MCDONALD V NATIONAL GRID ELECTRICITY TRANSMISSION PLC - 2014 UKSC 53 ASBESTOS EXPOSURE IN FACTORIES.
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McDonald v National Grid
Electricity Transmission PLC
[2014] UKSC 53
Asbestos exposure in factories.
Malcolm Keen, Solicitor
E: Malcolm.keen@blmlaw.com
Nick Pargeter, Partner
E: nick.pargeter@blmlaw.com
1Summary
In a case concerning low dose asbestos exposure in the 1950s, the Supreme Court
found that the occupier of a power station visited by the deceased in the course of his
employment, and where he was exposed to asbestos, was liable for his mesothelioma
under the Asbestos Industry Regulations 1931.
(i) McDonald shows that the Asbestos Industry Regulations (despite their title) are not
confined to the asbestos industry. They can apply to factories in general. However, the
significance of Regulation 2(a) on asbestos claims is likely to be restricted by three
main elements:
(a) The claim must relate to employment before 1970.
(b) The claimant must have been employed in factory premises (but not necessarily by
the occupier).
(c) The 1931 Regulations apply to all levels of asbestos exposure. However, heavy
exposure is likely to give rise to a known risk of respiratory injury and thus amount to
a breach of duty at common law anyway. So McDonald is likely to impact on low-dose
exposure cases – those which previously would have been limited by non-
foreseeability (at common law) and by “not likely to be injurious” (which incorporates
foreseeability) under the Factories Acts 1937 and 1961.
(ii) McDonald suggests a liability and safety paradox: greater statutory protection (and
thus a stricter approach) in factories applying from 1932 to 1970 (under the 1931
Regulations) than from 1970 when the Asbestos Regulations 1969 came into force.
(iii) Even in circumstances post-McDonald where the 1931 Regulations will apply, there
is a potential argument based on foreseeability. Is it arguable that there was a
threshold limit value (TLV) which should be applied in tandem with the 1931
Regulations?
(iv) McDonald is helpful for defendants in respect of common law negligence. It
supports the “guidance document approach” suggested by contemporary literature
which can permit some exposure to asbestos. This accords with recent cases such as
Macarthy v Marks & Spencer Plc, Hill v John Barnsley, Williams v University of
Birmingham, and McGregor v Genco.
(v) McDonald is also arguably helpful in respect of evidence of exposure. Even in
mesothelioma claims, the court is not bound to take the claimant’s witness statements
as “word for word” accurate.
(vi) The Supreme Court provided some guidance in respect of section 47(1) of the
Factories Act 1937.
Background
Between 1954 and 1959, the deceased, in the course of his employment as a lorry
driver, was required to visit the power station occupied by the defendant’s
predecessor (the defendant) in order to collect pulverised fuel ash for use by his
employer. In July 2012, he was diagnosed with mesothelioma. He alleged that his
2condition was caused by exposure to asbestos at the defendant’s power station. He
brought claims for negligence against his employer and the defendant occupier, and
for breach of statutory duty (Regulation 2(a) of the Asbestos Industry Regulations
1931 and section 47(1) of the Factories Act 1937) against the defendant occupier. At
first instance, the claims failed. The Court of Appeal dismissed the claims in negligence
but found in the claimant’s favour in respect of the Asbestos Industry Regulations
1931. The deceased died in February 2014.
(a) The defendant appealed against its liability under the Asbestos Industry
Regulations 1931.
(b) The claimant (the deceased’s widow) cross-appealed against the dismissal of the
claim under the Factories Act 1937.
(c) The claim in negligence was no longer pursued.
The issues for the Supreme Court were the defendant occupier’s liability under:
(i) The 1931 Regulations; and
(ii) Section 47(1) of the Factories Act 1937.
Deceased’s exposure to asbestos
The deceased visited the defendant’s power station about twice a month between
1954 and 1957, and about twice every three months between 1957 and 1959. Whilst
there he visited areas where asbestos dust was generated by lagging work. The
deceased described being present when lagging was applied to boilers and pipework.
