This is an appeal by Harland and Wolff Plc and Harland and Wolff Holdings Plc (Harland &Wolff) against the decision of Morland J handed down on 26 March 2004 at Manchester, holding them liable to Teresa Maguire, a lady then in her late sixties, for personal injuries and consequential loss and damage.

Mrs Maguire married her husband, James, on 23 December 1961. She became ill in 2000. Mesothelioma was diagnosed. Her condition steadily deteriorated, and sadly, in May 2004, shortly after Morland J’s judgment in her favour, she died. Her husband, who cared for her throughout her illness, now continues this action as her personal representative.

When Mr and Mrs Maguire began married life he worked as a boiler-maker at Harland & Wolff’s shipyard in Liverpool. This employment continued until 1965, but ended before April that year. It is conceded by Harland & Wolff that during the course of his employment, Mr Maguire suffered fault exposure to asbestos-containing dust (asbestos dust). Fortunately his employer’s breach of statutory duty and negligence has not produced ill-health in him and he has made no personal claim for damages.

Mrs Maguire was not employed by Harland & Wolff. They therefore owed her none of the specific duties which are owed by an employer to an employee. In essence the claim on her behalf arises from her own exposure to the asbestos dust brought to their home at the end of each working day by her husband. This “familial” or secondary exposure to asbestos dust, which had its source at her husband’s place of work, caused the illness which culminated in her death.

At trial Morland J addressed the question whether, given the state of actual or imputed knowledge in the period 1961-1965, Harland & Wolff ought reasonably have foreseen that Mrs Maguire was at risk of pulmonary injury, not necessarily mesothelioma, from the amount and frequency of exposure to asbestos dust. He concluded that they should have done so, commenting:

This decision is irreconcilable with the reasoning of Waterhouse J in Gunn v Wallsend Slipway and Engineering Company Ltd, unreported, 7th November 1988, who, on very similar facts, concluded:

The hearing before Morland J was completed in a single day. No oral evidence was given. The judge was presented with agreed bundles of documents. Mrs Maguire herself was unfit to attend the hearing, and her husband’s responsibilities as her carer meant that he, too, was unable to do so. Written statements were provided by both Mr and Mrs Maguire. The judge was asked to consider and attach whatever weight he thought appropriate to them. There was, however, no evidence to contradict these statements, and the judge could find no reason to believe that the recollections of Mr and Mrs Maguire were either exaggerated or inaccurate.

The starting point is Mr Maguire’s statement, where he describes conditions at work. He said:

On this evidence it was not in dispute that Mr Maguire personally would have established negligence and breach of duty against Harland & Wolff. However, it is accepted that the present claim cannot succeed on the basis that Mr Maguire would successfully have established breach of the duty owed to him as an employee, and that fairly simple precautions which would have reduced the extent of his exposure would simultaneously have reduced that of his wife. Her claim is independent of any claim for personal injury which might have been brought by him.

Mr Maguire’s statement dealt with the impact at home of the conditions under which he was working. As he had nowhere at work to change, he travelled to and from his employment in his working clothes. His statement continues:

Mrs Maguire described the consequences of her husband’s employment on her daily routine, and on their home. She said:

Some forensic energy was deployed before us which was intended to demonstrate the relatively gross or, alternatively, the relatively minor extent of the exposure to asbestos dust suffered by Mrs Maguire. Some 40 years later this exercise was inevitably inconclusive. What can be said with confidence is that Mrs Maguire sustained a series of peak exposures, rather than a persistent, constant exposure of the kind suffered by Mr Maguire himself. These coincided with her husband’s return from work and the arrangements by which she shook and then cleaned and washed his working clothes. Some degree of contamination would also have been brought into and remained in their home. However the expert witnesses were unable to attach any specific importance to it, and agreed that it represented “a source of background contamination”.

Mrs Maguire’s statement was analysed by Mr Clark, the consultant engineer called on her behalf. He summarised the extent of Mrs Maguire’s exposure to asbestos dust as follows:

In their joint statement for the court, agreed between Mr Clark and Mr Beauchamp, the consultant engineer for Harland & Wolff, the experts referred to an experiment, involving two sets of contaminated overalls worn by two employees of a company with a factory in Rochdale, reported in an internal memorandum dated 7th April 1970. The memorandum itself is included in our papers. On the face of it, this was indeed an experiment rather than research. The short note of the result begins: “Purely as a matter of interest I did some dust tests on two sets of overalls …” The clothes were worn by two individuals who were examining the inside of a dust extraction plant. Inevitably therefore the clothes were very dusty. They were shaken for about 15 to 20 seconds. The joint experts think it likely that the overalls were indeed deliberately shaken for the purpose of testing, and that they were shaken shortly after being removed by the original wearers. The results of these tests translated into the facts of the present case produced this agreed observation:

I suspect that the experts themselves would agree, and certainly I intend no criticism of them, that their conclusion about the extent and level of exposure suffered by Mrs Maguire states the obvious. They agreed:

On the basis of this evidence Morland J found that Harland & Wolff “must have known that Mr Maguire would transport home each day from work varying quantities of asbestos to some of which his wife would be exposed. They must have known that the descriptions in Mr and Mrs Maguire’s statement would have been typical among similar employees in the period of 1961-1965.” As far as they go, these findings could not be, and were not challenged.

In summary, the essential question then posed by Morland J was whether it was fair to have expected Harland & Wolff to have addressed what we now know to have been the serious risk to the health of the wives of employees like Mr Maguire. “Was the risk to her and others in her position reasonably foreseeable in the period 1961-1965? If so, what steps could Harland & Wolff have been expected reasonably to have taken in that period?” He concluded, first, that the risk was indeed reasonably foreseeable and also that Harland & Wolff never considered or reflected on it, and, second, that elementary and simple precautions, such as changing rooms at work, and sensible showering and laundry arrangements, would have ensured that Mr Maguire returned home from work without wearing dust-infested clothing. Accordingly Harland & Wolff were liable to her.

