Chapter 16

DUST DISEASES
Andrew Hogarth QC

INTRODUCTION TO DUST DISEASES

16.1 The inhalation of any kind of dust has been recognised as being likely to
result in injury for over 100 years. The combined result of the long latency
periods for many forms of asbestos disease and the extreme toxicity of the
material means that today most of the personal injury claims arising from the
inhalation of dust are asbestos disease claims. However, there are other lung
diseases which are the result of exposure to other dusts. Fibrosis of the lungs
resulting from dust inhalation, which in the case of asbestos dust inhalation is
known as asbestosis, can also result from inhalation of other dusts. Historically
the most common forms were silicosis, from silica dust, and fibrosis from
inhalation of coal dust. However, almost any non-organic dust can cause
fibrosis if inhaled in sufficient quantity. In addition there are a number of
diseases which are similar in effect to lung fibrosis, but which act by restricting
the airways in the lungs. These diseases may be caused by the inhalation of a
wide variety of organic dusts; of these, byssinosis, caused by cotton dust, and
farmer’s lung, caused by the spores on mouldy hay or grain, are the most
commonly encountered, although a wide variety of organic dusts can cause
similar symptoms. Space prevents a detailed consideration of these individual
diseases.

16.2 The dusty atmosphere in factories was recognised as likely to injure the
workers in factories as long ago as 1864 when the Factories Acts Extension Act
first required the occupier of a factory or workshop to provide ventilation to
render harmless dust which ‘may be injurious to health’. This provision was
repeated in the Factories and Workshop Act 1901, s 74. Section 47 of the
Factories Act 1937 introduced a new and more onerous requirement, and the
exposure of any worker in a factory to a ‘substantial quantity of dust of any
kind’ was prohibited, even if the quantity of dust did not create a foreseeable
risk of injury.

16.3 In his annual report for 1938, the Chief Inspector of Factories set out the
understanding which he had of the reasons for the introduction in that year of
the obligation under the Factories Act 1937, s 47, not to expose employees to a
substantial quantity of dust of any kind. His report is often relied upon to show
the state of general awareness of the dangers caused by all forms of dust and
thus used against all employers as an allegation of negligence. He said:

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‘One of the greatest problems facing industry today is that of dust, and consideration
is given later in this report to silicosis and asbestosis. We are but on the threshold of
knowledge of the effects on the lungs of dust generally and I have referred in my
reports from year to year to the enquiries made into cases of illness and deaths alleged
to be due to the inhalation of dust. While section 47 of the Factories Act 1937 may be
thought to be somewhat ambiguous in its reference to a substantial quantity of dust
of any kind, it is, I consider, 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. There can be no doubt that dust if inhaled is
physiologically undesirable. Moreover, dust that is thought to be harmless today may,
following further research be viewed in another light tomorrow. It is not many years
ago when the dust of asbestos was regarded as innocuous, while today it is recognised
as highly dangerous.’

This very clear warning given over 80 years ago means that it is no longer
necessary to consider whether or not an employer is in breach of its duty to its
workers if the level of dust may be described as ‘substantial’.

16.4 The long latency period of asbestos disease and the extreme toxicity of
asbestos dust means that the majority of dust disease claims arise from exposure
to asbestos dust. For this reason the majority of the cases cited in this chap-
ter are asbestos disease cases. However, the legal principles described in this
chapter are applicable to all dust disease claims, with some statutory modifica-
tions. The long latency periods for most dust diseases means that this chap-
ter deals with legislation which has long since been repealed. Current legislation
is dealt with at paras 27.16–27.27.

The time which has to elapse between exposure to dust and the development of
a disease as a result of that exposure to that dust varies according to the disease
and there is little by way of conventional medical evidence available to deter-
mine the minimum latency period in respect of any dust disease. In cancer cases
the model proposed in a paper by Geddes1 is based on the time a cancer takes to
double in size but was acknowledged to be at best a guide in the paper itself.
Epidemiological evidence discussing minimum latency periods for mesothe-
lioma is extensive and produces no instance of mesothelioma in an adult
developing less than 13 years after exposure.2 Exposure as a child or teenager
can result in a shorter latency period of as little as 11 years. In Burnett v British
Telecommunications PLC [2015] EWHC 3893 (QB) a mesothelioma claim
based on a latency period of ten years was dismissed.
1
Geddes, British Journal Diseases of Chest 73 (1979).
2
There are many articles, the most important of which are Lanphear and Buncher, Jounal of
Occupational Medecine 34.7 (1992); deLajartre and deLajatre, Annals New York Academy
Science (1979), p 323; and ‘Report of the Administrator World Trade Center on cancer claims’
(7 November 2014).

The need for there to be a cause of action

16.5 In order to bring a claim in tort a claimant must establish that they have
suffered some damage which the law recognises. Until recently it was assumed
that if the claimant suffered from any one of the six conditions or diseases
known to result from asbestos exposure, they were entitled to damages and to
an award of provisional damages in respect of the chance of suffering from one

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of the fatal asbestos cancers. In Grieves v FT Everard & Sons Ltd [2008] 1 AC
281, [2007] 3 WLR 876, [2007] 4 All ER 1047, [2007] ICR 1745, [2008] PIQR
P6, the defendants successfully challenged this assumption. The claimants all
suffered from pleural plaques. Although pleural plaques can in rare cases lead
to more serious lung damage all the claimants had symptomless pleural plaques.
The House of Lords concluded that symptomless pleural plaques did not
amount to damage which the law recognised as giving rise to an entitlement to
compensation. A number of factors led the House of Lords to the conclusion
that pleural plaques did not amount to actionable damage. They concluded that
mere physical change to the body without any symptoms resulting was not
sufficient to give rise to a cause of action; in contrast, a physical change which
increased the chance of other diseases occurring or which was the first stage in
disease was more likely to be actionable. Pleural plaques because they are
symptomless, lead to no other injury and very seldom progress to a degree
which results in disability, did not in the view of the House of Lords amount to
either ‘harm’ or ‘a material injury’.

16.6 One of the claimants, Mr Grieves, also suffered from a psychiatric illness
as a result of his fear that he would develop mesothelioma. Relying on the
decision of the House of Lords in Page v Smith [1996] AC 155 it was argued
that he had suffered an actionable injury. The House of Lords, whilst declining
to overrule Page v Smith, were able to distinguish it by concluding that in cases
in which the injury was a result of a present fear of future disease, the
psychiatric illness was not actionable until the future disease actually occurred.
In Dryden v Johnson Matthey Plc [2018] UKSC 18, [2018] 3 All ER 755,
[2018] ICR 715, the claimants had all been sensitised to platinum salts as a
result of their work for the defendants. If they were to be exposed to platinum
salts in the future they would be likely to suffer respiratory symptoms. To
prevent such an event they ceased to work in the area in which platinum salts
were used and suffered a loss of earnings as a result. Unless sensitisation to
platinum salts was held to be actionable damage in itself, their claims would fail
as being claims for pure economic loss. Lady Black JSC drew a distinction
between their position and that of the claimants in Rothwell. She said at [47]:
‘I would distinguish this case from the Rothwell case. I set out earlier how the doctors
saw the distinction between pleural plaques and sensitisation to platinum salts but it
is, of course, ultimately a lawyer’s question whether the two conditions are distin-
guishable. As I see it, it is material that the pleural plaques were nothing more than a
marker of exposure to asbestos dust, being symptomless in themselves and not
leading to or contributing to any condition which would produce symptoms, even if
the sufferer were to be exposed to further asbestos dust. Similarly, the sensitisation of
the claimants in this case marks that they have already been exposed to platinum
salts, but unlike the plaques, it constitutes a change to their physiological make-up
which means that further exposure now carries with it the risk of an allergic reaction,
and for that reason they must change their everyday lives so as to avoid such
exposure. Putting it another way, they have lost part of their capacity to work or, as
the claimants put it in argument, they have suffered a loss of bodily function by virtue
of the physiological change caused by the company’s negligence.’

In practical terms, this decision confines the House of Lords decision in

Rothwell to its own very specific facts.

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16.7 In Scotland and Northern Ireland the decision in Grieves has been
reversed by Acts of Parliament in respect of pleural plaques by the Damages
(Asbestos-related conditions) (Scotland) Act 2009 and the Damages (Asbestos-
related Conditions) Act (Northern Ireland) 2011.

16.8 Asbestosis can also be symptomless in its very early stages, and when it is,
a claim will bear some similarity to the symptomless pleural plaques from which
the claimants suffered in Grieves. However, symptomless asbestosis will seldom
fit comfortably within the criteria adopted as the touchstone for deciding
whether actionable damage has occurred described by the House of Lords in
Grieves. It is probable that except in cases in which there is no measurable
respiratory disability at all the courts will conclude that the claimant has
suffered actionable damage if a diagnosis of asbestosis can be made. Whether a
claimant who has no respiratory disability at all, and who has nothing more
than radiologically detectable asbestosis has suffered damage sufficient to
found a cause of action is more doubtful.

Liability at common law

16.9 The common law principles applicable in dust disease claims are the same
as those applicable in any other type of personal injury action. Notwithstanding
the universality of the principles involved, some aspects of the common law of
negligence have a greater degree of prominence in dust disease litigation than in
other types of personal injury action. The duty is, as always, a duty to take
reasonable care to protect those affected by an activity against a foreseeable risk
of injury to their health. The difficulty, as always, is in attempting to describe the
circumstances in which a particular person will be found to be in breach of that
duty, a difficulty made the more challenging by the fact that the events the court
is considering invariably occurred many years before the trial.

