England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ASBESTOS LIST
FATAL MESOTHELIOMA

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/02/2018

HHJ Curran QC :

Introduction

1. Mr David Hill died on 22^nd July 2012, aged 63. The cause of his death was mesothelioma, a disease which developed as a result of Mr Hill's exposure to asbestos at work.
2. Mr Hill was a time-served bricklayer, and had worked in the UK in the early 1970s. His work then included maintenance and refurbishment of industrial furnaces, which involved stripping out the inner surface linings, including removal of courses of brickwork, fibreglass and asbestos, and then re-lining the furnaces.
3. Amongst the places at which he worked were factories occupied by the second and third defendants ("the factory defendants") for whom he performed the tasks as a craftsman provided to them by the first defendant company ("Birlec"). Birlec obtained his services from another company by whom he was at least nominally employed, called either Lou Brawn (Staffs) Ltd. or Lou Brown (Staffs) Ltd. That company, if it still exists, is not a party to these proceedings. (The name "Brown" seems to be the result of a mistake -- it is thought -- for "Brawn" in a number of the documents in the case. Whatever may be the exact position, I shall refer to it below as "Lou Brawn".)
4. It is not disputed that Mr Hill was exposed to asbestos in the course of his work for the defendants. The details of that exposure are set out in the evidence of Mr. Chambers, a former Factory Inspector, and Health & Safety Consultant, who was instructed by solicitors acting for Mr Hill's executor. Mr Chambers' report, dated 25^th November 2016 is at trial bundle p. 120. It is not contradicted by any evidence from any of the defendants.
5. No issue arises over causation, which is established by the undisputed evidence of Dr Barber, Consultant Respiratory Physician, whose report dated 24^th July 2015 is at trial bundle p. 228.
6. The trial concerned liability only. Subject to the resolution of that, all parties have agreed that the appropriate quantum of damages is £135,000.
7. The only evidence which was given at the hearing was from witnesses for the claimant. That evidence was contained in the witness statements of the deceased, the witness statements of Mr David Hill, and the witness statement of Mr Roger Roberts. Mr David Hill and Mr Roberts were each cross-examined. None of the defendants called any evidence.
8. The first defendant company, Birlec, has been restored to the register (presumably) for the purpose of these proceedings and it now goes under the designation "00222648 Limited (formerly Birlec Limited)". Both it and its former insurers are insolvent, and its appearance in the proceedings is to be explained by the existence of certain compensation arrangements which I shall deal with presently.

The evidence of the late Mr David Hill

9. Mr David Hill had made two witness statements in the year 2012, shortly before he died. In the first of these, which begins at page 47 of the trial bundle, he explained how having left school at age 14 or 15, he attended a college for a year and thereafter did an apprenticeship as a bricklayer. He stated in the clearest terms in that witness statement that he was employed by "Lou Brawn". From about 1971, when he would have been aged 22 to 23, he said that,

"… I was employed by Lou Brawn as a specialised refractory bricklayer for Birlec. …. Around 1974 or 1975 the work for Birlec was decreasing. As Lou Brawn was in essence a labour broker supplying labour to Birlec this meant we were laid off. As the youngest employee I was laid off early on."

("Refractory" bricks are those designed to be used in structures subjected to very high temperatures. They are exceptionally hard and durable bricks.)

10. The deceased described in his first witness statement how his employment by Lou Brawn was arranged through Mr Hill's brother John. He did not in fact meet Lou Brawn himself for more than a year after he had started work and during the whole time that he was working for him met him only about six times. Lou Brawn, he said, supplied bricklayers and labourers to Birlec and, so far as brickwork was concerned all the men who worked for Birlec would be "Lou Brawn men" with the exception of the directly-employed Birlec supervisors.
11. It is clear that, as a young man, the deceased looked at the Birlec supervisors with some awe. He said they held very prestigious positions and were regarded as experts.

"We all reported to them. They told us what to do and how to do it, everything I did was under their instruction. We would ask them if we got stuck on any specific problem, actually we did nothing without their permission. The supervisors were familiar with the material that we used. …. They knew it was horrible to work with the material which is why they would not do it themselves. As far as I knew all the work I did was for Birlec."

12. He described working inside the furnaces themselves to remove the refractory lining within them: the outer brick lining, behind that insulation brick, behind that glass fibre insulation, and behind that asbestos. The whole design of the furnace was such as to prevent any escape of heat when in use, and so in normal circumstances it was airtight. A hole approximately 2 feet square would be made in the top of the structure of the furnace to permit access for the relining work, but there was very little air circulation, with the result that the air within the furnace was "thick with dust". Such dust, the deceased made clear, came from every layer of the lining. Conditions were extremely cramped and hot, and the deceased said that a man could only work for 20 to 30 minutes at a stretch before needing to crawl out to recover, but even outside the furnace (and within the factory premises) there was a great deal of dust both in the air and covering his clothing.
13. Mr David Hill also said in his first witness statement that after emigrating to South Africa in 1982 he worked in the construction industry until 1998, when he joined a family business involving the reproduction and distribution of educational material. Mr Hill's dependant widow, Mrs Cheryl Hill, lives in South Africa.

The evidence of Mr John Hill

14. In addition to the evidence contained in the deceased's witness statements, Mr Hill's elder brother, Mr John Hill, supplied much of the evidence, in terms of unchallenged background information, as to how his late brother came to be doing the work with which the case is concerned, and as to the various parties involved arranging for the work to be done, and also as to the nature of the processes, working methods, and conditions which obtained in the various places.
15. Mr John Hill began work for Birlec in the year 1961, working as an apprentice welder and steel erector. After completion of his apprenticeship he eventually became a supervisor. Birlec designed, built and installed furnaces. They also maintained existing furnaces and this he described as a lucrative source of business for them. Birlec did not itself employ a large workforce to carry out installation and maintenance work. Instead it trained a relatively small number of supervisors, such as Mr John Hill himself, and then brought in tradesmen under contract for particular jobs. The number of tradesmen depended on the size of the job. Whilst Birlec had contacts with agencies for certain tasks such as steel erecting, furnace bricklayers were nearly always obtained by Birlec through the agency of Lou Brawn's company.
16. Mr John Hill described the man Lou Brawn, who gave his name to the company, as a friend of his boss at Birlec. When they worked for Birlec Lou Brawn's men were under the control and supervision of Birlec men. On a smaller job this was usually a supervisor who was trained as a furnace erector such as Mr John Hill himself. On larger jobs there could be an "engineer-level supervisor" from Birlec who generally oversaw the work, took care of administration, and liaised with the factory owners.

The evidence of arrangements between the deceased, Lou Brawn, and Birlec

17. Mr Hill said that his younger brother David had approached him at a time when, although he was a skilled bricklayer, there was a lull in the building trade. Mr John Hill knew that specialist bricklayers were required by Birlec for furnace bricklaying, which he knew his brother David was able to do. He used his influence and, as he put it, in terms, "Lou Brawn agreed to employ my brother."
18. In his second witness statement Mr John Hill gave more detail about the arrangements between Lou Brawn and Birlec:

"Birlec Ltd contracted for installation and repair work on furnaces for factories around the country. The work was subject to seasonal peaks and troughs: for example, the Easter holidays and summer periods were always busy because this was traditionally a time during which factories closed for shut down repair work. The fluctuations in the amount of contracts available at any one time had a knock on impact on Birlec's need for labour. Whilst the company had work scheduled throughout the year, there was inevitably times when there was not a need for a large number of workers. The company did not want to find itself in a situation where it had a lot of men on the books who they had to pay, and no work for them to do. They sought a more cost effective solution for organising their labour needs, and this involved the supply of workers through an outside company, Lou Brown Ltd.

"Birlec employed a core group of qualified engineers and bricklayers. These men also acted as supervisors on site. I was one of these employees, a group which was initially referred to as "the easy 6." …. Whilst we were always on the books and had to be paid even during periods of downtime, Birlec had not committed itself to a large financial outlay. The rest of the men that Birlec employed to carry out work on their contracts were employed through an arrangement with Lou Brown Ltd. Lou Brown exclusively provided labour to Birlec. Lou Brown set up a company which functioned solely to supply labour to Birlec Ltd. …. The extent of his job was provide workers to Birlec for the jobs Birlec had, and to facilitate payment of the men on a weekly basis. Birlec's supervisors signed off the workers' time sheets and Lou Brown then submitted these to Birlec Ltd for payment. Birlec arranged for the salaries to be distributed through Lou Brown."

19. There were two jobs upon which the brothers worked together.

"One was a relatively small job at the Royal Ordnance Factory at which I worked directly alongside my brother. The other was a large job at a Henry Wiggins factory in Hereford. There were a lot of us working on this job."

Mr Hill said that he believed both jobs were in the early 1970's.

20. In cross-examination by Mr Ronald Walker QC for Birlec, Mr Hill's evidence was as follows.

Q [The deceased's account in his witness statement of how his brother came to introduce him to Lou Brawn and Birlec was drawn to his attention and he was asked,] what is your recollection?

A Birlec were looking for bricklayers. There was a lull in trade … and I spoke to my brother one morning and I arranged to give Lou Brawn my brother's phone number. I had told Lou Brawn that my brother was a likely candidate.

Q So you knew if your brother was to be engaged on Birlec's work he would be employed by Lou Brawn?

A Yes that's the way it worked. Lou Brawn only worked for Birlec.

….

Q Lou Brawn employed workmen who were sent to work at Birlec sites as required?

A Yes.

Q Birlec paid Lou Brawn for time spent by the men according to time sheets?

A Correct.

Q Lou Brawn would then pay its own employees?

A Yes. I agree that was Lou Brawn's job.

….

Q Birlec did not wish to employ the staff [whose services it had obtained] through agencies?

A I agree. Work might fluctuate. I agree Birlec would not want to keep agency workers if amount of work reduced.

….

There were approaches to my brother to come on the books. I heard this from my brother. [For various reasons] he didn't want to. …. Birlec was starting to go through an upheaval at the time so it might not have been an attractive prospect.

Q Presence of asbestos and contamination by asbestos were known at the time?

A Its presence was known but the danger was not. We were not informed of dangers.

There were huge volumes of dust. No precautions other than a mask – a Martindale mask – within seconds of putting it on you would be soaking wet. Most men tied a neckerchief around mouth. There was thick dust, that would have been obvious to the occupiers of the factories. No 'permit to work' system had been introduced at this stage - we are talking about the 1970s.

….

Q You say it was horrible work because of the dust and heat?

A Yes.

My brother was highly skilled in construction. Not a trainee. He had completed his apprenticeship. Particularly skilled at arch work.

Work at the Royal Ordnance Factory

21. The second defendant's Royal Ordnance Factory in Nottingham manufactured gun barrels for tanks. The design of the gun barrel had been changed, increasing its length. Therefore the furnaces used in the manufacturing process had to be extended so that they could accommodate the longer barrel. Mr John Hill was his brother's supervisor on this job and signed his timesheet as well as checking on the quality of the work. They were the only two working on the job and so had to assist each other. There were three vertical heat treatment furnaces which needed to be extended. The furnaces were about thirty feet in length and seven feet in width. A top section of each furnace had to be removed, following which the extension would be lowered into position and welded in place. The lining of the top section had to be stripped before it could be removed and the extension lined with insulation and brickwork. He said:

"The process generated an enormous amount of dust and of course a substantial amount of this was asbestos dust. Ripping off asbestos panels causes a lot of asbestos dust to come loose and enter the air around you."

However, the dust was not confined to the interior of the furnace.

"When we stepped out of the furnace and brushed the dust from our hair it went everywhere. Asbestos dust, along with the other dust from the furnace, was inhaled by David and I as it floated around us. Further amounts of asbestos dust were released from our overalls when we used an airline to dust ourselves down. The airline had the effect of blowing dust, including asbestos dust, back into the air around us …".

22. Mr John Hill said in his witness statement that he believed they worked at the Royal Ordnance Factory for about a month, 7 days a week. It took two hours to get there and they worked between 12- and 14-hour shifts. The hours were long and it was a tough job, but they needed the money, and it was common in those days to work these kinds of shifts.
23. In cross-examination by Mr Jaspal, counsel for the second defendant, the witness's evidence was as follows.

