was a flange, undoing the flange, cutting the pipe to fit a T piece and then carrying on from there . . . He said it could take an hour or two hours sometimes to knock the lagging off. He would then work on the new pipe run and the laggers would come along the same day or the next day to put new lagging on the new pipework. He spoke of the laggers mixing asbestos in 40 gallon drums . . . '

17. The judge was unable wholly to accept the claimant's evidence:

' . . . and I find it very difficult to decide to what extent he was exposed to asbestos during the periods of employment that I have to deal with. I have no doubt that he was exposed to asbestos to some degree, and that this exposure has caused pleural thickening, but it is difficult to decide to what extent each of the particular Defendants did so expose him and what if any damage flowed from such exposure.'

He therefore found it 'difficult to make findings of fact in [the claimant's] favour' and there is nothing in the Court of Appeal's judgment to suggest that he did so.

18. The Court rapidly rejected an argument that the 1931 Regulations applied to the first defendant employers, because they were not the occupiers of the steelworks. As for British Steel, Mr Nolan on their behalf advanced five reasons why the Regulations should not apply to the work being done there. First was the title, the 'Asbestos Industry Regulations.' Second were the listed processes, all except the first being 'processes in the manufacture of asbestos products of one sort or another in a factory which is making those products'. Process (i) was simply the preparatory stage in a factory involved in the production of asbestos products. The definition of asbestos supported that. Third, the nature of the regulations themselves and the machines they were dealing with were not relevant to lagging pipework. Fourth, the Factory Inspectorate did not think that the regulations applied to the steel industry or the lagging of pipes. Fifth, a comparison with the much wider ambit of the Asbestos Regulations 1969, applying to all work or processes carried out by any contractor, indicated that the 1931 Regulations were never intended to apply to work of lagging pipes in a steel works. Stuart Smith LJ concluded, 'I find Mr Nolan's submissions on that point persuasive and I accept them.'
19. This conclusion was followed, for similar reasons, in Watt. The pursuer alleged that he had developed asbestosis in the course of his work as an electrician in the shipyards where he had to strip old asbestos insulation and also work alongside other trades such as joiners, insulators or laggers, whose activities generated substantial quantities of asbestos dust. Lord Gill concluded that regulations made under section 79 of the 1901 Act regulated a particular industry. Shipbuilding was covered by the Shipbuilding Regulations 1931 and not by the Asbestos Industry Regulations 1931.
20. It is clear that neither at first instance nor on appeal was the court in Banks given the same assistance both with argument and with documentary material as has been given both to the judge and to this court in this case. There is no account in the judgment of any reply to Mr Nolan's submissions. The most powerful of those is the first, the title to the Regulations. There are however two even more powerful arguments in reply. First, 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. Lord Gill in Watt placed some weight upon the heading to Part IV of the 1901 Act 'Dangerous and Unhealthy Industries' but the wording of section 79 is wider than that, as is the wording of the Secretary of State's certificate under that section (see para 4 above).
21. Second, the exemption clearly contemplates that the Regulations would otherwise apply to places where those processes were carried on only occasionally or for comparatively short periods by any one person. Lord Gill in Watt considered that the 'provisos' could be given a satisfactory meaning which was consistent with his view. It is however very difficult to imagine a factory or workshop whose main business was producing asbestos or asbestos products to which the exemption could possibly apply, given that only certain processes, infrequently carried on, are exempted and only then if none of the other defined processes is carried on in the same factory. Mr Owen was quite unable to give us any examples.
22. The second and third reasons can only have been advanced as indications of the sort of place and process the Regulations had in mind rather than as an exercise in statutory construction. As is apparent from the judge's reasoning, process (i) and regulation 2 are readily capable of applying to the mixing of asbestos flock in this case. It does not appear that the court in Banks was referred to Merewether and Price: there is no reference to it in the Court of Appeal judgment and the claimant had called no expert evidence in which such documents would normally be produced. The examples given in Merewether and Price clearly contemplate the mixing of asbestos in the manufacture of a wide variety of products, not just 'asbestos products'.
23. As to the fourth reason, as the court pointed out, the factory inspectors are not necessarily the right people to construe the Regulations. Nevertheless it is interesting that in a memorandum dated 6 September 1949 from the Chief Safety Officer to Regional Safety Officers, in relation to the lagging of steam pipes in generating stations, the opinion is expressed that the 1931 Regulations did apply to the mixing of asbestos and to the making of preformed insulation slabs or sections, but that they did not apply the removal of old lagging or to the actual application of the insulation to steam pipes etc. This clearly indicates an opinion that the Regulations were capable of applying to premises outside the asbestos industry itself: further the distinction made is easy to fit into the processes listed in the preamble. Knocking off old lagging does not fit within any of them as readily as does mixing asbestos to form new lagging. Even then, in the Annual Report of the Chief Inspector of Factories for the year 1956 (1958, Cmnd 329), on p 142, it is said that 'One very hazardous process, to which the regulations do not always apply, is the removal of old heat insulation lagging.' The reason given is that 'Much of this work is done in premises not subject to the Factories Acts, and in any case the operation does not take long.' The problem for laggers was that they might not work regularly in any one place even if it was subject to the Factories Acts, although they were as individuals constantly exposed to risk. This type of problem, along with the recent discovery that minimal exposure might result in mesothelioma, is ample explanation for the wider scope of the 1969 Regulations.
24. With the greatest of respect to the court in both Banks and Watt, therefore, none of the arguments advanced in those cases appears to me sufficiently persuasive to combat the natural and ordinary meaning of the words used. Merewether and Price had described mixing processes just like that in which Mr Dawson was engaged and explained the precautions needed. The exemption was no doubt aimed at places where there was little exposure. But 'occasional' describes something which happens casually or intermittently, or on a particular occasion, not something which happens regularly. I would agree with the judge that the exemption did not apply in this case because Mr Dawson's work was regular.
25. The observations of the court in Banks were not essential to the determination of the case. The judge in that case had been unable to make findings of fact as to extent to which any of the defendants, including British Steel, exposed the claimant to asbestos and what if any damage flowed from such exposure. The actual work being done by the claimant involved from time to time knocking off old lagging, to which it may be that the regulations did not apply (we have not heard argument on other processes in the preamble). The regulations are more likely to have applied to the laggers' work in mixing asbestos to form new insulation, but the extent of the claimant's exposure to that is by no means clear. The claim would therefore have failed on causation in any event. In my view, it is open to this court to reach a different conclusion on the application of the 1931 Regulations.