16.10 Perhaps to avoid any suggestion that they are adopting standards which
only seem to be appropriate with the benefit of hindsight, the courts have not
devised a formulation of the circumstances in which a duty is owed, or in which
it is likely to have been breached, which is unique to dust disease litigation.
Instead, they have adopted the classic legal formulations of the circumstances in
which a duty is owed and of the standard of care which is owed. However, the
result is largely the same, as the statements of principle commonly utilised have
the effect of imposing liability in circumstances which one cannot help feeling
would have come as something of a surprise to the judges of earlier generations
who formulated those tests. Despite the fine sentiments contained in many of
the legal tests used to determine liability, previous generations of judges seem to
have regarded industrial disease as the inevitable lot of the working man.
Today’s generation of judges do not perceive these same tests as just fine words.
From the point of view of an insurer or defendant this different perspective is
unfortunate. The enormous increase in the numbers who die from mesothe-
lioma seems to have had the effect of making judges less willing to excuse the
shortcomings of an employer, and thus more likely to find in favour of
claimants, than were the judges of a previous generation, when the number of
deaths from mesothelioma was less than a tenth of the number it is today. In this
section the aspects of the common law frequently encountered in asbestos

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 Introduction to dust diseases 16.14

disease litigation are selected for highlighting. The parallel, but similarly strict,
approach to allegations of breach of statutory duty is dealt with in para 16.32
ff.

The need to keep up to date

16.11 Some of those using asbestos were genuinely ignorant of the dangers
they were creating. That they were ignorant may be established by the evidence
in a particular case, although that evidence will often reveal a degree of wilful
blindness to the dangers being created. However, the ignorance established by
the evidence is unlikely to provide a defence to an employer.

16.12 In his classic exposition of an employer’s duty to keep himself up to date

with the information available to him, Swanwick J said in Stokes v Guest, Keen
and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783:1
‘ . . . the overall test is still the conduct of the reasonable and prudent employer,
taking positive thought for the safety of his workers in the light of what he knows or
ought to know; where there is a recognised and general practice which has been
followed for a substantial period in similar circumstances without mishap, he is
entitled to follow it, unless in the light of common sense or newer knowledge it is
clearly bad; but, where there is developing knowledge, he must keep reasonably
abreast of it and not be too slow to apply it; and where he has in fact greater than
average knowledge of the risks, he may be thereby obliged to take more than the
average or standard precautions. He must weigh up the risk in terms of the likelihood
of injury occurring and the potential consequences if it does; and he must balance
against this the probable effectiveness of the precautions that can be taken to meet it
and the expense and inconvenience they involve. If he is found to have fallen below
the standard to be properly expected of a reasonable and prudent employer in these
respects, he is negligent.’
1
A passage approved by the House of Lords in Barber v Somerset County Council [2002] ICR
1026, [2004] 1 WLR 1089, [2004] 2 All ER 385.

16.13 In Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB

405, Mustill J considered Swanwick J’s statement of principle in an industrial
deafness action and adopted it. He did however point out:1
‘The speeches in [Morris v West Hartlepool Steam Navigation Co Ltd [1956] AC
552] show, not that one employer is exonerated simply by proving that other
employers are just as negligent, but that the standard of what is negligent is
influenced, although not decisively, by the practice in the industry as a whole. In my
judgment, this principle applies not only where the breach of duty is said to consist of
a failure to take precautions known to be available as a means of combating a known
danger, but also where the omission involves an absence of initiative in seeking out
knowledge of facts which are not in themselves obvious. The employer must keep up
to date, but the court must be slow to blame him for not ploughing a lone furrow.’
1
[1984] 2 QB 405 at 416.

16.14 This qualification, which is important in most other types of industrial

disease litigation, is of less importance than might be expected in asbestos
disease litigation. As Mustill J observed, there is a line to be drawn between
collective negligence and common practice; the clearer the available informa-
tion concerning the danger, the less likely the court is to regard the evidence as

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establishing anything more than widespread negligence. Typical of the robust

manner in which courts have been unwilling to allow common malpractice to
amount to a defence is the view expressed in Dawson v Cherry Tree Manufac-
turing Ltd [2001] EWCA Civ 101, [2001] ICR 1223 by Hale LJ when
commenting on the contents of the Merewether and Price report, which was
published in 1930. She said:
‘The conclusion was that “the inhalation of asbestos dust over a period of years
results in the development of a serious type of fibrosis of the lungs”’ (emphasis
supplied by the judge).
‘Incidence mounted rapidly after five years’ exposure but the disease took longer to
manifest itself in those engaged in the less dusty processes.’

16.15 If one adds to the contents of the Merewether and Price report, which
dealt specifically with asbestos dust, the provisions of the Factories Act 1937,
s 47 and its successor section, the Factories Act 1961, s 63, both of which
contain clear warnings of the dangers caused by exposing a workman to a
substantial quantity of dust of any kind, it soon becomes apparent why courts
are seldom willing to accept that common practice amounts to a defence, and
why courts have taken an increasingly strong view that an employer ought to
have known of the dangers caused by exposure to a substantial quantity of dust
of any kind.

16.16 In a pleading, the allegation by a claimant that ‘The defendants failed to

properly and sufficiently acquaint themselves with the danger likely to be
caused to the claimant by the substances with which he was required to work
(or to which he was likely to be exposed) in the course of his employment’, will
invariably prove to be very difficult to defeat.

The injury which must be foreseeable

16.17 Provided that some injury is foreseeable, it does not matter if the
particular injury which results was not foreseeable; this is the position even if
the disease was unknown at the time of the alleged breach of duty. Of the six
conditions commonly accepted as being caused by asbestos dust exposure, that
is mesothelioma, lung cancer, asbestosis, pleural thickening, pleural plaques
and psychiatric injury, mesothelioma is the most recent to have come to light.
Although cases of mesothelioma have been discovered among tissue samples of
persons who died of lung disease as long ago as 1917,1 it was not until about
1960 that the disease became recognised as being related to asbestos exposure.
The distinguishing feature of the disease in the context of establishing liability
is that it may be caused by lower levels of exposure to asbestos than the other
asbestos-induced diseases.
1
British Journal of Industrial Medicine 22 (1965), p 261.

16.18 That the disease was unknown, or that the fact that it resulted from
asbestos exposure was unknown, does not provide a defence to a claim
resulting from exposure in earlier periods. In Page v Smith [1996] AC 155 at
190, Lord Lloyd said:

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 Introduction to dust diseases 16.22

‘The test in every case ought to be whether the defendant can reasonably foresee that
his conduct will expose the plaintiff to the risk of personal injury. If so, then he comes
under a duty of care to that plaintiff. If a working definition of “Personal Injury” is
needed, it can be found in section 38 (1) of the Limitation Act 1980. “Personal
Injuries” includes any disease and any impairment of a person’s physical or mental
condition’.

16.19 In Margereson and Hancock v J W Roberts Ltd [1996] PIQR P358,

Russell LJ, in delivering the judgment of the Court of Appeal, followed Lord
Lloyd and said:
‘We add only that in the context of this case we take the view that liability only
attaches to these defendants if the evidence demonstrated that they should reasonably
have foreseen a risk of some pulmonary injury, not necessarily mesothelioma.’

16.20 The reference in this passage to ‘pulmonary injury’ is perhaps surprising

in the light of Page v Smith1 and should be understood to mean any injury
resulting from the inhalation of dust. In Jeromson v Shell Tankers UK Ltd
[2001] EWCA Civ 101, [2001] ICR 1223 at [32], Hale LJ corrected this slip.
She said:
‘There was no dispute between the parties as to the relevant legal principles. It matters
not that at the relevant time the diseases understood to be caused by exposure to
asbestos did not include mesothelioma.’

The judge quoted Russell LJ in Margereson v J W Roberts Ltd [1996] PIQR

P358 at 361 and commented:
‘liability only attaches to these defendants if the evidence demonstrated that they
should reasonably have foreseen a risk of some pulmonary injury, not necessarily
mesothelioma . . . Following the House of Lords decision in Page v Smith it is
sufficient if any personal injury to a primary victim is foreseeable.’
1
The judgment had been delivered in Page v Smith on 11 May 1995, almost 11 months earlier.

16.21 A claimant will therefore succeed in a dust disease claim in the event that
they are able to establish either:
(a) that the defendant was in breach of a statutory duty owed to them and
that they suffered a disease of the type against which the statutory
provision was intended to protect them, that is, respiratory disease; or
(b) in a negligence action, that the exposure was sufficient to create a
foreseeable risk of suffering from some respiratory disease.

Prior to the date when the risk of mesothelioma became known, and therefore
foreseeable, the risk to be foreseen will be that of some other respiratory disease
caused by asbestos exposure.

16.22 The disease which a claimant will have to establish was foreseeable prior
to the date of discovery of mesothelioma is asbestosis. It is correct to note that
by this time the risk of lung cancer as a result of asbestos exposure was also well
known. However, it was thought at that time that lung cancer was only
attributable to asbestos exposure if the claimant was also suffering from
asbestosis.1 It follows that the foreseeability of lung cancer is irrelevant for the
purpose of establishing a foreseeable risk of injury. As it happens, the level

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which gives rise to a foreseeable risk of lung cancer is about the same as that
which gives rise to a foreseeable risk of asbestosis.
1
As late as 1989 High Court judges were still finding in favour of this outdated theory of
carcinogenesis. See Wylie v Northumbrian Engineering (20 December 1989, unreported),
Boreham J; McKenna or Main v McAndrew Wormald Ltd [1988] SLT 141n, CSIH.

