ASBESTOS RESPIRATORY DISEASES - FORESEEABILITY OF RISK OF HARM

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ASBESTOS RESPIRATORY DISEASES – FORESEEABILITY OF RISK OF HARM

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ASBESTOS RESPIRATORY DISEASES – FORESEEABILITY OF RISK OF HARM

[Factory and Workshops Act 1901s.79; Asbestos Industry Regulations 1931 (SI 1931 1140) Reg.2]

S appealed against finding that it was liable in negligence for the deaths of two former employees, J and D, who had contracted mesothelioma following prolonged exposure to asbestos. C, who had employed D for a period of four years prior to his employment with S, appealed against the finding that it was in breach of its statutory duty, pursuant to the Asbestos Industry Regulations 1931 Reg.2, to provide an exhaust draught to suppress asbestos dust.

It was submitted that (1) S had not acted negligently in failing to take precautions to protect J and D, and (2) C was not in breach of the Regulations since they applied only to the “asbestos industry” and C’s use of asbestos had been merely incidentals to its business.

Held, dismissing the appeals, that (1) that trial judge had been entitled to conclude that the risks of flowing from exposure to asbestos had been sufficiently foreseeable at the relevant time, such that S should have taken appropriate precaution, and (2) it was clear from the Factory and Workshop Act 1901 s.79 under which the Regulations were made, that the Regulations were intended to apply to any factory or workshop where a process involving the manipulation of asbestos was used, and there was no reason not to attribute a natural and ordinary meaning to the words used in that section.

Banks v. Woodhall Duckham Ltd (No 1) (Unreported, November 30, 1995), [1996] C.L.Y 2990 considered.

Further, C was not exempt from the Regulations, as D’s involvement in the manipulation of the asbestos could not be described as “occasional”. Correctly construed, “occasional” was something which occurred casually or intermittently and regular work could not be described as such.

SHELL TANKERS UK LTD v. JEROMSON: CHERRY TREE MACHINE CO LTD v. DAWSON; SHELL TANKERS UK LTD v. DAWSON [2001] EWCA Civ 101, The Times, March 2, 2001, Hale, L.J.CA

“Current Law” March 2001

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