ASBESTOS LAW

This post was written by James Beeton.

Introduction

1. Much industrial activity giving rise to exposure to asbestos occurred in docks and shipyards. Former dock workers therefore represent a significant number of those now wishing to bring claims for asbestos-related illness. In some cases, it will be possible to bring a straightforward common law claim in negligence against an occupier of the relevant area or the dock workers’ employer (or quasi-employer: see Rice v Secretary of State for Trade and Industry [2007] EWCA Civ 289).

 

2. But this can raise potentially difficult issues of foreseeability of harm and the defendant’s knowledge of the risks. The alternative is to bring a claim for breach of statutory duty. The stricter nature of many of these duties means that the difficulties that can arise in common law claims may be sidestepped. But the question of precisely which duties applied historically to the different parts of docks and shipyards is a complicated one. In summary, the position is this.

 

Position before 31 March 1961

 

Location	Asbestos Industry Regulations 1931	Section 47/63 Factories Acts
Shipyards and dry docks used for shipbuilding	Yes (including works to or on the ship)	Yes (including works to or on the ship)
Other docks, wharves, and quays	Yes	No
Processes involving ships in harbour or wet dock	Yes	No

 

Position from 31 March 1961

 

Location	Asbestos Industry Regulations 1931 (until 14 May 1970)	Section 47/63 Factories Acts (until 1 October 1989)	Shipbuilding and Ship-repairing Regulations 1960 (until 1 October 1989)	Asbestos Regulations 1969 (from 14 May 1970 until 1 March 1988)
Shipyards and dry docks used for shipbuilding	Yes (including works to or on the ship)	Yes (but not works to or on the ship)	Yes (works to or on the ship only)	Yes
Other docks, wharves, and quays	Yes	No	No	Yes
Processes involving ships in harbour or wet dock	Yes	No	Yes (works to or on the ship only)	Yes

 

 

Pre-1961: “full cover” for shipyards and dry docks

 

3. Section 151 of the Factories Act 1937 contains the general definition of the expression “factory”. It also specifically lists certain premises that will automatically qualify as a “factory” for the purposes of the Act. One of these is:

“any yard or dry dock (including the precincts thereof) in which ships or vessels are constructed, reconstructed, repaired, refitted, finished or broken up” (and in which persons are employed in manual labour).

Since these premises are treated as factories in the full sense, work carried out in them was in principle subject to the key s. 47 duty to take all practicable measures to prevent the inhalation of any dust produced in a substantial quantity. Another effect of s. 151 was that regulations covering “factories” as defined by the Factories Act 1937 applied to these areas. An example is the Asbestos Industry Regulations 1931.

 

4. In fact, the 1931 Regulations also applied to shipyards before the passage of the Factories Act 1937. This is because the 1931 Regulations were passed pursuant to the Secretary of State’s power to make regulations for dangerous trades under s. 79 of the Factory and Workshop Act 1901 and they applied to “factories” as defined by the 1901 Act. The old 1901 Act specifically included within its definition of a factory:

 

““Shipbuilding yards,” that is to say, any premises in which any ships, boats or vessels used in navigation are made, finished or repaired” (see s. 149 and Schedule 6, Part II, (25)).

 

5. However, the position for shipyards and dry docks used for shipbuilding changed following the passage of the Shipbuilding and Ship-repairing Regulations 1960 (discussed below).

 

Pre-1961: “partial cover” for other docks, wharves, quays, and ships

Duties

6. The Factory and Workshop Act 1901 and the Factories Act 1937 Act specifically provided that certain premises were to be treated as factories and that certain processes were to be treated as having been carried out in a factory. However, the duties which applied in these listed premises were limited (insofar as relevant) to the provisions in the relevant Parts of the Acts “with respect to Regulations for dangerous trades” or “with respect to special regulations for safety and health” respectively.