THE SETTING OF THE STANDARD OF CARE

16.23 The levels of dust to which workmen were subjected varied considerably
from industry to industry and also from workman to workman. One workman
might be subjected to considerably greater amounts of dust than his colleagues
as he had, by chance, worked on more jobs in which he was exposed to dust
than his colleagues. In Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ
101, [2001] ICR 1223 the claimant had worked as an engineer aboard the
defendant’s tankers for some years between 1950 and 1960. In that time there
were occasions when the engineers employed by the company were exposed to
asbestos dust in intense concentrations when aboard the vessels, but not every
employee would be unfortunate enough to be subjected to such levels of dust
exposure. The trial judge had concluded that the defendants should have taken
into account the extent of the exposure to which an employee was potentially
subjected, rather than that to which he was actually subjected when considering
whether the defendants were in breach of the duty which they owed to the
claimant. The Court of Appeal agreed, and concluded that the trial judge’s di-
rection was correct. They said:
‘The judge had first to make findings of fact about that exposure. Before doing so he
had to resolve a dispute between counsel as to whether he should be assessing the
average or the potential exposure of marine engineers to asbestos dust. He concluded
that, given the great variety of experience of individual engineers, a careful employer
ought to be addressing his mind to the potential experience of any one of them in
deciding what precautions he ought to take.’

To justify this conclusion, Hale LJ said at [37]:

‘However, where an employer cannot know the extent of any particular employ-
ee’s exposure over the period of his employment, knows or ought to know that
exposure is variable, and knows or ought to know the potential maximum as well as
the potential minimum, a reasonable and prudent employer, taking positive thought
for the safety of his workers, would have to take thought for the risks involved in the
potential maximum exposure. Only if he could be reassured that none of these
employees would be sufficiently exposed to be at risk could he safely ignore it.’

This conclusion of the Court of Appeal has important consequences for

defendants, as many tasks involving asbestos gave rise to great variations in the
amount of dust generated; unless precautions were taken, the claimant will
establish a breach of duty even if the exposure was only from time to time in
their case.

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THE STANDARDS IMPOSED BY STATUTORY DUTIES

16.24 The most onerous of the standards adopted by the various statutes and
statutory instruments dealing with exposure to dust was probably that origi-
nally in the Factories Act 1937, s 47, and later in its successor section, the
Factories Act 1961, s 63. Both prohibited the exposure of a workman to a
substantial quantity of dust of any kind. This general duty was not qualified by
the need for the dust to be ‘likely to be injurious’, but imposed a duty on an
employer as long as the dust was present in a substantial quantity. Many
occupations are outside the scope of the protection afforded by the Factories
Acts and workmen in the building and civil engineering industry in particular
were outside the scope of its protection. The issue raised is whether a standard
of care set by statute in respect of a particular class of workman may be used by
a workman who is outside that class as evidence that his employer was
negligent, or, put another way, whether an employer who is under no statutory
obligation to adopt a statutory standard, will be negligent if it fails to do so.

16.25 In recent years the courts have moved towards treating the duties
imposed under a statutory regime as a form of warning to all employers,
whether covered by the statutory provision or not, that a particular practice
carries with it a foreseeable risk of injury. The more important the statute and
the duty imposed by it, the more likely the court is to regard it as being evidence
which shows that a defendant ought to have known that a particular precaution
was required, or that a particular practice was unsafe.

16.26 In Jeromson v Shell Tankers UK Ltd [2001] EWCA Civ 101, [2001] ICR
1223 the claimant, who worked on one of the defendant’s ships as an engineer,
was unable to rely upon the breach of any statutory duty in his action against his
employers. In an analysis of the state of knowledge which an employer should
have had of the dangers of asbestos dust, Hale LJ regarded the provisions of the
Asbestos Industry Regulations 1931 and of the Factories Act 1937 as being
important elements in the knowledge which a reasonable employer should have
had from the time the statutory provisions came into force, and as setting the
standard of the care which the employer should have taken, notwithstanding
that the employer was under no duty to comply with the particular statutory
provision. There are many circumstances in which knowledge of particular
dangers is capable of being proved by reference to the statutory framework,
even when the statutory regime does not apply to the particular case.

16.27 The most obvious statutory duty for a claimant to rely upon as evidence
of negligence is that contained in the Factories Act 1937, s 47 and the Factories
Act 1961, s 63. However, there are many other examples of duties which can be
utilised in the same manner. For instance, the Asbestos Industry Regulations
1931, reg 8(b) provides that: ‘All sacks used as containers for the transport of
asbestos within the factory shall be constructed of impermeable material and
shall be kept in good repair’. It is not difficult to read this provision as a warning
that asbestos dust will escape from hessian sacks and that its escape created a
foreseeable risk of injury, with the result that a dock worker who unloads the

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hessian sacks may allege that his employer was negligent in failing to adopt this
statutory safety precaution.1
1
There are numerous cases involving dockers in which this approach has been adopted. See for
instance Rice v Secretary of State for Trade and Industry [2008] EWHC 3216 (QB),
[2008] 12 WLUK 648, per Silber J.

DATES OF KNOWLEDGE

16.28 If some injury is a foreseeable consequence of the tortfeasor’s actions,

then the tortfeasor is liable for the damage which occurs, even if that damage is
not of the precise type which he should have foreseen.1 The first known asbestos
disease was asbestosis and, if the level of exposure was sufficient to create a
foreseeable risk of injury in the form of asbestosis when judged by the state of
knowledge at the time, then a claimant does not have to establish that injury in
the form of lung cancer or mesothelioma was foreseeable. For reasons already
explained in para 16.18 above, the date by which an employer ought to have
known that a given level of exposure to asbestos dust created a risk of lung
cancer is never considered by the courts, and will probably never need to be
considered. Expert evidence will determine whether the level of exposure at any
given date was sufficiently high for asbestosis to be foreseeable.
1
However, the House of Lords in Grieves v FT Everard & Sons Ltd [2008] 1 AC 281, [2007] 3
WLR 876, [2007] 4 All ER 1047, [2007] ICR 1745, [2008] PIQR P6, distinguished the
principle in Page v Smith and concluded that damages for a psychiatric injury were not
recoverable even if some physical injury was all that was foreseeable as the injury relied upon
was fear of a future physical illness.

16.29 The level of exposure at which asbestosis is foreseeable gradually

declined over the years as it became apparent that it could occur at lower levels
of exposure.

However, mesothelioma can occur as the result of exposure which is too low to
create a foreseeable risk of asbestosis. It is therefore in mesothelioma claims that
the date when an employer knew or ought to have known that low levels of
exposure might cause injury is at its most critical. The decade in which it
became apparent that mesothelioma could result from exposure to asbestos at
levels too low to create a foreseeable risk of asbestosis, the 1960s, was also the
decade in which the use of asbestos was at its most widespread. As a result there
are a regrettably large number of deaths from mesothelioma as a result of
exposure in this decade. The precise date by which different types of employer
should have foreseen that there was a foreseeable risk of injury in the form of
mesothelioma will be determined with the assistance of expert evidence, but is
never prior to 1960 and never later than 1969.

16.30 The employer is under a duty to take steps to keep himself abreast of the
current knowledge of the dangers caused to workmen by the substances with
which they are required to work. In an often cited passage in Stokes v Guest,
Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776 at 1783, which
was recently cited with approval by the House of Lords in Barber v Somer-
set County Council [2004] UKHL 13, [2004] 2 All ER 385, Swanwick J said of
an employer’s duty:

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 Breach of statutory duty 16.32

‘where there is developing knowledge, he must keep reasonably abreast of it and not
be too slow to apply it; and where he has in fact greater than average knowledge of
the risks, he may be thereby obliged to take more than the average or standard
precautions.’

16.31 There is no substitute for expert medical and engineering evidence to

establish the date by which a particular employer should have known that low
levels of exposure created a foreseeable risk of injury. Whether a particular
person was exposed to a foreseeable risk of injury depends upon the assessment
by the court of a combination of factors: the state of medical knowledge at the
time, the accessibility of that knowledge to a particular defendant and the level
of exposure to asbestos dust. The balance between these factors is unique in
each case, but as an example of the approach of the courts, and perhaps as to a
court’s view of defendants who ignored their responsibilities, the decision of
Morland J in Maguire v Harland and Wolff plc [2004] EWHC 577 (QB),
[2004] All ER (D) 76 (Apr) demonstrates the manner in which a court looks
critically at the literature to which an employer should have regard. Although
the actual result in that case was overturned on appeal to the Court of Appeal,
Morland J’s approach in Maguire is typical of the approach of judges when
asked to determine when a foreseeable risk of injury was created. An attempt is
made to assess the extent of exposure and this is then contrasted with the
warnings contained in the literature which is examined and treated at face
value. The fact that an employer did not bother to read it or to take any
precautions does not provide a defence.

BREACH OF STATUTORY DUTY

Introduction

16.32 A survey of the relevant statutory provisions intended to protect employ-

ees from the dangers of inhaled dust often involves a journey through the
history of legislation protecting the health and safety of workmen. Some of the
statutory provisions protect workmen against particular forms of dust, some
against all dusts. The long latency periods for dust diseases means that almost
none of the of the relevant statutory provisions remain in force, many of the
relevant definitions are no longer relevant to the current statutory arrangements
for protection of workmen and may therefore be unfamiliar. The statutory
scheme for the protection of workmen imposed few relevant general duties
prior to the introduction of the Asbestos Industry Regulations 1931 and the
Factories Act 1937.