ROF Nottingham – the whole factory was not in a state of shut-down when the work was being done.

"Q In your witness statement at p. 52 para 29 you say, 'the factory owners did not have the technical know-how to supervise us' can you recall which of the Second Defendant's employees were present?

A The General Manager; the Safety Officer; and sometimes the foreman. At times I remember seeing all three.

….

Scaffolding we used provided by Birlec. Materials - bricks etc provided by Birlec. Lou Brawn simply provided labour. Specialist tools provided by Birlec. I was working there in a … supervisory capacity. Martindale masks were provided by Birlec."

Work at Henry Wiggin

24. The other job on which Mr Hill said he and his brother both worked was at a Henry Wiggin Factory in Hereford, where cast nickel components were manufactured.

"The factory had three or four large heat treatment furnaces which needed maintenance work. The usual work had to be carried out; the old lining stripped away and new lining put in place, along with the welding of heat elements etc and the commissioning of the furnaces, but it was on a large scale and there were time constraints. As such quite a lot of men were on site and I can remember that on this job there was an engineering supervisor. I carried out my usual supervisor role but I was not working directly with David. He was onsite as a bricklayer and his duties included stripping the lining of the furnaces. …."

"When I looked inside the furnace, in which at least six men including my brother were working, I could see nothing but dust. It was as thick as a fog; visibility was a yard in front of me at best. This dust was generated by the stripping of brickwork and insulation, including asbestos insulation. Asbestos dust filled the atmosphere of the furnace. It was impossible for David to avoid inhaling asbestos dust in such an atmosphere."

25. They worked shifts of between 14 and 16 hours, seven days a week for about a month. There were over twenty men on site. They were not provided with masks or any personal protective equipment, and were not warned about the dangers of working with asbestos.
26. In cross-examination by Mr Turton, counsel for the third defendant company, the witness's evidence was as follows.

"[The third defendant] would be responsible for notifying Birlec that maintenance work was required. To operate furnaces is a highly specialised job and Wiggins would know when maintenance required. Temperature gauges etc. were monitored. Problem would become apparent if furnace not reaching right temp or product emerging in a defective condition.

The "expert" called in to repair etc was Birlec.

Henry Wiggin had created Birlec – in 1930s they had produced nickel-chrome alloy from Canada. As an apprentice I was taught that the name came from Birmingham Electric – they made electric furnaces and they started producing new alloy with the new technology. The firms went their separate ways. 1960s Henry Wiggin still operating furnaces produced by Birlec and had a rolling maintenance system for which they relied on Birlec.

Re-lining furnaces would be on something like a 5-year cycle. I can't be definite about that. I only had this one experience of that factory.

….

The work was done under the overall supervision of the works (Wiggin's) engineer, works foreman and the works safety man.

Q They were not present in the department when you were doing your work?

A Yes they were.

Q Not playing an active part?

A We were doing a specialist task.

Q They were your contacts?

A And to give permissions.

QYes but they were not specialists?

A No we were specialists - they knew exactly what we were doing. They were monitoring the condition of the furnace.

Q But they were being stripped out?

A Yes. But safety monitoring necessary – e.g. for risk of fire.

Q But essentially the department handed over to you?

A Yes that's correct but I would be provided with a safety man to monitor my work because I would be using cutting torches, for example. I would get my air from him. Equipment from Birlec. I agree Wiggins trusted Birlec. I was not being supervised by safety man I was being monitored.

Judge: Doing what?

A He was monitoring the external conditions -- ventilation etc -- in which I worked – not the work I was doing.

Q What about Birlec supervisors?

A I agree if a Birlec engineer present he would direct and supervise work. Conditions inside furnaces known to Birlec men, not to Henry Wiggins but they monitored outside. Henry Wiggins employee – safety man – I would have to ask to let me into furnace when I went there on my own. When I was there with my brother the work we were doing was not overseen by Henry Wiggin's employees: they were there but in the background, not overseeing our work we were responsible for that.

Q When you arrived on site were steps taken by Henry Wiggins to make furnaces safe for you to work in – they were switched off etc?

A Yes. Our actual work was supervised by Birlec. Birlec engineer would determine the length of the working day. Lou Brawn had no input into that. Decided entirely by Birlec. Hardly ever saw Lou Brawn. Lou Brawn's men directed by Birlec 100%. [The deceased's] hours on site would be communicated direct by Birlec men to him. No Lou Brawn input into that.

Q [When you were approached by your brother about work] was it Birlec your brother looking to work for?

A He wasn't looking for any particular company. I got in touch with Lou Brawn. Lou Brawn only worked for Birlec. Brother was not actually telling me he wanted to work for Birlec. I believe Birlec did ask for my brother to work on particular jobs. He was well regarded as a bricklayer."

The evidence of Mr Roberts

27. Mr Roger Roberts is a little older than Mr John Hill. He began an apprenticeship with Birlec in 1956, as a refractory bricklayer. His evidence was that Birlec had constructed furnaces to order and installed these throughout the country. In addition to the business generated by the sale of furnaces, Birlec derived a lot of work from the maintenance and repair of furnaces already in operation. This incorporated not only furnaces Birlec Ltd had built and installed but also furnaces which had been manufactured by other companies.
28. These insulated furnaces were obviously designed to withstand the generation of intense heat within them but the demands of production meant that any given furnace was subjected to heavy and consistent use. The levels of heat, with that amount of use, led to significant deterioration in the insulation and brickwork inside the furnace. Therefore it was important regularly to maintain the insulation linings of the furnaces and to repair any damage.
29. Maintaining a furnace involved the removal of old and damaged brickwork and insulation, carrying out repairs to the casing of the furnace and then building up new layers of insulation and brickwork. The work took place during periods of factory shutdown. It was carried out as quickly as possible due to the loss in production levels incurred by the loss of an operating furnace. Mr Roberts confirmed the evidence of the late Mr Hill and that of Mr John Hill, that when working on large furnaces, it was necessary for men to climb into the body of the furnace and to break down the brickwork and insulation by hand. The working environment was cramped and enclosed. The stripping of brickwork released a lot of dust, as did the ripping off of asbestos lining. There was no way to avoid inhaling dust.
30. In cross-examination, Mr Roberts's evidence was as follows.

"The bricklayers and labourers were supplied by Lou Brawn. Abroad local labour also employed. About ½ doz men working below me. The furnace linings consisted of facing bricks first, then insulation bricks - several courses, then fibreglass, then asbestos – not always fibreglass. These were stripped out and replaced. Removing facing bricks and insulation bricks very dusty – mainly brick dust but some asbestos. At least a week's demolition was involved and 2 weeks to rebuild – about 3 weeks in all would be the minimum, it might easily be a month or 6 weeks.

p. 83 Henry Wiggin – I demolished 3 furnaces before move to Hereford. They had one about 30 ft long and another about the same length. A good 3 weeks to do whole job for one furnace.

Worked at Henry Wiggin in Hereford about twice a year. Typically 2-3 weeks on job there.

Q Birlec did not have a large force on the books - so Lou Brawn involved?

A Yes. I had teams of Lou Brawn men working under me. I do recall the deceased working at Henry Wiggins under me. Lou Brawn was careful who he had working for him. Birlec could ask for particular bricklayers if they wanted. Lou Brawn had about 10-12 bricklayers on his books."

The issues in this litigation

31. I shall summarise the various different issues which arise on that evidence and indicate the significance of certain aspects of those issues.

i) The employment issue.

There are a number of respects in which this is of particular significance.

a) The first question is whether or not at material times the deceased is to be regarded in law as having been an employee of Birlec. If so, certain consequences follow if any finding based upon Employers' Liability is made against it.

b) On this point the claimant and the second and third defendants make common cause and submit that the deceased was an employee of Birlec.

c) Birlec denies that the deceased was its employee. Birlec's case is that at all material times the deceased was the employee of an independent contractor (the Brawn company) and that it owed him no statutory duty.

d) Although Birlec has been restored to the register for the purposes of litigation, it is insolvent and no longer in any sense a going concern. At the time of the material events Birlec were insured by the Iron Trades Employers Insurance Association Ltd, but those insurers became insolvent many years ago.

e) In certain circumstances the Financial Services Compensation Scheme ("FSCS") is authorised to pay compensation to claimants in respect of the liabilities of companies whose Employers' Liability insurers (such as the Iron Trades) have become insolvent. That authority does not extend to such companies' other liabilities beyond those covered by Employers' Liability insurance, e.g. liability in negligence towards a non-employee. In that respect it was made clear by leading counsel for Birlec that it would not be taking any point that it was not in breach of a duty of care towards the claimant as a non-employee (although there was no authority on the part of the FSCS formally to admit liability.) However, in the absence of insurance cover, any such breach is not susceptible to any practical remedy which might be of benefit to the estate of the deceased.

f) It is contended by the First Defendant that compensation from the FSCS is not in any event payable where a Claimant has an enforceable judgment against another Defendant, nor is there any liability on the part of the FSCS to indemnify Birlec in respect of any contribution claim upheld against it from any other Defendant. The Second and Third Defendants dispute this. The Court is not called upon to resolve this issue at this stage and has not received evidence in relation to it.

ii) The issue over the substitution of the Asbestos Regulations 1969 for the provisions of section 63(1) of the Factories Act 1961. ("The substitution and replacement issue.")

a) The case for the second and third defendants is that by the time of the deceased's exposure to asbestos dust in the years 1971 to 1973 the relevant part of section 63(1) of the 1961 Act had been substituted in its entirety by the provisions of a subsequent statutory instrument, namely regulation 3(3) of the 1969 Regulations.

b) The case for the claimant and for Birlec (who, in turn, over this issue make common cause) is that, properly construed, section 63(1) provides for two distinct obligations: first, the obligation to protect workers from any foreseeably injurious dust; and, secondly, the obligation to protect workers from any substantial quantity of dust of any kind. It is submitted that the terms of the provisions of regulation 2(3) and 3(3) of the 1969 regulations are such that the first obligation may have been replaced entirely by the provisions of the 1969 regulations, but the second obligation has survived their introduction, and liability to the deceased may be established under it.

iii) The issue raised by the second defendant as to the meaning of "process".

a) This point only arises if any liability under section 63 survived the introduction of the 1969 regulations. It is an argument available (on the evidence) only to the second defendant, the Ministry of Defence, as to whether any work upon which the deceased was involved at the second defendant's Royal Ordnance Factory constituted engagement upon a "process" to which section 63 applied. The basis for the argument is that the particular circumstances of the work at the Royal Ordnance factory did not involve the engagement of the deceased upon 'a process' within the meaning of the section.

b) Reliance is placed upon the observations of Lord Kerr in the case of McDonald v National Grid Electricity Transmission plc [2015] AC 1128, that such wording should be given its plain and natural meaning, so that "… If it is a process that is a normal feature of the factory's activity, it is a process for the purposes of the legislation."

c) On the evidence it is submitted that the work involved in so extending and modifying the furnace at the Royal Ordnance factory in order to enable the manufacture of longer gun barrels for tanks (i.e. longer barrels than those previously manufactured there) amounted to "one-off building work rather than any form of routine work or maintenance."

d) If, contrary to that submission, it is held that section 63 was engaged, the second defendant submits that it took all practicable measures by engaging competent and specialist contractors, namely the first defendants, to undertake those extension works.

iv) The issue over the provisions of section 29 (1) of the Factories Act 1961 is this: whether "the place of work" in which the deceased performed his duties was unsafe, within the meaning of the section, in the light of the relevant case law.

a) The second and third defendants submit that the distinction is well recognised between the safety of a place of work in terms of its physical structure and attributes generally, having regard to activities which are constantly and regularly carried on in it, and its safety as a place of work if any potential danger is caused as a result of some quite unusual, or even sporadically irregular, activity which creates a hazard of an exceptional kind. Reliance is placed upon cases such as Evans v Sant [1957] QB 626 DC and the well-known observation by Lord Widgery CJ that,

'… in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried upon the place.'

but the Lord Chief Justice continued:

'That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself. The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein. In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place. In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe.'

