Maguire v Harland v Wolff PLC [2005] EWCA Civ 01
The Ongoing Relevance of this case:
This Court of Appeal decision remains of relevance to practitioners when considering ‘secondary exposure’ cases – usually when a family member has developed an asbestos-related condition as a result of coming into contact with asbestos covered clothing of someone who worked with asbestos. Maguire considers when it should have been apparent to those employers whose employees were working with asbestos, that those persons who had secondary and intermittent exposure were also at risk of injury.
The Factual Overview:
The claim was brought by Mr Maguire, personal representative of his wife who died of mesothelioma shortly after the High Court decision in this case.
It was in fact Mr Maguire who had worked for the defendants and had been personally and directly exposed to asbestos during the period 1961-1965, the fact of the exposure and the negligent nature of the same being admitted. Mr Maguire did not have any asbestos related medical condition.
However, when working for the Defendants, Mr Maguire needed to travel home in his clothes because there was nowhere at work to shower or change. He describes going home to his bedroom, taking his work clothes off and his wife sorting them out. She washed the work clothes every weekend. His clothes contained the asbestos dust to which he had been exposed at work.
In Mrs Maguire’s statement she said the only time she came into contact with asbestos was washing her husband’s work clothes and described the detail of how she did that.
The Decision:
At the first instance, Morland J had found that there was foreseeable risk of injury, although not necessarily mesothelioma, from the exposure to asbestos by Mrs Maguire. It is noted by the Court of Appeal that this was in conflict with another similar case, Gunn v Wallsend Slipway & Engineering Company, where on similar facts, the date of awareness of the risk of domestic exposure was found to be October 1965.
At the first instance, it was described how Mr Maguire had worked in the boiler room and engine rooms of ships close to laggers and scalers, who knocked off asbestos and made asbestos in buckets. Mr Maguire was a boiler maker and also used asbestos blankets when burning or welding.
Accordingly, it was not in dispute that Mr Maguire would have established negligence and breach of duty against the defendants.
The engineering evidence concluded that Mrs Maguire would have been at least moderately and sometimes heavily exposed to airborne asbestos via the fibres as a result of handling her husband’s asbestos contaminated work clothes.
At the first instance the Judge found that the defendants must have known that Mr Maguire would transport home each day from work with varying quantities of asbestos on his clothes, some of which his wife would be exposed to. Morland J then went onto find that it was indeed reasonably foreseeable that a wife would be exposed to asbestos in such circumstances and simply that the defendants never considered or reflected on it. He described such a conclusion as ‘obvious’. Elementary and simple precautions such as changing rooms and sensible showering and laundry arrangements would have ensured that Mr Maguire would have returned home without wearing dust infected clothing. Liability was therefore established at the first instance.
In the Court of Appeal, the leading Judgment was given by Judge LJ.
It was conceded by leading counsel for the Claimant that, on the evidence, the defendants themselves did not have actual knowledge of the risk to the Claimant’s wife. However, the Claimant’s contention was that a reasonably prudent employer in the defendants’ position would have foreseen that the Claimant’s wife was at risk.
The Judge then conducted a review of the relevant material upon which the state of knowledge of the risks associated with exposure to asbestos dust developed and became available.
It was noted that the Morland J had himself found:
“There was nothing in the specialist safety, medical or factory inspectorate literature to alert Harland & Wolff to the risk of secondary exposure.”
It was also noted that there were no other examples of employers taking such precautions.
In brief (the bundle of relevant literature being noted to be considerable) – the relevant history of the dangers of asbestos included:
1930 – the seminal report, Report on the effects of Asbestos Dust on Lungs and Dust Suppression in the Asbestos Industry, Merewether and Price. A clear link between asbestos exposure and asbestosis was established.
1929 – annual Report of the Chief Inspector of Factories.
1930s – a gradual acceptance that ‘heavy concentrations of asbestos dust’ carried a ‘certain and grave risk’.
1931 – Asbestos Industry Regulations 1931 (which were only revoked and replaced by the Asbestos Regulations 1969 – after the period of employment in Maguire).
1931 – Silicosis and Asbestosis (Medical Arrangements) Scheme 1931.
1933 – Merewether – further Memorandum on Asbestos.
1937 – Factories Act 1937 – removal of dust in factories.
1938 – Annual report of the Senior Medical Inspector of Factories (noting that “It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous.”)
1943 – Chief Inspector’s annual Report.
1945 – A letter on behalf of the Chief Inspector of Factories regarding ship building and ship repair and health problems caused by asbestos exposure.
1949 – Chief Inspector’s report.
1955 – Paper Mortality from Lung Cancer in Asbestos Workers.
1960 – Booklet entitled Toxic Substances in Factory Atmospheres by the Ministry of Labour.
It is noted in this particular article that it says contaminated clothing should be changed and hands, face and other exposed parts should be thoroughly washed at the end of the working day. It is also noted that Morland J quoted this aspect of the booklet as a essential part of his reasoning.
However, Judge LJ then notes that this publication was in relation to toxic substances generally and the risk of absorption of such toxic substances through the skin and not in relation to asbestos. The risk was to the employee and not their families in any case.
1959 – Chief Inspector’s Report.