He described seeing laggers mixing asbestos powder with water to make the paste
which they then applied to boilers or pipes. He also saw laggers cutting pre-formed
sections of asbestos to fit to pipes and boilers, and removing old asbestos insulation
from pipework. He claimed to have been in close proximity to such work, with visible
clouds of asbestos in the air. At first instance, rejecting the claimant’s description of his
exposure, the Judge found that: “… any exposure was at a modest level on a limited
number of occasions over a relatively short period of time.” The Court of Appeal
accepted the Judge’s findings of fact as to the level of exposure.
Asbestos Industry Regulations 1931
Regulation 2(a) of the 1931 Regulations states, amongst other things, that mixing of
asbestos shall not be carried on unless there is an exhaust draught to ensure as far as
practicable the suppression of dust. The alleged breach here was mixing asbestos
without an exhaust draught. There was no exhaust draught here.
The preamble to the 1931 Regulations states that the Regulations will apply to all
factories and workshops or parts thereof in which one or more of six listed process are
carried on. The first listed process is: “breaking, crushing, disintegrating, opening and
grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving
manipulation of asbestos incidental thereto;”
The 1931 Regulations also contain an exception:
“Provided that nothing in these Regulations shall apply to any factory or workshop or
part thereof in which the process of mixing of asbestos or repair of insulating mattresses
3or any process specified in (v) or any cleaning of machinery or other plant used in
connection with any such process, is carried on, so long as (a) such process or work is
carried on occasionally only and no person is employed therein for more than eight
hours in any week, and (b) no other process specified in the foregoing paragraphs is
carried on.”
1931 Regulations - Supreme Court’s findings
The majority (Lord Kerr, Lady Hale, Lord Clarke) found that the 1931 Regulations
applied here, the defendant was in breach of Regulation 2(a), and dismissed the
defendant’s appeal.
The majority
Lord Kerr, Lady Hale and Lord Clarke agreed that “mixing” in the Regulations should
not be given a restricted, technical meaning - it should be taken to cover mixing
asbestos powder with water in order to form a paste with which to lag pipes and
boilers in a power station. The majority also considered that the Regulations applied
to the deceased here notwithstanding that he was not employed in the lagging
process. The Regulations applied to a person employed elsewhere but who visited the
factory in the course of his employment.
The minority
Lord Reed (with whom Lord Neuberger agreed), in a very well-reasoned judgment
involving a detailed analysis of the 1931 Regulations and their historical background,
considered that it “could hardly be clearer” that the Regulations in general did not
apply to the power station by virtue of the work being carried on there by the laggers,
and that regulation 2(a) did not apply to this work. (Lord Reed had regard in particular
to: (i) the Reports which preceded certification of the Regulations under section 79 of
the Workshop 1901 Act (the Act under which the Regulations were made); (ii) the
terms of that certification; (iii) the recommendations which the 1931 Regulations were
intended to implement; and (iv) the terms of the Regulations themselves.)
The term “mixing” in paragraph (i) of the preamble had a technical meaning, and
described particular processes carried on in the asbestos industry. Those processes
were (i) mixing or blending of crushed asbestos preparatory to its being opened, and
(ii) mixing of opened asbestos with other materials as part of the process of
manufacturing asbestos products such as the insulation material used by laggers.
Those processes were not carried on at the power station. The Regulations therefore
did not apply to it: it was not a place where “mixing”, within the meaning of paragraph
(i), was carried on. For the same reason, regulation 2(a) did not apply to the work
carried on by the laggers, as it did not involve “mixing or blending by hand of
asbestos” within the meaning of the Regulations. In addition, for Lord Reed the
deceased was not a person employed in the power station for the purposes of the
1931 Regulations.
Lord Reed also noted the Asbestos Regulations 1969 and stated that:
4“It is nevertheless a matter of legitimate comment that the interpretation of the [1931]
Regulations which is favoured by Lord Kerr is inconsistent with the basis on which the