Was there a breach?

26. Mr Owen also argued that there was no breach of regulation 2. The judge held that the risk of harm from the level of exposure experienced by Mr Dawson was not foreseeable in the 1940s. Mr Owen argued that it was not 'practicable' to take precautions against an unforeseeable risk. He relied upon the speech of Lord Reid in Marshall v Gotham [1954] AC 360. In that case, the regulations in question were to be observed 'so far as may reasonably be practicable.' Lord Reid observed at p 373:

'But, in my judgment, there may well be precautions which it is "practicable" but not "reasonably practicable" to take . . . I think it enough to say that if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable.'

27. Mr Owen also relied upon a dictum of Veale J in Jayne v National Coal Board [1963] 2 All ER 220, in the context of a defence that it was impracticable to avoid or prevent the contravention, at p 224B:

'It is, I would have thought, clearly impracticable to take precautions against a danger which could not be known to be in existence, or to take a precaution which has not yet been invented.'

28. Fortunately it is unnecessary for us to enter into the question of how far foreseeability of risk enters into the issue of reasonable practicability (discussed in Larner v British Steel [1993] 4 All ER 102). The regulation in this case is quite clear: 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 practicable. The judge was clearly right to hold that if the regulation applied it had been broken in this case.

Costs

29. Mr Owen has also sought to challenge the judge's costs order, on the basis that much of the hearing was devoted to the claims in negligence and under the Factories Act 1937 which failed. This court will only rarely interfere with the exercise of a judge's discretion on costs. Where as here the issue was whether Cherry Tree were liable in law for contributing to the illness from which Mr Dawson died, and and there were several different ways of putting the case, there is nothing wrong in principle with the judge's decision.
30. I would therefore dismiss the Cherry Tree appeal.

