Shell Tankers UK Ltd v Jeromson

Factual and Procedural Background

These appeals arise from orders made on 18 February 2000 by Mr Judge Machell QC, sitting as a Deputy High Court Judge in the Queen's Bench Division, concerning two separate actions. The claims were brought by the widows of two men who died prematurely of mesothelioma contracted during their employment. Both men had been employed by Company A in the 1950s as marine engineers. The judge found Company A liable in common law negligence. One of the deceased had also been employed by Company B in the 1940s as an apprentice fitter. The judge rejected claims against Company B in common law negligence and for breach of section 47 of the Factories Act 1937 but found them liable for breach of regulation 2 of the Asbestos Industry Regulations 1931. Both defendants were granted permission to appeal on liability, and the claimants were granted permission to appeal on the quantum of general damages, which was later agreed.

Legal Issues Presented

1. Whether the Asbestos Industry Regulations 1931 applied to the processes carried out by Company B and whether there was a breach of those regulations.
2. Whether Company A was liable in common law negligence for the exposure of employees to asbestos dust, considering the foreseeability of injury at the time.
3. Whether the risk of bodily injury from asbestos exposure was sufficiently foreseeable in the 1950s and earlier to impose a duty of care on employers.
4. The proper interpretation and scope of the Asbestos Industry Regulations 1931 in relation to incidental asbestos use outside the asbestos industry.
5. The applicability of exemptions within the 1931 Regulations to regular but limited asbestos exposure.

Arguments of the Parties

Appellant (Company B) Arguments

• The Asbestos Industry Regulations 1931 applied only to the asbestos industry and not to incidental use of asbestos in other industries.
• The definition of asbestos in the regulations referred only to raw asbestos mineral, not to asbestos products such as asbestos flock.
• The process of "mixing" asbestos should be interpreted narrowly, excluding mixing asbestos with water.
• The exemption in the regulations applied because the asbestos mixing work was occasional and limited in duration.
• There was no breach of regulation 2 because the risk of harm was not foreseeable in the 1940s and it was not practicable to take precautions against an unforeseeable risk.
• The costs order was challenged on the basis that much of the hearing concerned failed claims in negligence and under the Factories Act 1937.

Respondent (Claimants) Arguments

• The regulations applied to all factories where asbestos processes were carried out, including Company B’s operations.
• The definition of asbestos includes asbestos flock and fiberized asbestos, which was involved in the claimant’s work.
• The mixing process in question fell within the plain and ordinary meaning of the regulations.
• The exemption did not apply because the work was regular, not occasional.
• The judge correctly held there was a breach of regulation 2 as it was practicable to provide exhaust ventilation to suppress dust.
• The risk of harm from asbestos dust was foreseeable to a reasonable employer from the literature and regulations available before 1961.
• Employers had a duty to take precautions or seek advice regarding asbestos exposure even before the risk of mesothelioma was fully understood.

