Scottish Court of Session Decisions

This is an action of reparation against three defenders. The first and the second defenders were formerly shipbuilders on the Clyde. The second defenders are sued in their own right and as successors to Alexander Stephen & Sons Limited. The third defenders were formerly known as Sunderland Forge & Engineering Company Limited.

The pursuer avers that in consequence of exposure to asbestos in the course of his working life he has developed extensive bilateral pleural plaques and asbestosis. He has set out the details of his work history and of his working conditions. He avers that during his working life he was employed as an electrician by the first defenders from about 1951 to 1953; by the second defenders' predecessors from about 1954 to 1956; by the third defenders from 1963 to 1964 and by the second defenders themselves from about 1968 to 1970. He avers that he was employed on board ships under construction in the yards of the first and second defenders and of the second defenders' predecessors; that he had to work with asbestos, and that he was exposed to asbestos dust generated by the activities of other workers at these yards.

His specific averments as to his working conditions are as follows:

The pursuer's case, as further amended at the Bar, is laid against all three defenders at common law and under the Factories Acts 1937 and 1961; against the second and the third defenders under the Factories Act 1961 and the Shipbuilding and Ship Repairing Regulations 1960 (S.I. No 1932); and against all three defenders under the Asbestos Industry Regulations 1931 (S.I. No 1140). In relation to events occurring between 1954 and 1956, the case against the second defenders is based on the fault of their predecessors.

In his case under the Asbestos Industry Regulations 1931 the pursuer founds on regulations 1, 2, 3(2), 7(1)(a), 8(b) and 10(d). In support of this case he makes the following averments:

The first and third defenders have agreed with the pursuer that there should be proof before answer on the whole Record; but the second defenders have taken the case to procedure roll on their first plea in law, a plea to relevancy, on the short question whether the Asbestos Industry Regulations 1931 applied to any of the activities in which the pursuer was engaged, or to which he was exposed, while working on board ships under construction in the shipyards referred to on Record.

The researches of counsel indicate that the present question has not arisen for decision in any of the asbestosis cases that have gone through this court over the years.

(1) The Factory and Workshop Act 1901

Section 79 of the 1901 Act fell within Part IV of the Act headed "Dangerous and Unhealthy Industries". It provided as follows:

In section 149(1) the expression "factory" was divided into two categories, namely textile factory and non-textile factory, both of which were defined. Part I of the Sixth Schedule listed the non-textile factories referred to in the definition of "non-textile factory". Part II listed the "non-textile factories and workshops" referred to in the definitions of "non-textile factory" and "workshop". In the categories listed in Part II, item (25) was:

(2) The Asbestos Industry Regulations 1931 (S.I. No 1140)

The 1931 Regulations were made under section 79 of the 1901 Act (supra). They applied to:

"All factories and workshops and parts thereof in which the following processes or any of them are carried on:

The provisos to this excluded from the scope of the Regulations (a) factories and workshops where certain of the processes referred to were carried out only occasionally and no one was employed on them for more than 8 hours in any week and (b) factories or workshops where, by reason of the restricted use of asbestos, or the methods of working or otherwise, all or any of the Regulations could be suspended or relaxed without danger to the health of those employed there.

For the purpose of these Regulations "asbestos" was defined as meaning:

"Preparing" was defined as:

The Regulations set out the detailed duties of the occupier of the factory or workshop in matters of safety such as ventilation and the control of asbestos dust. Regulation 8 governed inter alia the cleaning of sacks that had contained asbestos dust.

These regulations were made under the same section. They applied to the occupier of a shipbuilding yard, as defined in the Sixth Schedule to the 1901 Act. It is agreed that they did not refer to protection from asbestos.

This Act repealed the 1901 Act (s. 159, Fourth Sched.). Section 60 replaced section 79 of the 1901 Act. Section 159 retained in force all existing regulations made under section 79 of the 1901 Act.

These regulations revoked and superseded the Shipbuilding Regulations 1931 (1960 Regs., reg. 1(2)). Regulation 76 of the 1960 Regulations provided inter alia for protection from dust, which specifically included asbestos (regs. 76(1)(a) to (d)). Regulation 76 (1)(c) governed inter alia the cleaning of sacks which had contained asbestos.

These regulations imposed safety requirements for asbestos throughout industry in general (reg. 3(2)). They revoked the Asbestos Regulations 1931 (reg.1(2)).

Counsel for the second defenders submitted that the action, so far as laid against them under the Asbestos Industry Regulations 1931, was irrelevant because those Regulations did not apply to the premises of the second defenders or their predecessors. The Regulations governed the asbestos industry itself, that is to say the industry of producing asbestos products, and not asbestos-related activities in industry in general.

This conclusion, which was supported by Munkman (Employer's Liability, 12th ed, p. 264), was indicated by the title of the Regulations; by the categories of process to which the Regulations applied; by the terms of the provisos to the Regulations; by the definition of "asbestos" in the Regulations; and by the terms of the Regulations themselves.

The same conclusion could be drawn by looking at the Regulations in their statutory context. The Regulations were made under section 79 of the 1901 Act, which was within Part IV of the Act governing "Dangerous and Unhealthy Industries". In the same year the Secretary of State had made the Shipbuilding Regulations 1931 under the same section. These regulations did not refer to asbestos at all.

The same conclusion could be drawn from the later legislative history. The Shipbuilding and Ship Repairing Regulations 1960, which revoked and superseded the Shipbuilding Regulations 1931 (reg. 1(2)), expressly provided for protection against asbestos dust (reg. 76(1)(a) to (d)). This was the first extension of protection against asbestos to workers in the shipbuilding and ship repairing industries. The Asbestos Industry Regulations 1931 had protected workers engaged in the cleaning of sacks. This protection was applied to the shipbuilding and ship repairing industries in the 1960 Regulations (reg. 76(1)(c)). This protection would have been unnecessary if the 1931 Regulations had applied to the use of asbestos in shipbuilding.