The essential submission by Mr Charles Feeny on behalf of Harland & Wolff is that the judge was not entitled to conclude the risk of injury to Mrs Maguire was indeed reasonably foreseeable at any time before Mr Maguire stopped working for them in early 1965. She did not fall within the category of those who at that time might reasonably be considered at risk of injury from exposure to asbestos dust, and in any event, in the light of contemporaneous knowledge, the level of exposure she suffered would not have been sufficient to enable an employee to succeed with a claim for negligence at common law. For this purpose, Mr Feeny underlined the distinction between a potential claim by an employee at common law, and one based on breach of statutory duty. In essence, Mr Feeny submitted that before October 1965 it would not reasonably have been appreciated by employers like Harland & Wolff that people in the position of Mrs Maguire, that is family members of their employees, were at risk of injury from secondary exposure to asbestos dust. Hence their failure to prevent or reduce her exposure was not negligent.

On behalf of Mrs Maguire, Mr David Allan QC conceded that there was insufficient evidence to enable the judge to find that Harland & Wolff (and he made clear that he was specifically limiting his concession to Harland & Wolff) should have foreseen that Mrs Maguire was at risk of mesothelioma. However, on the evidence, a reasonably prudent employer of someone doing the work done by Mr Maguire would have foreseen that his wife was at risk of pulmonary injury. Mr Allan accepted that Mrs Maguire’s claim could not succeed if the extent of her exposure to asbestos dust would not have constituted fault exposure at common law if an employee at Harland & Wolff’s premises had been exposed to the same extent, and further, that the post 1960 documents did not assist him to establish the case against them. However he contended that if Harland & Wolff had properly given their minds to the risks, as they should but did not, then by not later than 1960 they would have appreciated that someone in Mrs Maguire’s position was indeed at risk of pulmonary injury caused by her personal exposure to asbestos dust brought home by her husband.

The respective submissions require an analysis of the relevant material which bears on the state of knowledge of risks associated with exposure to asbestos dust, as the knowledge developed and became available.

Perhaps the starting point is a broad generalisation. When considering criticisms of actions and omissions forty years ago we have, always, to warn ourselves against the wisdom of hindsight, and recognise the potential unfairness of using knowledge accumulated during the last forty years which, by definition, was not available to the defendants. It has taken a very long time indeed for the true extent of the dreadful risks posed by exposure to asbestos dust to become known. As we shall see, the learning process has been gradual, beginning with those most obviously at risk, employees whose work directly involved such exposure. Morland J himself accepted that:

A very substantial bundle of relevant literature was included in our papers. I shall summarise what seem to be its most significant features. Approaching it in chronological order will serve to demonstrate the gradual development of knowledge and understanding of the pernicious consequences of exposure to asbestos dust.

I need not address any of the literature before 1930. In what appears to have been a seminal report, Report on the effects of Asbestos Dust on Lungs and Dust Suppression in the Asbestos Industry, Merewether and Price established a clear link between chronic exposure to asbestos dust and the onset of asbestosis. The research was confined to asbestos textile workers, but explained that workers in other industries, exposed to asbestos dust, were also at risk. The serious nature of the risk was explained in the annual Report of the Chief Inspector of Factories for 1929. Asbestosis could of itself “lead to complete disablement and finally to a fatal termination …”. During the 1930s it gradually became accepted that continued exposure to “heavy concentrations of asbestos dust” carried “certain and grave risk”. In 1933 specific regulations relating to the Asbestos Industry came into force, and remained so until replaced by the Asbestos Regulations 1969. In effect, therefore, they applied throughout the period with which we are concerned. During the early 1930s asbestosis was added to the list of diseases which were linked to specific occupations, and a statutory compensation scheme, illustrated by the Silicosis and Asbestosis (Medical Arrangements) Scheme 1931, was introduced.

In 1933, Merewether wrote a further Memorandum on Asbestosis. The introduction summarises the relevant considerations. It reads:

In effect replacing earlier legislation found in s36 of the Factory and Workshop Act 1878, as re-enacted in s 74 of the Factories and Workshop Act 1901, ss 4 and 47 of the Factories Act 1937 made special provisions for the removal of dust in factories. In his annual Report for 1938, the Senior Medical Inspector of Factories, Dr Bridge reported:

The annual Chief Inspector’s Report for 1943 included a table which particularised a number of cases since 1929 where death had resulted from asbestosis or asbestosis with tuberculosis. The duration of each deceased employee’s exposure to asbestos dust was also tabulated. The shortest period was said to be six months. This particular piece of information was the subject of some discussion in Shell Tankers UK Ltd v Jeromson, (known as The Cherry Tree) [2001] PIQR 19 at para 48. It is unnecessary, and would be virtually impossible to resolve whether or not this particular individual figure should properly described as a “rogue” figure. The critical information, of course, was that it could now not be in doubt that the dangers of exposure to asbestos dust included terminal illness.

In August 1945, in a letter on behalf of the Chief Inspector of Factories, in the particular context of the ship building and ship repair industries, concerns were expressed about the increased number of employees “exposed to risk of injury to health through asbestosis”. The writer emphasised that “while asbestos dust may not have any apparent effects at first, experience shows that, particularly if the workers are exposed to the dust in substantial concentrations, serious results are apt to develop later. It is therefore important that, even if the work will only be temporary, all reasonably practicable steps should be taken to reduce the risk to a minimum.” Specific steps to ensure proper protection for employees were outlined.

The annual Chief Inspector’s Report for 1949 reiterated the need for “constant vigilance” in factories where there was a long understanding of the dangers of asbestosis. It also reminded inspectors of the necessity of keeping “an ever watchful eye” on new uses for asbestos, particularly where the work may be undertaken by someone not fully realising “the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.” In Jeromson, Mr R.D. Machell QC, sitting as deputy High Court judge, treated the last few words as an indication of the dangers of exposure to asbestos dust “outside the asbestos industry”. In context, however, it is not possible to read the text as amounting to a warning against the danger of injury to health from secondary exposure. The focus of attention was the workplace.

In a paper published in 1955 the link between exposure to asbestos dust and cancer was confirmed in Mortality from Lung Cancer in Asbestos Workers. It was described as a “specific industrial hazard of certain asbestos workers”.

In March 1960, a booklet, Toxic Substances in Factory Atmospheres, was prepared by the Ministry of Labour. This identified practical measures to provide protection against inhalation of dust. One sensible precaution was personal protective equipment. The report pointed out that:

Morland J quoted the last of these sentences as an essential part of the reasoning which led to his conclusion. Indeed on one view, paragraphs 29 and 30 of his judgment suggests that this sentence was critical to his conclusion. However, the paper was concerned with toxic substances generally, and the protection of what would otherwise be exposed parts of the body against toxic absorption through the skin. Reading it as a whole, it is clear that the precautionary changes of clothing and arrangements for thorough washing related to the potential risk to employees involved in potentially dangerous processes rather than to their families.