However, there were numerous statutory regulations requiring ventilation to

protect against dust inhalation for individual industries or processes, some of
which appear to us today to be rather bizarre.1
1
See for instance the rarely pleaded provisions of the Sorting, Willeying, Washing and Combing
of Goat Hair, Camel Hair etc Regulations 1905, reg 2.

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16.33 Dust diseases

The Asbestos Industry Regulations 1931

16.33 The increasing numbers of asbestosis cases which were reported in the
1920s led to the Merewether and Price Report, which was published in 1930.
The contents of the report resulted in the passing of the Asbestos Industry
Regulations 1931, which, with the exception of regs 2(a) and 5, came into force
on 1 March 1932. Regulations 2(a) and 5 came into force on 1 September 1932.
These Regulations remained in force until 14 May 1970.

Premises to which the Asbestos Industry Regulations 1931 apply

16.34 The regulations were passed under the powers contained in the Factories
and Workshop Act 1901 and initially applied to all factories and workshops to
which that statute applied. Under the Factories Act 1937, s 159, the regulations
were treated after 1 July 1938 as if they had been passed under the Factories Act
1937, with the result that from that date they adopted the definition of a factory
in the Factories Act 1937, s 151, and later that in the Factories Act 1961, s 175.
The definition of a factory under these statutes was wide and included ‘any
premises in which persons are employed in manual labour in the making of any
article . . . the breaking up or demolition of any article . . . the adapting
for sale of any article’. It also expressly includes three types of premises in which
asbestos exposure was frequent. The definition of factory included, ‘any yard or
dry dock (including the precincts thereof) in which ships or vessels are con-
structed, reconstructed, repaired, refitted, finished or broken up’. The definition
of factory included ‘any premises in which the construction, reconstruction or
repair of locomotives, vehicles or other plant for use for transport purposes is
carried on as ancillary to a transport undertaking or other industrial or
commercial undertaking’. The definition of factory included ‘any premises in
which articles are made or prepared incidentally to the carrying on of building
operations or works of engineering construction, not being premises in which
such operations or works are being carried on’. Shipyards, railway engine
works and premises in which asbestos materials for use in building operations
were prepared were therefore all within the definition of a factory, and thus
within the categories of premises potentially covered by the Asbestos Regula-
tions 1931.

16.35 The reference in the title of the regulations to the ‘Asbestos Industry’
does not serve to limit the application of the regulations to asbestos factories. In
Dawson v Cherry Tree Machine Co Ltd [2001] EWCA Civ 101, [2001] ICR
1223, the deceased had worked for the defendants who manufactured dry-
cleaning presses. In the course of this work he mixed small quantities of
asbestos fibre with water in order to create a paste with which he sealed a part
of the equipment he was manufacturing. The Court of Appeal rejected the
submission that the regulations did not apply if the use of asbestos in a factory
was only an incidental part of the process of manufacture. They pointed out
that the provision in the preamble to the regulations, exempting factories in
which the specified processes were only carried on occasionally, envisaged that
the regulations applied to all factories and not only to asbestos factories.1
1
See at [20]–[25] of the judgment.

500
 Breach of statutory duty 16.39

Processes to which the Asbestos Industry Regulations 1931 applied

16.36 The Asbestos Industry Regulations 1931 applied to all factories (and
workshops) in which any of the following processes were carried on:
‘(i) breaking, crushing, disintegrating, opening and grinding of asbestos, and the
mixing or sieving of asbestos, and all processes involving manipulation of
asbestos incidental thereto;
(ii) all processes in the manufacture of asbestos textiles, including preparatory
and finishing processes;
(iii) the making of insulation slabs or sections, composed wholly or partly of
asbestos, and processes incidental thereto;
(iv) the making or repairing of insulating mattresses, composed wholly or partly
of asbestos, and processes incidental thereto;
(v) sawing, grinding, turning, abrading and polishing, in the dry state, of
articles composed wholly or partly of asbestos in the manufacture of such
articles;
(vi) the cleaning of any chambers, fixtures and appliances for the collection of
asbestos dust produced in any of the foregoing processes’.

16.37 The mixing of asbestos, which was a common operation throughout

industry as a preparatory stage in the use of asbestos insulation, was the most
widespread of the operations described in the Asbestos Regulations 1931. In
Dawson v Cherry Tree Machine Co Ltd [2001] EWCA Civ 101, [2001] ICR
1223 the Court of Appeal considered that mixing a ‘couple of handfuls’ of
asbestos fibre with water amounted to the mixing of asbestos, and therefore
that the Regulations applied to it. The court also expressed the view that the
removal of old asbestos insulation was not a process to which the Regulations
applied, but expressed the view that the mixing and application of new asbestos
insulation was ‘more likely’ to be a process to which the Regulations applied.

In Hawkes v Warmex Ltd [2018] EWHC 205 (QB) the claimant alleged that the
deceased had been exposed to asbestos dust in breach of the 1931 Regulations
when turning asbestos textiles into insulation for electric blankets. The court
concluded that the material in use did not contain asbestos but, obiter, con-
cluded that the process of converting asbestos cloth into one of the components
for sleeping bags was not a process to which the 1931 Regulations applied.

16.38 The preamble to the Regulations provided that they did not apply to
any:
‘factory or workshop or part thereof in which the process of mixing of asbestos or
repair of insulating mattresses or any process specified in [part (V) of the preamble]
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.’

16.39 It may seem that this provision is sufficiently wide to have exempted any
premises in which one of the mixing processes was only carried on from time to
time, perhaps for less than eight hours in a week. However, in Dawson v Cherry

501
16.39 Dust diseases

Tree Machine Co Ltd, the Court of Appeal agreed with the trial judge’s con-
clusion that if the work involving asbestos was carried out on a regular basis, it
could not be said to be carried on occasionally. Hale LJ said at [24]:
‘But “occasional” describes something which happens casually or intermittently, or
on a particular occasion, not something which happens regularly.’

16.40 This view of the exemption coincides well with the normal definition of
what amounts to a process taken from the speech of Lord Griffiths in Nurse v
Morganite Crucible Ltd [1989] ICR 15 at 21–22, with which the other
members of the House of Lords agreed. He said:
‘the word “process” is not used in the limited sense in which it was construed by
the Court of Appeal, but in the broader sense of including any activity of a more than
minimal duration involving the use of asbestos. . . . Obviously the single act of
knocking a nail into an asbestos panel cannot be considered a process. There has to
be some degree of continuity and repetition of a series of acts in order to constitute a
process. . . . 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.’

These interpretations of the words ‘process’ and ‘occasional’ are perhaps wider
than the drafter of the Asbestos Industry Regulations 1931 had in mind, but the
result is that the regulations have been held to apply to a wide range of activities
involving the use of asbestos if they were carried on on a regular basis, or if any
person in the factory carries on one of the activities described for more than
eight hours in a week.

The duties under the Asbestos Industry Regulations 1931

16.41 The duties under the Asbestos Industry Regulations 1931 are imposed
upon the occupier of the factory. Regulation 1 imposed a duty on the occupier
of any factory to which the regulations apply, to provide and maintain an
exhaust draught effected by mechanical means which prevented the escape of
asbestos dust into the air of any room in which persons work, for a number of
different classes of machine. Most are machines likely only to be encountered in
asbestos factories, but they included ‘machines used for the sawing . . . in the
dry state . . . of articles composed wholly or partly of asbestos’. Therefore,
the use of power saws to cut asbestos board in a shipyard required a system of
ventilation which complied with reg 1. The duty was apparently an unqualified
one and there was no suggestion in the body of the regulations itself which
specified any level of dust which may be created without a breach of this
provision. The Factory Inspectorate did set ‘dust datum’ levels, which should be
understood as being levels below which they did not consider that dust was
present in the air.

16.42 Regulation 2(a) provided that the ‘Mixing or blending by hand of

asbestos shall not be carried on except with an exhaust draught effected by
mechanical means so designed and maintained as to ensure as far as practicable
the suppression of dust during the processes.’ This regulation was considered by
the Court of Appeal in Dawson v Cherry Tree Machine Co Ltd [2001] EWCA
Civ 101, [2001] ICR 1223 and they concluded that it imposed a very far-
reaching duty. In Dawson, Hale LJ pointed out that the obligation to provide an

502
 Breach of statutory duty 16.47

exhaust draught was an absolute one, it was the effectiveness of it that was
qualified by the word ‘practicable’.

16.43 Most of the remaining regulations apply to machinery which is probably

only ever encountered in asbestos factories. However reg 8(b) is of wider
relevance as it required that: ‘All sacks used as containers for the transport of
asbestos within the factory shall be constructed of impermeable material and
shall be kept in good repair’. It may therefore be said that this regulation carried
with it a warning that there was a danger resulting from the use of permeable
sacks to transport asbestos. If the use of permeable sacks created a danger
within an asbestos factory sufficient to require a specific provision to prevent
their use, the danger was also present if such sacks were used outside asbestos
factories. Dockers unloading cargoes of asbestos in hessian sacks faced the same
danger and may rely upon the warning contained in this regulation.

The Factories Act 1937 and the Factories Act 1961

16.44 The Factories Act 1937 came into force on 1 July 1938. The Factories
Act 1959 made one material addition to the duties under the 1937 Act, adding
a new s 26 to the 1937 Act, imposing for the first time a statutory duty on the
occupier of the factory to provide a safe place of work. The Factories Act 1937
was re-enacted by the Factories Act 1961 with effect from 1 April 1962. The
relevant provisions of the 1961 Act remained in force until they were repealed
piecemeal by legislation imposing more onerous duties on occupiers of facto-
ries.