(See also Baker v Quantum Clothing Group Limited [2011] ICR 523 SC (E).)

b) In the instant case it is submitted that none of the work carried out by the deceased or other Birlec workers was constant, regular or recurring. Nor was it carried out by the second and third defendants as part of their own activities as factory occupiers. The hazard created by the dust was "peculiar to the work of the first defendant" which amounted to the carrying out of maintenance "occasionally" in the case of the third defendant, and even more sporadically in respect of the second defendant. The dust was not a normal feature of the operations within the factory, but an abnormal and time-limited feature of Birlec's operations.

c) Leading counsel for the claimant and for the first defendant submit that these arguments are hopeless, and that there were clear breaches of section 29. The use of furnaces within both the second and third defendants' factory premises was absolutely necessary and intrinsic to the work which was performed there. Furnaces which are in regular use will require regular maintenance. If circumstances change so that the design or construction of manufactured components require change, then a furnace, the use of which is intrinsic in manufacturing the same, will also require alteration. There is no requirement that any process must be a continuous activity. In Nurse the House of Lords rejected the submission that 'process' meant some continuous activity regularly carried on within a factory and found that it included a single operation such as the demolition of a kiln, being '… any operation or series of operations being an activity of more than minimal duration': see the opinion of Lord Griffiths at paragraph 704D.

v) The issue as to liability at common law for the development of mesothelioma by the deceased.

a) Counsel for the claimant made it clear that the alternative basis of liability was put forward not upon the basis of the Occupiers Liability Act 1957, but upon the basis of breach of duty by Birlec and by each of the factory defendants arising from their knowledge of the work being done by the deceased and their duties in respect of supervision and control. Reliance was placed upon the case of Ferguson v Welsh [1987] 1 WLR 1553 and upon the observations of the Court of Appeal in the case of Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052. (The claimant's fire on this issue was concentrated on the factory defendants, presumably because Birlec is an uninsured entity in respect of liability at common law.)

b) The unchallenged expert engineering evidence in the case pointed to the hazardous nature of the way in which the work was being carried out on the factory defendants' premises and to the fact that the factory defendants should have been aware of that and taken appropriate precautions.

c) The factory defendants' knowledge of the hazards, their power to intervene, coupled with their knowledge of their specific statutory duties to non-employees within the factory premises, was sufficient to create a duty of care at common law, of which they were clearly in breach.

d) For their part, the factory defendants submitted that no liability can attach to a factory owner or occupier, save in closely defined circumstances, where it reasonably engages a third party independent contractor to carry out work.

The employment issue

32. The most recent authority cited by counsel at the hearing upon the status of agency workers, and the circumstances in which contracts of employment with end-users of their services may be implied, is the case of Smith v Carillion (JM) Limited [2015] EWCA Civ 209. In that case the Court of Appeal reviewed a number of the authorities and expressly approved its decision (in a different constitution) in James v Greenwich London Borough Council [2008] ICR 545, CA. That was a case which was mainly concerned with the question of whether the claimant was an employee, as defined by section 230 of the Employment Rights Act 1996, but counsel for all parties accepted that both the decision of the Court of Appeal and of the Employment Appeal Tribunal, whose decision the court was considering, provided much of the necessary guidance for the legal analysis in the instant case.
33. In giving the judgment of the Employment Appeal Tribunal in James, at [[2007] ICR 577, Elias J (then the President of the EAT) made the following observations about a situation in which an agency relationship existed, as it exists in the present case, at paragraph 20:

"Typically … there is a contract between the agency and the worker, under which the worker agrees to provide his or her services to the ultimate client or end-user, and a contract between the client and the agency. Normally there is no express contract of any kind between the end-user and the worker. In those circumstances, unless some contract can properly be implied according to established principles, it will not exist at all. Rights which are dependent on there being a contract of some kind will then simply not arise."

At paragraph 54 he said,

"In the casual worker cases, where the issue is whether there is an umbrella or global contract in the non-work periods, the relevant question for the tribunal to pose is whether the irreducible minimum of mutual obligations exists. It is not particularly helpful to focus on the same question when the issue is whether a contract can be implied between the worker and end-user. The issue then is whether the way in which the contract is in fact performed is consistent with the agency arrangements or whether it is only consistent with an implied contract between the worker and the end-user and would be inconsistent with there being no such contract. ….

"55 If there were no agency relationship regulating the position of these parties then the implication of a contract between the worker and the end-user would be inevitable. Work is being carried out for payment received, but the agency relationship alters matters in a fundamental way. There is no longer a simple wage-work bargain between worker and end-user.

"56 In Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437 Munby J was surely right when he observed that in a tripartite relationship of this kind the end-user is not paying directly for the work done by the worker, but rather for the services supplied by the agency in accordance with its specification and the other contractual documents. Similarly, the money paid by the end-user to the agency is not merely the payment of wages, but also includes the other elements, such as expenses and profit. Indeed, the end-user frequently has no idea what sums the worker is receiving.

"57 The key feature is not just the fact that the end-user is not paying the wages, but that he cannot insist on the agency providing the particular worker at all. Provided the arrangements are genuine and the actual relationship is consistent with them, it is not then necessary to explain the provision of the worker's services or the fact of payment to the worker by some contract between the end-user and the worker, even if such a contract would also not be inconsistent with the relationship. The express contracts themselves both explain and are consistent with the nature of the relationship and no further implied contract is justified.

"58 When the arrangements are genuine and when implemented accurately represent the actual relationship between the parties -- as is likely to be the case where there was no pre-existing contract between worker and end-user -- then we suspect that it will be a rare case where there will be evidence entitling the tribunal to imply a contract between the worker and the end-user. If any such a contract is to be inferred, there must subsequent to the relationship commencing be some words or conduct which entitle the tribunal to conclude that the agency arrangements no longer dictate or adequately reflect how the work is actually being performed, and that the reality of the relationship is only consistent with the implication of the contract. It will be necessary to show that the worker is working not pursuant to the agency arrangements but because of mutual obligations binding worker and end-user which are incompatible with those arrangements. [Emphasis added.]

"59 …. It will no doubt frequently be convenient for the agency to send the same worker to the end-user, who in turn would prefer someone who has proved to be able and understands and has experience of the systems in operation. Many workers would also find it advantageous to work in the same environment regularly, at least if they have found it convivial. So the mere fact that the arrangements carry on for a long time may be wholly explicable by considerations of convenience for all parties; it is not necessary to imply a contract to explain the fact that the relationship has continued perhaps for a very extensive period of time. ….

"60 It will, we suspect, be more readily open to a tribunal to infer a contract in a case like Cable & Wireless plc v Muscat [2006] ICR 975 where the agency arrangements were superimposed on an existing contractual relationship. It may be appropriate, depending on the circumstances, to conclude that arrangements were a sham and that the worker and end-user have simply remained in the same contractual relationship with one another, or that even if the intention was to alter the relationship that has not in fact been achieved. That may be legitimate, for example, where the only perceptible change is in who pays the wages. In such a case the only effect of the agency arrangements may be to make the agency an agent of the employer for the purpose of paying wages. However, in these cases the tribunal is not strictly implying a contract as such but is rather concluding that the agency arrangements have never brought the original contract to an end."

34. In the Court of Appeal in James [2008] ICR 545, at page 548 (paragraph 5), Mummery LJ said that the correct legal question was not whether the claimant was "an agency worker," whether working for an employment agency or for an end-user under an employment agency agreement, but whether the claimant was employed by the end-user. The two types of contract, the Lord Justice pointed out, were not necessarily mutually exclusive. It was legally possible for a worker to have one kind of contract with an employment agency and another kind of contract with the end-user to whom he rendered services. He went on as follows.

"5. …. This is an exercise in legal classification. It requires the fact-finding tribunal to examine and assess carefully all the relevant evidence placed before it by the parties in the particular case for the purpose of determining whether the claimant fits the description of an "employee" ….

"6. In the absence of an express contract of employment, which may be written or oral, the … tribunal [of fact] is faced with the question whether it is necessary to imply a contract of employment between the claimant and the respondent. It is not always possible to predict with certainty how this question will be answered by the tribunal."

35. Later in his judgment, at page 552, paragraph 23, Mummery LJ said,

"… In order to imply a contract to give business reality to what was happening, the question was whether it was necessary to imply a contract of service between the worker and the end-user, the test being that laid down by Bingham LJ in The Aramis [1989] 1 Lloyd's Rep 213 at 224:

'Necessary… in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.'

"24. As Bingham LJ went on to point out in the same case it was insufficient to imply a contract that the conduct of the parties was more consistent with an intention to contract than with an intention not to contract. It would be fatal to the implication of a contract that the parties would or might have acted exactly as they did in the absence of a contract."

36. Later still in the judgment, at paragraph 30, he said,

"[t]he real issue in the 'agency worker' cases is whether a contract should be implied between the worker and the end-user in a tripartite situation of worker/agency/end-user rather than whether, as in the 'casual worker' cases when either the worker nor the end-user has an agency contract, the irreducible minimum of mutual obligations exists. In the agency worker cases the problem in implying a contract of service is that it may not be necessary to do so in order to explain the worker's provision of work to the end-user, or the fact of the end-user's payment of the worker by the agency. Those facts and the relationships between the parties are explicable by genuine express contracts between the worker and the agency and the end-user and the agency, so that an implied contract cannot be justified as necessary."

37. It is to be noted that in the subsequent case of Tilson v Alstom Transport [2010] EWCA Civ 1308, Elias LJ, with whom Pitchford LJ and Arden LJ agreed, summarised the relevant principles as follows.

"7 The principles for determining when such implication can take place are now well established and they were not in dispute before us. First, the onus is on a claimant to establish that a contract should be implied: see the observations of Mance LJ, as he was, in Modahl v British Athletic Federation [2002] 1 WLR 1192, para 102.

"8 Second, a contract can be implied only if it is necessary to do so. This is as true when considering whether or not to imply a contract between worker and end user in an agency context as it is in other areas of contract law. This principle was reiterated most recently in a judgment of the Court of Appeal in James … which considered two earlier decisions on agency workers in this court, Dacas v Brook Street Bureau (UK) Ltd [2004] ICR 1437 and Cable and Wireless plc v Muscat [2006] ICR 975."

38. At paragraph 49 of the judgment in James Mummery LJ said that in the agency worker cases the issue is whether "a third contract" exists at all between the worker and the end-user (i.e. in addition to (1) the contract between the worker and the agency; and (2) the agency and the end-user.)

The evidence relevant to the issue of employment in this case

39. On a proper analysis of the facts in this case, it seems to me, first, that there is no doubt that there were contracts in existence of the first and second kind referred to at paragraph 49 in the judgment of Mummery LJ in James, as summarised above: there is clear evidence of a contract (1) between the deceased and Lou Brawn, and of a contract (2) between Lou Brawn and Birlec. It is common ground that no express contract, whether written or oral, existed between Birlec and the deceased. If the court is to find that any contractual relationship existed between them, it can only be upon the basis of a necessarily implied contract. But is it necessary "to imply mutual contractual obligations" which must have existed between Birlec and the deceased to provide the deceased with work and for him to perform the work for Birlec?
40. In the instant case, much has been made, understandably, by the second and third defendants of various matters disclosed in the evidence as indicia of an employment contract between the deceased and the first defendants. They point to the following matters as being established, inter alia.

(1) The deceased, like many if not all Lou Brawn men, was under the control and supervision of Birlec when supplied to Birlec for work.

(2) Birlec provided the deceased (on occasion at least) with transport to work.

(3) Birlec provided the materials, equipment and specialist tools which the deceased required to perform his work.

(4) The deceased's work was organised by Birlec.

(5) Birlec could and did insist upon Lou Brawn providing the deceased personally to work on certain contracts.

41. Counsel for the claimant put the matter in a slightly different way, although to similar effect, by submitting that Lou Brawn did not set or provide (as the case may be) the following items.

(1) The deceased's hours of work.

(2) Where he worked.

(3) How he worked.

(4) His tools and equipment.

(5) Supervision.

(6) Disciplinary measures.

