Judgment: 25 September 2012
Claim No. HQ12X03366
Claimant: Frank Baker
In the High Court of Justice
Defendant: Tate & Lyle PLC
Queen’s Bench Division
Judge: Master Whitaker (Senior Master)
ASBESTOS – NEGLIGENCE – DUTY OF CARE OWED BY OCCUPIER
The Court gave Judgment on liability against the Defendant as Occupier.
The Claimant was a male, aged 65 at the time of Judgment. He was 16 or 17 at the time of
exposure to asbestos. He claimed damages for mesothelioma as a result of exposure to
asbestos.
He was employed by Climax Insulation & Packing Limited as a lagger’s labourer for five
weeks during the tax years 1963-64. His employer sent him to work at the Tate & Lyle sugar
factory in Silvertown, London where the exposure to asbestos occurred.
Climax Insulation & Packing Limited no longer traded and the employer’s liability insurers
could not be traced.
The Claimant issued proceedings against Tate & Lyle PLC on the basis that it owed a duty
not to expose the Claimant to asbestos as Occupier. However, the Defendant disputed
liability as a matter of law on the ground that it never employed the Claimant and challenged
that it owed a duty as Occupier.
The Claimant, who was dying from mesothelioma, gave evidence on commission at his
home.
On 25 September 2012, at a contested show cause hearing before Master Whitaker, the
Claimant contended that the Asbestos Industry Regulations 1931 and the Factories Act 1961
both imposed specific duties on Occupiers and not just employers and that those duties
expressly tended to all the persons working at the relevant factory as follows:
Part 1 of the Asbestos Industry Regulations 1931 imposed duties on Tate & Lyle PLC, as
Occupiers. Regulation 1 of Part 1 states “An exhaust draught effected by mechanical means
which prevents the escape of asbestos dust into the air of any room in which persons work,
shall be provided and maintained for”.
Regulation 12 of Part 1 states “A young person shall not be employed in or in connection
with the manufacture of insulating mattresses, in mixing or blending of asbestos by hand, in
sack cleaning, in chambers or apparatus for dust settling or filtering, in chambers containing
loose asbestos, or in stripping or grinding the cylinders including the doffer cylinders or
other part of a carding machine”.
The other relevant sections cited of Part 1 were section 2, 2(a), 7 and 10.
In addition, the Claimant argued that section 29 (1) of the Factories Act, 1961 imposed a duty
upon the Defendant as Occupier as section 29 (1) states “There shall, so far as is reasonably
practicable, be provided and maintained safe means of access to every place at which any
person has at any time to work, and every such place shall, so far as is reasonably
practicable, be made and kept safe for any person working there”.
Sections 4 (1), 63 (1) were also cited as being relevant.
HELD:
Master Whitaker held that Regulation 1 of the Asbestos Industry Regulations 1931 and
section 29 (1) of the Factories Act 1961 imposed a duty upon the Defendant as Occupier. He
therefore ordered that unless the Defendant served evidence that it provided the Claimant
with effective breathing apparatus and effective mechanical ventilation, so as not to expose
the Claimant to asbestos, then Judgment on the issue of liability will be entered.
As the Defendant failed to provide this evidence, Judgment was entered on liability and the
case was set down for trial on quantum. The Claimant’s case settled in the sum of £205,000.
Counsel for the Claimant, Harry Steinberg of 12 Kings Bench Walk
Counsel for the Defendant, William Evans of Ely Place Chambers
Solicitor for the Claimant, Harminder Bains of Leigh Day & Co
Solicitor for the Defendant, Jonathan Shaer of Weightmans LLP