Neutral Citation no.[2001] NICA 46	Ref:  	CARF3443	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	19.10.2001	
(subject to editorial corrections)	 	 	

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 
 
BETWEEN
 
HENRY DOGGART PATTERSON
 
(Plaintiff) Respondent;
 
-and-

HARLAND AND WOLFF plc 
 
(Defendant) Respondent;
 
-and-

APV plc
 
(Defendant) Appellant.
 
_____ 
 
CARSWELL LCJ
 
            Henry Doggart Patterson, a man now aged 77 years, worked for many years as a sheetmetal worker.  In the course of his work he was exposed over periods of time in the employment of the respective defendants to the risk of inhalation of asbestos dust and fibres (referred to collectively in this judgment as “dust”).  In later life he was diagnosed as suffering from asbestosis caused by the inhalation of such substances, which has brought about a deterioration in his health.  He brought proceedings against the defendants for damages for negligence and breach of statutory duty, and in a reserved judgment given on 24 November 2000 Campbell LJ, sitting in the Queen’s Bench Division, awarded damages against both defendants of £29,328.88 plus interest, together with costs.  The judge apportioned liability between the defendants in the ratio of 75 per cent against Harland and Wolff plc (H & W) and 25 per cent against APV plc (APV).  By notice of appeal dated 15 December 2000 APV appealed against the apportionment, claiming that all the liability should be borne by H & W or alternatively that APV should bear a lesser proportion than 25 per cent.  The plaintiff did not take any part in the appeal.
            The first material spell of employment was when the plaintiff was an apprentice sheetmetal worker with H & W for three years and nine months commencing in 1940.  He was engaged in the manufacture of ducting from metal plate in the construction of ships, working long hours during wartime.  From time to time the work included the cutting of asbestos sheets with a guillotine and filing the rough edges.  This process created dust which got on to his overalls.  He had received no instructions or warnings about any risks involved in working with asbestos, and so, like all his fellow-workers, he thought nothing of it and simply brushed it off.  At other times when he was working on board ship he was in the vicinity of laggers, who were so heavily coated in asbestos dust that they were colloquially known as “whitemen”.  When working near these men the plaintiff was exposed to more dust.
            The second material period of the plaintiff’s employment was also with H & W, for approximately nine months as he completed his apprenticeship.  The plaintiff stated in evidence that there was not really any exposure to asbestos dust during this period.  The third period was one of five months’ employment in 1960-91 with Thermotank Insulation (Thermotank), to which APV is successor.  That work was aboard the Canberra, then in process of construction.  Most of the plaintiff’s work consisted of installing trunking, but he said in evidence that for about 10 per cent of his time he was involved in fixing asbestos sheets, though he admitted that he might have been mistaken about this.  By letter dated 27 April 2000 the plaintiff’s solicitors informed the solicitors for APV that “Thermotank did not give him asbestos to cut or work with directly”.  Counsel for APV submitted at the hearing before us that the judge should not have allowed the plaintiff to give evidence of such direct exposure, in the light of the contents of that letter, but we did not accept that submission.  It was not disputed that he was exposed to asbestos dust in consequence of work carried out by other sub-contractors on the ship, of whom there were very many, and the judge found that that was the substantial exposure during this period of employment.  As in his earlier employment with H & W, there was no exhaust ventilation, nor was the plaintiff provided with any mask or respirator or given any warning about inhalation of asbestos dust.
            The judge carefully examined the respective periods of employment and the relative intensity of exposure in each to the risk of inhalation of asbestos dust.  He concluded that on a time-intensity basis the apportionment between the defendants should be 75 per cent to H & W and 25 per cent to APV.  That apportionment was not itself the subject of challenge on appeal.  The issues which were argued by Mr Ringland QC on behalf of APV were –
1.	whether the judge was correct in finding that APV was negligent, which turned on the extent of its knowledge or means of knowledge of the risk involved in the inhalation of asbestos dust; 
2.	if the answer to question 1 was Yes, whether the judge was right to apportion liability on a straight time-intensity basis or whether a larger percentage should be attributed to H & W. 
The judge held that H & W was in breach of its statutory duty towards the plaintiff contained in section 48 of the Factories Act (Northern Ireland) 1938 and also guilty of negligence.  That statutory duty did not apply to Thermotank, which was not the occupier of the plaintiff’s place of work, and the case against that defendant turned upon negligence.  It was common case that Thermotank did not take any precautions, and its liability turned upon whether it had sufficient knowledge or means of knowledge of the risk to place it under an obligation to take reasonable precautions for the plaintiff’s safety.  
            The judge referred to the well known statement of the law by Swanwick J in Stokes v Guest, Keen & Nettlefold (Bolts & Nuts) Ltd [1968] 1 WLR 1776 at 1783, which has been cited with approval many times:
“… the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than average or standard precautions.  He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probable effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve.  If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
 
