The plaintiff had been employed by the first defendant as a pipe fitter at two steel works occupied and operated by predecessors of the second defendant. He had worked two years at each of the sites erecting pipes, breaking into old pipes and knocking off old lagging between an inch and three inches in thickness; his overalls would be smothered in powdered lagging and that it would be in the air for quite some time. He said it would take an hour to two hours to knock such lagging off. He would then fit new pipes and laggers would then attend to fit the new lagging, mixing asbestos in 40 gallon drums, making a lot of mess when opening the bags and mixing the materials. Claims were made against each defendant (along with other employers of the claimant) at common law and for breaches of section 47(1) and of the 1931 Regulations.
Held: section 47(1) did not apply to the plaintiff. There was force in the submission that the business of lagging pipes was not a process being carried on in the factory (inferentially indicating that the section might not apply for that reason), but Stuart-Smith LJ continued as follows: ‘The next point is whether or not the plaintiff was a person employed within the meaning of s 47? In my judgment, the words ‘person employed’ in s 47 relate back to the words found earlier in the section, namely ‘in connection with any process’. That seems to me to be the natural reading of the words, and they do not apply to persons who may happen to be in the factory in general. That was the view which Rose J took in Morrison and The Central Electricity Board v Babcock and Wilcox (Unreported, 15 March 1986). He said: ‘The first question that arises in the present case, and it is one that is apparently free from direct authority, is whether the persons employed to whom the section twice refers include within the ambit of the protection provided by the section someone who like this plaintiff was not himself engaged in the dust making process. Mr Mclaren urges that this is a statute imposing a criminal penalty and it should therefore be strictly construed. That submission in my judgment is largely answered by the speech of Lord Porter in Harrison v The National Coal Board [1951] AC 639 at p 650. It has, however, to be remembered that this Act is also a remedial measure, passed for the protection of the workmen and must therefore be read so as to effect its object so far as the wording fairly and reasonably permits, but, in my judgment, the words ‘the persons employed’ means ‘persons employed in the process’. If it had been intended to extend the protection to persons employed in the factory generally, the section could have been so worded, as, for example, section 14(1) of the Act is worded in relation to secure fencing, section 63 specifically refers to a process whereas it could have been referred to the factory generally. Furthermore, the specific reference to ‘any work room’ reinforced the suggestion that it is those who are in a limited area of the factory rather than those in the factory at large for whose protection the section is designed.’
That was a case under s 63 of the Factories Act 1961 which is similar in terms to s 47 of the 1937 Act.
It is right to say that Buxton J, in a case which we do not have, took a different view. He apparently based himself on the language of s 49, as it then was of the 1937 Act, which is the section dealing with the protection of eyes . .’ That was the relevant consideration which Streatfield J dealt with in the case of Waley, to which I have referred. It is true that in that case, because of the grammar and language of the section, the ‘persons employed in the process’ is to be found expressly stated, but in my judgment, although there is a large part of the section in between the words ‘process’ and ‘persons employed’, the natural reading of the section is as I have indicated. I therefore would agree with Rose J and respectfully disagree with Buxton J on the construction of that section.’
Judges:
Stuart-Smith, Swinton Thomas and Butler-Sloss LJJ
Citations:
Unreported 30 November 1955
Statutes:
Factories Act 1937 47, Asbestos Industry Regulations 1931 2(a)
Jurisdiction:
England and Wales
Citing:
Cited – Brophy v J C Bradfield and Co Ltd CA 1955
Singleton LJ said as to regard to section 47: ‘That section again deals with work rooms and with processes carried on in the factory. For the reason I have given with regard to section 4(1) I do not think that section 47(1) applies to the facts of . .
Cited by:
Cited – McDonald v National Grid Electricity Transmission Plc SC 22-Oct-2014
Contact visiting plants supported asbestos claim
The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had . .
Lists of cited by and citing cases may be incomplete.
Health and Safety, Personal Injury
Updated: 04 May 2022; Ref: scu.538244