THE SHELL APPEAL

31. There was no relevant statutory duty applicable to the claimants' employment with Shell. The issue was common law negligence and in particular whether the risk of bodily injury to these men from their exposure to asbestos was sufficiently foreseeable that a careful employer should have taken precautions or at the very least sought advice as to what, if any, precautions should be taken.

The law

32. There was no dispute between the parties as to the relevant legal principles. It matters not that at the relevant time the diseases understood to be caused by exposure to asbestos did not include mesothelioma. The judge quoted Russell LJ in Margereson v Roberts [1996] PIQR P358, at 361:

' . . . 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.'

Following the House of Lords' decision in Page v Smith [1996] AC 155 it is sufficient if any personal injury to a primary victim is foreseeable.

33. As to the foreseeability of injury in areas involving developing knowledge, the judge referred to the well known words of Swanwick J in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776, at p 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.'

34. This was described as 'a succinct and helpful statement of the law' by Mustill J (as he then was) in Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405, at p 415-6, where he also added this:

'Between these two extremes [ie "without mishap" and "clearly bad"] is a type of risk which is regarded at any given time (although not necessarily later) as an inescapable feature of the industry. The employer is not liable for the consequences of such risks, although subsequent changes in social awareness, or improvements in knowledge and technology, may transfer the risk into the category of those against which the employer can and should take care. . . . In my judgment, this principle applies not only where the breach of duty is said to consist of a failure to take precautions known to be available as a means of combating a known danger, but also where the omission involves an absence of initiative in seeking out knowledge of facts which are not in themselves obvious. The employer must keep up to date, but the court must be slow to blame him for not ploughing a lone furrow.'

The identification issue

35. The issue in this case is not one of balancing the effectiveness, expense and inconvenience of the precautions required against the extent of the risk: the issue is whether the risk should have been identified. With the benefit of hindsight, it is now quite clear that the exposure in these cases was sufficient to cause mesothelioma, the disease from which Mr Dawson and Mr Jeromson eventually died. But the link between asbestos and mesothelioma was not established until 1960. Until then the known risk was of lung disease, in particular asbestosis, and, in the 1950s, lung cancer associated with asbestosis. The issue was whether the degree of exposure in this case was such that a reasonable employer should have identified a risk.
36. The judge had first to make findings of fact about that exposure. Before doing so he had to resolve a dispute between counsel as to whether he should be assessing the average or the potential exposure of marine engineers to asbestos dust. He concluded that, given the great variety of experience of individual engineers, a careful employer ought to be addressing his mind to the potential experience of any one of them in deciding what precautions he ought to take.
37. Mr Mackay QC, on behalf of Shell, argues that where the issue is whether any risk at all should have been identified, it is more appropriate to consider whether the average as opposed to the potential exposure was sufficient to ring the bell. 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.

The factual findings

38. Both men had been engaged as marine engineers on various ships, Mr Dawson between July 1951 and May 1957 and Mr Jeromson between June 1957 and July 1961. The engine rooms of these ships contained large quantities of asbestos insulation but this was not dangerous unless disturbed. The judge had to assess how often this might happen and the intensity of the concentrations of dust which might be produced. He heard a considerable amount of evidence from both lay and expert witnesses.
39. He found that engineers would be exposed to dust when insulation had to be stripped away and replaced. This happened most often when leaking joints had to be repaired, but from time to time when pipes burst, and during dry docking. Three experts (Mr Browne and Mr Deary for the claimants and Mr Finch for Shell) were agreed that stripping asbestos lagging by crude methods gave rise to high concentrations of visible dust, as did mixing asbestos powder with water to form a plastic mix for new insulation and dry sweeping of asbestos debris. Cutting asbestos lagging by handsaw gave rise to less high but still significant concentrations, and handling asbestos mattresses in bad condition to moderately high concentrations. At the time, however, there was no way of measuring such concentrations and until 1960 there were no published limits. The judge concluded that all but the last activity would have given rise to concentrations substantially above even the lower limits set in 1960 and the last to concentrations above those limits:

'I am quite satisfied that these five activities would have given rise to significant levels of visible dust . . . clearly there to be seen, if considered by any careful employer.'

