Heynike v 00222648 Ltd (Formerly Birlec Limited) & Ors (Fatal Mesothelioma)

A genuine agency arrangement does not justify implying a contract of employment between a supplied worker and the end-user. Such a contract may be implied only where the agency arrangements no longer explain the work and mutual obligations between worker and end-user are necessary and incompatible with those arrangements.

Under section 63(1) of the Factories Act 1961, the duty concerning any substantial quantity of dust is distinct from the duty concerning dust foreseeably likely to cause injury. The Asbestos Regulations 1969 substituted only the part of section 63(1) concerning measures against defined asbestos dust.

A process need not be continuous or directly connected with the factory’s principal product. A factory occupier may owe a common-law duty where an independent contractor creates an obvious health hazard on premises under the occupier’s control.

The claimant, as executor of David Hill’s estate, brought a liability claim for fatal mesothelioma caused by occupational asbestos exposure in the early 1970s. Mr Hill performed furnace maintenance and refurbishment work at factories occupied by the Ministry of Defence and Special Metals Wiggin Ltd. The work was arranged through Birlec, which obtained labour from Lou Brawn.

Causation and damages were agreed. The issues were whether Mr Hill was an employee of Birlec; whether the Asbestos Regulations 1969 had wholly substituted section 63(1) of the Factories Act 1961; whether the Royal Ordnance Factory work was a statutory process; whether the workplaces were unsafe under section 29(1); and whether the factory defendants were liable at common law.

1. Employment status. No contract of employment between Mr Hill and Birlec was implied. The arrangements between Mr Hill and Lou Brawn, and between Lou Brawn and Birlec, were genuine and accurately reflected the parties’ relationship. The evidence did not show mutual obligations between Mr Hill and Birlec which were incompatible with those arrangements. The fact that Birlec controlled much of the work, supplied equipment and supervised activities did not make implication necessary. Statutory health and safety duties could apply without a direct contract of employment.
2. Section 63(1). The subsection contains two distinct limbs. The first concerns dust or other impurity foreseeably likely to be injurious. The second concerns any substantial quantity of dust of any kind and requires a purely quantitative assessment. Regulation 3(3) of the Asbestos Regulations 1969 substituted only the measures concerning defined asbestos dust. It did not remove the continuing duty concerning any substantial quantity of dust.
3. The expression “asbestos dust” in regulation 2(3) meant dust containing asbestos to an extent which might, judged by contemporary standards, foreseeably cause danger to health. The court rejected the submission that the Regulations wholly replaced section 63(1). On the admitted evidence, the factory defendants were prima facie in breach of the surviving statutory duty.
4. Process. The furnace-extension work at the Royal Ordnance Factory was a process for the purposes of section 63. The statutory phrase “any process” required no intimate connection with the factory’s manufactured product, and the activity need not be continuous or routine. The work lasted for weeks, was performed under supervision and was necessary to enable the manufacture of longer tank barrels.
5. Place of work. The factory defendants were in breach of section 29(1). Furnaces were intrinsic to their manufacturing activities and required maintenance, refurbishment and modernisation. The relevant work occurred daily, over long shifts and for many weeks. A process need not be permanent, constant or uninterrupted for the resulting conditions to make the place of work unsafe.
6. Common-law liability. The factory defendants were not mere occupiers comparable with an ordinary householder. They controlled the premises, had supervisory and safety staff, could see or should have appreciated the clouds of dust, and had power to intervene. Their failure to act in the face of an obvious and excessive health hazard created a duty of care and constituted a breach. Their conduct could properly be characterised as that of joint tortfeasors. The court found liability against the factory defendants. Further submissions on apportionment were invited.