Last month, judgment was handed down from the High Court (here) in the case of Heynike v Birlec Limited & Ors  EWHC 303 (QB). The ruling in this case dealt with multiple issues, namely whether the deceased was an ‘employee’ of the defendant employer; the relevant statutory provisions for asbestos exposure in the early 1970’s; the meaning of ‘process’, under s.63 of the Factories Act 1961; whether the ‘place of work’, under s.29 of the Factories Act 1961, was ‘unsafe’; and any potential engagement of a common law duty.
A claim was brought by the executor of the estate of Mr David Hill, whose cause of death, aged 63, was mesothelioma. It was submitted that the disease had developed as a result of exposure to asbestos at work.
WAS THE DECEASED EMPLOYED BY THE 1st DEFENDANT?
Facts of the Case
The deceased’s brother, John, began work for Birlec Ltd (1st defendant) in 1961, as an apprentice welder and steel erector, after which he became a supervisor. The 1st defendant was a company which designed, built, installed and maintained furnaces. It did not employ a large workforce, but instead trained up supervisors, such as the deceased’s brother, and brought in additional tradesmen under an agency contract with an outside company, called Lou Brawn (Staffs) Ltd.
The deceased was approached by his brother to work on two jobs in the 1970’s; one at the Royal Ordnance Factory and another at a Henry Wiggins factory (2nd and 3rd defendants) to extend heat treatment furnaces vertically and replace refractory linings within furnaces, respectively. In John’s words, he said:
‘Lou Brawn agreed to employ my brother [the deceased]’.
Comparatively, in the deceased’s 1st witness statement, he said:
‘We all reported to them [Birlec supervisors]. They told us what to do and how to do it, everything I did was under their instruction. We would ask them if we got stuck on any specific problem, actually we did nothing without their permission. The supervisors were familiar with the material that we used … They knew it was horrible to work with the material which is why they would not do it themselves. As far as I knew all the work I did was for Birlec’.
The deceased went on to say, in his 2nd witness statement:
‘Lou Brown exclusively provided labour to Birlec. Lou Brown set up a company which functioned solely to supply labour to Birlec Ltd … The extent of his job was provide workers to Birlec for the jobs Birlec had, and to facilitate payment of the men on a weekly basis. Birlec’s supervisors signed off the workers’ time sheets and Lou Brown then submitted these to Birlec Ltd for payment. Birlec arranged for the salaries to be distributed through Lou Brown’.
Nevertheless, the 1st defendant contended that the deceased was its employee and therefore argued that it owed him no duty of care as his employer.
High Court Decision
HHJ Curran QC considered the dearth of authorities on agency workers, all of which were cited in Smith v Carillion (JM) Limited  EWCA Civ 209, the most recent case on agency worker status. The judge deliberated whether to imply a contract of employment with the end-user (1st defendant) for services provided by the agency.
The judge considered, at paragraph 52, that:
‘For a contract of employment to be inferred between Birlec and the deceased there should be ... some words or conduct which entitles the court to conclude that the agency arrangements no longer dictated or adequately reflected how the work was actually being performed, and that the reality of the relationship was only consistent with the implication of the contract. It would be necessary to show that the deceased had been working not pursuant to the agency arrangements between Birlec and Lou Brawn, but because of mutual obligations between himself and Birlec, binding upon them both, which were incompatible with those arrangements.'
Applying the law to the facts, HHJ Curran determined that the deceased was not an employee of the 1st defendant, as discussed at paragraphs 53 to 57:
‘... There is little doubt that Birlec maintained significant control over the activities of the deceased at the material time in many of the respects referred to above. But it is also clear, and I find as a fact, that Birlec at the time when the material events occurred did not regard itself as being in a contractual relationship with the deceased, and that he himself did not regard himself as being in a contractual relationship with Birlec. To take any other view would be entirely to disregard the evidence of Mr John Hill in cross examination that Birlec at one stage offered his brother the opportunity to become an employee of the company “on the books” but that he refused that offer, for reasons which seemed good to him at the time ...
That Birlec did not regard its relationship with the deceased as contractual is also illustrated by the fact that Lou Brawn, and not Birlec, paid the deceased's wages. He was a specialist furnace bricklayer, who was highly regarded for his work as such a specialist (and, as he made clear in his first witness statement, was well paid for it.) Lou Brawn was in the business of providing specialist services which were required from time to time, but not permanently, by clients of Birlec such as the second and third defendant companies.