As for frequency:

'In summary, I find that, at the material time, marine engineers employed by Shell were liable and likely to encounter intense concentrations of asbestos dust, on a regular basis. In the most part, these exposures would be for minutes rather than hours, but on occasion, both at sea and in dry dock, the exposures would be for hours and at even higher intensity.'

40. Mr Mackay QC on behalf of Shell has not challenged these findings of primary fact. He has, however, taken issue with the judge's later description of these exposures 'albeit relatively brief' as 'substantial and regular' rather than 'limited, intermittent or occasional'. Nevertheless, whatever the descriptive words used in a context where precise measurement 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.

The literature

41. Mr Mackay's primary submission both here and below was that, until the link between asbestos and mesothelioma was established in the 1960s, the known risk from asbestos was of asbestosis, and that risk was thought to come from prolonged exposure of a completely different order from that experienced in the engine rooms of ships. This leads on to a consideration of the literature available to a careful employer at the time. It was common ground that Shell should be treated as a major land-based employer, having no less but (perhaps generously for a multinational operation) no more access to relevant knowledge than any other such major employer. This certainly included the publications of the Factory Inspectorate even though these were not directly applicable to life at sea.
42. The judge was careful to confine his consideration to the literature published before 1961 (when Mr Jeromson's engagement with Shell ceased) to which Shell either did or clearly should have had access. He referred to Merewether and Price, the 1931 Regulations, section 47 of the Factories Act 1937, and the Annual Reports of the Chief Inspector of Factories for 1938, for 1943, for 1949 and for 1956. He also referred to advice given to those involved in shipbuilding and ship repairing in 1945 and to power stations in 1949, not because it was available to Shell but because it indicated the thinking of the Factory Inspectorate at the time.
43. It is necessary, therefore, to consider the literature itself and what an employer such as Shell should have made of it. This was not an issue which expert opinion could determine. The experts were helpful in producing the literature but what a reasonable and prudent employer should have made of it was a matter for the court.
44. The first and in many ways most important document was Merewether and Price. For methodological reasons this had deliberately targeted high exposure employees for study. The shocking news was that long exposure to high concentrations 'results' - not 'may result' - in asbestosis. But as they found no case before five years' exposure and did find an association with length of exposure and an apparent association with intensity of exposure it is argued that a careful employer, reading this document, would not associate any risk with the level of exposure in this case.
45. The science of epidemiology was comparatively undeveloped in 1930, as no doubt was the skill of employers in reading such documents. No modern reader would expect to draw conclusions about the length and intensity of exposure which might give rise to injury from a snapshot study of a weighted sample. Even then, while the headline message was that prolonged intense exposure would inevitably lead to asbestosis, it must have been apparent to any careful reader that the effect of much lower levels of exposure was quite unknown. Dr Merewether himself, in an article published in an American medical journal pointed out that it was 'wholly untenable' to infer that 'so long as the . . . exposure does not exceed five years the risk of contracting asbestosis is almost negligible.' ('A Memorandum on Asbestosis', Tubercle, December 1933, p 110) Although that publication would not have been available to most European employers, he was only stating what should have been obvious to the prudent reader of Merewether and Price: given the high incidence found after longer periods it would have been quite unsafe for anyone to conclude what might be the safe level of exposure. The message, as Mr Allan QC on behalf of the claimants points out, was that asbestos dust is harmful and the precaution needed is to suppress it.
46. The next document was the Asbestos Industry Regulations 1931. The exemption might have induced the belief that there was a safe level of exposure. But the judge observed that:

'I do not regard such exemption as offering a green light to exposure, provided that it was less than 8 hours a week, nor do I regard the fact that these Regulations were intended primarily for the asbestos industry itself as undermining the general message, in the Merewether report, to the effect that the inhalation of asbestos dust was dangerous, and was liable to result in fibrosis of the lung, depending upon length of employment and concentration of dust.'