Surprisingly to our eyes today, this document implied that some level of exposure to asbestos dust was permissible, and that the risk to health was dose related. The booklet refers to “Permissible Concentrations” and includes a schedule of figures of “maximum permissible concentrations”, and suggests that further action to achieve “satisfactory working conditions” would be necessary if and when the specified levels of concentration was exceeded. Under the heading “Mineral Dusts”, the figure relating to asbestos reads “177” and appears beneath the letters PPCC, particles per cubic centimetre of air. This method of calculation derives from the United States of America. In the United Kingdom the equivalent figure would be expressed in fibres per millilitre. We understand that the method of converting one of these calculations into the other is not straightforward, in the sense that there is “no universally accepted factor”. The end result is that this “hygiene standard” for asbestos should be regarded as equivalent to an asbestos fibre concentration somewhere in the broad range of 5/30 fibres/ml. The paper itself did not direct attention to peak exposures of the kind endured by Mrs Maguire, and makes clear that the “177” figure relates to average concentrations for a normal working day, which at the time of publication would be treated as somewhere in the region of eight hours daily. Nowadays, this level of exposure would be unacceptable and impermissible.

I can now return to the efforts of Mr Clark, basing himself on the experiments carried out in 1970, and linking them to the exposure figures in the 1960 booklet, to assess the extent of Mrs Maguire’s exposure to asbestos dust. When Mr Clark was referring to “moderate” exposure, he had in mind exposure in the range of 2/20 fibres/ml. When the exposure was heavy, the concentration would have exceeded 20 fibres/ml.

Shortly after publication of the booklet, Toxic Substances in Factory Atmospheres, in September 1960 the annual Chief Inspector’s Report for 1959 was published. The state of “present knowledge” of the effects of dust on the lungs, and the factors to be considered in assessing whether “a particular dust ... is likely to prove harmful to those exposed ...” were analysed. The Report confirmed the serious effects of continued inhalation of asbestos and coal dust, and the experience that some industrial dusts were “capable of causing a reaction in the lungs” and that it was “now becoming increasingly doubtful whether it is safe to assume that any finely divided dust is harmless if inhaled in sufficient quantity over a sufficient period”. As to the levels of concentration when exposure might become dangerous to health, the Report referred expressly to, and apparently endorsed, the contents of the booklet, Toxic Substances in Factory Atmospheres, observing that “intermediate exposure to dust is less harmful than continuous exposure”. The 1959 Report directed attention to conditions at work. Perhaps more important, it did not suggest concern or suspicion about possible health dangers arising from familial exposure of the kind and in the circumstances undergone by Mrs Maguire. Taken together, these two publications, the booklet and the 1959 Report, represented the most up-to-date assessment of the risks consequent on exposure to asbestos dust at the time when Mr Maguire began his employment with Harland & Wolff.

At much the same time as Toxic Substances in Factory Atmospheres was published in the United Kingdom, research from South Africa, Diffuse Pleural Mesothelioma and Asbestos Exposure in North-Western Cape Province, was published in the British Journal of Industrial Medicine. This linked exposure to asbestos with the development of mesothelioma. We are told that it provoked “much concern”, and indeed further medical research. One of its authors, J.C. Wagner, wrote to the British Medical Journal in November 1962 describing his paper as providing an indication that “an association between mesothelioma and exposure to asbestos dust may exist”. The letter points out that in a number of the cases “the exposure to asbestos dust appears to have been minimal”, and continues that “a detailed occupational history has, in nearly all cases, revealed some contact with asbestos fibre.” The letter sought further information for research purposes. However this was a post-1960 document, which, as Mr Allan accepted, does not enable liability to be established against Harland & Wolff in this particular case.

The annual Chief Inspector’s Report for 1964 accurately summarised the then most recent research, identifying a considerable risk that those who suffered from asbestosis would ultimately die from cancer of the lung. An article, Asbestos and Malignancy, published in the British Medical Journal for 1964, reviewed the research to date, and expressed the view that there was no “correlation” between the severity of the asbestosis from which an individual was suffering, and the onset of pleural or peritoneal tumours, observing that in some cases the degree of exposure to asbestos dust “seems to have been slight”. The paper ends by suggesting that any degree of exposure to asbestos dust should be treated as “hazardous”, and that accordingly, even those employees whose exposure was intermittent may in fact be heavily exposed, and that supervision of even this type of exposure was essential. This paper put in doubt the suggestion that limited exposure to asbestos dust as set out in the 1960 Ministry of Labour booklet and the annual Report for 1959, might be acceptable.

The next papers requiring specific mention are Epidemiology of Mesothelial Tumours in the London Area and Mesothelioma of Pleura and Peritoneum following exposure to Asbestos in the London Area published in New York and in the British Journal of Industrial Medicine respectively in 1965. The authors were (Muriel) Newhouse and (Hilda) Thompson. Save for minor, immaterial differences, the papers are identical, in effect reporting the results of the same research to different audiences. I shall treat them as one.

The importance of this paper is that, for the first time as far as I can discover, it was “recognised” that mesothelioma developed not only among those who worked with asbestos, but also among those who lived within a relatively short distance (half mile) of an asbestos factory, and among relatives of those who worked in them. In short, both industrial and non-industrial exposure to asbestos dust was identified as a trigger for the disease. The paper notes that:

The results of this research brought the issue of the dangers posed by familial and environmental exposure to asbestos dust into the public arena. Its impact was considerable and spread beyond industry into the public consciousness. In the Sunday Times for 31st October 1965, under the headline, “Scientists track down a killer dust disease”, an article based on this research began:

The subsequent literature does not suggest an immediate rush to face up to the implications of the Newhouse and Thompson papers, and perhaps more important, to the issues of environmental and familial exposure. Nevertheless much clearer warnings about the health hazards posed by asbestos dust were now being made. Thus, the annual Chief Inspector’s Report for 1966 pointed out that it was “important to realise that protection must be provided in every case, not only for the men carrying out the process, but also for all other persons who may be in the confined space at the same time”. A detailed review, Asbestos and its Associated Health Problems, concluded that for the time being at any rate, “the only safe course is to eliminate the escape of asbestos dust into the air”. A document published in 1968, Dust Fumes in Factory Atmospheres, while repeating the figures quoted in the 1960 document, Toxic Substances in Factory Atmospheres, underlined that the figures were to be treated as a ceiling or maximum level of exposure.