16.45 These statutes contained three important sets of provisions relevant to

dust disease claims. The Factories Act 1937, s 4, and the Factories Act 1961, s 4,
imposed an obligation to provide ventilation. The Factories Act 1937, s 47, and
the Factories Act 1961, s 63 were directly concerned with the inhalation of all
forms of dust. The Factories Act 1937, s 26, as introduced by the Factories Act
1959, s 5, and the Factories Act 1961, s 29, contained provisions requiring an
occupier of a factory to provide a safe place of work.

The occupier of factory premises

16.46 The duty under the statutes was imposed upon the occupier of the
factory by the Factories Act 1961, s 155, and Factories Act 1937, s 130. Thus
the occupier of the factory has liability imposed upon him in respect of asbestos
dust generated by contractors working inside his factory. In Fairchild v Glen-
haven Funeral Services Ltd [2003] 1 AC 32,1 the successful claim against
Waddingtons plc was based upon their liability as occupiers of the factory to a
workman employed by another who was working in the factory while renova-
tion was being carried out at a time when the factory was in operation.
1
For a more recent example, see Baker v Tate and Lyle [2012] 9 WLUK 405, Senior Master
Whitakker (available on Lawtel).

16.47 It is remarkable that the Factories Acts 1937 and 1961 contained no
definition of the word ‘occupier’, although the word is widely used in both
statutes and the ‘occupier’ was the person who was responsible for compliance
with the provisions of the statute. In Ramsay v Mackie (1904) 7 F 106 Ct of

503
16.47 Dust diseases

Sess, at 109, a case under the Factories and Workshops Act 1901, Lord
MacLaren gave the following definition:
‘Occupier plainly means the person who runs the factory . . . who regulates and
controls the work that is done there, and who is responsible for the provisions of the
Factory Act within it.’

16.48 In Smith v Cammell Laird & Co Ltd [1940] AC 242, a case dealing with
the definition of the term occupier under the Factories and Workshop Act 1901
and the Shipbuilding Regulations 1931, the House of Lords accepted that the
duty was imposed upon the person who was the occupier of the factory as a
whole. In that case some staging on a ship under construction was in use by an
insulation contractor, but the duty to comply with the provisions of the
Shipbuilding Regulations 1931 remained on the person who had overall control
of the factory.

Factories Act 1937, s 47 and Factories Act 1961, s 63

16.49 These provisions of the Factories Acts 1937 and 1961 were in identical
terms and remained in force until 14 May 1970, when the provisions of the
Asbestos Regulations 1969 were substituted for the Factories Act 1961, s 63(1),
in respect of any process which involved the generation of asbestos dust. In
respect of other types of dust, they remained in force until repealed by
the Control of Substances Hazardous to Health Regulations 1988, SI
1988/1657 on 1 October 1989.

16.50 Both statutes provided that:

‘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 accumulating 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 its entering the air of any workroom.’

‘Process’

16.51 The definition of the term ‘process’ is common to the Asbestos Industry
Regulations 1931 and the Factories Acts 1937 and 1961 and is dealt with at
para 16.39 above. In Edgson v Vickers plc [1994] ICR 510, a case under the
similar wording of the Asbestos Regulations 1969, Geoffrey Burke QC, dealing
with a case in which asbestos had been swept up at the end of the working day
by the workmen in the factory, concluded that such a task fell within the
definition of a process as described by Lord Griffiths in Nurse v Morganite
Crucible Ltd [1989] ICR 15.

The nature of the statutory duties under ss 47 and 63

16.52 These statutory provisions created three distinct obligations, the first a
duty not to expose a workman to a quantity of dust which was likely to be

504
 Breach of statutory duty 16.55

injurious to his health, the second a duty not to expose the workman to a
quantity of dust which was likely to be offensive and the third a duty not to
expose a workman to a substantial quantity of dust of any kind. It follows that
if either a substantial quantity of dust or a sufficient quantity of dust to be
offensive was present, there was a breach of the duty owed under these sections,
even if the quantity present was not considered to be likely to cause injury when
judged by the standards of the day.

16.53 In Richards v Highway Ironfounders (West Bromwich) Ltd [1955] 1

WLR 1049, CA, a case under the Factories Act 1937, s 47, Lord Evershed MR
said:
‘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.’

In Anderson v RWE Power Plc (22 March 2010, unreported) Irwin J reached a
different conclusion and stated that the section should read as if it said ‘so
substantial as to be likely to be injurious.’ However, this conclusion, reached
without reference to any authority, is also clearly inconsistent with the decision
of the Supreme Court in McDonald v National Grid Electricity Transmission
[2014] UKSC 53, [2015] AC 1128, [2014] ICR 1172.

16.54 This view that there are three separate duties within the section was one
shared by the Chief Inspector of Factories. In his annual report for 1938 the
Chief Inspector of Factories commented on the then new provision in the
Factories Act 1937, s 47, which had come into force in that year. He said of it:1
‘We are but on the threshold of knowledge of the effects on the lungs of dust generally
. . . While section 47 of the Factories Act 1937 may be thought somewhat
ambiguous in its reference to “a substantial quantity of dust of any kind”, it is, I
consider, an admirable one in that it requires precautions even before it is possible to
say specifically that the dust in question is harmful to a recognisable pathological
extent. There can be no doubt that dust if inhaled is physiologically undesirable.
Moreover, dust that is thought today to be harmless may, following research, be
viewed in another light tomorrow. It is not many years ago when the dust of asbestos
was regarded as innocuous, while today it is recognised as highly dangerous.’
1
Chief Inspector of Factories, Annual Report for 1938 (1939) (Cmd 6081), p 63.

16.55 The first of these three duties, the duty not to expose a workman to a
quantity of dust which is likely to be injurious to him, adds nothing to the
common law duty of care, although it may impose liability on the occupier of
the factory if he is not the employer of the injured workman. The two remaining
duties impose liability if the dust was offensive, or if the quantity present in the
air was substantial, even if the circumstances were such that the quantity of dust
involved was not considered at the time of exposure to be likely to cause injury
to the workman. For this reason these statutory provisions commonly form the

505
16.55 Dust diseases

basis of the allegation that a defendant was in breach of a duty which he owed
to the worker. As Jenkins LJ said in Gregson v Hick Hargreaves & Co Ltd
[1955] 1 WLR 1252 at 1266:
‘Cases of this sort may be said to bear to some extent heavily on employers . . .
because it has only comparatively lately become known that the dust produced in an
iron foundry contains this noxious constituent in the shape of free silica; but their
duty is clearly set out in section 47. It is to take all practicable measures to protect
their workpeople from the inhalation of dust, and their duty to do that does not
depend on the question whether the dust is known or believed to be noxious or not.’

16.56 In claims which are based upon exposure before a standard was set for
an acceptable level of exposure, the case is usually advanced on the basis that
the level of dust present was substantial or that it was offensive. There is no
decided case which assists with the meaning to be given to the words ‘substan-
tial’ or ‘offensive’ used in the section. There are many cases in which judges have
concluded that the atmosphere in a factory was offensive or contained substan-
tial quantities of asbestos dust, but the assessment is always a matter of
impression for a judge, rather than something on which expert evidence is
appropriate. By way of example Boreham J in Brooks v J & P Coates (UK) Ltd
[1984] ICR 158 at 174 said:
‘Thus, in my judgment, during the relevant time there is really insufficient evidence
for me to find that the defendants ought to have considered this dust in this fine count
mill as likely to be injurious to the persons employed there. But that is not the end of
the matter. The question remains, if it was not injurious to their health was it offensive
to them or to take the second leg, was it given off in a substantial quantity? In my
judgment there is no doubt—and I have done my best to describe the sort of
conditions which prevailed—that the quantity of dust was sufficient to be offensive to
people working in that mill and certainly was sufficient to be regarded, to use the
words of the Act, as in substantial quantity. It follows, therefore, that it was the
defendants’ duty under section 63(1) to take all practicable measures to protect the
persons employed from inhaling dust; (2) to take all practicable measures to prevent
the dust accumulating, and (3)—and I quote—“where the nature of the process
makes it practicable, to provide exhaust-carrying appliances as near as possible to the
point of origin of the dust so as to prevent it entering the air of any workroom”.’

16.57 In actions in which the exposure to asbestos dust occurred after stan-
dards had been set for acceptable levels of dust, the claimant will usually
contend that the level was one which was ‘likely to be injurious’ to his health. In
such a case an expert witness will be needed to prove or disprove that the
quantity of dust from the operations carried out, as described by the witnesses,
was considered by the standards of the day to be ‘likely to be injurious’.

In McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53,

[2015] AC 1128, [2014] ICR 1172, the Supreme Court concluded that the
relevant point in time to consider whether the quantity of asbestos dust was
substantial within the meaning of ss 47 and 63 was not when the asbestos was
inhaled but when it was generated.

The extent of the duty owed

16.58 The duty owed under these sections was not an absolute one, but the
occupier of a factory was under a duty to take ‘all practicable measures’ to

506
 Breach of statutory duty 16.61

prevent inhalation of asbestos dust, a standard which was none the less a very
high one. In Brooks v J & P Coates (UK) Ltd [1984] ICR 158, Boreham J
paraphrased the statutory standard set saying, ‘I take practicable in this context
to mean a precaution which could be taken or undertaken without practical
difficulty’.

