ASBESTOS LAW

This post is by James Beeton.

It is commonly pleaded by claimants in asbestos litigation that their work in a factory was covered by both the Asbestos Industry Regulations 1931 and s. 47/63 of the Factories Acts. I have never seen a defence question the assumption that both sets of statutory provisions can in principle cover the same work. But that assumption may not be right.

This suggestion is of limited practical importance, since a defendant who would have been liable under s. 47/63 Factories Acts will usually also be liable under the Asbestos Industry Regulations 1931. But it will be relevant in at least one situation: namely, where a case falls within the exemption from liability in the Preamble to the Asbestos Industry Regulations 1931, which applies where no person was employed for eight hours or more in any week in the part of the factory in which the asbestos processes were carried out.

Franklin v The Gramophone Company Ltd [1948] 1 KB 542 dealt with the Grinding of Metal (Miscellaneous Industries) Regulations 1925. These were originally made under s. 79 Factory and Workshop Act 1901 but were continued in force under s. 159 of the Factories Act 1937. In this respect, their legislative history mirrors the Asbestos Industry Regulations 1931.

The Grinding Regulations covered listed processes involving the grinding and glazing of “metals”, a term which was not defined (but which did not include “gold, platinum, or iridium”). Similarly, the Asbestos Industry Regulations 1931 covered processes listed in the Preamble involving “asbestos”, defined in broad terms as “any fibrous silicate mineral, and any admixture containing any such mineral, whether crude or crushed or opened.”

Both sets of Regulations applied to factories and workshops to which the Factory and Workshop Act 1901 (and later, the Factories Act 1937) applied and provided protections against exposure to dust generated in the processes they covered.

But, in Franklin it was held that the general protection of s. 47 Factories Act 1937 was superseded by the provisions of the Grinding Regulations. Scott LJ said at pp. 551–552:

“The conclusion seems to me inescapable that the regulations No. 904 must of necessity be construed as saying to the occupier of any factory where relevant processes were conducted: “Carry these regulations out honestly and carefully and you will have complied with all the statutory requirements incumbent on you and your factory.” If so, their particular provisions must supersede the general provisions of s. 47 and be substituted for them.”

Evershed LJ said at p. 560:

“As a matter of the construction of the regulations, deemed to be made by virtue of s. 60, do they so “modify” the terms of s. 47 as to constitute an exhaustive code for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on? In my judgment, Yes.”

This meant that the defendant was able to take advantage of an exemption from liability contained in the Grinding Regulations which would not have been available had the s. 47 duty applied.

This was not an outlier decision. The same conclusion had also been reached in respect of the alleged modification of the general duty to fence “every dangerous part of any machinery” in s. 14(1) of the Factories Act 1937 by reg. 10 of the Woodworking Machinery Regulations 1922, which only prescribed a certain form of fencing for circular saws. In Miller v William Boothman & Sons Ltd [1944] KB 337, the Court of Appeal held that the introduction of the Woodworking Regulations had superseded the absolute obligation in s. 14(1).

Special regulations may preserve the application of general duties under the Factories Act 1937 where they do this expressly. So, in Quinn v Horsfall & Bickham Ltd [1956] 1 WLR 652, the Horizontal Milling Machines Regulations 1928 had a proviso saying that they did not prejudice the application of s. 10 of the Factory and Workshop Act 1901 (which became the general duty to fence dangerous machinery in s. 14(1) of the Factories Act 1937). This meant that the relevant duty under the 1937 Act was not modified by the Regulations.

A parallel may be drawn here between the substitution provisions of reg. 3(3) of the Asbestos Regulations 1969, the proper construction of which led to the conclusion that only one limb of the general duty in s. 63 of the Factories Act 1961 had in fact been superseded in Heynike v 00222648 Ltd [2018] EWHC 303 (QB). But there is no equivalent proviso in the Asbestos Industry Regulations 1931 (nor was there in the Grinding Regulations).

Although special regulations may modify the duties imposed by the Factories Act 1937, they only do so to the extent that they deal with a specific danger. In Benn v Kamm & Co Ltd [1952] 2 QB 127, the claimant was injured by a machine covered by the Horizontal Milling Machine Regulations 1928. But those Regulations only covered the cutters of the machine and not the part that had injured him. This meant that the general duty to fence off dangerous machinery under s. 14(1) Factories Act 1937 continued to apply to part of the machine that had injured him. Similarly, the exclusionary effect of the Grinding Regulations only provided an exhaustive code “for those factories to which the regulations are expressed to be applicable, namely, all factories in which the grinding of metals is carried on”. The Asbestos Industry Regulations 1931 only covered “all factories and workshops or parts thereof” in which the listed processes involving asbestos were carried on. In principle, they would not therefore cover (i) other parts of the factory or (ii) any other processes involving asbestos. These would still be covered by s. 47/63.

In conclusion:

1. Section 47/63 does not apply to any process covered by the Asbestos Industry Regulations 1931; but
2. Section 47/63 does not add much (if anything) to the protections in the Asbestos Industry Regulations 1931;
3. The only obvious exception is where the Asbestos Industry Regulations 1931 provide a gap in protection which would not exist under s. 47/63 (such as the 8-hour exemption from liability);
4. Other parts of the factory and other processes involving asbestos will still in principle be covered by s. 47/63.