ASBESTOS LAW

In this article, Jake Loomes examines the decision in Mrs Rosemary Dean (Executrix of the Estate of Mr Philip Dean, deceased) v Armstrong Oiler Company Ltd [2023] EWHC 3445 (KB) (‘Dean v Armstrong Oiler Company Ltd’).

The judgment from November 2023 (in which the Claimant was ultimately successful) provides a helpful insight into addressing conflicts between medical notes and witness evidence in industrial disease cases. As is sometimes the case, the clinical notes contained limited, conflicting accounts of exposure and a repeated positive assertion that the deceased “did not work with asbestos“. The judgment also touches upon a possible interpretation of ‘substantial quantities’ of dust for liability under the second limb of s.63(1) of the Factories Act 1961.

Background

Mr Dean worked for the Defendant from 1959 to 1972 as an apprentice loom turner, maintenance officer, and a foreman. Mr Dean was exposed to asbestos dust between 1964 and 1972 while inspecting and working on an air compressor near a boiler insulated with asbestos-containing lagging. Mr Dean passed away in 2020 due to mesothelioma. His widow, acting as executrix of his estate, filed a claim in 2021 alleging breach of common law negligence and breach of s.63(1) of the Factories Act 1961. Quantum was agreed at £200,000, subject to liability.

The evidence

Mr Dean’s witness statement was taken and finalised before his passing. There was no lay or documentary evidence from the Defendant. Mr Christopher Chambers, a health and safety expert, provided evidence for the Claimant. Mr Graham Glenn, an engineering expert, gave evidence for the Defendant.

The clinical notes and the reliability of Mr Dean’s recollection

The Defendant relied on various entries in the deceased’s clinical records to suggest that he had no reliable recollection of any asbestos exposure; these were:

• 2019 GP entry referring to “no asbestos exposure“, which was passed on in the lung cancer referral form as “Never knowingly been exposed to asbestos“. The chest physician responded, “Ex-engineering, no asbestos“. 
• 2019 entry, “He has no known exposure to asbestos“. 
• A CT scan report stating, “there is no evidence of previous asbestos exposure“.  
• August 2019 entry stating that he did not recollect any exposure but had worked as an engineer and had been in places where there could have been potentially asbestos.
• August 2019 note stating that he had worked in the Navy and had been referred for possibly making a compensation claim.
• August 2019 oncology note which read: “Boiler in the first role probably had asbestos“. The words “may have” had been crossed out. There was a further reference to Mr Dean having worked in various jobs “Through the 50s, 60s and 70s with potential exposure to asbestos, although nothing he can clearly identify“.

• Mr Dean stated, amongst other things, that he was responsible for the compressed air pipework and that the boiler was located next to where he would work. He described the height, its position, and that it was lagged in the same material throughout his employment. He described it “as dusty, plaster-like material that was off-white in colour” and that he “believe[d] that the lagging was asbestos“. He went into considerable detail describing the area and how he would come into contact with the boiler.

HHJ Coe KC, sitting as Deputy High Court Judge, held as follows:

1. The GP’s note of “no asbestos exposure” was the source of much repetition within the records [52].
2. Had he been asked if he “had ever worked with asbestos“, then he may very well have answered “no“. Questions asked at that stage would not have been particularly probing [52].
3. The deceased’s solicitor went through his work history in considerably greater detail than the clinicians would have. “[The clinical notes] do not constitute the sort of detailed exploration of work history that would be taken by a solicitor” [59].
4. The oncology notes in August stated that the boiler in his first role probably had asbestos and that this was the boiler with which the deceased stated as the source of his exposure [55].
5. Mr Dean’s diagnosis would “obviously have come as something of a shock and he may not therefore have been concentrating on his employment history” [57].
6. The reference to Mr Dean working in the Navy was an error. He never worked in the Navy [59].
7. Although referred to the case of Gestmin v Credit Suisse [2013] EWHC 3560, it was not helpful in terms of any general principle in the case; the present case was not a commercial case with a large volume of documents dealing with liability [61].

Conclusion as to the other issues

Addressing the other issues, the Court made the following findings:

• Boiler Protection and Asbestos Content: Based on Mr Dean’s account and expert evidence, the court concluded that the boiler insulation did contain asbestos, which was in line with the period’s practices [75-84].
• Exposure to Asbestos: The experts agreed on the nature of the friable asbestos-containing lagging, supporting Mr Dean’s described exposure and the lagging’s condition, further validating his evidence on the exposure’s frequency and nature [89-92].
• Nature of Asbestos Dust: It was more probable than not that the lagging contained amosite, with a 15% possibility of crocidolite [96].
• Foreseeability of Risk: The Court determined that given the knowledge at the time, the Defendant should have anticipated the risk of asbestos exposure and adopted necessary precautions, especially considering the potential presence of crocidolite [98-100, 133-139].
• Level of Exposure Assessment: The concentrations Mr Dean was likely exposed to were significantly above 2 fibres/mm when the dust was disturbed and probably in the region of 50 fibres/mm. The Court expressly rejected attempts by the Defendant to make a precise assessment of the level of exposure, which fell below the hygiene standard at the time. The Judge reiterated [59-60] of Bussey v Anglia Heating [2018] EWCA Civ 243 and the avoidance of following a “bright line” approach to asbestos limits from the time. A more nuanced approach is required. The Court concluded that a reasonable employer would have been aware of the significant risk posed by asbestos exposure from 1965 [140-144].
• Precautions Against Asbestos Exposure: The Court found that simple protective measures, such as covering the boiler with sheet metal or asbestos-containing cement, could have prevented Mr Dean’s asbestos exposure entirely [145-147].
• S.63(1) of The Factories Act 1961 – The Second Limb: While the Claimant argued for a breach based on the presence of substantial dust, the Court found the transient nature of the dust cloud did not constitute a “substantial quantity” of dust. However, it mattered not as the Defendant was liable under the first limb of s.63(1) of the Factories Act 1961 [148-151].