16.59 However, the duty was subject to the important qualification that the
occupier of the dust must know that it was present in the air, either as a result
of it being visible in the air or when it settled in the factory. In Gregson v Hick
Hargreaves & Co Ltd [1955] 1 WLR 1252, Jenkins LJ commented:
‘No one, I apprehend, would suggest that under section 47 employers such as the
defendants are required to guard against elements the existence of which is unknown
and the presence of which cannot be detected. The defendants’ duty under the second
branch of the section is to protect against dust so far as practicable. That, as it seems
to me, means to protect against the ordinary, visible, dust arising in the course of the
foundry operations’.

Factories Act 1937, s 4 and Factories Act 1961, s 4

16.60 The Factories Act 1937, s 47, and the Factories Act 1961, s 63 provided
that: ‘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 its entering the air of any
workroom’. The duty under ss 4 of the Factories Acts 1937 and 1961 was not
to provide exhaust ventilation by the source of the dust, but rather to ensure
that it was present to remove the dust throughout the whole of a workroom.1
The Acts provided that:
‘Effective and suitable provision shall be made for securing and maintaining by the
circulation of fresh air in each workroom the adequate ventilation of the room, and
for rendering harmless, so far as practicable, all such fumes, dust and other impurities
generated in the course of any process or work carried on in the factory as may be
injurious to health.’

The requirement that the dust must be known by the standards of the day to
have been likely to be injurious to health, limits the practical effect of the
statutory provisions and, except in circumstances in which it imposes a duty on
the occupier of a factory who was not the employer of the injured workman, it
adds nothing to the common law duty of care.
1
Ebbs v James Whitson & Co Ltd [1952] 2 QB 877; Graham v Co-operative Wholesale
Society Ltd [1957] 1 WLR 511.

The Construction (General Provisions) Regulations 1961

16.61 Workers engaged in the construction and civil engineering industries

were not well protected by statutory health and safety provisions until 1970. It
has already been pointed out that some processes, especially the sawing of
asbestos board with a power saw, may be within the range of processes to which
the Asbestos Industry Regulations 1931 applied. The first statutory scheme
specific to these industries was that in the Building (Safety, Health and Welfare)
Regulations 1948 which were in force between 1 October 1948 and 1 March
1962, when they were replaced by the Construction (General Provisions)

507
16.61 Dust diseases

Regulations 1961. The 1961 Regulations remained in force until 14 May 1970,
when the relevant Regulation was made redundant so far as asbestos exposure
was concerned by the more onerous obligations imposed by the Asbestos
Regulations 1969.

16.62 The duties imposed under Building (Safety, Health and Welfare) Regu-
lations 1948, reg 82, and the Construction (General Provisions) Regulations
1961, reg 20, were in identical terms. The Regulations provided:
‘Where in connection with any grinding, cleaning, spraying or manipulation of any
material, there is given off any dust or fume of such a character and to such extent as
to be likely to be injurious to the health of persons employed, all reasonably
practicable measures shall be taken either by securing adequate ventilation or by the
provision and use of suitable respirators or otherwise to prevent inhalation of such
dust or fume.’

16.63 The requirement that the dust must be of such a character and present to
such an extent as to be likely to be injurious adds nothing to the nature of the
duty to take reasonable care at common law. Field v Perrys (Ealing) Ltd [1950]
2 All ER 521 per Devlin J held that the duty is owed to all workmen employed
by the contractor, whether engaged in the building operations or not. However,
a duty under the Regulations is not owed by the contractor creating asbestos
dust to persons who are not employed by him.1
1
See Smith v George Wimpey & Co Ltd [1972] 2 QB 329, a decision of the Court of Appeal. The
judgment starts with one of Lord Denning’s best opening lines: ‘In the autumn of 1966, a great
highway, the M1, was built near Chesterfield’.

Regulations in the shipbuilding industry

16.64 The scheme for the protection of workmen in shipyards against asbestos
dust is unique, as there was a period during which the statutory protection
afforded to workmen in shipyards was reduced. Shipyards were factory prem-
ises under the Factories Acts 1937 and 1961. The beneficial provisions of the
Factories Act 1937, s 47, and the Factories Act 1961, s 63, provided protection
against exposure to a substantial quantity of dust of any kind for so long as they
applied to shipyards. On 31 March 1961 the provisions of the Shipbuilding and
Ship-repairing Regulations 1960 came into force. Regulations 53 and 76 of
those regulations contained provisions dealing with dust exposure. These
provisions remained in force until 14 May 1970 when reg 76 was repealed and
reg 53 was made redundant in respect of asbestos dust by the Asbestos
Regulations 1969.

16.65 The Shipbuilding and Ship-repairing Regulations 1960, reg 53, pro-
vided:
‘Where in connection with any process carried on on board, in or on the outside of a
vessel or part of a vessel 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 to the persons employed,
all practicable measures shall be taken to protect the persons employed against
inhalation of the dust or fume or other impurity, and in particular, where 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, to protect such persons against such
inhalation.’

508
 Breach of statutory duty 16.71

16.66 The duty under this regulation, with its requirement that the dust must
be ‘likely to be injurious’, was potentially less onerous than the duty under the
Factories Act 1937. By reg 53(2), reg 53 ‘shall, as respects the operations
carried on board, in or on the outside of a vessel or part of a vessel, be in
substitution for the provisions of s 47 of the principal Act (which relates to the
removal of dust or fumes)’. The shipyard was therefore divided into parts with
the provisions of the Factories Acts applying to the workshops and the provi-
sions of the Shipbuilding and Ship-Repairing Regulations 1960 applying to
work on the vessels themselves.

16.67 Regulation 76 imposed an obligation to provide approved respiratory

equipment for a number of processes carried in shipyards. The processes
covered were:
‘(a) the application of asbestos by means of a spray;
(b) the breaking down for removal of asbestos lagging;
(c) the cleaning of sacks or other containers which have contained asbestos;
(d) the cutting of material containing asbestos by means of portable power
driven saws; and
(e) the scaling, scurfing or cleaning of boilers, combustion chambers or smoke
boxes, where his work exposes him to dust of such a character and to such an
extent as to be likely to be injurious or offensive to persons employed in such
work.’

16.68 This provision contained the first statutory references to two dusty
processes, the spraying of asbestos and the removal of old asbestos insulation,
both of which any shipbuilder should have recognised as being dangerous, as
evidenced by the fact that they were specifically mentioned in the Regulations.
It also contained a specific reference to the need for respiratory protective
equipment when power saws were used to cut asbestos board, a common
process in shipyards.

16.69 The duty differed from that under the Factories Act in that the require-
ment to provide protection when there is a substantial quantity of dust present
was omitted. There is no authority which determines the meaning of the word
‘offensive’ and whether a quantity of dust which is ‘substantial’ is also ‘offen-
sive’ remains for consideration by the courts. In Brooks v J & P Coates
(UK) Ltd [1984] ICR 158 Boreham J, concluded on the basis of the evidence in
the case before him that the dust was both offensive and present in substantial
quantities.

16.70 The duty under reg 76 was owed to employees only. However, by
reg 4(1)(b)(i) the duty under reg 53 was owed by the person who is carrying out
the operation which generated the dust to any person affected by the operation,
whether or not that person is an employee. The Asbestos Industry Regulations
1931 applied to certain processes in shipyards, as did the provisions of the
Factories Acts when in force.

The Asbestos Regulations 1969

16.71 The Asbestos Regulations 1969 came into force on 14 May 1970. They
remained in force until 1 March 1988 when they were replaced by the

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16.71 Dust diseases

provisions of the Control of Asbestos at Work Regulations 1987, SI 1987/2115.

They were, in respect of asbestos dust, in substitution for the relevant provi-
sions of the Factories Act 1961 and repealed the less onerous provisions of the
Ship-Building and Ship-repairing Regulations 1960 and of the Asbestos Indus-
try Regulations 1931. Although, the less onerous provisions contained in
the Construction (General Provisions) Regulations 1961 remained in force, the
obligations under the Asbestos Regulations 1969 imposed a more onerous duty
in respect of asbestos dust than was imposed by those regulations. In respect of
other types of dust, the relevant provisions of the Construction Regulations and
the Factories Act were repealed by the Control; of Substances Hazardous to
Health Regulations 1988, SI 1988/1657.

16.72 The Regulations were introduced following the realisation during the
1960s that low levels of asbestos dust were capable of causing injury. The duties
imposed under the regulations were considerably wider and more onerous than
those imposed under the statutory provisions which they replaced. They were
stricter in terms of the levels of exposure tolerated, wider in terms of the
premises and operations covered, the persons who owed the duties and the
persons to whom the duties were owed.

Levels of dust

16.73 Under reg 2(3) all references in the 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’. The
Regulations were supported by an Approved Code of Practice and by hygiene
standards which specified the levels of asbestos dust which were regarded as
being acceptable, measured in terms of both level of exposure and duration of
exposure. The hygiene standards become progressively stricter with time and
varied according to the type of asbestos in question. The original standard was
taken by the Factory Inspectorate from a report prepared by the British
Occupational Hygiene Society and was set at 2 fibres per cc for chrysotile and
amosite asbestos and 0.2 fibres per cc for crocidolite asbestos (1 fibre per cc is
the same as 1,000,000 fibres per cubic metre). Whether these standards have
been breached in any particular case will be a matter for expert as well as lay
evidence. Whether these standards mark the point at which a foreseeable risk of
injury is created is the subject of what can only be described as unhelpfully
conflicting decisions of the Court of Appeal in Williams v University of
Birmingham [2011] EWCA Civ 1242, [2011] 10 WLUK 817, [2012] ELR 47
and Bussey v Anglia Heating Ltd [2018] EWCA Civ 243, [2018] 3 All ER 354,
[2018] ICR 1242.