It was not, and is not, unlawful for companies who engage agency workers to perform tasks at their clients' factory premises to enter into contracts under the terms of which no employers' liability in law is accepted. The nature of the relationship between Birlec and the deceased is also explicable, in my view, by the contract between Birlec and Lou Brawn. The evidence was that Birlec at one stage did indeed consider offering the deceased an employment contract. It was his decision not to accept that offer. Thus no contract subsisted between them.
... I reject the submission that necessity demanded the implication of a contract of employment to ensure that the deceased had the same statutory protection in health and safety terms as if he had been an employee of Birlec’.
Held, at paragraph 59:
‘Accordingly, in my view no necessity existed for a contract of employment to be implied between the deceased and Birlec, and the implication of such a contract would not be a true reflection of the evidence’.
ASBESTOS REGULATIONS 1969 REPLACES FACTORIES ACT 1961?
The 2nd and 3rd defendants submitted that, by the time of the deceased’s asbestos exposure from 1971 to 1973, s.63(1) of the Factories Act 1961 had been substituted by Regulation 2(3) and 3(3) of the 1969 Absestos Regulations. The Absestos Regulations exempted occupiers from a duty in relation to employees of others, undertaking a ‘specified process’, who should seek redress instead from their own employer. Under the Factories Act, however, this duty was not exempted.[i]
Pursuant to section 63(1) of the Factories Act, it obliges factory occupiers to protect persons employed in factories from (McDonald v National Grid  AC 1128):
- Any foreseeably injurious dust; and
- Any substantial quantity of dust of any kind.
In Regulation 2(3) of the Asbestos Regulations, it states that:
Analysing the extent to which Regulation 2(3) applies, and its compatibility with the 2nd limb of s.63(1), which refers to dust ‘of any kind’, HHJ Curran stated:
‘... the phrase does not mean, or at least does not necessarily mean, “dust containing only asbestos fibres.” Nor does it mean, or at least does not necessarily mean, “dust which consists mostly of asbestos fibres” nor “dust which contains any asbestos fibre”’.
He went on to say:
‘There is, it seems to me, no doubt that that definition might include both dust which consists simply of asbestos and nothing else, and dust which contains some asbestos but also contains dust of any other substance. It would have been perfectly possible for the word “any” to have been inserted after the word “containing” and to have omitted the whole of the following phrase “to such an extent as is liable to cause danger to the health of employed persons.” However, the draftsman did not leave the definition in such simple terms, and since that was not done, it is necessary to understand what the actual definition means’.
In 1969, there was still uncertainty as to the degree of danger associated with small concentrations of airborne asbestos dust. As such, the judge ruled that:
‘... counsel for the claimant and for the first defendant are correct in their submissions in regard to the interpretation of the phrase "asbestos dust" in Regulation 2(3): i.e. it meant dust which contained asbestos to such an extent as might (according to the standards of the times to which the Regulations applied) foreseeably have caused danger to health. The court is concerned, of course, not with the knowledge of a reasonably well-informed factory occupier today, but with the knowledge of a reasonably well-informed factory occupier in 1971’.
In Regulation 3(3) of the Asbestos Regulations, it states:
Here, the judge opined:
‘That express provision [Regulation 3(3)] is in clear contradiction of the submission made on behalf of the second and third defendants that the regulations were intended by Parliament to be in complete substitution for the provisions of section 63(1)’.
As a consequence of s.63 surviving the introduction of the 1969 regulations, ‘the second and third defendants were prima facie in breach of statutory duty to the deceased, subject only to the “any process” point raised by the second defendant.
FACTORIES ACT SECTION 63 – ‘PROCESS’?
The judge was asked to consider the work conducted at the 2nd defendant’s premises, as the 2nd defendant contended that the type of work undertaken by the deceased was ‘one-off building work rather than any form of routine work or maintenance’. Did this amount to a ‘process’, as defined by s.63(1), engaging statutory liability? The judge considered that:
‘In the present case there was a process which went on for weeks, supervised by the second defendant’s officials, solely for the purpose of allowing the production of up-to-date military equipment. Simply because the work was analogous to building work in certain respects does not mean in my view, that it is not “a process” for the purposes of the legislation’.