1969 Regulations were made.”
Section 47(1) of the Factories Act 1937
Section 47(1) of the Factories Act 1937 states:
“In every factory in which, in connection with any process carried on, there is given off
any dust or fume or other impurity of such a character and to such an extent as to be
likely to be injurious or offensive to the persons employed, or any substantial
quantity of dust of any kind, all practicable measures shall be taken to protect the
persons employed against the inhalation of the dust or fume or other impurity and to
prevent it accumulating in any work room, and in particular, where the nature of the
process makes it practicable, exhaust appliances shall be provided and maintained as
near as possible to the point of origin of the dust or fume or other impurity, so as to
prevent it entering the air of any work room.” [emphasis added]
Section 47(1) applied in two situations: (a) where the dust or fume was likely to be
injurious or offensive to the persons employed; and (b) where there was given off any
substantial quantity of dust of any kind.”
It was common ground that the dust here was not of such a character and to such an
extent as to be likely to be injurious or offensive. The Court of Appeal found that the
evidence was not sufficient to show that there was given off a “substantial quantity of
dust.”
Section 47(1) – Supreme Court’s findings
By a majority (Lord Kerr, Lord Reed and Lord Neuberger), the claimant’s cross appeal
was dismissed. (Lord Clarke was silent on section 47(1)).
The first issue was whether dust was given off in connection with a process.
Lord Kerr found that the words in section 47(1) should be given their plain and natural
meaning. To suggest that they imported some intimate connection with the
manufacture of a product introduced an unnecessary and unwarranted gloss on the
subsection. If it was a process that was a normal feature of the factory’s activity, it was
a process for the purposes of the legislation. The lagging work here constituted a
process for the purposes of section 47(1).
Lady Hale was clear that lagging was a process.
Lord Reed (with whom Lord Neuberger agreed) also considered that section 47(1) was
not confined to persons employed in the particular process in question. The phrase
refers to persons employed in the factory.
The second issue was whether the deceased was a person employed.
5Lord Kerr found that the deceased was a person employed for the purposes of section
47(1).
Lady Hale agreed that section 47(1) was not limited to those employed on the process
in question. The deceased was a person employed.
Lord Reed and Lord Neuberger found that the deceased was not a person employed
here. The deceased was not working for the purposes of the power station. He was
working solely for the purposes of his employer. A customer of a factory “can hardly
be regarded as working for the purposes of the factory, even if he goes there in
person to collect the article purchased; and a person whom he employs to collect the
article from the factory can hardly be in a different position.” Therefore the Court of
Appeal was correct to reject the claim under section 47(1).
The third issue was substantial quantity.
Lord Kerr was clear that the duty to take practicable measures arose when a
substantial quantity of dust was given off – not that the quantity had to be substantial
at the point of inhalation. In respect of whether there was a substantial quantity of
dust here, Lord Kerr considered that the necessary investigation to decide this could
not now be conducted. The third condition could thus not be satisfied.
Lady Hale agreed with Lord Kerr that the quantity of dust must be substantial at the
time when it is given off, not when inhaled. Lady Hale stated that considering
“substantial” requires only a quantitative assessment of the amount of dust given off.
Lady Hale (in a minority of one) considered that the amount of dust here was
substantial and would have allowed the claimant’s cross-appeal.
Lord Reed and Lord Neuberger agreed that the quantity must be substantial when
dust is given off.
Conclusion
The Supreme (by a majority of three to two) dismissed the defendant’s appeal. By a
majority of three to one, the Supreme Court dismissed the claimant’s cross appeal.
The defendant was liable for the deceased’s mesothelioma under Regulation 2(a) of
the Asbestos Industry Regulations 1931.
Comment
McDonald shows that the Asbestos Industry Regulations (despite their title) are not
confined to the asbestos industry. They can apply to factories in general. The reason
why this is significant is that liability under Regulation 2(a) does not require
knowledge of the risk of harm (i.e. foreseeability). So liability could potentially result
from exposure to a level of asbestos not known by the defendant at the time to pose
a risk of harm. However, the application of Regulation 2(a) is likely to be restricted by
a three main elements:
(i) The Asbestos Industry Regulations 1931 came into force on 1 March 1932 (though
regulation 2(a) came into force on 1 September 1932) and were repealed on 14 May
61970 when the Asbestos Regulations 1969 came into force. So the claim must relate to
employment before 14 May 1970.