It was only with the Asbestos Regulations 1969, which revoked the Asbestos Industry Regulations 1931 (reg. 1(2)) and the Shipbuilding and Ship Repairing Regulations 1960 (reg. 1(3)), that statutory protection against asbestos was extended throughout industry in general (1969 Regs., reg. 3(2)).

On the basis of these submissions counsel for the second defenders moved me to dismiss the action so far as it was laid against the second defenders under the Asbestos Industry Regulations 1931.

Counsel for the pursuer argued that section 79 of the 1901 Act referred to processes in, inter alia, "workshops". The definition of "workshop" (s. 149(1)) included any premises or places named in Part II of the Sixth Schedule to the Act. Item (25) of the Sixth Schedule was "shipbuilding yards". The 1931 Regulations applied to all workshops in which the relevant processes occurred. They therefore applied to shipbuilding yards. It followed therefore that the shipyards referred to on Record were premises where processes falling within the 1931 Regulations took place.

This conclusion was confirmed by the provisos to the 1931 Regulations. It would be surprising if provision was made for such cases if the Regulations applied only to the asbestos industry itself.

In any event, even if the 1931 Regulations had applied only to the restricted extent contended for on behalf of the second defenders, the scope of the Regulations had been widened by the Factories Act 1937. By reason of section 159 of the 1937 Act, the 1931 Regulations were deemed to have been made under section 60 of the 1937 Act. That section applied across the board. It therefore extended the application of the 1931 Regulations so that they applied industry-wide.

The Shipbuilding Regulations 1931 did not refer to asbestos for the simple reason that it was unnecessary for them to do so since the Asbestos Industry Regulations 1931 applied in shipyards.

On the basis of these submissions counsel for the pursuers moved me to allow proof before answer on the whole Record.

In my opinion the submission for the second defenders is well founded. In my view, section 79 of the 1901 Act, in its setting in Part IV of the Act, contemplated the regulation of specific industries rather than specific workplaces, and then only when such industries were dangerous and unhealthy.

That conclusion is, I think, also indicated from the title of the 1931 Regulations and the specification of the processes to which those regulations applied. In that specification the processes related in various ways to "asbestos", which was defined as referring to that material in its raw mineral state. This indicates, in my view, that the Regulations related to those processes by which the raw material was treated in the course of its being manufactured into asbestos products of various kinds.

I am confirmed in this conclusion by the fact that the Shipbuilding Regulations 1931, which were made under section 79 of the 1901 Act, did not deal with asbestos protection. The Shipbuilding and Ship Repairing Regulations 1960 extended such protection to those industries for the first time. The 1960 Regulations, so far as they regulated the use of, or exposure to, asbestos in those industries, would have been unnecessary if the Asbestos Industry Regulations 1931 had applied to those industries all along. This is consistent with the view that it was only with the Asbestos Regulations 1969 that statutory protection against asbestos was extended throughout industry in general.

In my opinion the primary argument for the pursuer based upon sections 79 and 149 of the 1901 Act is fallacious. The 1901 Act dealt with industry generally as well as with the specific industries to which Part IV related. The definitions of "factory" and "workshop" in that Act applied to all references to those expressions occurring throughout the 1901 Act. It does not follow that, because the list of non-textile factories and workshops for the purposes of the 1901 Act included shipbuilding yards, every shipbuilding yard was a factory or workshop for the purposes of regulations made under section 79. On the contrary, section 79 applied only to factories and workshops within the specific industries for which regulations were made under that section.

The provisos to the 1931 Regulations can be given a satisfactory meaning, consistent with the view that I have reached, if one envisages, for example, the case where as part of a wider range of manufacturing operations a factory was engaged from time to time in the manufacture of specific items from asbestos or where only a small part of the factory was used for such purposes.

I do not accept the fall-back submission for the pursuer that section 159 of the 1937 Act widened the scope of the 1931 Regulations. That seems to me to be an unlikely interpretation of the 1937 Act. In my view, the purpose of section 159 was simply to prevent regulations made under the 1901 Act from lapsing upon its repeal. Moreover, it is difficult to see why the Shipbuilding and Ship Repairing Regulations 1960, so far as they related to asbestos, were introduced for those industries if, as counsel for the pursuer contended, the Asbestos Industry Regulations 1931 already applied to them.

I am confirmed in the view that I have reached by the decision of the Court of Appeal in Banks v Woodhall Duckham Ltd (Court of Appeal, 30 November 1995, unreported). In that case the plaintiff alleged that while employed by the first defendants as a pipe fitter he was exposed to asbestos dust while lagging pipes at two steel works which were occupied by the second defendants' predecessors in title. It was argued for the plaintiff that the Asbestos Industry Regulations 1931 applied to the second defendants. It was argued for the second defendants that the 1931 Regulations applied to the manufacture of asbestos products and to the processes preparatory thereto, and that they were never intended to apply to the lagging of pipes in a steel works. I agree with counsel for the pursuer that the judgment of Stuart Smith L.J., in which the other members of the court concurred, does not set out in detail the argument advanced for the plaintiff on that point. But subject to that, I think that I am justified in drawing support from the decision since it was the clear view of the Court of Appeal that the argument for the second defendants, which was in substance the argument for the second defenders in this case, was well founded.

I shall pronounce an interlocutor sustaining the second defenders' first plea in law to the extent of dismissing the action so far as laid against the second defenders under the Asbestos Industry Regulations 1931. Quoad ultra I shall appoint proof before answer.