            In his judgment the judge cited a number of publications, referred to in his evidence by the consulting engineer Mr Cosgrove, from which he concluded that a reasonable employer engaged in the business carried on by Thermotank should have known of the risk by 1960:
(a)               A report from the factory inspectorate in 1898 contained a reference to asbestos as being “necessarily injurious in a greater or less degree according to the constitution of the persons”.  
(b)               The 1907 report of the inspectorate stated that “there seems to be no question that asbestos fibre is of a kind likely to injure the lungs.”
(c)                A Home Office inquiry in 1928 led to the publication in 1931 of a report by Dr ERA Mereweather and Mr CW Price entitled Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry”.  The risks with which the report dealt were those involved in direct contact with asbestos, and it did not deal in terms with indirect exposure arising from proximity to other workers carrying out operations giving rise to the emission of asbestos dust in the atmosphere.
(d)              There followed the Asbestos Regulations 1931, which applied in England.  No equivalent regulations were passed in Northern Ireland.
(e)               There was correspondence in the early 1940s between the Chief Inspector of Factories and the asbestos and shipbuilding industries.
(f)                 In August 1945 the Chief Inspector advised shipbuilders on the dangers from asbestos insulation.  This advice included indirect risks from working near other sources of asbestos dust. 
(g)               In 1951 there was published the inspector’s report for the year 1949, in which he said:
“Those firms which have had long experience with the product and realise how the incidence of asbestosis arises are fully alive to the many problems involved, and from the inspection point of view, it is very necessary to keep an ever watchful eye for the new use of asbestos in some manufacturing and other processes, for example on ships or buildings where work may be undertaken by someone not fully realising the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.”
 
There is also a reference in the same report to the use of “portable asbestos spraying plants by contractors on ships and buildings” and to the risk to health unless proper precautions were taken. 
On this evidence the judge held in relation to Thermotank:
“In 1960, when Mr Patterson began work with Thermotank who were not shipbuilders but sub-contractors, they too were required to provide a safe working environment and this would have included protecting them from dust that was injurious to health.  Mr Cosgrove said that from 1950 onwards there were consultants available to advise on the nature of the dust to which workers were exposed so it was simple for them to discover that the large quantities of dust were asbestos if they did not know already.  His evidence was that from the mid 1950’s they should have been aware of the risk from asbestos dust in the atmosphere.  Asbestos Regulations were not introduced in Northern Ireland until 1969 however by 1960 I consider that Thermotank ought to have been aware of the serious risk to health from asbestos dust if they were keeping abreast with the current state of knowledge.  The inspectors report published in 1951 that I have quoted had then been in the public domain for nine years.  No step was taken by Thermotank to provide protection for its employees and they too are responsible for any damage that Mr Patterson has suffered as a result of exposure during the time that he was in their employment, at common law.”
 