(ii) The place of work. The claimant must have been working in factory premises.
(iii) The 1931 Regulations apply to all levels of asbestos exposure. However, heavy
exposure is likely to give rise to a known risk of respiratory injury and thus amount to
a breach of duty at common law anyway. So McDonald is likely to impact on low-dose
exposure cases – those which previously would have been limited by non-
foreseeability (at common law) and by “not likely to be injurious” (which incorporates
foreseeability) in the Factories Acts 1937 and 1961.
In addition, the precise wording of the 1931 Regulations is important. Section (i) of the
Preamble states that the Regulations apply to “breaking, crushing, disintegrating,
opening and grinding of asbestos, and the mixing or sieving of asbestos, and all
processes involving manipulation of asbestos incidental thereto;” However, section (v)
of the Preamble states that the Regulations apply to “sawing, grinding, turning,
abrading and polishing, in the dry state, of articles composed wholly or partly of
asbestos in the manufacture of such articles;” So sawing asbestos articles is covered by
the Regulations only if the sawing is taking place during the manufacture of an
asbestos product. This leads to the result that there could be liability under the 1931
Regulations in respect of a claimant, in the vicinity of laggers, who is exposed to
asbestos dust as a result of mixing asbestos and water, but there would not be liability
in respect of the same claimant as a result of asbestos exposure from the sawing of
pre-formed sections.
Different results today
The implications of the Supreme Court’s broad interpretation of the scope of the 1931
Regulations are potentially significant in relation to cases of transient exposure in
factories and workshops in the 1950s and 60s. For example, in Asmussen v. Filtrona
United Kingdom Ltd [2011] EWHC 1734 (QB), the claimant, who developed
mesothelioma, was exposed to asbestos in two periods: (i) from 1955-60 when she
tested cigarette filter papers in a laboratory and visited the factory floor to collect
samples to test. The first factory contained steam pipes lagged with asbestos 20 feet
above the factory floor; and (ii) from 1962-72 when the claimant was based in the
laboratory but made frequent visits to the factory floor. The Court found that the
defendant was not liable because her exposure to asbestos was very low and
according to the standards of the time was not sufficient to give rise to a foreseeable
risk of injury. In Asmussen, the Court focused on one particular incident when she
walked under the place where another employee was lagging pipes during the first
period. The Court did not consider potential liability under the 1931 Regulations. It is
arguable that after McDonald, in such a situation liability under the 1931 Regulations
could be a possibility.
Liability and safety paradox
McDonald suggests a liability and safety paradox: greater statutory protection (and
thus a stricter approach) in factories applying from 1932 to 1970 (under the 1931
Regulations) than from 1970 when the Asbestos Regulations 1969 came into force. In
McDonald the defendant occupier was liable in respect of exposure which at the time
was not be known to be harmful. Regulation 2(3) of the Asbestos Regulations 1970
states:
7“References in these Regulations to asbestos dust shall be taken to be references to dust
consisting of or containing asbestos to such an extent as is liable to cause danger to the
health of employed persons.”
And the 1970 Regulations were accompanied by a guidance document (TDN13)
suggesting that some level of exposure was acceptable. In McDonald the defendant
was liable in respect of a level of exposure which at the time was not be known to be
harmful.
Circumventing McDonald
Even in circumstances post-McDonald where the 1931 Regulations will apply, there is a
potential argument based on a threshold limit value (TLV) which should be applied in
tandem with the 1931 Regulations. Regulation 2(a) refers to “as far as practicable the
suppression of dust …”. This arguably ought to be interpreted in the context of the
standards at the time, following Baker v Quantum. This was arguably not properly
explored by the Supreme Court. Whilst there is no TLV in the 1931 Regulations per se,
it is arguable that a proper statutory interpretation of the Regulations would reveal
that the Regulations were not intended to mandate absolute protection from asbestos
dust, and that exposure below a certain level was intended to be permissible.