 

7. Such regulations were dealt with by s. 79 and s. 60 respectively of the two Acts. These empowered the Secretary of State to make special regulations for health and safety. As mentioned above, the Secretary of State had used his power under s. 79 of the Factory and Workshop Act 1901 to make the Asbestos Industry Regulations 1931. However, the key duty to prevent the inhalation of dust contained in s. 47 of the Factories Act 1937 Act, which appears in the same “Part” of that Act as the Secretary of State’s power in s. 60, is notspecifically mentioned in the same way as the regulation-making power in s. 60. This means that the s. 47 duty did not applyto the premises treated as factories which are listed below.

 

8. So, what exactly did apply to those premises? With effect from 1 July 1938, the Asbestos Industry Regulations 1931 were to be treated as if they had been passed under the 1937 Act. The relevant power being contained in s. 60, this means that the 1931 Regulations did apply to the premises listed below. Further regulations made under the s. 60 power (or its successor at s. 127 of the Factories Act 1961) include the Construction (General Provisions) Regulations 1961, the Construction (Health and Welfare) Regulations 1966 and the Asbestos Regulations 1969. These regulations also applied to the premises listed below. On the other hand, the Building (Safety, Health and Welfare) Regulations 1948 specifically provided that they did not apply to docks, harbours, bridges and tunnels (see reg. 2(1)).

 

Position between 1931 and 1937: docks, wharves, quays, and ships

 

9. Section 104 of the Factory and Workshop Act 1901 provided that the following were to be treated as included in the word “factory” for the purpose of triggering the limited duties set out above:

 

• Docks;
• Wharves;
• Quays;
• Warehouses; and
• All machinery or plant used in the process of loading or unloading or coaling any ship in any dock, harbour or canal.

 

The person whose workmen used the machinery or plant, or who had occupation of the relevant area, was to be treated as the occupier of the “factory”.

 

Position post-1937: docks, wharves, and quays

 

10. Section 105(1) of the Factories Act 1937 (and s. 125 of the 1961 Act) provided that the limited duties would apply to listed premises as if they were factories and the person “having the actual use or occupation of it or of any premises within it or forming part of it” would be treated as if they were “the occupier of a factory” for the purposes of that Act. The premises are:

 

• Docks;
• Wharves;
• Quays;
• Warehouses belonging to the owners of the dock, wharf or quay;
• Any line or siding used in connection with and for the purposes of the dock, wharf or quay and not forming part of a railway or tramway); and
• Every other warehouse (not forming part of a factory) in or for the purposes of which mechanical power is used.

 

11. Pursuant to sections 107 and 108 of the 1937 Act (and s. 127 of the 1961 Act), the above duties also applied to listed processes involving docks and related premises, specifically “the construction, structural alteration or repair (including re-pointing and re-painting) or the demolition of any dock, harbour, inland navigation, tunnel, bridge …” (see the definition of “works of engineering construction” at s. 152(1) of the 1937 Act and s. 176(1) of the 1961 Act).

 

Position post-1937: ships

 

12. Section 105(2) (and s. 125 of the 1961 Act) adopted a slightly different approach, already employed in the Factory and Workshop Act 1901, in stating that merely carrying out certain processes relating to ships would be treated as having occurred in a factory, with “the person who carries on those processes” being treated as the occupier of a factory. The processes were: the loading, unloading, or coaling of any ship. To qualify, these processes had to take place in “any dock, harbour or canal”. Any machinery or plant used in the processes would be treated as machinery or plant in a factory.

 

13. Similar provision was made by s. 106(1) (and s. 126 of the 1961 Act) in respect of work carried out in “constructing, reconstructing, repairing, refitting, painting, finishing or breaking up a ship or in scaling, scurfing or cleaning boilers … in a ship, or in cleaning oil-fuel tanks or bilges in a ship”. These works would only be covered if they took place “in a harbour or wet dock”. Where they did, “the ship shall be deemed to be a factory, and any person undertaking such work shall be deemed to be the occupier of a factory.”