16.74 It is now known that there is no safe level of exposure to asbestos and
that even the tiniest exposure can result many years later in mesothelioma. That
was not the case in the past when the process of carcinogenesis was not
understood in the way it is today. When deciding what was considered to create
a foreseeable risk of injury at the time of exposure, it needs to be borne in mind
that lung cancer, and by extension mesothelioma, were thought to be a
secondary effect of direct physical damage to the lungs in the form of asbestosis.
Whilst this theory was the accepted one, what had to be foreseeable was the risk
of asbestosis, because it was the precursor to the cancer. The level of exposure

510
 Breach of statutory duty 16.79

which creates such a foreseeable risk is considerably higher than the level which
it is now known creates a risk of mesothelioma.1 Information concerning levels
of exposure as set out in the Report by the British Occupational Hygiene Society
in 1969 and in the Factory Inspectorate’s TDN13 in 1974 have to be read with
this firmly in mind.
1
The date when this view changed is for expert evidence. It was the view expressed in the 1967
report from the Senior Medical Inspector of Factories at paras 22–25. See also the cases cited in
para 16.23 above.

The premises and operations covered

16.75 The Regulations imposed duties in respect of all premises and operations
for which special regulations for safety and health could be passed under
powers conferred by the Factories Act 1961. Those were, by s 123, electrical
stations, by s 124, institutions, by s 125, warehouses other than warehouses
within any dock or forming part of any wharf or quay, by s 126, work aboard
ships while in a harbour or wet dock and by s 127, building operations and
works of engineering construction.

16.76 The Regulations applied to every process involving asbestos or any

article composed wholly or partly of asbestos, except to a process in connection
with which asbestos dust cannot be given off. They did not apply to asbestos
dust given off at an intensity which was not liable to cause danger.

The persons who owe the duties and those to whom the duties are owed

16.77 Regulation 5(2) dealt with building operations and works of engineering
construction and reg 5(1) dealt with other situations. Under reg 5(2):
‘it shall be the duty of every contractor and of every employer who is undertaking any
process to which these Regulations apply to comply with the Regulations in relation
to any person employed by him and any person employed there who is liable to be
exposed to asbestos dust in connection with any process carried on by the contractor
or employer (as the case may be), and in relation to plant or materials under his
control and any part of the site where he is carrying on the process or where asbestos
dust in connection with that process is liable to escape’.

16.78 The duty was thus owed to all persons who were affected by any
escaping asbestos dust. In Edgson v Vickers plc [1984] ICR 158, the contractor
who carried out the removal of asbestos from the ceiling of a factory was held
liable under reg 5(2) to the workmen working in the factory who inhaled the
dust escaping from the area in which he was working.

16.79 Under reg 5(1), the occupier of the factory in which a process to which
the Regulations applied was being carried on was under a duty to provide any
person employed in the factory, whether employed by him or not, with
approved respiratory protective equipment and protective clothing under reg 8.
He was also under a duty to provide suitable accommodation for the respira-
tory protective equipment and protective clothing and for cleaning the clothing
under regs 18 and 19. He owed a duty to the same classes of person to ensure
that the cleaning and cleanliness requirements of regs 9–14 were complied with.
However, he did not owe these duties to persons employed by the employer who
was carrying out the asbestos process.

511
16.80 Dust diseases

16.80 In addition, every employer, whether or not an occupier of the factory,

who was undertaking in a factory any process to which the regulations applied
owed a duty to comply with the requirements of the regulations in relation to
any person employed by it, to any plant or material under its control, and any
part of the factory in which it was carrying on the process or into which asbestos
dust in connection with that process was liable to escape.

16.81 A single individual carrying out a process to which the regulations

applied owed the same duties he would have owed if he was an employer, and
he owed those duties to the same classes of person.

16.82 The wording of regs 5(1)(b) and 5(2) makes it clear that the duty under
reg 18 was owed ‘in relation’ to persons employed. The duty under reg 18,
which had the effect of requiring that the workman’s asbestos-coated clothing
remained in the factory, would seem to have been drafted to take account of the
contents of the Newhouse and Thompson article of 1965,1 which had noted a
number of deaths from mesothelioma among the families of those working with
asbestos as a result of inhalation of the dust from clothing brought home by the
workman. If this was the danger against which this provision was intended to
provide protection, then the words ‘in relation’ to persons employed would
seem to have been drafted widely enough to provide the families of workmen
who were exposed to dust brought home by the exposed workmen on his dirty
clothing with a civil cause of action for breach of statutory duty. In Hewett v Alf
Brown’s Transport [1992] ICR 530, a case in which the statutory duty relied
upon was a duty to provide uncontaminated clothing under the Control of Lead
at Work Regulations 1980, the Court of Appeal had to consider a similar
statutory provision. The claimant was the wife of a lorry driver and had become
contaminated with lead as a result of cleaning her husband’s overalls. Although
the claim was dismissed on the ground that the employer was not in breach of
the duty owed to the husband and had not exposed him to a prohibited amount
of lead, the Court of Appeal seem to have accepted the suggestion that Mrs
Hewett was entitled to rely on this statutory duty, a statutory duty which was in
very similar terms to that under the Asbestos Regulations 1969.
1
British Journal of Industrial Medicine 22 (1965), p 261.

The precautions required by the Regulations

16.83 Regulation 7 dealt with ventilation. It provided that no process to which

the Regulations applied was to be carried on in any factory unless equipment
was provided, maintained and used, which produced an exhaust draught which
prevented the entry into the air of any workplace of asbestos dust. Only if it was
impracticable to comply with reg 7, did the duty become a duty to comply with
reg 8. It was this provision which required, indirectly, the sheeting-off of the
areas in which asbestos was being removed, in order to prevent the asbestos
dust coming into contact with others present nearby.

16.84 Regulation 8 required the provision and use of approved respiratory

protective equipment and protective clothing. The standard of the respiratory
equipment required improved over time. A Martindale mask, a device which
presses a pad of cloth against the mouth and nose, was never approved for use
with asbestos and was ineffective to prevent asbestos dust from being inhaled.

512
 The damage for which a defendant is liable 16.88

16.85 Regulations 9–13 provided for the removal of asbestos dust and debris
which had settled in the premises, by means of equipment which ensured that
asbestos dust neither escaped nor was discharged into the air of any workplace.

Regulation 14 required that clothing not worn at work must be kept free of
asbestos dust and reg 18 required that protective clothing must be kept at work.

Modern asbestos legislation

16.86 The provisions of the Asbestos Regulations 1969 remained in force until
1 March 1988 when they were replaced by the more stringent and detailed Con-
trol of Asbestos at Work Regulations 1987, SI 1987/2115 and later by the Con-
trol of Asbestos in the Air Regulations 1990, SI 1990/556. This in its turn was
replaced by the current legislation with effect from 27 February 2013. Current
asbestos legislation is dealt with at paras 27.16–27.27 below.

Table showing the statutory duties in force in respect of asbestos dust

In force from Repealed, or redundant after
Asbestos Industry Regula- 1 March 1932 or 1 September 14 May 1970
tions 1931 1932
Factories Act 1937 1 March 1938 1 April 1962
Building (SHW) Regulations 1 October 1948 1 March 1962
1948
Shipbuilding Regulations 31 March 1961 Redundant after
1960 14 May 1970
Construction (General 1 March 1962 Redundant after
Provisions) Regulations 1961 14 May 1970 in respect of
asbestos dust and 1 October
1989 in respect of other dusts
Factories Act 1961 1 April 1962 Redundant after
14 May 1970
Asbestos Regulations 1969 14 May 1970 1 March 1988
Control of Asbestos at Work 1 March 1988 21 November 2002
Regulations 1987
Control of Asbestos in the 5 April 1990 26 February 2013
Air Regulations 1990
Control of Asbestos at Work 21 November 2002 13 November 2006
Regulations 2002
Control of Asbestos Regula- 13 November 2006 5 April 2012
tions 2006

THE DAMAGE FOR WHICH A DEFENDANT IS LIABLE

16.87 Causation and apportionment of damages are dealt with in more detail
in CHAPTER 3. Here we seek to deal with the special rules governing causation
and apportionment in lung fibrosis, lung cancer and mesothelioma cases.

16.88 Lung fibrosis and pleural thickening are divisible injuries. The House of
Lords in Bonnington Castings v Wardlaw [1956] AC 613, [1956] 1 AER 615
and McGhee v National Coal Board [1973] 1 WLR 1, [1972] 3 All ER 1008
established that a claimant had a cause of action against a defendant if that

513
16.88 Dust diseases

defendant’s tortious actions either materially contributed to the claimant’s in-

jury or materially contributed to the chance that the claimant would suffer
injury. For many years it was assumed that once a claimant had established
liability a claimant was entitled to recover damages for the whole of the injury
suffered, even if the defendant’s tortious actions only made a material, that is
more than de minimis, contribution to that injury. In Holtby v Brigham
and Cowan (Hull) Ltd [2000] ICR 1086, [2000] 3 All ER 421 this assumption
was challenged in an asbestosis case. The Court of Appeal was in no doubt that
the assumption was incorrect. Stuart Smith LJ drew a distinction between what
was required to prove that a claimant had a cause of action and the damages to
which they were entitled. At [8] he said of this distinction:
‘[The claimant] will be entitled to succeed if he can prove that the defendant’s tortious
conduct made a material contribution to his disability. But strictly speaking the
defendant is liable only to the extent of that contribution. As asbestosis and pleural
thickening, are both conditions in which the severity of the disease is related to the
volume of dust inhaled, the Court of Appeal considered that it was appropriate to
apportion the damages between the effects of the dust for which a defendant was
responsible and that for which they were not responsible.’

