Smith v Portswood House Ltd
High Court
22 April 2016

An employer has successfully defended a mesothelioma claim arising from exposure from cutting asbestos in a factory in the 1970s, even though this was a primary exposure case based on alleged breach of the Factories Act 1961 as well as the common law. DWF’s Richard Parker and John McDonald of 2 Temple Gardens were instructed on behalf of the defendant’s insurers.

Background

The deceased, a wood working machinist, was employed in the defendant’s joinery shop from 1973 to 1977 over which time he alleged he was exposed to asbestos dust, as a result of which he developed mesothelioma in 2013 and sadly died in 2015. The alleged exposure occurred when the deceased made fire doors containing asbestos and cut the components of, and the doors themselves on a wall saw that was connected to a dust extraction system.

Issues

On the evidence of the expert engineers the court held the relevant standard in place at the time was the Factories Inspectorate Technical Data Note (TDN13) that set limits for asbestos dust concentrations of 2 fibres/ml for a 4 hour time weighted average (TWA) concentration and 12 fibres/ml for a 10 minute TWA. There were disputes between the experts as to whether the TDN13 limit had been exceeded and whether the amount of dust given off by the process was “substantial” within the meaning of section 63 of the Factories Act.

Evidence

The defendant’s three witnesses including the joinery shop manager gave evidence that the premises was a specialist joinery shop that made bespoke architectural items from wood including windows, staircases and doors. They could not recall asbestos being used in the manufacture of any item. The British Standard BS459 for fire door specification published at the time confirmed that two types of fire door were produced; half hour fire doors which contained a plasterboard core and no asbestos, and one hour fire doors which had an asbestos sheet underneath the plywood facing on both sides of the door. The defendant’s witness evidence was that it was more cost effective for customers/builders who required a one hour fire door to purchase these from specialist door manufacturers rather than have them specially made to order but conceded on cross examination they could not exclude the possibility of one hour fire doors being made on occasions.

Findings

The court found that on occasions the deceased did make one hour fire doors containing asbestos and cut the doors and asbestos components on a wall saw but that the extraction system collected the dust produced by the wall saw which kept the dust levels below the concentrations specified in TDN13: while the defendant had accepted that no extraction system was 100% efficient, the court found there was no evidence of dust escaping into the atmosphere that was in a concentration exceeding that set out in TDN13, and therefore the judge found there was no breach of the common law duty of care.

 Section 63 of the Factories Act 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 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 accumulation in any workroom, 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 workroom.

The judge held that there was no breach of this statutory duty: as regards the expression “to such extent as to be likely to be injurious or offensive ...” he impliedly at least determined that this imposed the same duty as at common law; and as regards the word “substantial”, he cited with approval earlier authority which decided that this meant more than merely “not negligible”: there must be “lots of dust” and it must be substantial when given off, not merely by accumulation over a period. On the facts of the present case, the amount of asbestos dust given off was neither foreseeably harmful nor substantial.

Comment

This case follows earlier decisions in favour of defendants in the 2011 DWF case Williams v University of Birmingham, McGregor v Genco (2014), and Woodward v Secretary of State for Energy & Climate Change (2015), in which it had been held that it is for the claimant to prove breach, which involves proof of asbestos exposure in excess of the recommended limits at the time.

These cases present  challenges  for insurers  as finding the evidence on occurrences 40 years ago when the businesses have  been taken over and the premises closed is difficult but not impossible, as was demonstrated in this case. Detailed investigation into the history of the site is essential to locate  witnesses  who  then lead you to others and provide evidence on which to base a defence.

This case develops the case law for employers/insurers, as it is a useful example of a successful defence being available where (a) the deceased was not merely a bystander but actively involved in cutting asbestos creating dust in the 1970s, and (b) in premises where section 63 of the Factories Act 1961 applied. It also demonstrates the difficulty a claimant will have in advancing a case based on breach of statutory duty as an alternative to the common law.