As already seen in paragraph 12 above, the regulations only offered a green light to occasional exposure to certain processes. Otherwise, the obligations contained in them were strict: in itself a considerable warning of the dangers involved.

47. Next came the Factories Act 1937, section 47, which prohibited exposure to 'any dust . . . of such a character and to such an extent as to be likely to be injurious or offensive . . . or of any substantial quantity of dust of any kind.' The judge quoted the comment in the Annual Report of the Chief Inspector of Factories for 1938 (1939, Cmd 6081, p 63):

'We are but on the threshold of knowledge of the effects on the lungs of dust generally . . . While Section 47 of the Factories Act of 1937 may be thought to be somewhat ambiguous in its reference to "a substantial quantity of dust of any kind" it is, I consider, an admirable one in that it requires precautions even before it is possible to say specifically that the dust in question is harmful to a recognisable pathological extent. 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.'

Mr Mackay points out that the last sentence was buried in a long report covering many different topics. Nevertheless it is, as the judge described it, a 'potent description of asbestos dust'.

48. Mr Clark, a health and safety consultant instructed on behalf of Cherry Tree, pointed out in his Report (para 4.4.) that 'Tabulated data in subsequent Annual Reports [ie after that for 1930] showed that the shortest occupational exposure to asbestos dust to result in fatal asbestosis fell from 4.4 years (1931) to 1.5 years (1935) and to 0.5 years (1943)'. The Annual Report of the Chief Inspector of Factories for 1943 (1944, Cmd 6563) was before the judge. The judge referred to the death resulting after only six months' employment as 'probably rogue, in that it has not been repeated, but it was some indication to employers, at the time, that exposure over a relatively short period could be harmful.' Mr Mackay argues that he should not have referred to it at all, but no reasonable employer reading this could have been confident that it was a 'rogue' given the context which Mr Clark describes.
49. The Annual Report of the Chief Inspector of Factories for 1949 (1951, Cmd 8155) contained the following at p 144:

'The Code of Regulations dealing with the dangers arising in the handling of asbestos has been in force since 1931, and reports show that constant vigilance is necessary in order to ensure that there is no slackening in the fulfilment of the precautionary measures laid down. In factories where processes scheduled under the Regulations are carried on, the maintenance of dust control, particularly adequate exhaust ventilation at all possible points where dust may be evolved, is of utmost importance. Those firms which have had long experience with the product and realize how the incidence of asbestosis arises are fully alive to the many problems involved, and from the inspection point of view, it is very necessary to keep an ever watchful eye for the new use of asbestos in some manufacturing or other process, for example, on ships or buildings where the work may be undertaken by someone not fully realizing the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.'

The judge quoted the second half of this passage commenting that it stressed 'the dangers of exposure to asbestos dust outside the asbestos industry'.

50. The Annual Report of the Chief Inspector of Factories for 1956 (1958, Cmnd 329) is relevant only to Mr Jeromson's case, but contained 'a similar message':

'One very hazardous process, to which the Regulations do not always apply, is the removal of old heat-insulation lagging. The handling of this very dry and dusty material presents a serious health hazard, which is all the more serious because the work is often done in confined spaces. Much of this work is done in premises not subject to the Factories Acts, and in any case the operation does not take long. The persons who do it are, however, regularly engaged on it and are constantly exposed to risk.'

Again, these messages may be contained in much longer documents but they are striking in their tone.