He went on to rule:
‘... that work the deceased did at the Royal Ordnance Factory was a “process” for the purposes of the 1961 Act, and that the second defendant cannot avoid liability on the basis that it was not’.
FACTORIES ACT SECTION 1961 SECTION 29 – SAFETY WITHIN THE ‘PLACE OF WORK’?
The 2nd and 3rd defendants also contended that the ‘place of work’, under s.29(1), was ‘unsafe’, as none of the work carried out by the deceased was ‘constant, regular or recurring’. Per Lord Widgery CJ, in Evans v Sant  QB 626 DC, the nature of the operations were relevant to the judge’s finding of whether the ‘place of work’ was ‘unsafe’.
The defendants argued that the creation of a dust hazard was ‘peculiar to the work of the first defendant’ which amounted to ‘occasional’ maintenance in the case of the 3rd defendant, and even more sporadic maintenance in the case of the 2nd defendant. As such, dust exposure was alleged to be an ‘abnormal and time-limited feature’ of the 1st defendant’s operations.
However, the claimant argued that furnace maintenance was ‘necessary and intrinsic’ to the work which was performed at the 2nd and 3rd defendants’ premises. The claimant further adduced the House of Lords decision, in Nurse, which rejected the submission that ‘process’ regarded some continuous activity regularly carried on within a factory and instead included ‘any operation or series of operations being an activity of more than minimal duration’.
At paragraph 123, the judge, on this 4th submission, ruled:
‘... there were clear breaches of section 29. The use of furnaces within both the second and third defendants’ factory premises was absolutely necessary and intrinsic to the work which was performed there. Furnaces which are in regular use will from time to time require maintenance, refurbishment or modernisation. If circumstances change so that the design or construction of manufactured components require change, then plant or equipment, such as a furnace, use of which is made in manufacturing the same, will also require alteration. There is no requirement that any process must be a continuous or constant activity. On the evidence the deceased’s work on the furnaces went on, on a daily basis, for very long shifts over many weeks. Whilst this was a more regular operation at the premises of the third defendant than at those of the second defendant, the difference was only one of degree. The only interruptions of the work at any of the factory defendants’ premises were the regular breaks which the deceased and his workmates needed to take as breathing spaces because of the amount of dust created by the work’.
COMMON LAW DUTY?
The claimant also put forward an alternative, common law basis of liability, arising out of the 1st, 2nd and 3rd defendants’ knowledge the deceased’s hazardous work, which necessitated intervention and the adoption of appropriate precautions. It was argued that, as a result of this knowledge, duties were owed in respect of supervision and control, which had been breached. The defendants contended that liability could be attached to a factory owner or occupier, where a 3rd party contractor was engaged to carry out work. On this, the judge ruled:
‘The occupier of factory premises ... is expected to know whether, for example, any process is likely to result in the production of substantial quantities of dust, and if it does, to take precautions both for those who are employees and for others who work in the factory who may not be employees. Even if that were not a statutory duty, work which can be seen to result in production of clouds of dust is work which creates an obvious source of risk to the health of anybody within the factory, and the nature of the risk is one which the factory owner or occupier is required by statute to know and to guard against. It would be the same if an independent contractor were brought in to do a specialist task which created excessive noise. In both instances, as occupier or owner of the premises within which it conducts its business the factory occupier has control over the premises and authority to dictate what is and what is not done within them.
The evidence of excessive amounts of dust being produced in the work being done upon their furnaces at both factory defendants’ premises was quite clear not only to Birlec’s supervisors, but to the factory defendants’ own supervisory staff, including their safety officers. Birlec were clearly in breach of their duty of care to the deceased, and no argument is made to the contrary. An obvious risk to health and safety generally was being created by Birlec within the second and third defendants’ own factory premises. In those circumstances a duty of care may properly be said to have arisen at common law, and on the evidence the factory defendants were in breach of that duty. It is no defence, in my view, for the factory defendants to say in the face of the obvious hazard created by the dust that they had engaged Birlec as specialist contractors, when they had the power to intervene to deal with it, but failed to do so. It would not be an overstatement of the position to say that in such circumstances their conduct amounted to that of joint tortfeasors’.
[i] Philip Turton, Briefing Note – Asbestos Litigation’ (January 2018 Ropewalk) <https://www.ropewalk.co.uk/wp-content/uploads/2018/01/PT-Briefing-Note-Asbestos-Litigation-.pdf> accessed 22 March 2018.