An Advisory Panel was set up by the Senior Medical Inspector, which ultimately led to the Asbestos Regulations 1969, which came into force in May 1970. In December 1967, the Advisory Panel issued Problems arising from the use of Asbestos, which reviewed the state of contemporary knowledge. In unchallenged evidence, the effect of the later research was summarised by Mr Beauchamp as a “drastic rethinking towards the end of the 1960s regarding the dangers associated with asbestos … This resulted in many more publications being produced.” And, as part of continuing research, through the 1970s and 1980s, the levels to which those in employment might permissibly be exposed was steadily, and inexorably reduced. For some, sadly, this knowledge came too late.

After the Newhouse and Thompson papers, evidence which confirmed the dangers of indirect exposure to asbestos dust continued to accumulate. The papers included Household Contact Asbestos Neoplastic Risk (1976), Familial Mesothelioma after intense Asbestos Exposure at home (1978) and Non-occupational exposure to Asbestos and Malignant Mesothelioma in Females (1978). As late as 1989, in Domestic Asbestos Exposure, Lung Fibre Burden and Pleural Mesothelioma in a Housewife, in the particular context of mesothelioma, it was asserted that:

No further reference to the literature is required.

Before reflecting on Waterhouse J’s decision in Gunn, two decisions in the Court of Appeal which bear on the problem of asbestos related injury must be considered.

In Margereson and Hancock v J.W. Roberts Ltd [1996] PIQR 154 the Court was concerned with environmental exposure to asbestos dust which resulted in mesothelioma. Both plaintiffs lived in close proximity to a factory in which asbestos was very extensively used. The result of these processes was that asbestos dust escaped or was extracted from within the factory itself and deposited in vast amounts beyond the factory perimeter. The emission of dust was increased by employees leaving the factory for their adjacent homes when covered in dust, and by temporary storage arrangements for bales of asbestos or asbestos products on loading bays, in areas where children were allowed to play.

The Court of Appeal [1996] PIQR 358 approved Holland J’s observation:

The Court of Appeal was satisfied that there was no justifiable basis for interfering with the judge’s findings of fact, in particular those arising from the direct exposure of children visiting, as both plaintiffs did, or playing in loading bays with and among bales of asbestos stored there.

The principle approved in Margereson and Hancock in relation to environmental exposure to asbestos dust has potential application to cases of familial exposure. In summary, a family member is not precluded from establishing liability based on environmental contamination with asbestos dust. In an appropriate case, the environmental principle may apply to members of an employee’s family as to anyone else living in the immediate vicinity of premises working with asbestos. However, in this case, it was not established that the dust to which Mrs Maguire was exposed effectively replicated her husband’s level of exposure, nor indeed that her level of exposure, if repeated in factory conditions, would have constituted a breach of duty to an employee. Therefore liability on the basis of “environmental” exposure did not arise for consideration.

In The Cherry Tree this Court was considering appeals against successful actions brought by widows of two men who contracted mesothelioma as a result of exposure to asbestos dust in the course of their employment as marine engineers by Shell Tankers UK Ltd. Their exposure occurred between 1951-1957 and 1957-1961 respectively. The claims against Shell succeeded at common law. In addition, a separate claim by one of them against a previous employer succeeded on the basis of breach of the Asbestos Industry Regulations 1931. Claims at common law and for breach of statutory duty under s 47 of the Factories Act 1937 were rejected.

In a judgment with which the other members of the Court agreed, Hale LJ concluded that the judge was entitled to find that “a reasonable employer, being necessarily ignorant of any future potential asbestos exposure, cannot safely assume that there will never be sufficient cumulative exposure”. On the basis that it was already known that asbestos dust was dangerous, the judge was entitled to conclude “that a prudent employer would have taken precautions or at the very least made enquiries about what precautions, if any, they should take.” She observed:

This decision does not directly assist in the resolution of the problems of familial or secondary exposure, which did not require to be and were not addressed. The case, like Owen v IMI Yorkshire Copper Tube, unreported, 15th June 1995, Buxton J, involved significant exposure suffered by employees in a factory. It does not necessarily follow that an employer who should have appreciated the risk of harm to his employees, and taken precautions for their safety, or investigated the possible need for precautions against direct exposure at work, should simultaneously have appreciated, and addressed, a familial risk arising from secondary exposure.

I can now return to Waterhouse J in Gunn. Waterhouse J was concerned with a claim for damages based on familial exposure. Mr Gunn was exposed to asbestos dust from 1939 until the end of 1965. He married Mrs Gunn in 1948. In the course of his work his clothing frequently became impregnated with asbestos dust. Before leaving work his general habit was to remove as much asbestos dust from his clothes as possible. Even so, about once a fortnight his clothes were “white with dust”. Once home, perhaps encouraged by the fastidiousness of his wife, he would remove his clothes and shake them vigorously himself. Thereafter Mrs Gunn took over and washed them. This routine contrasted with the experience of others including Mr and Mrs Maguire, where the wife shook out the dust herself. Sadly, just as Mrs Maguire later contracted mesothelioma, so did Mrs Gunn, and as a result, she, too, died.

The claim against Mr Gunn’s employers confined itself in the end to an allegation of negligence at common law. The judge agreed with the submission and directed himself that:

Waterhouse J responded to his own direction:

For obvious reasons, the case advanced by Mrs Gunn depended on the steadily increasing level of knowledge of the risks of exposure to asbestos. The literature we have examined was examined by Waterhouse J. He rejected the claim on the basis that even if Mr Gunn himself had been exposed to excessive amounts of asbestos dust, without any corresponding effective steps to mitigate or reduce his exposure, before the end of 1965, a prudent employer would not have foreseen “any risk of injury” to Mrs Gunn herself.