Comment – The reliability of the deceased’s recollection

In the circumstances, the clinical notes were deemed insufficient for a detailed work history exploration, which reinforced the reliability of Mr Dean’s later, more detailed account.

The reliability of witnesses’ recollections of events from a long time ago has been addressed in several decisions (Gestmin v Credit Suisse [2013] EWHC 3560; Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB)); Kimathi v Foreign and Commonwealth Office [2018] EWHC 2066 (QB); Bannister (Estate of) v Freemans Public Ltd Co [2020] EWHC 1256 (QB). 

Whilst those judgments are helpful reminders of what factors may impact the reliably of memory, they are not statements of legal principle (CXB v North West Anglia NHS Foundation Trust [2019] EWHC 2053 (QB) at [40] and Pinnegar v Kellogg International Corp [2020] EWHC 3431 (QB) at [5].

Clinical notes are, of course, generally useful contemporaneous written documents. They may assist in corroborating or challenging the reliability of lay witness evidence in many cases. However, their usefulness should be appropriately weighted and not overstated. It is often unclear what questions were asked of the witness, which can obviously alter the response.

Questions are often asked in circumstances of considerable shock or anxiety involving a diagnosis of a serious disease. Further, the sort of probative questions asked for the purposes of a 10-minute assessment in a clinical setting will not be the same as the rigorous fact-finding that a solicitor may do with their client.

Comment – “Substantial quantities” of dust and the second limb of s.63(1) of the Factories Act 1961 (‘the 1961 Act’)

s.63(1) of the Factories Act 1961 establishes that an employer may be liable under that section of the 1961 Act in two circumstances (set out in two limbs of s.63(1) of the 1961 Act). The first is where the dust given off was of such quantity and character that it was likely to be “injurious or offensive” to persons employed. This imports foreseeability of harm by reference to the knowledge at the time.

The second set of circumstances are where the dust was of a “substantial quantity”. The second limb of s.63(1) of the 1961 Act does not require any element of foreseeability. Both limbs require that employer must take all practicable measures to protect from both inhalation and accumulation.

s.63(1) of the 1961 Act, which repeats s.47 of the Factories Act 1937, was addressed in detail in the Supreme Court in McDonald v National Grid Electricity [2014] UKSC 53. The Supreme Court concluded that when assessing whether there has been a substantial quantity of dust, the relevant period is when the dust was produced, not when the dust was inhaled (McDonald at [76]). Further, the assessment as to the second limb is purely quantitative assessment (McDonald at [86]).

The absence of any requirement for foreseeability elevates the importance of a definition of “substantial quantity”. In Prater v British Motor Holdings Ltd [2016] 6 WLUK 193, the judge concluded that, on the facts of that case, that the claimant had shown there to be a substantial quantity of dust where it included:

“[dust which] was in such quantities as to be visible in the air, including as a haze or smog, and to fall on the skin and down the neck and onto the clothing in such quantities as to require shaking to remove it, and for it to be necessary to be brushed off from the work benches and from the floor”.

This was a finding of fact and not a conclusive definition. What is sufficient to amount to a “substantial quantity” of dust has included:

• When there were “clouds of dust” or “lots of dust” (Bailey v Reed Corrugated Cases Ltd [1993] Lexis Citation 3976);
• When the dust was such that the “the atmosphere was cloudy” and “[…] was pretty thick” (Brooks v J&P Coates (UK) Ltd [1984] I.C.R. 158, 170);
• When there was a “considerable quantity of dust” (McDonald at [76]).

 In Dean v Armstrong Oiler Company Ltd, HHJ Coe KC held at [151] that:

“the cloud of dust described by the deceased does not equate to a “substantial quantity” of dust within the meaning of the statutory provision. I make that finding because this was a transient cloud of dust and not a quantity of dust, which hung in the air or which was such as to create a smog or haze of the kind described in the case of Prater or in other similar decisions.”

On the one hand, it may be suggested that this limits the scope of “substantial quantity”. However, it is merely a finding of fact. The reference to the “transient” cloud of dust not being substantial is also possibly misleading. One can envisage a situation where a substantial amount of dust (which creates a cloud) is produced in a very short (transient) time frame but would still be sufficient to engage the second limb of s.63(1) of the 1961 Act. Finally, narrower definitions are seemingly at odds with the approach of the Supreme Court in McDonald, which called for a broader, generous approach when interpreting health and safety legislation (McDonald at [66]).

Conclusion

The decision, whilst not setting a new precedent, is a helpful reminder to consider the circumstances which may prompt a conflicting medical note and not to elevate such inconsistency to too great a height. The decision is a further reminder of the difficulty of assessing the meaning of “substantial quantity” for the purposes of the 1937 and 1961 Factories Acts.