Jeromson v Shell Tankers (UK) Ltd (Dawson v Cherry Tree Machine Co Ltd)

A statutory safety regulation may apply to a process carried on in any factory or workshop, even where the premises are outside the regulated industry’s principal business. An exemption for work carried on “occasionally only” requires genuine intermittence; regular work falls outside it. Where a regulation imposes an obligation to provide an exhaust draught unless that is impracticable, foreseeability does not qualify the duty. In common-law negligence, an employer assessing developing knowledge must consider potential exposure, not merely average exposure. Liability may arise where some bodily injury was foreseeable, even if the particular disease was unknown. Known danger, uncertain safe levels and available precautions may require the employer to act or seek advice.

Two widows brought claims after their husbands died from mesothelioma contracted during employment. Both men had worked as marine engineers for Shell Tankers UK Ltd. Mr Dawson had earlier worked as an apprentice fitter for Cherry Tree Machine Co Ltd, where he mixed asbestos to seal machinery. The Deputy High Court Judge found Shell liable in negligence and Cherry Tree liable for breach of regulation 2 of the Asbestos Industry Regulations 1931, while rejecting other claims against Cherry Tree. The defendants appealed on liability. The central issues were the scope of the Regulations, the meaning of “occasionally only” and “practicable”, and whether asbestos-related injury was foreseeable at the relevant time.

Both appeals were dismissed. The Court of Appeal unanimously upheld the liability findings.

1. Cherry Tree. The Asbestos Industry Regulations 1931 applied to any factory or workshop where one of the listed processes was carried on. Their scope was not confined to premises whose principal business involved asbestos. “Mixing” had its ordinary meaning and included mixing asbestos flock with water to make paste. The exemption for work carried on “occasionally only” required both occasional work and compliance with the weekly eight-hour condition. Regular work was not occasional.
2. The court declined to follow the approach in Banks v Woodhall Duckham & Others (unreported, 30 November 1995) and disapproved the similar reasoning in Watt v Fairfield Shipbuilding & Engineering Co Ltd 1999 SLT 1084. The observations in Banks had not been essential to that decision. The wording of sections 79 and 80(1) of the Factory and Workshop Act 1901, the exemption and the contemporary material supported the wider construction.
3. Regulation 2 imposed an absolute duty to provide a mechanically effected exhaust draught unless that was impracticable. Foreseeability did not qualify “practicable”. Dust was the known danger, the required precaution was known, and providing an exhaust was practicable. The regulation had therefore been breached. The costs order was a proper exercise of discretion.
4. Shell. At common law, it was enough that some personal injury to a primary victim was foreseeable; the precise disease need not have been known. A reasonable and prudent employer facing developing knowledge had to keep reasonably abreast of the risks, consider the potential exposure of workers where exposure varied, and take precautions or seek advice where the literature identified asbestos dust as dangerous but provided no safe level. Later knowledge of mesothelioma could not retrospectively increase the standard, but neither could it diminish the force of the earlier warnings.

Both appeals were dismissed with costs. The agreed judgments and interim costs orders were confirmed, subject to the stated arrangements concerning Cherry Tree’s proposed House of Lords petition.

1. Court of Appeal — Both appeals dismissed with costs. The court upheld the liability orders and confirmed the agreed judgment and interim costs arrangements: [2001] EWCA Civ 100.
2. Queen’s Bench Division — On 18 February 2000, a Deputy High Court Judge found Shell liable in common-law negligence and Cherry Tree liable for breach of regulation 2 of the Asbestos Industry Regulations 1931. Other claims against Cherry Tree were rejected.