The recent court decision in the case of Mrs Francois Maartens Heynike (Executor to the Estate of Mr. David Hill, deceased) v 00222648 Limited (formerly Birlec Limited) (1) Ministry of Defence (2) Special Metals Wiggin Limited (3), has boosted the protection of workers exposed to asbestos in factories.
Background to the case
Mr. Hill was employed as a refractory bricklayer between approximately 1971 and 1974/75. His role included the stripping out of the linings of furnaces which often contained a layer of asbestos board inside the metal casing. It was very dusty work and Mr. Hill alleged that he had been exposed to significant amounts of asbestos dust during his work. He developed mesothelioma and sadly died as a result of this asbestos disease. The mesothelioma claim was brought by the Executor to the Estate.
Mr. Hill was employed by Lou Brawn (Staffs) Limited who supplied labour to Birlec Limited, the First Defendant. He carried out the work at premises including the Royal Ordnance factory in Nottingham, for which the Second Defendant were responsible, and the Henry Wiggin factory in Hereford, for which the Third Defendant were responsible.
Legal basis for claim
It was held that section 63(1) Factories Act 1961 survived beyond the introduction of the Asbestos Regulations 1969. The Second and Third Defendants argued that the section was substituted by Regulation 3(3) but the Court accepted the Claimant’s argument that the second limb of section 63(1), relating to any substantial quantity of dust of any kind, survived the regulations. Therefore it was held that where asbestos is given off as part of ‘any substantial quantity of dust of any kind’, a Claimant can rely on a breach of this important duty against a factory occupier when pursuing an asbestos claim. This is the case until its repeal by the Control of Substances Hazardous to Health Regulations 1988 which took effect from 1st October 1989.
The Supreme Court in the case of McDonald confirmed the broad scope of this duty by confirming that foreseeability of injury is not required, all persons employed at a factory, not just the occupier’s employees, are protected and a worker inhaling the dust when it is no longer substantial is protected.
The Court rejected the Second Defendant’s submission that the act did not apply to ‘one-off building work rather than any form of routine work or maintenance’ because it was not a ‘normal feature of the factory’s activity’. The Court held a wider meaning of ‘any process’. It stated that “any suggestion that the words “any process” in the Act require an intimate connection with the manufacture of a product would introduce unnecessary and unwarranted gloss on the wording of the subsection.” The judge stated that “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 the certain respects does not mean in my view, that it is not “a process”…”
The Court found that the repeated exposure to the dangerous conditions created by the work inside the furnaces, which lasted several weeks, was sufficient to make the workplace unsafe. This was despite the focus of section 29(1) being on the structure of the workplace and not on the activities carried on there. It is no defence that the activities were being carried out by the employees of an independent contractor to whom the duty was owed.
Finally the Court imposed a common law duty of care to the employee of Birlec on the factory occupiers. This was in respect of the dangerous conditions created by their own work on the furnaces. The factory occupiers knew or ought to have known about the dangerous conditions and had the power and opportunity to intervene.
The Estate for Mr. Hill won the mesothelioma claim against the Second and Third Defendants under sections 63(1) and 29(1) Factories Act 1961 and for breach of a duty at common law to protect employees of an independent contractor. Whilst the First Defendant was also in breach of duty to Mr. Hill, he was not found to be an employee of Birlec and so there was no effective insurance cover.
The decision increases the circumstances in which there might be an asbestos disease claim against a factory occupier where no separate employer can be pursued. Even if there is a traced employer who can be sued, the claim against the factory occupier might be the strongest claim to run when pursuing a claim for asbestos compensation.
Mesothelioma compensation in the sum of £135,000.00 was agreed between the parties.
Permission to appeal has been sought and we will monitor the position.
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