42. Taking the evidence as a whole it seems to me that many of those points, whilst fairly made, require qualification in certain respects. Whilst Birlec supervisors were generally present to ensure quality control, it was also clear that works engineers, works foremen and works safety officers employed by the factory defendants exercised a degree of supervision and control. Evidence regarding transport by Birlec was limited, as was the evidence as to the "insistence" by Birlec that the deceased be provided by Lou Brawn for certain contracts: the evidence of Mr John Hill was that he believed Birlec had "asked for" the deceased because of his skill as a craftsman. There was evidence on one occasion of a disciplinary function in respect of one of the men, not the deceased, being exercised by Lou Brawn. The provision of tools and equipment may have reflected the specialist nature of the task involved, in work (in particular) on Birlec furnaces, although that point was not explored in evidence.

The submissions of the claimant and of the second and third defendants

43. Nevertheless, upon the basis of that evidence, the claimant and the second and third defendants make the point that a contract of employment should be implied in order to give business reality to the transaction between the deceased on the one hand and Birlec on the other hand. It is necessary to imply a contract of employment, they submit, because only by the implication of such a contract can enforceable obligations between the parties be created where one would expect such obligations to exist: see the observations of Bingham LJ in The Aramis, supra.
44. This point was taken to its apparently logical conclusion by counsel for the claimant in submissions based upon the case of Ferguson v John Dawson and partners (Contractors) Ltd [1976] 1 WLR 1213, and the case of Lane [1995] PIQR P417, to the effect that whatever the label placed upon the relationship between Lou Brawn and the deceased, Lou Brawn were not his employers, but Birlec were. It was submitted that a legal vacuum appeared to exist, and that the court must step into that vacuum and by investigating and evaluating the factual circumstances in which the work was performed, should determine the capacity within which it was performed by the deceased. The "vacuum", submitted Mr Kilvington QC, should be filled by the court's implying a contract,

"… to reflect the reality of the situation - not that this was employment by Brawn & Co, not that this was a modern-day agency relationship, but that, for the deceased, it was employment by the first defendants."

45. Reliance was placed by counsel for the claimant upon dicta of Megaw LJ in Ferguson where he said that the parties cannot transfer the statutorily-imposed duty of care for the safety of workmen from an employer to the workman himself,

"… merely because the parties agree,… that the workman shall be deemed to be self-employed, where the true essence of the contract is otherwise…."

46. That point was developed further by counsel for the third defendant in particular. I understood Mr Turton to submit that it was necessary to imply a contract of employment between Birlec and the deceased so that the deceased would have been entitled to the same statutory protection (i.e. in terms of health and safety) as if he had been an employee of Birlec. That argument was tersely characterised by Mr Walker, for the first defendant, as amounting not so much to a proposition of law, but more to an appeal to the court ad misericordiam.
47. In Tilson, supra, Elias LJ said,

"10 It is important to emphasise that if these principles are not satisfied, no contract can be implied. It is not against public policy for a worker to provide services to an employer without being in a direct contractual relationship with him. Statute has imposed certain obligations on an end user with respect to such workers, for example under health and safety … legislation, even where no contract is in place between them. …. It is impermissible for a tribunal to conclude that because a worker does the kind of work that an employee typically does, or even of a kind that other employees engaged by the same employer actually do, that worker must be an employee. As His Hon Judge Peter Clark observed in Heatherwood and Wrexham Park Hospitals NHS Trust v Kulubowila and Others UK/EAT/0633/06 :

"... it is not enough to form the view that because the Claimant looked like an employee of the Trust, acted like an employee and was treated as an employee, the business reality is that he was an employee and the ET must therefore imply a contract of employment."

48. In the end, the task of court is to make a legal analysis of the relevant facts, as the Court of Appeal made clear in the case of James.

The submissions on behalf of Birlec

49. In making his submissions as to that analysis of the facts, Mr Walker made the following main points for Birlec.

i) The Claimant does not allege that there was an express contract of service with Birlec.

ii) The deceased did not, in either of his witness statements, give evidence of any contractual arrangements between himself and Birlec.

iii) Instead, in his second witness statement he stated expressly that he was employed by Lou Brawn's company:

"I confirm that the company stated on my Inland Revenue schedule as Brown & Co (Staffs) Ltd is the company that I refer to as Lou Brawn…. It was while employed by Brown & Co (Staffs) Ltd that I worked as a refractory bricklayer in the circumstances described in my first statement."

iv) In his application to the Department of Work and Pensions for compensation (trial bundle page 348) Mr Hill gave the following particulars against the words "Name and address of the employer where you did the work": "Lou Brawn, Streetly, West Midlands."

v) No direct evidence is available from Birlec as to their intentions, but Mr David Hill's evidence in his second witness statement (pp. 77-78) was that Birlec's work was subject to seasonal peaks and troughs:

"… for example, Easter holidays and summer periods were always busy because this was traditionally a time during which factories closed for shutdown repair work. The fluctuations in the amount of contracts available at any one time had a knock-on impact on Birlec's need for labour. Whilst the company had work scheduled throughout the year, there was inevitably times [sic] when there was not a need for a large number of workers. The company did not want to find itself in a situation where it had a lot of men on the books who they had to pay, and no work for them to do. They sought a more cost-effective solution for organising their labour needs, and this involved the supply of workers through [Lou Brawn.]"

vi) Mr Rogers' evidence at page 85 was to similar effect.

"Birlec Ltd need to ensure that there were sufficient numbers of men on a job so that the work could be completed as quickly as possible and not cause any delay to factory production/operations. Birlec Ltd did not have a large workforce on their books for maintenance work as the numbers of men needed at any one time fluctuated according to the levels of work and the size of the jobs. Instead the money sourced the labour it required for jobs through subcontractors. Lou Brawn ran a company which supplied labour. He supplied labourers and bricklayers and this is how David Hill came to work for Birlec."

vii) In circumstances where the evidence as to the relationship between a workman and a company is of a meagre character, e.g. if all that is known is that the workman attended at the company's premises and worked there regularly, and was paid wages by the company on a regular basis, and there is no other evidence, the court may well imply the existence of a contract as the only rational explanation for those facts.

viii) In this case, however, there is in no sense meagre evidence of the parties' intentions. There is clear evidence of the existence of a contract between the claimant and Lou Brawn. There is also clear evidence of a contract between Lou Brawn and Birlec. That evidence explains the attendance of the deceased at the premises of the second and third defendants, with whom Birlec had contractual arrangements. Lou Brawn paid the deceased's wages. Clear reasons are in evidence for Birlec's decision not to employ bricklayers direct (as distinct from their supervisors). The deceased, on the evidence, rejected an offer of direct employment by Birlec, which was made to him at a point when he had been working for Lou Brawn on Birlec projects for some time.

ix) In such circumstances, Mr Walker submitted, it would not merely be wrong for the court to attribute to the deceased on the one hand, and to Birlec on the other hand, intentions which they simply did not have, it would actually be perverse to do so: the one thing which the deceased expressly chose not to do, on his brother's evidence, was to become an employee of Birlec; and, on the evidence both of Mr Rogers and Mr John Hill, it was not the intention of Birlec to employ bricklayers generally for clear reasons which were given.

x) In the absence of arrangements which can properly be described as "sham" the court cannot rewrite history, Mr Walker submitted, and cannot give the deceased rights (such as statutory health and safety protection) which he would not otherwise have had.

Conclusions on the employment point

50. In Smith v Carillion (JM) Limited, supra, the case concerned an agency worker, who was employed by the agency under a contract of employment and paid wages by them, and the point at issue was in what circumstances a contract between the worker and the contractor to whom he is providing his services can be implied. The Court of Appeal held that:

i) The onus is on a Claimant to establish that a contract should be implied: see the observations of Mance LJ, as he then was, in Modahl v British Athletic Federation [2001] EWCA Civ 1447, [2002] 1 WLR 1192, paragraph 102.

ii) A contract can be implied only if it is necessary to do so. This is as true when considering whether or not to imply a contract between worker and end user in an agency context as it is in other areas of contract law. This principle was reiterated most recently in James.

iii) The application of the Aramis test means, as Mummery LJ pointed out in James (para.24), that no implication is warranted simply because the conduct of the parties "was more consistent with an intention to contract than with an intention not to contract. It would be fatal to the implication of a contract that the parties would or might have acted exactly as they did in the absence of a contract."

iv) It is, however, important to focus on the facts of each case: there is a wide spectrum of factual possibilities. "Labels are not a substitute for a legal analysis of the evidence." The question the court needs to ask is whether it is necessary, having regard to the way in which the parties have conducted themselves, to imply a contract between worker and end user.

v) Accordingly, if the arrangements which actually operate between the worker and the end user no longer reflect how the agency arrangements were intended to operate, it may be appropriate to infer that they are only consistent with a separate contract between worker and contractor. This may be because the agency arrangement was always intended to be a sham and to conceal the true relationship between the worker and the contractor. But it may also be simply because the relationship alters over time and can no longer be explained by the dual agency contracts alone: James para.31 per Mummery LJ.

51. In the present case it is contended by Birlec that the claimant cannot prove the existence of an implied contract with it, in particular because, (1) to do so involves imputing an intention to enter into a contract which it is clear that neither the deceased nor Birlec had, and (2) it is not necessary to imply a contract between Birlec and the deceased.
52. The court must make findings of fact upon the evidence. In my view there is no basis for any finding other than that the arrangements between the deceased and Lou Brawn on the one hand, and between Lou Brawn and Birlec on the other hand were entirely "genuine." They accurately represented the actual relationship between the parties. For a contract of employment to be inferred between Birlec and the deceased there should be, to use the words of Elias J above, some words or conduct which entitles the court to conclude that the agency arrangements no longer dictated or adequately reflected how the work was actually being performed, and that the reality of the relationship was only consistent with the implication of the contract. It would be necessary to show that the deceased had been working not pursuant to the agency arrangements between Birlec and Lou Brawn, but because of mutual obligations between himself and Birlec, binding upon them both, which were incompatible with those arrangements.
53. In my view it is simply not possible to take that view upon the evidence. There is little doubt that Birlec maintained significant control over the activities of the deceased at the material time in many of the respects referred to above. But it is also clear, and I find as a fact, that Birlec at the time when the material events occurred did not regard itself as being in a contractual relationship with the deceased, and that he himself did not regard himself as being in a contractual relationship with Birlec. To take any other view would be entirely to disregard the evidence of Mr John Hill in cross examination that Birlec at one stage offered his brother the opportunity to become an employee of the company "on the books" but that he refused that offer, for reasons which seemed good to him at the time. On a very similar point in Tilson, Elias LJ said, at paragraph 50:

"The appellant had expressly abstained from entering into an employment contract with Alstom. I do not suggest that a contract can never be implied if this is contrary to the wishes or understandings of a party or parties; whether a contract should be implied is ultimately a matter of law and involves an objective analysis of all the relevant circumstances. But the parties' understanding that there is no such contract in place explaining the terms of their relationship, and their inability to reach an agreement on the terms which such a contract should contain, are extremely powerful factors militating against any such implication."

54. That Birlec did not regard its relationship with the deceased as contractual is also illustrated by the fact that Lou Brawn, and not Birlec, paid the deceased's wages. He was a specialist furnace bricklayer, who was highly regarded for his work as such a specialist (and, as he made clear in his first witness statement, was well paid for it.) Lou Brawn was in the business of providing specialist services which were required from time to time, but not permanently, by clients of Birlec such as the second and third defendant companies.
55. The question therefore to be considered is whether or not it is "necessary" to imply a contract of employment between the deceased and Birlec. With respect to the arguments which were advanced on the various outward signs of a potential contract of employment, the basis upon which the deceased worked in the factories belonging to the second and third defendants, through the agency of Birlec, is explained by his contract of employment with Lou Brawn.
56. It was not, and is not, unlawful for companies who engage agency workers to perform tasks at their clients' factory premises to enter into contracts under the terms of which no employers' liability in law is accepted. The nature of the relationship between Birlec and the deceased is also explicable, in my view, by the contract between Birlec and Lou Brawn. The evidence was that Birlec at one stage did indeed consider offering the deceased an employment contract. It was his decision not to accept that offer. Thus no contract subsisted between them.
57. If in general, however, so far as 'Lou Brawn specialists' (like the deceased) were concerned, Birlec did not wish to assume all the responsibilities under health and safety legislation which becoming an employer would necessarily entail, it was not acting unlawfully in making an arrangement with Lou Brawn by which it could lawfully avoid such responsibilities. I reject the submission that necessity demanded the implication of a contract of employment to ensure that the deceased had the same statutory protection in health and safety terms as if he had been an employee of Birlec.
58. As Elias LJ pointed out in Tilson, supra, statute has imposed certain obligations on factory occupiers to those working within their premises under health and safety legislation, even where no contract of employment is in place between them. Any employer, whether a factory occupier or otherwise, may make arrangements through a third party for a worker to provide services without itself being in a direct contractual relationship with the worker. That is neither unlawful nor contrary to public policy.
59. Accordingly, in my view no necessity existed for a contract of employment to be implied between the deceased and Birlec, and the implication of such a contract would not be a true reflection of the evidence.

