Personal injury lawBy Simon Allen, Russell Jones & Walker, SheffieldAsbestos claimsJeromson & Dawson v Shell Tankers UK Ltd and Cherry Tree Machine Ltd, Court of Appeal, 2 February 2001, Hale LJ, Mantell LJ and Creswell JThe claimant widows of the two deceased men succeeded in the High Court with damages claims arising out of their husbands deaths from mesothelioma through asbestos exposure by both of the defendants.The case was concerned with two main issues: whether the Asbestos Industry Regulations of 1931 applied to industries other than those concerned with the manufacture of asbestos products, and, secondly, whether there was a foreseeable risk of injury as a result of intermittent heavy exposure at common law before 1960.In relation to the exposure with Cherry Tree, the judge at first instance had found that the exposure was not substantial.

The Factories Act 1937 did not apply and the defendants were not in breach of their common law duties.

The claimant fell back on the Asbestos Industry Regulations.

The defendants cited the title of the regulations as the first of five reasons whey they ought not to apply to the claimants exposure, which was caused by the incidental use of asbestos in other industries.

The court held that the processes outlined in the preamble to the regulations were not limited to the asbestos industry, particularly in relation to the mixing of asbestos, which was envisaged to take place outside the factory.Additionally, the exemption to the application of the regulations that the work with asbestos must be more than occasional and over eight hours a week would be unlikely to apply to the asbestos producing industries, rather than those that use it incidental to their main business.

Once the regulations applied, the defendants had an absolute obligation to provide exhaust ventilation, which they failed to do.

The application of the Asbestos Industry Regulations 1931 to processes outside the production of asbestos is of significant importance.In terms of the first defendant, the exposure was on ships at sea and therefore there was no statutory breach.

It was argued that the defendants could not foresee a risk of injury.

The case is the first one in which the court has produced a thorough analysis of the literature on the dangers of asbestos.

Lord Justice Hale considered the Merewether and Price report of 1930 in detail, particularly in relation to non asbestos industry usage of the substance and the need to keep the exposure to a low level.

Because mesothelioma was not known about until 1960, the view was taken that only heavy and prolonged exposure to asbestos fibres created a foreseeable risk of injury in the pre-1960 period.Their Lordships accepted that rather than looking at the average exposure of workers of a certain type, in this case marine engineers, one should look to the potential maximum exposure of such workers, as an employer cannot safely assume that there will never be sufficient cumulative exposure.

The need for an employer to keep abreast of developments in relation to the health and safety of his workers is repeated and having reviewed the documentation, the court felt that the judge at first instance was correct in his interpretation of the level of exposure and the responsibility on the part of the employer to take precautions to limit the exposure, even in the period pre-1960.In pre-1960 cases where the exposure is not heavy and prolonged, this decision is important in the application of the Asbestos Industry Regulations and in reviewing the literature on the dangers of asbestos that pre-dated 1960 to help define an employers responsibilities towards workers.