            Mr Ringland             submitted that this conclusion was not justified on the evidence before the judge.  He pointed to the judgment of Sir Maurice Drake sitting in the Queen’s Bench Division in Smith v P & O Bulk Shipping Ltd [1998] 2 Lloyd’s LR 81, in which the judge held, after reviewing the same documents, that it could not be said that a reasonable shipowner would or should have known by 1971 that there was a danger to those not working directly with asbestos, so that precautions should have been taken to avoid or lessen that danger.  We have considered the review carried out by Sir Maurice Drake in that case, but do not feel constrained to make any comment on its correctness.  We think it sufficient to say that on the evidence which was before the judge in the present case he was justified in holding that a reasonable employer in the position of Thermotank, working regularly on board ship in close proximity to other persons engaged in operations concerned with building ships and as an integral part of shipbuilding, should have known of the risk by 1960 and acted to take some steps to minimise harm to his employees.
            The major question on which the argument before us centred was the contention that H & W should have been fixed with a larger share of liability  than that which resulted from a straight time-intensity calculation.  The ground on which this contention was based was that H & W was the occupier of the Canberra and was responsible for the co-ordination of the work of a very large number of sub-contractors.
            Mr Ringland argued that H & W was in this case rather more than a mere occupier.  It was in control of the working operations of a host of sub-contractors on board the Canberra, including the laggers who created the dust inhaled by the plaintiff when he was working for Thermotank.  He submitted that this brought H & W into the category of the main contractor in the much-quoted (though not often applied) case of McArdle v Andmac Roofing Co [1967] 1 All ER 583.  In that case the Court of Appeal upheld a decision apportioning liability in equal shares between two sub-contractors and the main contractor.  The plaintiff, who was employed by one of the sub-contractors, fell through an aperture made by the other sub-contractor and left unguarded during a lunch break.  The basis for holding the main contractor partly to blame appears clearly from the judgment of Edmund Davies LJ at page 591, where he sets out that the sub-contractors were both small concerns supplying labour only, who were engaged and supervised by the main contractor’s engineer, a person accepted as the co-ordinating authority on the site.  On occasions he directed not only what was done but how and when it was to be done.  The factual situation in McArdle v Andmac was very different from that pertaining on board the Canberra, and there is at least a flavour in the case that the labour only sub-contractors were in reality akin to employees of the main contractor.  
The present case bears some resemblance to Babcock International Ltd v National Grid Co plc (2000, unreported), in which Eady J dismissed a contribution action brought by the employer of a welder who had died of mesothelioma caused by inhalation of asbestos dust and fibres in the course of his work between 1953 and 1955 in large power stations.  The employer sought a contribution to the damages paid from the successor to the Central Electricity Generating Board, on the ground that as owner or occupier of the power stations it should have taken steps to minimise the risk of inhalation of asbestos dust and fibres emitted during the course of working operations carried on by other contractors on site.  The judge held that it was reasonable to expect the various specialist firms, all of whom were substantial concerns, to take care of their staff to protect them against the risk arising from asbestos lagging, of which persons of responsibility in the construction industry would by then have been aware.  
It is apparent that Campbell LJ, to whom the decision in Babcock International Ltd v National Grid Co plc was cited, accepted the principle expressed by Eady J in that case and declined to impose any liability on H & W over and above their share on a time-intensity basis.  He held at page 17 of his judgment that H & W was entitled to expect Thermotank to take care of its staff.  He said:
“If they were unable to protect their employees from this dust then it was for them to bring this to the attention of Harland and Wolff as occupiers of the ship and ask for assistance to control it.”
 
            We do not consider that the analogy with Babcock International Ltd v National Grid Co Plc was complete.  H & W was the main contractor for the construction of a very large vessel, and it brought on board a host of sub-contractors with very many employees.  This in our view places a more direct responsibility on H & W than that which rested upon the CEGB as owner or occupier of the power stations, who entrusted the work to competent contractors.
            While we have held that Thermotank should have taken some steps to minimise the risk to its employees, we do not regard the sole responsibility to protect those men as having rested with Thermotank.  H & W brought sub-contractors on to the site to do work which it knew or ought to have known would create a risk to all employees in the vicinity of the asbestos cutting.  The plaintiff was exposed to dust created by other sub-contractors as well as that which came from his own work.  We are of the opinion that on the facts of the case there was a duty upon H & W to take steps to minimise the risk to the sub-contractors’ employees, by taking such precautions as providing ventilation, exhaust appliances and co-ordinating dust control among the various trades and firms engaged on the vessel.  We consider accordingly that there was a concomitant liability on H & W towards the plaintiff along with Thermotank.  We would divide that equally between them, with the result that we would increase the share of overall liability imposed upon H & W to 87½ per cent and reduce that imposed on APV to 12½ per cent.
That is not to say, however, that a court should reach the same conclusion in every case arising out of work on board ships or in any other place of work.  We cannot express a universal principle applicable to all such situations.  It will depend on the facts of each case whether the occupier, shipowner or main contractor, as the case may be, should properly be held liable for a contribution to the damages payable for injury to a sub-contractor’s employee.  We can go no further than to state that in the present case we consider that H & W should be held liable on the basis which we have set out to contribute to the damages payable by APV to the plaintiff, beyond its assessed share on the straight time-intensity basis.
            We allow the appeal and vary the assessment of liability accordingly.  

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
_____ 
 
BETWEEN
 
HENRY DOGGART PATTERSON
 
(Plaintiff) Respondent;
 
-and-

HARLAND AND WOLFF plc 
 
(Defendant) Respondent;
 
-and-

APV plc
 
(Defendant) Appellant.
 
_____ 
 
J U D G M E N T
O F
CARSWELL LCJ
 ________