The Factories Act 'replacement and substitution' point

60. Although no reference was made to the point in the Defences of the second and third defendants, at a late stage they raised the argument that the Asbestos Regulations 1969 had been intended to replace, and did replace, the whole of section 63 of the Factories Act 1961, for which (it was contended) its provisions were substituted in so far as the same related to asbestos dust. I shall therefore call this the "replacement and substitution point". Mr Kilvington QC made no objection on behalf of the claimant to this point being taken for the first time at the hearing, and the court was invited to rule upon it.
61. With the consent of all parties, therefore, I granted applications to amend paragraph 13 (b) of the second defendant's Defence and paragraph 14 of the third defendant's Defence to add the words,

"This defendant was not subject to section 1 (2) nor to section 63 (1) of the Factories Act 1961, the same having been substituted by the provisions of the Asbestos Regulations 1969. The defendant relies upon regulation 3 (3)."

The relevant statutory provisions

62. Section 63 provides that:

"Removal of dust or fumes. – (1) 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 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 or 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."

63. The definition of 'asbestos dust' in the Asbestos Regulations 1969 (in force at the material time but since repealed) was at Regulation 2(3), is as follows:

"… dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons."

Regulation 3(3) provided that:

"… the provisions of these regulations are in substitution for the provisions of so much of section 1 (2) of [the Factories Act 1961] as relates to the cleaning of parts of factories, being parts in which any process to which these Regulations apply is carried on or into which any asbestos dust from any such process carried on in the factory is liable to escape, and of so much of section 63 (1) … as relates to the measures to be taken against asbestos dust, but save as aforesaid are in addition to and not in substitution or diminution of other requirements of [the Act.]

64. Although a separate argument is maintained by the second defendant as to the meaning of the words "any process" in the section, in respect of the activities in which the deceased was involved at its premises, the replacement and substitution point is now the main submission made by both the factory defendants in answer to the claims against them.

The historical development of knowledge of the dangers of asbestos dust and statutory control.

65. Counsel for the factory defendants submitted that the context within which the 1969 regulations came into force provided a starting point of some relevance. Simon J in Asmussen v Filtrona United Kingdom Limited [2011] EWHC 1734 QB summarised other authoritative accounts in earlier cases of the history of the development of scientific, medical, industrial, and general knowledge of the dangers of asbestos dust, at paragraphs 29 to 50 of his judgment. The full judgment includes most if not all the matters relied upon by counsel as constituting that context. I respectfully adopt the learned judge's summary as a guide within which the present exercise in statutory interpretation is to be conducted, but will only reproduce the section of his judgment dealing with developments after 1967.

"43 … In 1967, HM Factory Inspectorate issued a booklet entitled 'Problems Arising from the Use of Asbestos – Memorandum of the Senior Medical Inspectors Advisory Panel'. At paragraph 33 there is the following,

'This growing evidence linking many mesotheliomal tumours, both of peritoneum and pleura with exposure to asbestos, apparently of slight degree or remote in time, constitutes, in our opinion one of the most serious aspects particularly from a public health point of view, of the asbestos problem. ….'

"45 … The Asbestos Regulations 1969 (published in May 1970) revoked the Asbestos Industry Regulations 1931 .

"46 …."Regulation 2(3) provided,

'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. ….

"No quantative guidance was given in the Regulations.

"47 … In March 1970 the Factory Inspectorate issued Technical Data Note 13 entitled 'Standards for Asbestos Dust Concentration for Use with the Asbestos Regulations 1969'.

"48 … [TDN 13] provided guidance on how the Factory Inspectorate would interpret the expression 'dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons' and how such measurements might be made. Thus for example, under the heading Chrysotile (white asbestos) and Amosite (brown asbestos) the guidance was in the following terms,

'Where the average concentration of asbestos dust over any 10 minute sampling period is less than 2 fibres/cc … HM Factory Inspectorate will not seek to enforce the substantive provisions of the Regulations. …..'

"50 … In December 1970 the Department of Employment published Health and Safety at Work Booklet No 44 entitled 'Asbestos: Health Precautions in Industry.' Under the heading, 'Health Hazards' the Booklet stated,

'… whereas asbestosis and the lung cancer associated with [asbestos] have only arisen in workers who have been exposed for years to heavy concentrations of the dust in asbestos factories or in processes in which asbestos is used, mesothelioma has developed in some individuals with short periods of exposure. It is still a rare tumour …, but not uncommon amongst those exposed to asbestos dust.' ...."

(Underlined emphasis added.)

66. Having set out that history, Simon J made his findings of fact as to the circumstances in which asbestos dust may have been released into the atmosphere in that case, and said,

"61 In the light of these conclusions I have concluded that the Defendant could not have foreseen the injury to the Claimant which occurred. While the Defendant failed to take specific steps which would have prevented or reduced the risk of disease, its failure must be judged by the imperfect standards of the time and not by hindsight. The Defendant is entitled to rely on the recognised and established practices of the time; and this is not a case in which the prevailing practices were obviously bad, nor where the Defendant had developed knowledge of its own. If the Defendant had sought authoritative advice as to the risk from asbestos lagging on the pipes in the factory, it is unlikely that it would have been advised to take any particular precautions to eliminate all lagging from the factory, or to change its practices for cleaning or carrying out such limited repairs as were carried out."

The learned judge therefore held (at paragraph 62) that the defendant in that case could not have foreseen that the claimant was at risk of asbestos-related injury and was not liable in negligence.

The interpretation contended for by the second and third defendants

67. In the very briefest terms, the submission is that, by the time that the deceased first worked in either of the factory defendants' premises, section 63 of the 1961 Act had been substituted "in its entirety" by regulation 3 (3) of the 1969 regulations, and accordingly no statutory duty could have been owed to the deceased by either of the factory defendants under the provisions of section 63.
68. It is conceded that there appears to be no previous case in which consideration has been given to the interpretation of the regulation and its application to section 63. No direct authority was referred to by either side as a guide to the proper construction of either the regulation or the section.
69. On a straightforward reading, counsel for the factory defendants both submitted that the broad terms of the regulation should lead to the conclusion that it was intended that it should become a complete substitute for section 63. Had the draftsman wished to have drawn a distinction of the kind contended for by the claimant it was open to him to have done so. In the absence of a clear distinction in the wording, it was submitted that the court should decline to find any distinction at all.
70. As to the significance of TDN 13, counsel for the factory defendants submitted that it identified tiny levels of exposure below which "HM Factory Inspectorate will not seek to enforce the substantive provisions of the Regulations": those levels being 2f/cc for Chrysotile, Amosite and fibrous Anthophyllite and 0.2 f/cc for Crocidolite. The point counsel made as to that was that "… therefore there was simply no need for any foreseeable harm test." The intention can properly be inferred that Regulation 3(3) reflected that test as the Asbestos Regulations replaced what had gone before: there was no need for the second limb of section 63 to continue to apply in relation to asbestos exposure. If asbestos was involved, breaches of the 1969 Regulations would occur long before any question of substantial exposure would ever be reached.
71. The point arises only in relation to exposure after 14^th May 1970 (it was submitted) and then only in very limited circumstances. It did not arise in McDonald v National Grid [2015] AC 1128 for that reason. Counsel for both factory defendants' submission continued as follows.

"It [their interpretation and suggested construction] will scarcely ever deny compensation (although it does here if the First Defendant's submission is accepted). The involvement of the Second and Third Defendants here comes about only because of the position and stance of the First Defendant who, on any analysis, [was] entirely responsible for the deceased's exposure to clouds of asbestos dust and his subsequent death. Because the Asbestos Regulations 1969 are so far reaching, save in the most limited of circumstances (Williams v Birmingham University, as an example), they will take effect to impose liability on an employer or culpable occupier."

The submissions made by the claimant and first defendant company

72. Mr Kilvington QC and Mr Walker QC both submit that the argument advanced on behalf of the second and third defendant companies is wrong as a matter of law. They contend that on the true construction of section 63(1) itself, and of Regulations 3(3) and 2(3) of the 1969 Regulations, it is clear that the references to dust in section 63 (1) divide into two separate categories: namely first, a reference to dust of such a character and extent as was then foreseeably likely to be injurious to persons employed within the factory, and, secondly, to any substantial dust of any kind whatsoever. Counsel submit that neither of the factory defendants has properly construed the provisions of section 63(1) and both have made the erroneous assumption that the presence of asbestos leads to the automatic exclusion of any continuing duty under that section after the coming into force of the Regulations, on 14^th May 1970.
73. The second limb of section 63(1) is concerned with the measures to be taken against 'any substantial quantity of dust of any kind.' It is not concerned with dust that is liable to cause danger – where there must be foresight of harm – see Richards v Highway Ironfounders [1955] 1 WLR 1049, where Lord Evershed MR set out the 'dichotomy' between the two limbs of section 63 and where there was a breach of the second limb despite the fact that 'it was not appreciated… that the process… was dangerous to health'.
74. If one goes to the text of that judgment, the Master of the Rolls in Richards at p. 1054 first set out the terms of section 47 (1), which in all material respects are identical to those of s 63. He continued by saying this.

"The first thing to notice about section 47 (1) is the dichotomy, which the judge observed, between cases of the emission "of dust or fumes of such a character as to be likely to be injurious" on the one hand, and "substantial quantities of dust of any kind" on the other hand. In my judgment, the dichotomy was correctly noticed by the judge. Having regard to the state of knowledge, it may be taken that the dust, with which we are here concerned, was not at any material date dust within the first branch of the section, since it could not fairly be regarded then as likely to cause silicosis. On the other hand, there is no doubt that the dust was emitted in substantial quantities, so that it fell within the second branch of the language which I have read.

"From this it follows that, since the dust was in substantial quantities, there arose an obligation, from the date of the coming into operation of this section (namely, on July 1, 1938), to take, as stated by the section, 'all practicable measures to protect the persons employed against inhalation'."

(Underlined emphasis added.)

75. Substituting references to section 63 of the 1961 Act for references to the identically-worded section 47 of the 1937 Act, it is to be noted that in McDonald Lord Kerr at paragraph 86 said this about the "dichotomy":

"[t]he relevant phrase … is "any substantial quantity of dust of any kind". I should start my discussion on this part by saying what this does not mean. It does not mean a substantial quantity of injurious dust. The so-called dichotomy in section [63 (1)] points clearly away from such an approach. Whether the second limb of the subsection is triggered calls for a purely quantitative assessment." [Original emphasis.]

76. Regulation 3(3) of the 1969 Regulations is only in substitution for so much of, inter alia, section 63(1) 'as relates to the measures to be taken against asbestos dust.' Otherwise, it is explicit that the 1969 Regulations are,

'… in addition to and not in substitution of other requirements imposed by or under the principal Act.'

77. The definition of 'asbestos dust' is at Regulations 2(3) which provides that it shall be taken to be 'dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons.' The definition is thus (it is submitted) by reference to foresight of harm, which is no part of the enquiry under the second limb of section 63(1), where the question of knowledge or foresight of danger to health is irrelevant to the question of breach.
78. Since the second limb of section 63(1) is not concerned with measures to be taken against dust liable to cause danger – it is therefore not concerned, in the language of Regulation 3(3), with the 'measures to be taken against asbestos dust', so that the Regulations are explicitly not in substitution of that part of section 63(1).
79. The submission of both leading counsel was that the point for decision was a matter of statutory interpretation, and the construction of Regulation 3(3) proposed by the factory Defendants would lead, in the words of Denning J (as he then was) in Whitby v Burt Boulton & Hayward [1947] KB 918 to 'remarkable results' that cannot have been intended. He was, of course, construing the ambit of section 26(1) of the 1937 Act.