Waterhouse J’s observations relating to claims by employees who were directly exposed to asbestos dust, and in particular, the need for evidence of “heavy and prolonged” exposure, cannot survive the decision in The Cherry Tree. Mr Feeny, somewhat enthusiastically, nevertheless suggested that the decision in Gunn had been approved in The Cherry Tree. However in her judgment, Hale LJ only referred to Gunn as part of her summary of the arguments advanced on behalf of the employers: no more, and no less. The court was not required to and did not address the issue of familial exposure. Gunn was apparently cited to Morland J, but, somewhat surprisingly, it was not analysed in his judgment. Basing himself on his understanding of The Cherry Tree and Owen, Morland J accepted the submission that by 1961 “the difficulties related to and the threats posed by asbestos were sufficiently well-known and sufficiently uncertain in their extent and effect for employers to be under a duty to reduce exposure to the greatest extent possible.” In relation to the present litigation this analysis begs the critical question whether it was, or by April 1965, should have been, apparent to those whose employees were working with asbestos, that the health of individuals whose contact with it came, so to speak, second-hand and intermittently, and whose exposure to it lasted for peak periods only, was under threat.

As Morland J found, until 1965, notwithstanding the increasing concerns and developing knowledge about the risks of exposure to asbestos among employees, nothing in the literature warned against the risks of familial or secondary exposure. On this topic, there was what appears to us now to have been a numbing silence. Before 1965 neither the industry generally, nor those responsible for safety and health, nor the Factory Inspectorate, nor the medical profession, suggested that it was necessary, or even that it would be prudent, for risks arising from familial exposure to be addressed by the industry. In truth, the alarm did not sound until late 1965, when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect, to asbestos dust. Thereafter, the learning curve about the risks arising from familial exposure was fairly steep. In my judgment, however, Morland J’s conclusion that the risk of serious injury to Mrs Maguire’s health was “reasonably foreseeable, indeed obvious” to her husband’s employers is not sustainable.

The issue remains whether Mrs Maguire has established that Harland & Wolff were negligently in breach of the duty owed to her as the wife of an employee working with and contaminated by asbestos dust. If so, liability would arise on the somewhat unusual basis that they failed to address a risk which had not yet been identified or addressed by anyone else, whether within or outside the industry. In the absence of any evidence from any source whatever of contemporaneous insight into familial risk, or any contemporaneous suggestion that the possibility of such risks should be addressed, I am unable to accept that by not later than 1960, and ahead of contemporary understanding, Harland & Wolff should have appreciated that Mrs Maguire was at risk of pulmonary or other asbestos-related injury, and that their failure to do so and to take appropriate precautions for her safety was negligent.

I should allow this appeal.

The fact that Harland & Wolff were, admittedly, in substantial breach of their duties to Mr Maguire in the period between 1960 and 5^th April 1965 makes this a particularly hard case if Mrs Maguire’s claim fails. However, liability in negligence for physical injury under English law is tied to the existence of a duty of care involving foreseeability of damage of that kind to the particular claimant:

In Bourhill v. Young [1943] AC 92, 108 Lord Wright said of negligence that:

It does not presently matter whether one speaks of a duty to take care, the existence of which depends upon physical injury being foreseeable to the particular claimant, or of a general duty to take care not to cause physical injury to anyone which is only broken in relation to the claimant if some kind of physical injury to him or her was foreseeable.

The degree of foreseeability required to ground potential liability for breach of duty of care is not high. In Koufos v. C. Czarnikow Ltd [1969] 1 AC 350, 385G-386B Lord Reid said:

In the present case, Mr Feeny for the appellants submits that, although the appellants’ conduct clearly created a foreseeable and substantial risk of injury (which has not materialised) to Mr Maguire, it did not, by the standards of the relevant period, involve any foreseeable risk of any kind of injury to Mrs Maguire. He relies heavily upon the judge’s acceptance of his submission that “there is nothing in the specialist safety, medical or factory inspectorate literature to alert Harland & Wolff to the risk of secondary exposure” (judgment, para. 26), with which he submits the judge’s subsequent findings regarding reasonable foreseeability are substantially inconsistent.

The judge concluded that the appellants should throughout the period 1961 to 1965 have foreseen that Mrs Maguire, in her domestic environment, might suffer general lung disease as a result of secondary exposure to asbestos dust through the medium of her husband’s work clothing, which she handled and washed (paragraphs 29-30 and 32-36). The risk of serious injury to her health from inhalation or exposure to asbestos dust was, he considered, “reasonably foreseeable, indeed obvious”, in the period 1961 to 1965 (para.35). Paragraph 31 of his judgment suggests that he may also have been prepared to conclude that they should have foreseen, more specifically, mesothelioma, but, before us, Mr Allan QC for the respondent conceded that the evidence did not exist to justify the latter conclusion, if the judge reached it, in respect of a period which preceded the publication (post-5^th April 1965) of Newhouse and Thompson’s papers. Wagner’s 1960 paper Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province, the letter written by him and others in 1962 and the British Medical Journal article Asbestos and Malignancy of 1964 are important in other contexts for their disclosure of the link between asbestos and mesothelioma (or “pleural or peritoneal tumours”), but they too are not presently relied on or relevant. The appeal therefore turns on the judge’s former conclusion.

The judge heard no oral evidence, and reached his conclusion on the basis of the statements by Mr and Mrs Maguire, the experts’ reports, including a joint report, and other documents before him. While we should pay respect to his reasoning and conclusion on the documents, it has not been suggested either that he was in a better evidential position to arrive at a correct answer than we are, or that the issue should be regarded as one of judgment on which there is room for disagreement between different reasonable people. The judge quoted from Mr and Mrs Maguire’s statements and from the joint experts’ report (which itself cited extracts from Chief Factories Inspector’s Annual Reports and other documentation). In response to Mr Feeny’s reliance on the “Permissible Contamination” referred to in the Factories Inspectorate’s 1960 booklet, the judge cited the further sentence from that booklet under the heading “Personal Protective Equipment”:

The extensive literature which we have seen shows the development of knowledge and concern about the risks and effects of dust, particularly asbestos dust. Initially, there was a feeling that lengthy and extensive exposure was the real problem. Merewether and Price in their 1930 report as inspectors of factories (quoted by Judge LJ in paragraph 23 above) identified fibrosis of the lungs as “a definite occupational risk amongst asbestos workers as a class”, but went on:

In his 1933 paper A Memorandum on Asbestosis (referred to in paragraph 24 above) Merewether also said:

In 1938, however, the Chief Inspector of Factories in his report (paragraph 25 above) was not only identifying dust as “one of the greatest problems facing industry today”, but emphasising:

S.47 of the 1937 Act is important for its recognition of a point that appears in many subsequent documents, and supports the reasoning in the cases of both Owen and Jeromson. S.47 read:

The Chief Factory Inspector’s letter of August 1945 to contractors working on ships (quoted by Judge LJ in paragraph 27) is one of the documents repeating the message of s.47. It expressed considerable concern about the increased use of asbestos, and “the accompanying increase in the number of workers exposed to the risk of injury to health through asbestosis”. It emphasised the importance, “even if the work will only be temporary” of taking “all reasonably practicable steps … to reduce the risk to a minimum”. However, it is the case, as Judge LJ has observed, that both this letter and the Chief Inspector’s report for 1949 were both focusing on the direct exposure of persons using asbestos - in the former case on ships, in the latter case, as the report said “in some manufacturing or other process, for example, on ships or buildings where the work may be undertaken by someone not fully recognising the necessity of preventing as far as possible the inhalation of asbestos fibre and dust.”