Appellant (Company A) Arguments

• The risk of injury from asbestos exposure was not sufficiently foreseeable in the 1950s to impose a duty of care for mesothelioma.
• The relevant risk known at the time was asbestosis, which was associated with prolonged and heavy exposure, unlike the exposure experienced by the employees.
• The appropriate standard was to consider average exposure rather than potential maximum exposure when assessing foreseeability.
• Later knowledge of mesothelioma risks should not be used to retrospectively impose liability.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Brooks v Coates [1984] 1 All ER 702	Definition of "practicable" as a precaution that could be taken without practical difficulty.	The court applied this to hold that providing exhaust ventilation was practicable and thus required under regulation 2.
Banks v Woodhall Duckham & Others (1995, unreported)	Interpretation of the scope of the 1931 Regulations and their application outside the asbestos industry.	Court distinguished the case, finding Banks not persuasive enough to override the natural meaning of the regulations in this case.
Watt v Fairfield Shipbuilding & Engineering Co Ltd 1999 SLT 1084	Scope of the 1931 Regulations limited to the asbestos industry; shipbuilding regulated separately.	Referenced as persuasive but distinguished; court found the regulations applicable here despite Watt.
Marshall v Gotham [1954] AC 360	Distinction between practicable and reasonably practicable precautions.	Cited in argument but court held the obligation under the regulation was absolute unless impracticable, not requiring reasonable practicability.
Jayne v National Coal Board [1963] 2 All ER 220	Defense of impracticability in taking precautions against unknown dangers.	Referenced in argument regarding foreseeability but court found it unnecessary to decide on this point.
Margereson v Roberts [1996] PIQR P358	Liability requires reasonable foreseeability of some pulmonary injury, not necessarily mesothelioma.	Applied to establish that foreseeability of some injury suffices for liability.
Page v Smith [1996] AC 155	Foreseeability of personal injury to a primary victim is sufficient for liability.	Applied to confirm that foreseeability of any injury, not specific injury, is required.
Stokes v Guest, Keen and Nettlefold (Bolts and Nuts) Ltd [1968] 1 WLR 1776	Standard of care for employers regarding developing knowledge of risks.	Quoted to support the principle that employers must keep reasonably abreast of developing knowledge and take appropriate precautions.
Thompson v Smiths Shiprepairers (North Shields) Ltd [1984] QB 405	Clarification of employer's duty regarding industry risks and evolving knowledge.	Used to reinforce the standard that employers must reduce exposure to the greatest extent possible despite uncertainty.
Czarnikow Ltd v Koufos [1969] 1 AC 350	Risk cannot be dismissed as far-fetched if it is reasonably foreseeable.	Applied to support that the risk of injury from asbestos exposure was not too remote to impose liability.
Gunn v Wallsend Slipway & Engineering Company Ltd (1988, unreported)	Assessment of literature and knowledge regarding asbestos risks before 1960.	Distinguished; court preferred a more cautious approach to employer’s duty than in Gunn.
Owen v IMI Yorkshire Copper Tube (1995, unreported)	Employers’ duty to reduce asbestos exposure despite uncertainties in knowledge.	Endorsed as a better formulation of the duty than that in Gunn.

Court's Reasoning and Analysis

The court first examined the applicability of the Asbestos Industry Regulations 1931 to the activities of Company B. It held that the regulations applied to any factory or workshop where the specified asbestos-related processes were carried out, regardless of whether the factory's primary business was asbestos-related. The court rejected the argument that the regulations applied only to the asbestos industry narrowly defined. It found that asbestos flock fell within the definition of asbestos and that the mixing process used by the employee was covered by the regulations. The exemption for occasional processes was interpreted strictly, requiring both occasional work and limited hours; since the employee’s work was regular, the exemption did not apply. The court applied the principle that "practicable" means capable of being done without practical difficulty and held that providing exhaust ventilation was practicable and thus required. The court considered prior case law but found the reasoning in those cases insufficient to override the natural and ordinary meaning of the regulations and supporting documents.

Regarding Company A, the court considered whether the risk of injury from asbestos exposure was foreseeable in the 1950s. It applied established negligence principles requiring foreseeability of some pulmonary injury, not necessarily mesothelioma. The court emphasized that employers must keep reasonably abreast of developing knowledge and take appropriate precautions. It accepted the judge’s factual findings that marine engineers were regularly exposed to significant levels of asbestos dust and that the literature available before 1961, including official reports and regulations, provided sufficient warning of the dangers of asbestos dust. The court rejected the argument that only prolonged heavy exposure was risky and that the risk of harm was unforeseeable. It held that the absence of knowledge about safe exposure levels imposed a duty on employers to reduce exposure as much as possible or seek advice. The court found that Company A should have identified the risk and taken precautions or sought advice accordingly.

On costs, the court affirmed the judge’s discretion, finding no error in principle despite some claims failing.

Holding and Implications

The court DISMISSED BOTH APPEALS, affirming the liability of Company A in common law negligence and the liability of Company B for breach of regulation 2 of the Asbestos Industry Regulations 1931.

The direct effect is that the claimants’ judgments and costs awards stand. Company B’s application for permission to appeal to the House of Lords was refused, with a stay of execution on certain costs pending any petition. The costs of appeal were apportioned two-thirds to Company A and one-third to Company B.

No new legal precedent was established beyond the application and interpretation of existing laws and regulations to the facts of these cases.