'The other head of claim was under the Factories Act, 1937. It was said for the plaintiff that the occupiers were the occupiers of the factory and liable accordingly under the Factories Act, 1937, particularly under the provisions of section 26, sub-s. 1, by which "there shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work." …. The occupiers raised an important point under the Act. They said that these were "building operations" and, that, in respect of building operations section 26 did not apply because the only provisions which applied to "building operations" were those specified in section 107 which do not include section 26. In my opinion, however, section 107 is only dealing with "building operations" which are not conducted in a factory. As a matter of construction I am satisfied that in respect of building operations which are conducted in a factory, the whole of the Factories Act, 1937, applies. Any other construction would lead to remarkable results. For instance, in this case if a man were sent up to clean at the top of this building it would not be a "building operation," and would be within the Factories Act, 1937, but if he were sent up to repair or maintain part of it, it would be a "building operation" and, accordingly, would be outside the Act. I am quite satisfied that no such result was intended. It is quite impossible to extricate building operations within a factory from other operations within a factory. When you are in a factory the whole of the Factories Act, 1937, applies.'

80. Mr Kilvington gave illustrations of the "remarkable results" which, he submitted, might follow the construction suggested by the second and third defendants: e.g. it would lead to the bizarre conclusion that, if a substantial quantity of dust was given off, including enough asbestos dust to create a foreseeable risk of injury by the standards of the day, then the duty would not apply but that, if the amount of asbestos dust included did not present a foreseeable risk of injury (whilst still being sufficient to cause mesothelioma), then the section 63(1) duty would still apply. The factory occupier would be liable under section 63(1) for the substantial quantity of dust containing only the smaller amount of asbestos.
81. In other words, counsel continued, on the interpretation proposed by the factory Defendants, the second limb of section 63(1) would have applied at the material time if the asbestos component was not liable to cause danger (e.g. it was at levels lower than those in TDN13) but would not have applied if it was 'liable to cause danger', relieving the factory occupier of the duty, even though foresight of harm was not required. It would also, it is submitted, make a nonsense of the purpose of the second limb, which was to place on a factory occupier a duty to protect those employed (and working in the factory) against the inhalation of substantial quantities of dust, and -- as the Chief Inspector of Factories had said in the 1938 Annual Report of the statutory predecessor of section 63(1) of the 1961 Act, section 47(1) of the 1937 Act -- the provision contained in the second limb was thus,

'… an admirable one in that it requests precautions even before it is possible to say specifically that the dust in question is harmful to a recognisable pathological extent….'

82. On a practical basis, Mr Kilvington said, it would involve the factory inspectors charged with policing the second limb of section 63(1) in what he described as "a wholly new, and impractical and improbable, inquiry into the constituent parts of the dust, before determining whether the factory occupier owed a duty."
83. It is plain, it is submitted, that no such result was intended. The intention of Parliament in sanctioning the 1969 Regulations was to impose new additional duties on employers and contractors, to address the hazards of asbestos dust which was then known to be liable to cause danger, "but not to effect a watering down of the duty on factory occupiers to control 'any substantial quantity of dust of any kind', just because some part of that dust was asbestos."
84. Mr Walker QC submitted that section 63 clearly applied as the regulations referred specifically to "asbestos dust" as a defined entity. The definition was "… dust consisting of or containing asbestos to such an extent as is liable to cause danger to the health of employed persons." There was no room for doubt about that: foreseeability of harm from the extent of such dust was set out in black and white.
85. On the evidence in this case, however, most of the dust which was involved, certainly at the early stages of the furnace relining work would have been brick dust from facing bricks and insulating bricks, with relatively small quantities of fibreglass dust and asbestos dust. As work progressed to the stripping of the asbestos layer itself sufficient dust to have been injurious to health might then have been generated, but for a large part of the operation the men would not have been exposed to dust which itself contained asbestos dust in foreseeably harmful quantities. In that context Mr Walker drew my attention to a note to section 63 of the 1961 act in the second edition of Redgrave (1982) in which the learned editors said,

"[t]he first condition depends upon whether the dust, etc., is, in character and extent, 'likely to be injurious or offensive.' These words should be read in the sense of likely to be injurious according to the estimation of a reasonably well-informed factory occupier or which the actual occupier knew, or ought to have known, to be likely to be injurious (per McNair J in Ebbs v James Whitson & Co. Ltd., cited with apparent approval by Singleton LJ in the Court of Appeal at [1952] 2 QB 887 at 884…. In Carmichael v Cockburn & Co 1955 SC 487 the Second Division of the Inner House of the Court of Session agreed with the approach of McNair J, holding that the words in question must be interpreted with reference to the occupier's state of knowledge at the material time."

Discussion

86. Foresight of harm is the focus under the first limb of section 63(1) (which is concerned with dust that is 'likely to be injurious' and which is substituted in relation to 'asbestos dust' where that is 'liable to cause danger', but not of the second limb, which is not so substituted.
87. The case of Asmussen v Filtrona United Kingdom Limited [2011] EWHC 1734 QB, relied on by the Third Defendant, does not actually provide it with any assistance, it seems to me, so far as it concerns the interpretation of the impact of the 1969 Regulations on the second limb of section 63(1). Indeed, if anything the observations of Simon J may be regarded as support for the submissions of counsel for the Claimant and the First Defendant:

"55 At the time with which this case is concerned the understanding of asbestos-related disease was developing. Even by the end of the second period of the Claimant's employment …" [i.e. the year 1972] " … the dire consequences of exposure to small quantities of asbestos was not generally recognised. In retrospect it can be seen that too much advice and guidance may have been based on too little knowledge and understanding. However the foreseeability of injury is to be tested against the standard of the well-informed employer who keeps abreast of the developing knowledge and applies his understanding without delay, and not by the standard of omniscient hindsight. …. It follows that the issue of foreseeability involves a consideration of the state of public knowledge about the risks of exposure to asbestos at the relevant time."

88. Later in his judgment, Simon J said:

"68 In the light of the conclusions I have reached on the issue of negligence this issue [i.e. of breach of statutory duty] does not directly arise; and I can express my views shortly. It seems to me that the words of the statutes relied on by the Claimant involve a consideration of what should have been known and understood at the time. Although it may be misleading to introduce concepts of foreseeability, the words 'likely to be injurious' plainly involve a degree of foresight. As Swift J noted in Abraham v G. Ireson & Son (Properties) Limited & Anor [2009] EWHC 1958 (QB) at [92], if it were otherwise it is difficult to see why the word 'injurious' was not used alone.

"69 The words 'liable to cause danger' in Regulation 2(3) similarly involve a degree of foresight, and for the same reason, the use of the qualifying words 'liable to'. This construction is consistent with the observations of Lord Mance (albeit in a different context) in Baker v. Quantum Clothing Group Ltd [2011] UKSC 17 at [80], where he noted that the statutory duties which refer to safety, injury and danger must,

"…be judged according to the general knowledge and standards of the times."

As Cooke J observed in Reynolds v. Secretary of State for Energy and Climate Change [2010] EWHC 1191 (QB) at [97–98] the Court looks at what was considered safe at the time by the prevailing standards and criteria of the time."

89. Counsel for the claimant in the present case submitted that it is clear that at the date of the statutory instrument with which the court is concerned, and in the early 1970s, there were concentrations of asbestos which were neither generally considered harmful by well-informed employers, nor were such concentrations then considered contrary to TDN13 to an extent that might justify enforcement of the regulations by the Factory Inspectorate. If "liability to cause danger" involves an element of foresight of danger, such foresight is to be judged by the standards of the time and not by perfect hindsight.
90. Support for the interpretation contended for by counsel for the claimant and first defendants, albeit obiter, may perhaps be found in the case of Bailey v Rolls Royce (1971) Ltd. [1984] I.C.R. 688, where the Court of Appeal had to consider the meaning of the word "likely" in Section 72(1) of the Factories Act 1961,

"… a person shall not be employed to … move any load so heavy as to be likely to cause injury to him…" (emphasis added)

in circumstances where the plaintiff had sprained his back while moving a heavy weight. The judge found that the plaintiff had a weak back, that the defendants knew of that condition and that they had been negligent and in breach of their statutory duty. Allowing the defendants' appeal, the Court of Appeal held that "likely" in the subsection was to be construed as "probable" or "more probable than not"; and that, since there was no evidence that the plaintiff in moving the particular object would probably suffer injury, the defendants were not in breach of their statutory duty.

91. May LJ in his judgment said that counsel had referred to section 63 and the phrase in it "likely to be injurious". That phrase, he said,

"… I would accept, involve[s] inquiry into the state of knowledge of the reasonable employer at the material time."

However, as he pointed out, Section 72(1) was differently worded.

Conclusion on the replacement and substitution point

92. The whole point turns on the true construction of the term "asbestos dust" as it appears in the 1969 Regulations. As a matter of simple English it would seem clear that the phrase does not mean, or at least does not necessarily mean, "dust containing only asbestos fibres." Nor does it mean, or at least does not necessarily mean, "dust which consists mostly of asbestos fibres" nor "dust which contains any asbestos fibre." The importance of the distinctions between the various phrases varies according to the relevant circumstances in which they may be used.
93. Whatever meaning the phrase may have in simple English, however, the court is concerned only with the interpretation of "asbestos dust" as it has been defined by the draftsman, and adopted with parliamentary authority as subordinate legislation. Where a phrase is defined in a statute or statutory regulations there is no room for an interpretation which subtracts any significant degree of meaning from such a definition, nor for one which puts any unnecessary gloss upon it.
94. The definition of 'asbestos dust' in the Asbestos Regulations 1969, in Regulation 2(3), is: "… dust consisting of or containing asbestos to such an extent as is liable to cause danger to … health …." (Emphasis added.)
95. There is, it seems to me, no doubt that that definition might include both dust which consists simply of asbestos and nothing else, and dust which contains some asbestos but also contains dust of any other substance. It would have been perfectly possible for the word "any" to have been inserted after the word "containing" and to have omitted the whole of the following phrase "to such an extent as is liable to cause danger to the health of employed persons." However, the draftsman did not leave the definition in such simple terms, and since that was not done, it is necessary to understand what the actual definition means.
96. The phrase was used at a time, in 1969, when it was still possible for there to be uncertainty as to the degree of danger to health from very small concentrations of asbestos dust in the air. In the case of McGuire v Harland & Wolff [2005] PIQR P21, which concerned the death of the wife of a boilermaker who contracted mesothelioma from her husband's work clothes, Judge LJ, as he then was, in the course of his judgment at paragraph 32, made the following observation on the content of the Ministry of Labour's booklet, produced in the year 1960, entitled "Toxic Substances in Factory Atmosphere":

"Surprisingly to our eyes today…" [i.e. in 2005] " … this document implied that…" [in the year 1960] "… some level of exposure to asbestos dust was permissible and that the risk to health was dose related. The booklet refers to 'permissible concentration' and includes a schedule of figures of 'maximum permissible concentrations' and suggests that 'further action to achieve satisfactory working conditions' would be necessary if and when the specified level of concentration was exceeded."

97. Even by 1970, however, as noted in the extract from the judgment of Simon J above, the Department of Employment's booklet Asbestos: Health Precautions in Industry made reference to qualified risks in terms which today, in 2018, would be regarded as quite unjustifiable:

"… whereas asbestosis and the lung cancer associated with [asbestos] have only arisen in workers who have been exposed for years to heavy concentrations of the dust in asbestos factories or in processes in which asbestos is used, mesothelioma has developed in some individuals with short periods of exposure. It is still a rare tumour …, but not uncommon amongst those exposed to asbestos dust…." (Emphasis added.)

An interpretation open to a reader of those words in the year 1970 might very well have been that the risk of mesothelioma applied to individuals exposed even for short periods to "heavy concentrations" of asbestos dust.