1962 – Papers entitled Toxic Substances in Factory Atmospheres and Diffuse Pleural Mesothelioma and Asbestos Exposure in North Western Cape Province were published in the UK.
1964 – Chief Inspector’s report.
1965 – Seminal paper, Epidemiology of Mesothelial Tumours in the London Area and Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area by Newhouse and Thompson.
This was the first time that it was considered that asbestos could affect not only those working, but also those who lived near to asbestos factories and among relatives who worked in them.
The results were captured by the Sunday Times on 31 October 1965 under the headline Scientists Track Down a Killer Dust Disease”. By the time of publication, Mr Maguire had ceased to work for the defendants.
The Judgment then goes on to consider the subsequent effects of and reactions to the Newhouse and Thompson paper and the Sunday Times article, including the 1966 Chief Inspector’s report and others.
Review of reports continued into the end of the 1960s and into the early 1970s. It is said that though there was no immediate rush to face up to the implications of the Newhouse and Thompson papers, it did result in clearer warnings about asbestos being made.
Reference is made to the case of Margereson and Hancock (in relation to those living in proximity to asbestos factories). It is noted from that case that where conditions surrounding a factory are not materially different to that inside the factory where a duty of care exists, the same duty of care will extend beyond the factory wall. However, it is noted that the Claimant’s wife was not subjected to the same or similar exposure as the Claimant himself.
The Judgment then continues with the consideration of the findings Gunn.
Significantly Walterhouse J, in Gunn, found that there was no acceptable evidence that anyone engaged in shipbuilding or industry generally or having relevant responsibilities in that field did in fact foresee the risk of any injury to an employee’s wife from the employees or exposure to asbestos dusts.
Judge LJ concluded:
“In truth, the alarm did not sound until late 1965, when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect, to asbestos dust. Thereafter, the learning curve about the risks arising from familial exposure was fairly steep. In my judgment, however, Morland J’s conclusion that the risk of serious injury to Mrs Maguire’s health was “reasonably foreseeable, indeed obvious” to her husband’s employers is not sustainable.”
Mance LJ took a different view:
He notes that the defendants were admittedly in breach of duty to Mr Maguire, making it difficult if the case for Mrs Maguire was to fail.
The judge then went through a number of cases as to how far the foreseeability of damage relates to individual particular claimants in personal injury claims in general.
The judge too went through the knowledge of asbestos over the years leading up to the point at which Mr Maguire was exposed to it. The judge considered the defendants’ argument, that they were not in a position to reasonably foresee that there would be injury to Mrs Maguire. The judge noted that for this submission to be correct, according to the caselaw, it would have to be not reasonably foreseeable to happen in ‘even the most unusual case’.
The judge noted that there was a difference between an individual or a company actually foreseeing a risk of injury, and whether they ought to have done. “The appellants’ actual conduct and foresight can on this basis be no touchstone of the reasonable.”
He noted that this was a company which was in serious breach of its duty of care to Mr Maguire.
He came to the conclusion that the proper practise at the time was to eliminate dust so far as practical for the reason that the dust creates a generally undefined risk. The defendant had failed to do so. He found it would require very little thought that this would result in the dust being carried outside the yard, and pose a risk elsewhere.
“The literature made clear that the materialisation of the generalised risk to which asbestos dust gave rise varied according to a host of factors, including individual sensitivity. If one behaves irresponsibly, it may not be easy to foresee precisely all the consequences, but injury to others like Mrs Maguire was in my view sufficiently foreseeable. The appellants have of course been fortunate that Mr Maguire has not become ill.”
Longmore LJ found this a difficult decision, but ultimately followed Judge LJ and found for the defendants.
The judge found that they would proceed on the basis, as between employer and employee at the time there was a breach of duty to reduce the exposure, “To the greatest extent possible.”
It was noted that there was no pre-1965 reference to the risk of exposure to asbestos dust on behalf of wives or other members of an employee’s household.
The judge found that since before 1965, it had not occurred to either a Chief Inspector of Factories or more generally British scientists or experts that there was a serious risk of asbestos related disease to those living with employees working with asbestos, it was not the case that the defendant ought to have appreciated this risk at the time.
It is noted that the only reference to worker’s clothing and air-born dust, the 1959 annual report of the Chief Inspector of Factories, does not in fact state they needed to be laundered at the factory and not at home.
He found that to impose a duty in the 1960 to 1965 era, would be to use hindsight “to an unacceptable degree.”
Conclusion:
Ultimately the point at which an employer should have reasonably foreseen the risk of secondary exposure will be a factual matter for each defendant. However, it will always be the case that there were no warnings given by the Chief Inspector of Factories, scientists or experts until the Newhouse and Thompson article, and no wider knowledge until the Sunday Times article.
Whilst it might be the case that an especially alert employer had such knowledge individually at an earlier point, the same said alert employer would also then have to have done nothing about it.
Maguire is not strictly a decision that 31 October 1965 is the date at which such knowledge is acquired by such employers, though the Sunday Times article was clearly in the public domain and its headline pulled no punches. It is the case that protection measures would be relatively easy, cheap and quick to implement as noted by Mance LJ. Accordingly, though each case is fact specific, the starting point for investigation in most cases will be 31 October 1965.
Some of the relevant documentation can be found within the Asbestos Library