Regulation 2(a) The 1931 Regulations were based on the Merewether and Price Report
in 1930. Lord Reed in McDonald noted that:
“It was also noted that the safe concentration of dust in workrooms had been taken, on
the basis of the Merewether and Price Report, to be the conditions arising from flyer
spinning of asbestos fibres. That criterion was said to be “simple to apply to processes
such as mixing, blending … which are obviously more dusty than flyer spinning” (p 6).
The recommendations focused upon the application of exhaust ventilation at dust-
producing points, so as to meet that criterion.”
Is the criterion a safe limit? Wikeley, 1992, examined knowledge of the harmful effects
of asbestos in the 1930s and 40s. 1. Wikeley noted that Merewether and Price
concluded that both the degree of fibrosis which was produced, and the speed with
which it developed, were directly proportional to the intensity of the exposure
experienced. Wikeley stated that:
“In particular, they found that a group of workers known as spinners took longer on
average to develop fibrosis, and seemed to be exposed to lower concentrations of dust.
They therefore suggested that the spinners’ level of exposure should be regarded as the
‘dust datum’, and that higher concentrations of dust should be reduced by the
application of dust-suppression measures. This recommendation formed a fundamental
part of the thinking behind the subsequent safety regulations.”
This suggests that guidance was aimed at reducing exposure to an acceptable level,
and of course the illness in mind was asbestosis. Wikeley considered that one
weakness in the 1931 Regulations was that:
1
N. Wikeley, ‘The Asbestos Regulations 1931: A Licence to Kill?’, Journal of Law and
Society, 19, 3, 1992
8“they were based on the premise, derived from the Merewether Price report, that the
only risk to health posed by asbestos was asbestosis caused by heavy asbestos exposure
above the ‘dust datum’.”
In his 1998 paper, Bartrip 2 noted that something which struck Merewether was the
relatively very low incidence of fibrosis amongst spinners. Bartrip noted that from this
Merewether judged that in order to prevent the full development of the disease within
the space of an average working lifetime, it was necessary to reduce the concentration
of dust in the air of the workrooms to a figure below that pertaining to spinning.
Bartrip considered that:
“The thrust of the Merewether-Price report and of all subsequent moves towards the
establishment of the 1931 regulations was that one thing alone was necessary to solve
the acknowledged problem of fibrosis among asbestos workers. This was the reduction of
dust levels to below the "dust datum".
It can be noted that Merewether and Price described relative levels of dustiness, with
spinning being assigned the value “1”. Burdett, 1998, considering measurements made
by Goodall at the J.W. Roberts Ltd factory at Armley in Leeds in 1938, noted that:
“This means that the historic datum level established in 1930 based on not exceeding
the dust levels in spinning areas, was equivalent to a personal exposure of about 20 f ml-
1
, and a static exposure of 10 f ml-1.”
It is arguable that it is only the personal exposure figure which is relevant. So the dust
datum (the value “1” in Merewether and Price) for personal exposure would be greater
than 20 fibre/ml.
Navarro in 2002 3 explained the implications of Merewether and Price. The removal of
dust to certain levels would cause a great increase in the length of time before
workers developed a disabling fibrosis, and the disease would almost totally disappear
as measures of dust suppression were perfected. So the spinners’ level of exposure
should be regarded as a “dust datum” – the level that would prevent the full
development of the disease amongst asbestos workers within the space of an average
working lifetime.
As noted above, this was arguably not properly explored by the Supreme Court. This
could be an argument which a brave litigant might wish to raise in a future case
concerning the application and interpretation of the 1931 Regulations.