98. The terms of TDN 13 itself, issued as it was with the 1969 Regulations (although concerned with the criteria for enforcement rather than purporting to be any guarantee of safety standards) gave at least tacit recognition to the possibility of minimal risk at very low concentrations. In December 1976 TDN 13 was replaced by the HSE Guidance Note EH10, but EH 10 did not alter the limits set in TDN 13 whilst adding only the requirement that "exposure … be reduced to the minimum reasonably practicable."
99. As Simon J said, in the extract set out above, the words 'liable to cause danger' clearly involve a degree of foresight, and he made reference to Lord Mance's observation in Baker v. Quantum Clothing Group Ltd, supra, that statutory duties which refer to 'safety', 'injury', or 'danger' must be judged according to the general knowledge and standards of the times.
100. In the 2009 case of Abraham v G. Ireson & Son (Properties) Limited & Anor, supra, Swift J said, when considering a very similar concept, and a very similar exercise in statutory interpretation, namely the meaning of the phrase "likely to be injurious" in regulation 20 of the Construction (General Provisions) Regulations 1961, the words "likely to" plainly imply that a degree of foreseeability is required.

"Otherwise, as [counsel] observed, it is difficult to see why the word 'injurious' alone was not used."

101. By parity of reasoning, the words "… dust consisting of or containing asbestos to such an extent as is liable to cause danger to … health …." could perhaps have been replaced, if the framers of the regulations had wished to do so, and had wished to remove any element of foreseeability by the introduction of a strictly objective test, by the words "… dust consisting of or containing asbestos to such an extent as causes danger to … health …."
102. In my judgment counsel for the claimant and for the first defendant are correct in their submissions in regard to the interpretation of the phrase "asbestos dust" in Regulation 2 (3): i.e. it meant dust which contained asbestos to such an extent as might (according to the standards of the times to which the Regulations applied) foreseeably have caused danger to health. The court is concerned, of course, not with the knowledge of a reasonably well-informed factory occupier today, but with the knowledge of a reasonably well-informed factory occupier in 1971.
103. Moreover, the provisions of the Regulations were expressly stated to be only in substitution of so much of section 63(1) as related to the measures to be taken against such asbestos dust, "…but save as aforesaid are in addition to and not in substitution for or in diminution of other requirements imposed by or under the principal Act."
104. That express provision is in clear contradiction of the submission made on behalf of the second and third defendants that the regulations were intended by Parliament to be in complete substitution for the provisions of section 63 (1).
105. It follows in my judgment, that, on the admitted facts of this case the second and third defendants were prima facie in breach of statutory duty to the deceased, subject only to the "any process" point raised by the second defendant.

Was the work at the Royal Ordnance Factory a "process" to which section 63 applied?

106. The second defendant's contention is that the particular circumstances of the work at the Royal Ordnance Factory did not involve the engagement of the deceased upon 'a process' within the meaning of the section.
107. On the evidence it is submitted that the work involved in so extending and modifying the furnace at the Royal Ordnance Factory in order to enable the manufacture of longer gun barrels for tanks (i.e. longer barrels than those previously manufactured there) amounted to "one-off building work rather than any form of routine work or maintenance."
108. If, contrary to that submission, it is held that section 63 was engaged, the second defendant submits that it took all practicable measures by engaging competent and specialist contractors, namely the first defendants, to undertake those extension works.
109. Reliance is placed upon the observations of Lord Kerr in the case of McDonald, supra, at para 64, that such wording should be given its plain and natural meaning, so that

"… if it is a process that is a normal feature of the factory's activity, it is a process for the purposes of the legislation."

110. The facts in McDonald were that the claimant, who suffered from mesothelioma, had many years previously in the course of his employment as a driver, driven a lorry to a power station occupied by the defendant's predecessor to collect pulverised fuel ash. He had made the collections from a plant at the power station which did not contain asbestos, but alleged that when collecting the ash from the power station he would visit other parts of the premises where lagging work was taking place. In particular he claimed that he had seen laggers mixing asbestos powder with water to make lagging paste which had then been applied as insulation material, and that he had been in close proximity to such work, with visible clouds of dust in the air.
111. A claim under section 47 of the 1937 Act was not upheld, principally because there had been no finding by the judge at first instance as to the quantity of dust given off during the lagging process, but in the course of dealing with the issue of liability under that section, Lord Kerr's judgment contained the following observations.

"Was the dust given off in connection with a 'process'?

"59 The appellant submitted that lagging operations were not part of the process carried on at Battersea Power Station. That process was, the appellant claimed, the generation of electricity. Mr Nolan relied on the judgment of Stuart-Smith LJ in Banks v Woodhall Duckham Ltd, 30 November 1995, where he accepted an argument that the lagging of pipes that may have given rise to dust was not a process being carried on in the factory, which was the manufacture of steel.

"60 In Nurse v Morganite Crucible Ltd [1989] AC 692 the House of Lords considered the meaning of "process" in section 76(1) of the Factories Act 1961 and the Asbestos Regulations 1969 . Lord Griffiths stated, at p 704:

"The Divisional Court in giving leave to appeal to your Lordships' House certified the following point of law of general public importance: 'Whether for the purposes of the Factories Act 1961 and Regulations thereunder "process" carried on in a factory means a manufacturing process or other continuous and regular activity carried on as a normal part of the operation of the factory.'

"My Lords, I am not prepared to answer the question in this form because the word 'process' is scattered throughout many sections of the 1961 Act, and it appears in many Regulations made thereunder. Your Lordships have not had the opportunity to consider the meaning to be attached to 'process' wherever it appears and it is possible that it has different meanings in different contexts. I would confine my opinion to the meaning of the word 'process' where it is used in the 1969 Regulations and I would answer the certified question by saying that where the word 'process' is used in the Regulations it means any operation or series of operations being an activity of more than a minimal duration.[Emphasis added.]"

"61 Although Lord Griffiths specifically confined his opinion as to the meaning of "process" to its use in the 1969 Regulations, it is clear that he rejected (at least implicitly) any notion that, to be a process in a factory, an activity had to be integral to the principal output of the enterprise. In the Nurse case the business of the factory was the manufacture of crucibles. Asbestos was not used for any purpose directly associated with that product. If an argument akin to that presented by the appellant in the present case had been accepted that would have disposed of the appeal. It did not. And it did not because it was not necessary that, in order to be an activity in connection with a process, it had to be shown that it was directly involved with the manufacture of the end product of the factory.

"62 In Brophy v J C Bradfield & Co Ltd [1955] 1 WLR 1148 the plaintiff's husband had been overcome by fumes from a boiler used to heat the factory. It was claimed that the lack of ventilation in the boiler room constituted a breach of sections 4 and 47 of the Factories Act 1937 . The Court of Appeal held that this was not a process within the meaning of those sections. Singleton LJ dealt with the point pithily when he said, at p 1153:

"… upon the facts it does not appear to me … that the fumes were 'generated in the course of any process or work carried on in the factory.' This was a boiler used for heating the factory and I do not think that that section applies to the facts of the present case."

"63 In Owen v IMI Yorkshire Copper Tubes Ltd, an unreported decision of Buxton J delivered on 15 June 1995, the judge felt that the decision in Brophy's case could be explained on the basis that when the fumes came from the factory heating supply and not from any part of the manufacturing process it was not a part of the process carried on in the factory. For my part, I would not distinguish Brophy's case on that basis. I consider that it was, on this point, wrongly decided. A process in a factory should not be confused with the product that is manufactured. In factories all manner of processes are carried on which contribute to the ultimate manufactured product in varying degrees of closeness. Thus, for instance, the heating system in Brophy's case was not required, in the sense of making a direct contribution to the manufacture of tents and canvas goods (which was the business of the factory). But a heating system was doubtless required in order that the manufacture of those goods could take place." (Emphasis added.)

"64 The words in section 47(1), "any process" carried on in any factory, should be given their plain and natural meaning. To suggest that they import some intimate connection with the manufacture of a product introduces an unnecessary and unwarranted gloss on the subsection. If it is a process that is a normal feature of the factory's activity, it is a process for the purposes of the legislation. I would therefore hold that the lagging work which Mr McDonald encountered in the power station constituted a process for the purposes of section 47 and that the first condition necessary to show breach of subsection (1) of that section has been met."

112. Counsel for the claimant submitted that Lord Griffiths had made the uncontroversial observation that in factories all manner of processes are carried on which contribute to the ultimate manufactured product in varying degrees of closeness, and that Brophy's case provided a clear illustration that no "direct contribution" to the manufacturing process (of tents and canvas goods there) was necessary. The heating system was required in order that the manufacture of the goods could take place.

Conclusion

113. In my view a point that cannot be ignored is that the words of the relevant section unmistakably refer to an obligation to protect workers which arises,

"… [i]n every factory in which, in connection with any process carried on, there is given off any dust or fume…." (Emphasis added.)

114. The statute does not in any way qualify the phrase "any process" save to make reference to the giving off of any dust or fume in connection with it. On the evidence in this case the process being undertaken by the deceased on a daily basis for long hours over a matter of weeks, within the second defendant's premises, and under at least a degree of supervision from its officials, was one which was devoted to the production of up-to-date tank barrels, as a function of the Ministry of Defence. The need for the process was, it would seem, essential modernisation -- no contrary suggestion was made. All military equipment in history has gone through a process of evolution. In the light of the authoritative observations referred to above, any suggestion that the words "any process" in the Act require an intimate connection with the manufacture of a product would introduce an unnecessary and unwarranted gloss on the wording of the subsection. As a matter of fact, modifications to the furnaces were required so that manufacture of the lengthened tank barrels could take place.
115. To take the words of Lord Kerr as a fundamental definition when he spoke of "a process" as meaning "a normal feature of the factory's activity" is in my view to pay insufficient regard to the context within which he made those observations. In the present case there was a process which went on for weeks, supervised by the second defendant's officials, solely for the purpose of allowing the production of up-to-date military equipment. Simply because the work was analogous to building work in certain respects does not mean in my view, that it is not "a process" for the purposes of the legislation.
116. I therefore find that work the deceased did at the Royal Ordnance Factory was a "process" for the purposes of the 1961 Act, and that the second defendant cannot avoid liability on the basis that it was not.

Was "the place of work" in which the deceased performed his tasks "unsafe" for the purposes of section 29 (1) of the Factories Act 1961?

117. The second and third defendants submit that the distinction is well recognised between the safety of a place of work in terms of its physical structure and attributes generally, having regard to activities which are constantly and regularly carried on in it, and its safety as a place of work if any potential danger is caused as a result of some quite unusual, or even sporadically irregular, activity which creates a hazard of an exceptional kind. Reliance is placed upon cases such as Evans v Sant: see the dicta of Lord Widgery CJ, set out in the summary of this issue above, and Baker v Quantum Clothing Group Limited [2011] ICR 523 SC (E).
118. Counsel for the claimant drew attention to the facts of the case of Evans itself, in which a test head attached between a pump and a pipe blew off, causing the death of a workman. That was not sufficient to found (criminal) liability because as the Lord Chief Justice said at pp 635 - 636:

'… where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.'

119. That state of affairs was to be contrasted, it was submitted, with the state of a workplace that had subsisted over a considerable period (or periods) of time, as in this case. Although the activities which led to the dangerously dust-laden atmosphere were not permanent features of the workplace as a whole, they were 'constant, regular and recurring' throughout the periods of weeks at a time that these furnaces were workplaces.
120. In the case of Baker, noise due to activities in the workplace was found to be capable of amounting to a breach under section 29(1). It is submitted that, if there had been excessive noise during the same periods during which the work of the deceased on these furnaces took place, such excessive noise would have been sufficient to have amounted to a breach. The case for the claimant is that the production of a hazardous atmosphere throughout the period that these furnaces were workplaces was clearly more akin to ongoing noise than it would have been to the kind of single incident in Evans.
121. In response, counsel for the factory defendants submitted that a line had to be drawn (to use the words of Bridge J., as he then was, at page 636G in Evans) between a danger

"… on the one hand, arising from the condition of the place as such, and a danger on the other hand, arising merely from some activity carried on at the place in question."

Where a particular case fell, counsel submitted, was a matter of fact and degree. In Baker observations by Lord Mance illustrated where the line should be drawn. Counsel cited his references to operations "constantly and regularly" making the place unsafe; a workplace "constantly crossed" by forklift trucks; "a permanent feature"; operations "intrinsic to the workplace". The other members of the House agreed with Lord Mance.

