Hawkes v Warmex Ltd

Where a claim depends on proving asbestos exposure from a particular material, the claimant bears the burden of proving that material’s asbestos content on the balance of probabilities. The Asbestos Industry Regulations 1931 focus on specified processes, rather than simply every activity involving asbestos. The manufacture of a product using asbestos textile is not necessarily the manufacture or finishing of asbestos textile. Under section 47 of the Factories Act 1937, the duty is engaged through a staged inquiry concerning injurious or offensive dust, substantial dust, practicable protective measures and whether those measures were taken. The common-law duty is assessed by the knowledge and practice reasonably available at the time. Mesothelioma itself need not have been foreseeable if asbestos-related injury was foreseeable.

The claimant, the executor of Mrs Doris Hawkes’s estate, claimed damages for mesothelioma allegedly caused by asbestos exposure while Mrs Hawkes made electric blankets for Warmex Ltd between 1946 and 1952. The central factual issue was whether the blankets’ inner linings were made of asbestos. The claim also alleged breaches of the Asbestos Industry Regulations 1931, section 47 of the Factories Act 1937 and the common-law duty of care. Causation and damages were agreed, subject to breach. The court also considered the legal consequences on the assumption that the inner linings were asbestos.

1. Factual issue and disposition. The claimant failed to prove on the balance of probabilities that the inner linings were made of asbestos. The patents, later blanket testing and other documentary evidence more convincingly indicated asbestos insulation around the wire itself. The claim therefore failed.
2. Asbestos Industry Regulations 1931. Applying McDonald v National Grid Electricity Transmission plc [2014] UKSC 53, the Regulations apply broadly to factories where one of the specified processes is carried on, even if the factory is not primarily engaged in manufacturing asbestos. However, paragraph (ii) of the preamble, read with the definition of asbestos textiles, concerned the manufacture or finishing of asbestos yarn or cloth. Stitching or threading wire through asbestos textile, and handling it for that purpose, did not fall within that process. Had the Regulations applied, regulation 1(d) would have required mechanical exhaust ventilation for the hand manipulation of asbestos.
3. Section 47 of the Factories Act 1937. The staged approach stated in McDonald v National Grid Electricity Transmission plc required consideration of: whether dust was injurious or offensive; alternatively, whether a substantial quantity of dust was given off; whether practicable protective measures existed; and whether they were taken. “Substantial” meant a considerable quantity of dust when given off, not merely dust accumulated over time. On the assumed facts, the evidence did not establish substantial dust.
4. Common law and first limb of section 47. The common-law test in Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1WLR 1776 required assessment by reference to the reasonable and prudent employer’s knowledge and practice at the time. Following Jeromson v Shell Tankers [2001] EWCA Civ 101, asbestos-related injury, rather than mesothelioma specifically, was the relevant foreseeable injury. On the assumed facts, more than minimal visible dust and asbestos particles would have required consideration of practicable precautions or advice. The absence of precautions would have breached both section 47 and the common-law duty.

First-instance decision. No prior appellate decision was stated in the judgment.