Common law negligence
McDonald is helpful for defendants in respect of common law negligence. Common
law negligence was not in issue in the Supreme Court. So it is strongly arguable that
the Court of Appeal’s view in McDonald remains extant. Common law negligence turns
upon the general state of knowledge at the time in question. Guidance literature is
2
P. Bartrip, ‘Too little, too late? The Home Office and the Asbestos Industry Regulations,
1931?’, Medical History, 1998, 42, 421
3
A. M. Navarro, ‘Shaping Industrial Health: the Debate on Asbestos Dust Hazards in the UK,
1928-39’, in E.R. Ocana (ed), The Politics of Healthy Life, An International Perspective, 2002
9relevant to knowledge. Despite some authorities (such as Cherry Tree/Jeromson and
Maguire v. Harland & Wolff Plc [2005] EWCA Civ 01) suggesting that the duty at
common law is to reduce exposure to the greatest extent possible, the Court of
Appeal in McDonald fell on the side of the “guidance document approach” suggested
by contemporary literature which can permit some exposure to asbestos. As
McCombe LJ acknowledged in respect of guidance documents in 1960 and
1969/1970:
“both of which still indicated that some exposure to asbestos dust could be accepted as
tolerable, …”
This view accords with recent cases such as Macarthy v Marks & Spencer Plc, Hill v John
Barnsley, Williams v University of Birmingham, and McGregor v Genco.
Evidence of exposure
McDonald is also arguably helpful in respect of evidence of exposure. The claimant’s
witness statement described clouds of asbestos dust in the air. The Court of Appeal’s
acceptance of the Judge’s decision to reject this underlines the required approach to
witness statements admitted under the Civil Evidence Act 1995. Even in mesothelioma
claims, the court is not bound to take the claimant’s witness statements as “word for
word” accurate. It is arguable that the Supreme Court has not changed this finding.
Lady Hale and the Jeromson/Cherry Tree vs. Banks dichotomy
In Banks v Woodhall Duckham, 30th November 1995, the Court of Appeal considered
that the 1931 Regulations did not apply to lagging of pipes in a steel works. The
claimant was a pipefitter whose work included knocking lagging off pipes. The Court
of Appeal also found that the 1931 Regulations did not apply to the occupier because
it did not manufacture asbestos products.
In Jeromson v. Shell Tankers UK Ltd [2001] EWCA Civ 101 (also known as The Cherry
Tree), the Court of Appeal considered Regulation 2(a) applied – the key Regulation in
McDonald. From 1946 to 1948 one of the deceased had been exposed to asbestos
whilst working for the defendant manufacturer of dry cleaners’ presses. His work
involved sealing the presses with asbestos to stop steam escaping. He mixed asbestos
with water in a bucket and then applied it. When dry, this generated visible dust in the
air which got onto his overalls. He did this once a week, for about an hour. The Court
of Appeal found:
(i) The Regulations “are expressly applied to any factory or workshop where the
defined processes take place. Nowhere is it said that the Regulations apply only to
factories and workshops whose only or main business is the processing of raw
asbestos or the manufacture of products made out of raw asbestos.”
(ii) The exception when the work was carried on “occasionally only” and that no
person was employed for eight hours or less in any week did not apply. The
deceased’s work was regular – not occasional.
(iii) Regulation 2 : the obligation to provide an exhaust is “absolute unless it is not
practicable to do so. There is no question of reasonable practicability. In any event, the
known danger was dust and the required precaution was both known and
10practicable.” The Court of Appeal considered that it was not necessary to consider
foreseeability. The defendant was liable.
In McDonald, all the Supreme Justices found that Jeromson was correctly decided. The
majority considered that Jeromson supported a wide interpretation of the 1931
Regulations.
Interpretation of section 47 of the Factories Act 1937
Section 47(1) (and its equivalent in the Factories Act 1961, section 63) has been
characterized as setting out two distinct conditions, either of which gives rise to a duty
on the employer to take all practicable measures to protect employees. In respect of
the second limb, “substantial quantity of dust of any kind”, McDonald shows that the
dust must be substantial at the time it is given off, not when inhaled. McDonald also
suggests that that section 47(1) is not confined to persons employed in the particular
process in question. It refers to persons employed in the factory. There is less
guidance on what substantial actually means.
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