122. In the instant case, the factory defendants submitted, none of the work carried out by the deceased or other Birlec workers was constant, regular or recurring. Nor was it carried out by the second and third defendants as part of their own activities as factory occupiers. The hazard created by the dust was "peculiar to the work of the first defendant" which amounted to the carrying out of maintenance "occasionally" in the case of the third defendant, and even more sporadically in respect of the second defendant. The dust was not a normal feature of the operations within the factory, but an abnormal and time-limited feature of Birlec's operations.

Conclusion on the "place of work" point

123. In my judgment, there were clear breaches of section 29. The use of furnaces within both the second and third defendants' factory premises was absolutely necessary and intrinsic to the work which was performed there. Furnaces which are in regular use will from time to time require maintenance, refurbishment or modernisation. If circumstances change so that the design or construction of manufactured components require change, then plant or equipment, such as a furnace, use of which is made in manufacturing the same, will also require alteration. There is no requirement that any process must be a continuous or constant activity. On the evidence the deceased's work on the furnaces went on, on a daily basis, for very long shifts over many weeks. Whilst this was a more regular operation at the premises of the third defendant than at those of the second defendant, the difference was only one of degree. The only interruptions of the work at any of the factory defendants' premises were the regular breaks which the deceased and his workmates needed to take as breathing spaces because of the amount of dust created by the work.

The issue of liability at common law for the development of mesothelioma by the deceased

124. Whilst no express admission of liability in this respect was made on behalf of the first defendant company, as I have already noted, counsel for Birlec made it clear that in the light of the uncontradicted evidence that excessive amounts of dust were being produced in the work being done upon the furnaces at both factory defendants' premises, and that that would have been obvious to Birlec's supervisors, no positive case was being raised in answer on its behalf.
125. This aspect of the case against the factory defendants, counsel for the claimant made clear, was not based upon their common duty of care in respect of the state of their premises under the Occupiers' Liability Act 1957 (sometimes referred to as an "occupancy duty") but under the common law rules which still govern liability for dangerous activities on the land arising from the factory defendants' knowledge of the activities, their authority over their own premises, their opportunities to intervene to prevent dangerous activities, and the statutory duties they undoubtedly had of supervision and control.
126. Counsel based his submissions upon observations of a number of the members of the House of Lords in their decision in Ferguson v Welsh [1987] 1 WLR 1553. In particular, reliance was placed upon the observation of Lord Oliver in that case where he said:

"It is possible to envisage circumstances in which an occupier of property engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of a contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor than of an occupier."

127. Lord Keith said:

"It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe" (1560.)

128. Lord Goff said:

"I wish to add that I do not, with all respect, subscribe to the opinion that the mere fact that an occupier may know or have reason to suspect that the contractor carrying out work on his building may be using an unsafe system of work can of itself be enough to impose upon him a liability ... in negligence at common law, to an employee of the contractor who is thereby injured, even if the effect of using that unsafe system is to render the premises unsafe and thereby to cause the injury to the employee. I have only to think of the ordinary householder who calls in an electrician; and the electrician sends in a man who, using an unsafe system established by his employer, creates a danger in the premises which results in his suffering injury from burns. I cannot see that, in ordinary circumstances, the householder should be held liable under the Occupiers' Liability Act 1957, or even in negligence, for failing to tell the man how he should be doing his work. I recognise that there may be special circumstances which may render another person liable to the injured man together with his employer, as when they are, for some reason, joint tortfeasors; but such a situation appears to me to be quite different."

129. The limits of liability under the 1957 Act and the potential for breach of such a duty were mentioned by the Court of Appeal in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052.

"The 1957 Act imposed the new statutory common duty of care on an occupier towards all his visitors to take appropriate care to see that they would be reasonably safe in using his premises…. The Act does not provide an answer, however, when a question arises whether the occupier, without more, is liable to a visitor for an injury he suffers as a result of an activity conducted by a third-party on his premises. For that purpose one has to go to the common law to see if a duty of care exists, and, if so, what is its scope, …." (at 1085.)

"It was argued that the defendants should not have regarded the employers as competent, given that they were exposing their own men to risks from asbestos dust on a daily basis. This argument is intelligible if there was a finding that the occupiers knew of the risk, whether or not the men's employers also knew of it." (at 1093 C – D).

130. The evidence of Mr Chambers, the health and safety consultant instructed in this case, is that (for reasons which he sets out at length, none of which was challenged in any significant way at the hearing) each of the defendants should have been aware (and indeed on the evidence of the deceased, of his brother, and of Mr Rogers they were all actually aware) that the work involved materials containing asbestos, in particular, and that it was work which produced significant quantities of dust in general. Any such work at the time was foreseeably hazardous. Mr Chambers expressed the opinion, which in my view did not trespass beyond the appropriate boundaries for an expert in an industrial disease case such as this, that each of the defendants could and should have acted to control the risks associated with that work, in accordance with the legislation, knowledge and standards of the day: see his report at paragraph 5.83 (p. 216 trial bundle.) The work was being carried out on their premises.
131. The factory defendants chose not to rely on any evidence to challenge these matters. However, it was contended against them, even if they should not have been aware that the linings of their furnaces contained asbestos, then it would have been a simple matter of a few moments' observation to identify that the working conditions on their sites were unsatisfactory. Mr Kilvington painted the scene in words as follows: "… clouds of dust as thick as fog were being produced where workers had nothing more than Martindale masks, or scarves across their faces." In such circumstances, counsel continued, the factory defendants could not be heard to say, that 'this was not our concern': their duties as factory occupiers under the Factories Act extended to all those working in their factories, and included the duties to ensure a safe place of work, and to prevent, so far as was practicable, the inhalation of substantial quantities of dust. They had the power to intervene, specific statutory duties to intervene and they had, or should have had, knowledge of the dangers.
132. This was not a case (I understood counsel to contend) of "casual or collateral negligence" of a kind mentioned in some of the old authorities, where (for example) a workman employed by an independent contractor does something careless or foolish in the execution of perfectly properly and carefully planned works. Romer LJ in Penny v Wimbledon UDC [1899] 2 QB 72, said of that kind of case, at p. 78:

"... accidents arising from what is called casual or collateral negligence cannot be guarded against beforehand, and do not come within this rule …."

By contrast with some isolated piece of individual carelessness, the whole system of work practised by Birlec to perform maintenance and repair of these furnaces at the factory defendants' premises, involved the obvious and constant deliberate creation of clouds of dust.

The case for the factory defendants on this point

133. In response, counsel for the second and third defendants both submitted that the circumstances in which any liability is imposed upon a party who reasonably engages a third party independent contractor to carry out work on its behalf are strictly limited. The case of Woodland v Swimming Teachers Association [2014] AC 537 dealt with those circumstances. Lord Sumption said at [5] that,

"… the law does not in the ordinary course impose personal (as opposed to vicarious) liability for what others do or fail to do.… The expression "non-delegable duty" has become the conventional way of describing those cases in which the ordinary principle is displaced and the duty extends beyond being careful, to procuring the careful performance of work delegated to others."

134. As to the decision in the case of Ferguson v Welsh, counsel for the factory defendants made the following points in response.

i) The fact that it is possible to envisage circumstances where an occupier may render himself liable to the employee of an independent contractor does not give rise to the proposition that such liability must necessarily follow.

ii) Equally, the fact that it might be possible for an occupier to take reasonable precautions does not necessarily involve the obligation to do so.

iii) In Ferguson both Lord Oliver and Lord Goff (at 1564C) had spoken of the relevant liability arising as a "joint tortfeasor". Such phraseology counsel, submitted, required "a high level of knowledge and/or interference or a clear and significant degree of involvement or information to justify a duty being imposed."

iv) Neither knowledge nor a "reason to suspect" are enough in the view of Lord Goff (at 1564B). There would have to be "special circumstances" to justify treating the occupier as a joint tortfeasor.

v) In the case of Fairchild it was said that,

"Ignorance of risks cannot excuse an employer, because it is an employer's duty to find out about well-known risks which may imperil his workforce, but we were not shown any authority which suggested that such a duty rested on a mere occupier who had engaged competent contractors" (paragraph 151).

vi) The evidence does not come close to establishing that these defendants were joint tortfeasors with Birlec. There was no evidence of active involvement with the works, which were left to Birlec. As manufacturers and experts in the field there was not a basis for the factory defendants to doubt the competence of Birlec.

vii) The nature of the work inside the furnace could not be seen by those outside.

viii) The Claimant's reliance upon Mr Chambers' conclusions was misplaced. Mr Chambers, it was submitted, quite wrongly criticised the factory defendants upon the basis that, having properly engaged Birlec as an independent sub-contractor to carry out the work, they should nonetheless be subject to a more rigorous duty than was imposed upon Birlec itself, in being required to ensure that Birlec was discharging its own duty of care to its own employees. To impose liability at common law upon the factory defendants in such circumstances, counsel submitted with (perhaps) a hint of admonition, "… would mark a significant development in the law …."

135. The answer to those points, it was contended for the claimant, was that the factory defendants' duties as occupiers extended to all those working in their factories – they included the duties to ensure a safe place of work, and to prevent, so far as was practicable, the inhalation of substantial quantities of dust. They had knowledge of the dangers which were being created in terms of dust by the activities of the contractors, and the power as owners and occupiers of the factory to intervene, not to mention their specific statutory duties to intervene. That was enough to create a duty of care at common law, which, on the evidence had been breached.
136. Counsel for the claimant distinguished this case from that of the associated case of Babcock (Babcock International Lt v National Grid Co plc) in Fairchild where the Central Electricity Generating Board, to whose liabilities National Grid were the successors, had simply been the main contractor on the construction site for a new power station, being undertaken by many sub-contractors. The involvement by CEGB of which Babcock's witness was aware was restricted to the operation of the security gate giving access to the site. No statutory duties were involved.

Conclusion

137. In so far as the evidence of Mr David Hill and Mr Rogers was challenged as to the production of clouds of dust outside the furnace and within the factory defendants' premises themselves, it is quite clear from the passages of cross-examination which I have set out above that such challenges failed. Both witnesses robustly and convincingly dismissed such challenges. It was also clear that whilst the work at the second defendant's premises was intended to be during a "shutdown" period, the factory itself was not completely shut down, but remained under the supervision of the second defendant, and of its supervisory, managerial and safety staff.
138. In my judgment to characterise the factory defendants as "mere occupiers" comparable with the householder in the example given by Lord Goff in Ferguson v Welsh is quite unrealistic. The householder could not and would not know (assuming him to be layman and not a qualified electrician himself) whether the "unsafe system" employed by the electrician and his employer was in fact unsafe. All electrical work must to some extent involve the creation of a risk of fire if it is not done according to established safe practices. A "mere occupier" cannot possibly know whether a technician such as an electrician is performing his work according to such safe practices or not.
139. The occupier of factory premises, however, is expected to know whether, for example, any process is likely to result in the production of substantial quantities of dust, and if it does, to take precautions both for those who are employees and for others who work in the factory who may not be employees. Even if that were not a statutory duty, work which can be seen to result in production of clouds of dust is work which creates an obvious source of risk to the health of anybody within the factory, and the nature of the risk is one which the factory owner or occupier is required by statute to know and to guard against. It would be the same if an independent contractor were brought in to do a specialist task which created excessive noise. In both instances, as occupier or owner of the premises within which it conducts its business the factory occupier has control over the premises and authority to dictate what is and what is not done within them.
140. The evidence of excessive amounts of dust being produced in the work being done upon their furnaces at both factory defendants' premises was quite clear not only to Birlec's supervisors, but to the factory defendants' own supervisory staff, including their safety officers. Birlec were clearly in breach of their duty of care to the deceased, and no argument is made to the contrary. An obvious risk to health and safety generally was being created by Birlec within the second and third defendants' own factory premises. In those circumstances a duty of care may properly be said to have arisen at common law, and on the evidence the factory defendants were in breach of that duty. It is no defence, in my view, for the factory defendants to say in the face of the obvious hazard created by the dust that they had engaged Birlec as specialist contractors, when they had the power to intervene to deal with it, but failed to do so. It would not be an overstatement of the position to say that in such circumstances their conduct amounted to that of joint tortfeasors.

Apportionment

141. Very limited submissions were made on this point at the hearing. In the light of the findings which have been made in this judgment, I shall invite any further submissions, from the second and third defendants in particular to be made in writing the first instance.