Dawson v Cherry Tree Machine Co Ltd

This judgment establishes that regulations framed under the 1901 Act apply to any factory or workshop in which a listed asbestos process is carried on, even where the asbestos use is incidental to another industry, unless the narrow statutory exemption applies.

It confirms that for negligence the employer need only have foreseen some risk of pulmonary injury, not specifically mesothelioma, and that where employee exposure may vary a reasonable employer must address the potential maximum exposure when deciding precautions.

The Court of Appeal heard two consolidated appeals by employers against liability for deaths from mesothelioma suffered by employees exposed to asbestos in the 1940s–1950s.

One appeal (Cherry Tree) concerned application and breach of the Asbestos Industry Regulations 1931 and related statutory duties. The other (Shell) concerned common law negligence and whether relevant employers should have identified a risk of pulmonary injury from the exposures that occurred.

The Court reviewed contemporary technical literature and statutory materials. The central questions were whether the 1931 Regulations extended to incidental asbestos handling in non-asbestos industries and whether the employers ought to have foreseen a risk such that they were obliged to take precautions or make inquiries.

1. Disposition: Both appeals were dismissed. The Court upheld the Deputy High Court Judge's findings that Cherry Tree breached regulation 2 of the Asbestos Industry Regulations 1931 and that Shell was negligent in failing to identify and guard against a foreseeable risk of pulmonary injury (Hale LJ; Cresswell J; Mantell LJ agreed).
2. Statutory scope (1931 Regulations): The court held the Regulations apply to all factories or workshops where any of the listed asbestos processes are carried on. The natural and ordinary meaning of the processes and the supporting material (Merewether and Price) supported application to incidental uses of asbestos, including mixing fibreized asbestos with water to form paste. The narrow exemption for work carried on "occasionally only" was construed strictly and did not apply where the work was regular.
3. Construction reasoning: The court rejected arguments that the Regulations were limited to the "asbestos industry". It treated the certificate under section 79 of the Factory and Workshop Act 1901 and the Regulations' text as showing a wider statutory reach. The court considered and distinguished previous decisions which had held a narrower scope, finding those decisions not binding or distinguishable on the facts and materials now before the court.
4. Compliance standard under regulation 2: Regulation 2 imposed an absolute obligation to provide exhaust draughts for hand-mixing of asbestos where practicable. The judge's finding that an exhaust system was practicable and not provided was upheld as lawful and factually supported.
5. Common law negligence (Shell): The court applied the established employer standard: the reasonable and prudent employer must take positive thought for worker safety in light of what he knows or ought to know. It is sufficient that some personal injury was foreseeable; it need not have been identified as mesothelioma. Where exposure varies and the employer knows or ought to know of potential high exposures, the employer must consider the potential maximum exposure when deciding precautions.
6. Evidence and literature: The court relied on contemporary publications (notably Merewether and Price and Chief Inspector of Factories' reports) to conclude that asbestos dust was known to be dangerous and that there was no reliable basis at the relevant time to assume the levels found were safe. The judge was entitled to find that a reasonable employer would have taken precautions or made inquiries of the Factory Inspectorate.
7. Practical guidance: In circumstances of uncertain scientific knowledge, an employer is not excused by lack of precise limits if there is established evidence that a substance or dust is dangerous and no known safe level. Employers should take precautions or seek authoritative advice where employees may experience intermittent but potentially high exposures.
8. Orders: Both appeals dismissed with costs. Consent judgments and specified interim awards for the claimants were recorded and ancillary interlocutory directions on costs and stays were made as set out in the order.

• Court of Appeal (Civil Division): Appeal from decisions of the Queen's Bench Division (Deputy High Court Judge R. Machell QC) dismissing defendants' challenges to findings of liability. This court dismissed both appeals and confirmed liability and the judge's factual findings (Hale LJ delivering the leading judgment; Cresswell J and Mantell LJ agreeing).
• Queen's Bench Division: Deputy High Court Judge R. Machell QC found Shell liable in negligence and Cherry Tree liable for breach of regulation 2 of the Asbestos Industry Regulations 1931; gave permission to appeal on liability.