 

14. But note that there is a specific exception at s. 106(2) (and s. 126(3) of the 1961 Act) where the processes listed in s. 106(1) were carried out “by the master or crew of a ship or done on board a ship during a trial run.”

 

Post-1961: impact of the Shipbuilding and Ship-repairing Regulations 1960

 

No s. 47 Factories Act 1937 protection for work to or on ships

 

15. The position changed with effect from 31 March 1961, following the passage of the Shipbuilding and Ship-repairing Regulations 1960. Pursuant to reg. 2(1), these covered:

 

• All works carried out in any operations of a shipyard or dry dock in respect of ships or vessels, whether or not the shipyard was part of a harbour or wet dock. The Regulations used a similar definition to that in s. 151 of the 1937 Act (by reg. 3(2)) but did not cover yards or docks where the ships were broken up.
• Any work carried out in any of the operations in a harbour or wet dock in the case of ships (but not other vessels) excluding, amongst other things, work done by the master or crew of the ship.

 

The Regulations therefore did not apply to work on asbestos-lagged pipes whilst at sea (Oldman v DEFRA[2017] 4 WLUK 388 at [4]).

 

16. Regulations 4(1) and 3(2) also limited the scope of the Regulations by providing that the duties were imposed on employers but only when they were undertaking the following processes:

 

“in relation to a ship or vessel, its construction, reconstruction, repairing, refitting, painting and finishing, the scaling, scurfing or cleaning of its boilers (including combustion chambers or smoke boxes) and the cleaning of its bilges or oil-fuel tanks or any of its tanks last used for carrying oil.”

 

This meant that the duties applied only to work being done to or on the ship or vessel. The Asbestos Industry Regulations 1931, which were still in force, continued in principle to apply to the same work at this time until their revocation and replacement by the Asbestos Regulations 1969 (since, unless they expressly said otherwise, the 1960 Regulations were in addition to and not in substitution of any requirements imposed by or under the 1937 Act: reg. 2(4)).

 

17. However, a key effect of the 1960 Regulations was that work done to or on ships in shipyards and dry docks was no longer subject to the totality of protections under the 1937 Act. The s. 47 duty was expressly replaced with a new duty at reg. 53(1) to take all practicable measures to protect against the inhalation of dust “of such a character and to such extent as to be likely to be injurious” where the dust was given off in connection with any process carried out on board, in, or on the outside of, a vessel. Note, however, that the s. 47 duty continued to apply to work carried on in the other parts of the shipyard where it was not being done to or on the ship itself. The reg. 53(1) duty remained in force until 30 September 1989 when it was repealed by the Control of Substances Hazardous to Health Regulations 1988. However, it was effectively superseded by the Asbestos Regulations 1969 from 14 May 1970.

 

Specific duties concerning asbestos processes

 

18. The reg. 53(1) duty, which imported a requirement of foreseeability of harm, was in fact less strict than the s. 47 duty it replaced – a surprising (perhaps unique) example of a decrease in protections available for workers exposed to dust. But that decrease in generic protection was to an extent mitigated by the introduction of specific duties to provide breathing apparatus for listed types of work with asbestos set out at reg. 76 (at least until this provision was largely revoked a few years later by the Asbestos Regulations 1969). These often overlooked new duties in respect of the listed asbestos processes did not require foreseeability of harm, except for the last one. The works covered by reg. 76 were:

 

• the application of asbestos by spraying;
• breaking down for removal of asbestos lagging;
• cleaning of sacks or other containers of asbestos;
• cutting of asbestos material by portable power saws; and
• scaling, scurfing, or cleaning of boilers and other named types of plant where the person is exposed to dust of a character and extent likely to be injurious or offensive.

 

Additional protections for “young persons”

 

19. It is important to be aware that the narrowly defined category of “young persons” were subject to additional protections under the Regulations. Regulation 77 provided that young persons could not be employed in any of the asbestos processes covered by reg. 76. The 1960 Regulations also provided for supervision requirements in relation to all operations for persons under 16 (at reg. 80(2), until this was revoked on 16 January 1990).