The additional risk of lung cancer as a result of exposure to asbestos dust was identified in or by the mid-1950s. According to the joint experts’ report reasonably prudent employees would know by 1960 that lung cancer followed in more than 1 in 10 cases of asbestosis. Further, by 1960, the joint experts said:

In 1960 two important documents were issued, one the Factories Inspectorate’s 1960 booklet Toxic Substances in Factory Atmospheres the other the Chief Factory Inspector’s report for 1959, issued September 1960. The former started with a reference to s.47, and dealt with “points relating to all practicable measures to protect against inhalation”. It said:

This section contained the passage on Personal Protective Equipment on which the judge relied (paragraph 66 above). There followed this section:

The second 1960 document is the Chief Inspector’s Annual Report for 1959, issued in September 1960. It contains these passages:

With regard to the 1960 booklet, Judge LJ has explained that the figure of 177 ppcc given in the List may be regarded as equivalent to 5/30 fibres per millilitre on a conventional UK scale (paragraph 32 above). He has also set out the joint experts’ agreement as to the level of exposure to which Mrs Maguire may have been exposed, and Mr Clark’s description of this (paragraphs 14-15 and 33). It is clear that her level of exposure would on average over a whole working day have been much lower than that contemplated as permissible in the 1960 booklet in the case of workers with asbestos. But, on the basis of Mr and Mrs Maguire’s descriptions of the state of Mr Maguire’s clothing, when he returned home, (paragraph 10 and 11 above), Mrs Maguire would, for at least a short period on many working days during the years 1960-65, regularly have exceeded the figure of 177ppcc given in the List.

The figures for permissible average exposure in the 1960 List were in the Factories Inspectorate 1968 booklet converted into maxima. That was after the end of the presently relevant period. I consider first whether it can be suggested that the appellants were not in breach of duty towards Mrs Maguire, since they did not expose her to any (average) exposure which would not have been permissible in relation to their employees. This line of reasoning would be consistent with that of Waterhouse J in Gunn v. Wallsend Slipway and Engineering (7^th November 1988), but not with that of Buxton J in Owen or Mr Machell QC and this Court in Jeromson. In general agreement with the latter two cases, it seems to me that any such suggestion would miss the point of s.47 and of the Factories Inspectorate’s booklets and reports. Because of the general and uncertain risks of asbestos dust (in particular), the primary pre-occupation of any employer should have been to reduce exposure to any such dust “as far as practicable”. Neither the 1960 booklet nor the 1959 Annual Report can be read as legitimising a failure to take practicable steps to reduce exposure to dust, even if it happened that the average exposure was not thereby increased above that contemplated in the List. I refer to the first sentence under the heading Permissible Concentrations quoted in paragraph 74 above; the passage headed Concentration of the dust in the 1959 Annual Report also explains the List on the basis that “it was necessary to have some guide to which the efficiency of control measures can be related”. The list was, in short, not a justification for foregoing practicable measures to reduce exposure to dust, but the minimum which should be achievable by taking all practicable measures. Here, as a matter of fact, there was a failure to take all practicable measures. As a result Mr Maguire was exposed to dust concentrations well in excess of any such minimum, while Mrs Maguire was exposed to a quite unnecessary extent. I do not accept that the appellants could expose Mr or Mrs Maguire to avoidable and unacceptable risks, but incur no liability simply by showing that the resulting level of exposure was on average below that to which some other employer with no practicable means of doing better might, without negligence, in other circumstances expose an employee.

This brings me to the appellants’ straightforward submission that they were not in breach of any duty towards Mrs Maguire, since it was not reasonably foreseeable that their failure to take proper precautions would injure anyone except Mr Maguire. For this submission to be good, it has to be possible to conclude (in Lord Reid’s words) that it was not “reasonably foreseeable as liable to happen even in the most unusual case” that Mrs Maguire, as a wife coming into contact with asbestos at home, would incur any injury as a result of such contact. This is the submission that Judge LJ and Longmore LJ would accept. They would accept it on the basis that no-one had identified any such domestic or secondary risk in the literature, or so far as appears elsewhere, before 1965. This is so, although, as Mr Allan QC conceded, many employees had over the years often been unjustifiably exposed to asbestos dust by their employers. However, whether anyone actually foresaw, or recorded that they foresaw, the possibility of any general risk of this nature is not necessarily the same question as whether a particular employer ought in particular circumstances reasonably to have foreseen such a risk to the wives of its employees. Negligence and reasonable foreseeability are always fact specific, and the factual features of the present case are in my view critical. Here, we are concerned with a specific company which was in serious breach of its duty of care to Mr Maguire in respects which can be shown specifically to have increased the amount of such dust that he carried out of the factory to his home, and where it was obvious that his wife would at home be likely to be cleaning and handling his clothes.

One example of a fact-specific decision in this area is Holland J’s judgment in Margereson v. J. W. Roberts Ltd [1996] PIQR 154 upheld on appeal on 2^nd April 1996 [1996] PIQR 358. Holland J had to consider circumstances going back to before 1960. He held that conditions within the boundary wall of a factory were “effectively replicated” in the close vicinity outside the wall. Injury was thus reasonably foreseeable to local residents and children playing nearby. He held the factory operators liable on that basis. But he was careful ([1996] PIQR 154 at 183) to distinguish “exposure to emitted dust at a further distance from the factory” which “need not have raised any such foresight of personal injury”, saying that “granted that its colour and characteristics might give such dust a visible presence well beyond the immediate vicinity of the factory, the necessarily declining concentration must reduce any prospects for significant inhalation”. His decision does not therefore assist Mrs Maguire’s case.