51. Having reviewed the literature, the judge referred to the different conclusions reached at first instance, by Waterhouse J in Gunn v Wallsend Slipway & Engineering Company Ltd, 7 November 1988, and by Buxton J, as he then was, in Owen v IMI Yorkshire Copper Tube, 15 June 1995. He could not agree with Waterhouse J 'that the literature justifies the conclusion until 1960, that asbestosis was attributable only to heavy and prolonged exposure'. He preferred the formulation of Buxton J that from the beginning of Mr Owen's employment in 1951, 'the difficulties related to and the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect, for employers to be under a duty to reduce exposure to the greatest extent possible.' He did so 'in the context of the absence of any means of knowledge of what constituted a safe level of exposure'. He accepted Mr Allan's submission that 'a reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure.' In an uncertain state of knowledge, the risk could not (in the words of Lord Upjohn in Czarnikow Ltd v Koufos [1969] 1 AC 350, at p 422C) be 'brushed aside as far fetched.'
52. The point which impressed the judge was the certain knowledge that asbestos dust was dangerous and the absence of any knowledge, and indeed any means of knowledge, about what constituted a safe level of exposure. Mr Mackay's argument relies heavily on the explosion of knowledge which took place during the 1960s. Only then did it become apparent that mesothelioma could result from very limited exposure. In particular, it was only then that knowledge began to develop of the risks to those outside the workplace, such as the wife washing her shipyard worker husband's overalls (as in Gunn) or people living near to asbestos works. But just as courts must beware using such later developments to inflate the knowledge which should have been available earlier, they must beware using it to the contrary effect. The fact that other and graver risks emerged later does not detract from the power of what was already known, particularly as it affected employees such as these, working in confined spaces containing a great deal of asbestos which might have to be disturbed at any time. There is no reassurance to be found in the literature that the level of exposure found by the judge in this case was safe and much to suggest that it might well not be so. The judge was entitled to conclude that a prudent employer would have taken precautions or at the very least made inquiries about what precautions, if any, they should take.
53. If Shell had made inquiries, the judge was in little doubt what advice they would have received. The obvious place to begin was the Factory Inspectorate. In August 1945, the Chief Inspector of Factories wrote to the shipbuilding and ship repairing industry of his concerns about 'Asbestos Insulation aboard Ships'. This emphasised that, 'while asbestos dust may not have any apparent effects at first, experience shows that, particularly if the workers are exposed to the dust in substantial concentrations, serious results are apt to develop later. It is therefore important that, even if the work will only be temporary, all reasonably practicable steps should be taken to reduce the risk to a minimum.' Interestingly, among the precautions advised on board ship was 'the provision of a respirator . . . for each workman engaged in the fitting or removal of any dry insulating material containing asbestos'. Similar advice was given to Regional Safety Officers by the Chief Safety Officer about the lagging of steam pipes in generating stations in September 1949 and to at least one power station in 1954.
54. The judge also referred to the evidence given by Mr Finch, an expert called on behalf of Shell, who had previously been employed as a factory inspector. In answer to questions from the judge, he had said that if asked for advice about employees whose activities involved substantial exposure for very short periods of time once a week, he would have advised providing a respirator. Mr Mackay rightly points out that Mr Finch would not have expected an employer to make that inquiry in the 1950s. Nevertheless, the judge was entitled to take into account his evidence as to what the advice would have been had the inquiry been made. It was for the judge to decide whether it should have been made.
55. Accordingly, the judge having correctly directed himself on the law, and having made findings of fact about the nature and extent of potential exposure to asbestos dust, was entitled to draw the conclusions he did about the foreseeability of harm flowing from such exposure at the relevant time. I would dismiss the Shell appeal.

MR JUSTICE CRESSWELL:

56. I also agree.

LORD JUSTICE MANTELL:

57. I agree that both appeals should be dismissed for the reasons given by Hale LJ.

Order: Both appeals dismissed with costs. In case of Jeromson, by consent judgment for claimant in sum of £162,387; interim award of costs of £75,000. In case of Dawson, by consent judgment for the claimant in the sum of £116,918; interim award of costs of £75,000 (£50,000 payable by Shell and £25,000 by Cherry Tree); application by Cherry Tree for permission to appeal to the House of Lords refused; £25,000 interim costs payable by Cherry Tree stayed pending making of petition to House of Lords within one month, such stay to continue until determination of petition and, if petition allowed, until final determination by House of Lords; on condition that judgment sum is brought into court within 14 days, stay of execution of judgment to continue until determination by House of Lords; costs of appeal apportioned at two-thirds on Shell and one-third on Cherry Tree.

(Order does not form part of Approved Judgment)