The trial judge in Holtby’s case had concluded that one half of the exposure was
the responsibility of the defendant sued and one half the responsibility of a
defendant which could not be sued. He none the less apportioned 75% of the
damage to the defendant before the court, rather than 50%. The Court of
Appeal simply commented that this apportionment was not criticised. It is
possible that the trial judge had in mind that the relationship between the
volume of asbestos inhaled and the severity of the disease is not a precise one
and that he was ensuring that the defendant was liable for everything which
might have been caused by their dust and was giving priority to the claim-
ant’s right to be fully compensated over the defendant’s right not to have to pay
for more than he damage for which the defendant was responsible. If that was
the basis for the apportionment made it is submitted that the trial judge’s con-
clusion was the correct one.

16.89 Mesothelioma is an illness which always leads to death and in that sense
is always indivisible. However, causation in mesothelioma cases is complicated
by the imperfect state of medical knowledge. There are two theories. One holds
that all exposure to asbestos acts together in order to initiate the growth and
development of the mesothelial tumour; if this theory is correct then all
exposers are several tortfeasors causing the same damage and liable for the
whole of the damage. The other theory holds that mesothelioma is initiated by
a single fibre causing a single cell to mutate; if correct this theory means that
only one tortfeasor can be responsible for the mesothelioma. As a claimant
normally needs to establish which tortfeasor caused his or her injury on the
balance of probabilities this theory presented a major problem. In Fairchild v
Glenhaven Funeral Services [2003] 1 AC 32, [2002] 3 All ER 305, the House of
Lords reached a conclusion (which the judge at first instance had described as
ridiculous), that every defendant responsible for the exposure of the claimant to
asbestos dust was liable. In Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229,
[2011] 2 WLR 523, Lord Phillips PSC summarised the effect of Fairchild by
saying, ‘ . . . when a victim contracts mesothelioma each person who has, in
breach of duty, been responsible for exposing the victim to a significant quantity

514
 The damage for which a defendant is liable 16.92

of asbestos dust and thus creating a “material increase in risk” of the victim
contracting the disease will be held to be jointly and severally liable for causing
the disease.’

16.90 In Fairchild the defendants chose not to contend that each was liable
only to the extent of its exposure, but in Barker v Corus [2006] 2 AC 572,
[2006] 2 WLR 1027, the defendants did argue for proportionate liability and
the House of Lords ruled in their favour. The conclusion of the House of Lords
in Barker v Corus was reversed by s 3 of the Compensation Act 2006 which
imposes liability for the whole injury on each tortfeasor if the injury suffered is
mesothelioma. The act preserves the right of a defendant to bring contribution
proceedings against others responsible for the exposure and directs the court to
‘have regard to the relative lengths of the periods of exposure for which each
was responsible’. This differs from the test suggested by Lord Hoffman in
Barker v Corus when he said that the liability of a defendant should be assessed
by ‘reference to the proportion of the risk attributable to the breach of duty’. In
the only case in which the application of the test appears to have been argued,
Pestridge v Vaughan and Blyth Ltd (20 April 2007, unreported). Ousely J
concluded that he should have regard to both the duration and to the intensity
of the exposure. In Pestridge’s case there was good evidence of the extent of the
exposure from the claimant himself and the statutory provision is probably best
viewed as stating a default position when better evidence is not available to the
court.

16.91 In Julie Williams v University of Birmingham [2012] PIQR P4 the

defendants sued had only been responsible for a modest part of the de-
ceased’s exposure to asbestos dust. The Court of Appeal made clear that once a
defendant was found to be in breach of duty the Act did not permit or require
a comparative exercise to be undertaken to determine whether or not the
exposure for which a tortfeasor was responsible was a de minimis part of the
whole exposure to which a claimant had been subjected. Such a tortfeasor was
liable even though the exposure for which he was responsible was a de minimis
part of the whole exposure provided that it materially increased the risk of the
development of mesothelioma. AIkens LJ pointed out at [74] that: ‘The claim-
ant has to establish a breach of duty. Whether the exposure to asbestos fibres
was de minimis is relevant at that stage, because, as I have already pointed out,
if the exposure is only de minimis, it is hard to see how there could be any
breach of duty.’1
1
In California liability is in some instances determined by market share and in Sindell v Abbott
Laboratories (1980) 607 P.2d 924, a case cited with approval in Fairchild v Glenhaven, the
liability was apportioned as to 1% to some defendants.

16.92 Unlike mesothelioma, which can only result from asbestos exposure,
lung cancer is a naturally occurring disease. The issue in any such case is what
is required before a claimant is able to prove causation. When nothing apart
from the natural incidence of cancer and asbestos inhalation are the potential
causes, the simple ‘but for’ test provides a satisfactory answer and when the risk
is doubled causation is established. When a claimant has smoked, the effect of
asbestos inhalation is to act synergistically with the effect of smoke inhalation
and to increase the risk of tobacco smoke causing lung cancer. There are
therefore four possible causes for a court to consider: the natural incidence of

515
16.92 Dust diseases

the disease, tobacco smoke on its own, asbestos dust on its own and the risk
caused by the synergistic effect of asbestos dust and lung cancer combined. To
add a further complication, both inhaling tobacco smoke and inhaling asbestos
dust are potentially negligent acts.

The authorities dealing with causation in mesothelioma cases and asbestos

exposure are difficult to use in such circumstances.

As any meaningful level of exposure to asbestos will increase the risk of

suffering the disease it follows that if the ‘material contribution to risk’ test in
McGhee v National Coal Board is appropriate then a claimant will succeed
even when the additional risk created by asbestos exposure is quite modest. In
Sienkiewicz v Grief UK Ltd [2011] 2 AC 229, [2011] 2 WLR 523, Lord Phillips
PSC at [75] and [90] stated in very emphatic terms that as asbestos and tobacco
smoke act synergistically they should be considered to be a single cause and that
causation should be held to be established if the asbestos exposure materially
contributed to the disease which developed. This is not a widely held view and
support for it has been conspicuous by its absence.1
1
Professor Jane Stapleton describes in detail Lord Phillips’ error in LQR 2012, 128 (Apr),
221–231. See for instance Swift J in Jones v Secretary of State for Energy and Climate Change
[2012] EWHC 2936 (QB).

16.93 In Heneghan v Manchester Dry Docks Ltd1 the Court of Appeal divided
the causation tests for asbestos-induced lung cancer into two parts which
Dyson MR described as ‘the what question’ and the ‘who question’. Rejecting
Lord Phillips’ doubts expressed in Sienkiewicz, he affirmed that in deciding the
‘what’ question it was necessary apply the straightforward ‘doubles the risk’ or
‘but-for’ test. Having concluded that the ‘doubles the risk’ standard provided an
answer to the ‘what’ question, the court proceeded to consider the ‘who’
question. In answer to the ‘who’ question, the court decided that each defen-
dant was liable according to the extent to which he had exposed the claimant.
Of interest is the reservation in respect of a situation in which a defendant
responsible for the majority of the exposure was before the court. The trial
judge, Jay J, had commented that in such a situation a claimant would succeed
as to 100% against the majority exposer. The Court of Appeal were invited to
conclude that this was incorrect but declined to do so, albeit not actually
deciding the point.

The Helsinki criteria2 set out the levels of exposure to asbestos which the paper
suggests should lead a court to conclude that the risk of lung cancer is doubled.
With the exception of the level of fibres measured in terms of fibre/ml years
which has been challenged when the asbestos exposure is to chrysotile, the
remaining criteria seem to be widely accepted.
1
[2016] EWCA Civ 86, [2016] 1 WLR 2036, [2016] ICR 671.
2
Scand J Work Environ Health 23 (1997), pp 311–316.

16.94 However, despite establishing that the cause of a claimant’s lung cancer
is asbestos exposure on the balance of probabilities, a claimant may still be
found to have been contributorily negligent for smoking even when the answer
to Dyson MR’s ‘what’ question is ‘asbestos’ rather than ‘tobacco smoke’.

516
 The damage for which a defendant is liable 16.95

16.95 When the claimant has established on the balance of probabilities that
the lung cancer from which they suffer was caused by asbestos, why should the
chance that it was caused by smoking be considered causatively relevant when
considering contributory negligence?

The courts have decided that a distinction must be made between cases in which
the causes are alternatives and cases in which both causes under consideration
act together to create part of the risk of the event which eventuated; as tobacco
smoke and asbestos act synergistically to create the risk which eventuated,
courts have found it possible to allow a finding that the claimant was contribu-
torily negligent in smoking on the basis that they contributed to the risk which
eventuated. In Badger v Ministry of Defence [2005] EWHC 2941 (QB), [2006]
3 All ER 173 Stanley Burnton J concluded that Mr Badger should have known
at some stage that to continue smoking would increase his risk of suffering lung
cancer and therefore that his failure to stop smoking should be regarded as both
negligent and causative. The decision in Badger has been followed in Horsley
[2009] EWHC 2945, [2009] All ER (D) 206 (Nov), Eady J, and Shortell
(unreported, 16 May 2008), Mackay J. Whether one can use a ‘but for’ test of
causation to establish liability, but when considering contributory negligence
decide that the creation of a risk by the claimant is sufficient to establish
causation, is open to question. The reasoning in all three cases is based on the
conclusion that smoking and asbestos combine together to create a new risk to
which each breach of duty necessarily contributes; thus each plays a causative
part in the result. The reasoning is thus similar to the view of Lord Phillips in
Sienkiewicz when he suggested that making a material contribution was suffi-
cient to impose liability.

517