I accept that the passage in the 1960 booklet under the heading Personal Protective Equipment, on which the judge relied (paragraph 73 above), does not suggest any actual foresight of any risk of injury to persons in the employee’s domestic environment. Nothing is said to suggest that employers should provide washing facilities for clothing at their place of business. The inference from the advice in 1960 might even be taken to be that employees should wear or at all events take their clothes home and wash or (very foreseeably) have them washed there. But, appearing in advice issued to the industrial world, the passage must, on the face of it, assume that employers allowing such a system will in other respects be taking all practicable steps to reduce dust contamination generally and, as a result, on workers’ clothing. Further, the general message in the passage is that exposure to asbestos dust from contaminated clothing can occur and should be avoided.

The passages which I have quoted above from the 1959 Annual Report seem to me to provide rather greater assistance to Mrs Maguire’s case on reasonable foreseeability. They underline the need to avoid risks of inhalation resulting from asbestos dust remaining and drying on workmen’s clothing. Again, it is true that they do so in the context of the subsequent continuing exposure of workmen (whether the immediate wearers or other workmen, as I read it). But the gist of Morland J’s reasoning was that it takes little imagination to see and appreciate that others outside the workforce will also be exposed to asbestos dust, if it is obvious that employees are taking home for cleaning clothing which is excessively and unnecessarily dust-impregnated. The 1959 Annual Report shows that it was foreseeable that such dust might injure employees. Since there was also general uncertainty about the risks of asbestos dust which required employees’ exposure to it to be reduced as far as practicable, I find it difficult to limit the injury which was reasonably foreseeable to the appellants’ employees, and to exclude others who were as closely associated with such employees as Mrs Maguire, whose exposure has obviously not been reduced as far as practicable.

On the basis of the unchallenged statements of Mr and Mrs Maguire, this is a case where an employer simply disregarded proper precautions in relation to its employees. Proper practice was to eliminate dust so far as practicable, for the very reason that such dust creates a general undefined risk. The appellants’ conduct failed fundamentally to eliminate dust as far as practicable. Very little thought would, on the face of it, have shown that such conduct was leading to the carrying of unnecessary dust outside the yard and an extended, even though general and undefined, risk elsewhere, of the same sort that it was undoubtedly the employers’ duty to avoid as far as practicable within their yard.

If one asks, as one should, whether it was “reasonably foreseeable as liable to happen even in the most unusual case” that the deleterious effects of such unnecessary dust might in some way be felt outside the workplace by someone other than Mr Maguire, I therefore consider that the answer should be affirmative. Suppose that it had been the practice of all employees leaving the factory in their working clothes to go into a public house or corner shop just outside the factory, the present conduct would recreate a dust-laden atmosphere for them and others in that pub or shop. It was equally foreseeable that employees would go home in their working clothes, and carry dust there. Mrs Maguire’s handling of the working clothes after Mr Maguire came home was entirely foreseeable, as was her exposure as a result to the same nature of conditions (dried and loose dust becoming airborne off clothes) against which the 1959 report warned. The law should not require absolute precision about the identity of the persons to whom injury might reasonably foreseeably be caused. It seems to me sufficient that Harland and Wolff’s conduct, in allowing Mr Maguire to become excessively contaminated to a quite unnecessary extent and to leave the yard in that state, clearly expanded the risks of asbestos to an extent which might affect third parties as well as Mr Maguire himself outside their yard.

I would have sympathy with Longmore LJ’s application of Mustill J’s dictum in Thompson v. Smiths Shiprepairers [1984] QB 405, 416B, if it had been the case that these appellants were keeping up to date, and that the conclusion that I favour would have meant that they were “ploughing a lone furrow”. The reality, on the basis of Mr and Mrs Maguire’s unchallenged statements, appears to have been that the appellants were behaving in disregard of any responsible and recommended practices at the time in the way they conducted themselves and allowed their operations to be conducted. There was a great deal of loose dust, no extraction system at all, and no warning of any danger of contact with asbestos dust. Mr Maguire and his clothing were as a result caused to be and allowed to remain heavily saturated in asbestos dust – much more so on the face of it than they should have been - and he carried this dust home with him. What happened was contrary to elementary procedures, as evidenced by the 1959 Annual Report. The appellants’ actual conduct and foresight can on this basis be no touchstone of the reasonable. Nor do I regard the absence of any general identification in the literature of the risks in the domestic environment as a touchstone of reasonable foreseeability in the circumstances of this case. In its particular circumstances, I see no incongruity in holding the appellants responsible for the more remote consequences which, in my opinion, they should reasonably have foreseen might occur (even if only “in the most unusual case”) as a result of their serious disregard of proper procedures for reducing asbestos dust as far as practicable. The literature made clear that the materialisation of the generalised risk to which asbestos dust gave rise varied according to a host of factors, including individual sensitivity. If one behaves irresponsibly, it may not be easy to foresee precisely all the consequences, but injury to others like Mrs Maguire was in my view sufficiently foreseeable. The appellants have of course been fortunate that Mr Maguire has not become ill. I would therefore dismiss this appeal.

I have not found this an easy case but, after some hesitation, I find myself in agreement with the judgment of Judge LJ rather than that of Mance LJ.

Mr David Allan QC for Mrs Maguire’s personal representatives submitted that:-

Mr Feeny accepted the first 3 steps of Mr Allan’s argument but said that the argument broke down at step (4); he submitted that until the judgment of Morland J in the present case it had never been held that an employer owed an independent duty of care to members of an employee’s family not to expose them to asbestos dust. It was only with the publication of the Newhouse and Thompson paper in 1965 (and the subsequent publicity which it gained from an article in the Sunday Times of 31st October 1965 under the by-line of Dr Alfred Byrne) that it became apparent (1) that comparatively minor exposure could give rise to asbestos-related disease (mesothelioma in particular) and (2) that consequently members of an employee’s family could be fatally affected by such minor exposure. On any view said Mr Feeny a wife’s exposure will be very considerably less than any exposure of her husband, even if the correct finding might be (as it was in this case) that the wife’s exposure was intermittently substantial. It was only once there were express warnings that comparatively minor exposure could cause disease that a reasonably careful employer could be expected to start to consider possible consequences to an employee’s family members.

These are finely balanced arguments as demonstrated by the difference between my Lords. I start with the authorities such as they are. On 7th November 1988 Waterhouse J held in Gunn v Wallsend Slipway and Engineering Co Ltd that it would be a breach of duty by an employer before 1960 to subject his employees to “heavy and prolonged” exposure to asbestos because there was then a known risk of contracting asbestosis. He accordingly dismissed a claim brought by an employee’s wife in relation to her own exposure partly because that exposure was not heavy and prolonged and partly because he did not consider than an employer owed a duty of care to the wives of employees.

On 15th June 1995, however, Buxton J decided Owen v IMI Yorkshire Copper Tube in which, after reviewing the literature in the case of a claimant who had been employed between 1951 and 1986, he said:-

This conclusion was justified by the state of the literature in 1951 and up to 1960 and is, in my view, to be preferred to the more restrictive ratio of Waterhouse J in Gunn with its reference to the need for “heavy and prolonged exposure” before any duty can arise. No argument appears to have been addressed to Buxton J that the Factory Inspectorate’s 1960 booklet “Toxic Substances in Factory Atmospheres”, with its reference to maximum permissible concentrations of dust, entitled an employer to inflict such concentrations on his employees even if it was practicable to reduce the employee’s exposure below such concentrations but I do not think that such an argument would have appealed to Buxton J since the very paragraph that introduced the concept of permissible concentrations begins with the sentence

In any event in Jeromson v Shell Tankers UK Ltd [2001] PIQR 19 this court preferred the approach of Buxton J to that of Waterhouse J; in my judgment, we are, therefore, bound to proceed on the basis that as between employer and employee, the employer will be in breach of duty if he fails to reduce his employee’s exposure “to the greatest extent possible”, reading possible as meaning “practicable”, the word used in section 47 of the Factories Act 1937.

Despite this state of the law in relation to employees, it is still in my judgment a completely open question whether employers between 1960 and 1965 owed a duty of care to wives of employees not to subject them to exposure to asbestos dust.

In this connection our attention was not called to any pre-1965 reference to the risk of exposure to asbestos dust on the part of wives or other members of an employee’s household. It was in 1965 that Dr Muriel Newhouse and Mrs Hilda Thompson published their paper “Mesothelioma of Pleura and Peritoneum following Exposure to Asbestos in the London Area” (1965) British Journal of Industrial Medicine pp 261-269. This followed up 83 patients with a confirmed diagnosis of mesothelioma and found 40 out of the 76 patients, for whom a history was available and in respect of whom the diagnosis had been confirmed, had had exposure to asbestos; this meant that mesothelioma was associated with and attributable to exposure to asbestos dust. It turned out that 9 of the 76 patients were relatives of those who worked with asbestos. The paper concentrated on the new information about the cause of mesothelioma, but harmful exposure on the part of relatives of an asbestos worker was also a new concept in 1965 as shown by the opening paragraph of the Sunday Times article of 31st October 1965 which brought the matter to the attention of a wider audience:-

To my mind it is clear from this that it had not, in or before 1965, occurred to either the Chief Inspector of Factories or, more generally, British scientists or experts on industrial health that there was a serious risk of asbestos related disease occurring to those who lived with employees working with asbestos. (It is clear from the paragraph headed “Domestic Exposures” in the Newhouse and Thompson paper that the risk found to exist will not be confined to wives.) In these circumstances I cannot see that Harland and Wolff ought to have appreciated this risk at that date. It is insufficient to point to the paragraph of the 1959 Annual Report of the Chief Inspector of Factories which refers to the fact that workers’ clothing is a source of airborne dust and should be frequently laundered. There is no suggestion there that the person doing the laundering will herself be exposed to asbestos dust. If that had been the conclusion, the requirement would inevitably have had to have been that workmen’s clothing should be laundered in the factory and that is not something which is said.

If, therefore, one looks at the matter, as I think one should, from the perspective of the diligent managing director (or other safety officer) of a ship repairer such as Harland and Wolff in 1960-1965, who keeps up with the occupational literature, there is no indication that such a person ought to have appreciated the risk of exposure to asbestos dust on the part of those living in the same household as an asbestos worker or on the part of those laundering the employee’s clothes. To so hold would be to use the hindsight of to-day to an unacceptable degree. It would also be to blame Harland and Wolff for not “ploughing a lone furrow” which, as Mustill J said in the industrial deafness case of Thompson v Smiths Shiprepairers [1984] QB 405 at 415B, an employer does not have to do.

The courts should, in my view, be careful before they impose, in a scientifically developing field, standards which no employer ever thought of adopting at the time of the occurrence of the injury complained of. Exposure to asbestos dust is a classic case where knowledge and awareness of disease advances incrementally. Industrial deafness has been shown to be another. One might also instance lung cancer allegedly attributable to “passive smoking”. It took a long time in the history of association between smoking and lung cancer for it to be appreciated that it was arguable that lung cancer could also arise from “passive smoking”. It could hardly be suggested the employers should have appreciated the danger as soon as they appreciated that lung cancer could be attributed to the inhalation of tobacco.

I would, therefore, hold in agreement with Judge LJ that it was not reasonably foreseeable between 1960-1965 that a wife washing the clothes of a husband who was himself exposed to asbestos to a negligent degree would herself be likely to suffer risk of personal injury. I regret to differ from Mance LJ but I think his emphasis on the requirement to anticipate the “unusual case” cannot give a complete answer in what I have called a scientifically developing field.

The appeal is allowed.

The Application of the Respondent for leave to appeal to the House of Lords is refused.

The Respondent shall pay the Appellants’ costs of the appeal and of the action on the standard basis subject to a detailed assessment if not agreed.

The Respondent shall by 4 p.m on 16 February 2005 pay to the Appellants £10,000 on account of these costs.

The Respondent shall return to the Appellants the sum paid on account of damages and costs pursuant to the Order of Mr Justice Morland on 26 March 2004. The enforcement of this part of the Order shall be stayed,

Until 4 p.m on 25 February 2005; and

If by that time, the Respondent has lodged a Petition for leave to appeal to the Appellate Committee of the House of Lords until the determination of that Petition or if the Respondent makes an application for public funding in respect of an appeal to the House of Lords until the determination of that Application and if successful until the determination of the petition by the Appellate Committee; and

If the Appellate Committee give leave to appeal, until the determination of that appeal.