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Asbestos cancer claim specialists Corries highlight a recent case which may help asbestos cancer victims in the future.
The case of Heynike v Birlec Limited (1) Mod(2) and Special Metals Wiggin Limited 2018 will make a real change to cases where someone was exposed to asbestos as a contractor on another employers site.
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The Asbestos case facts
The Claimant acted on behalf of the deceased, Mr Hill, who worked as a refractory brick layer in the period from 1971 to 1975. His work in included the stripping out of linings of furnaces. These often included a layer of asbestos board inside the metal casing. It was awfully dusty work.
Mr Hill was employed by company known as Lou Brawn (Staffs) Ltd who supplied labour to the first defendant who known as Berec Limited. He would carry this work out of premises including the Royal Ordnance Factory which was owned by the second defendant and the Henry Wiggins factory in Hereford owned by the third defendant.
There was an issue in relation to whether the Claimant was to be treated as an employee by the first defendant. This aspect of the case failed. Accordingly the case could not be advanced against that defendant as an employee. As the company was dissolved and there was no other insurance then the case against them rested.
Asbestos Case battleground
Let us be clear before we go on. The dangers of asbestos were known about as early as 1900. Regulations for those in asbestos industries were put in place in 1931. A Factories Act was made to reduce dust in 1937. This act was added to be other shipbuilding and other regulations before a stricter Factories Act was made in 1961.
The main arguments were about what laws and regulations applied and how they were interpreted. The Claimant relied on the Factories Act 1961. The defendants argued later regulation in 1969 diluted the law in place. There was lengthy legal argument about whether the description “of any substantial quantity of dust of any kind” was enough to help the Claimant to prove his case. The court accepted that the earlier 1961 act still applied. The court said that the later regulations did not take over or ease the burden for the defendants to look after people on their premises.
The judgement went further to confirm that the owner of the factory had a duty to protect against dust of any kind not just that which was known to be dangerous.
There was a legal argument about whether it could be argued that the stripping out of the ovens was not classed as a process and was one off work but the court did not accept that argument.
The court went even further. it ruled that the repeated exposure to the dangerous conditions caused by working inside the furnaces (which could last several weeks at a time) meant that the work was clearly unsafe. That the work was a common process supported the Claimant’s case to rely on the 1961 Act.
In the judgment the judge went further by saying that it was no defence if the activities were being carried out by the employees of an independent contractor. The liability could not be avoided by the occupier. Those same duties were on him. The court imposed on the factory owners a common law duty of care to that employee of an independent contractor.
In essence the court found that the factory occupiers should have known about the dangerous conditions. They had the power and opportunity to intervene and improve those conditions but did not do so.If they had then Mr Hill may have still been with us.
What does this mean for asbestos victims?
Victims of asbestos disease are often prevented from making claims because their past employers have dissolved and no insurer can be traced. Many of these people have worked in contractor or agency work. This work was usually for a firm on another person’s premises. Where that company is still in existence this case helps broaden the possibility of making claims against those factory owners in the future.
The case follows recent successes which we have reported on here
An earlier case of Hawkes was assessed here
Howard Bonnett, Director and Manager of Corries specialist asbestos team added
“This decision shows a growing and common sense approach by the courts. The courts are taking a far more sensible approach to how asbestos victims should be treated. This is the third recent case where the defendants arguments have been batted away.
I long to see the day when all asbestos victims are fully and properly compensated for asbestos disease. Whilst we may not be there yet this further case is another step in the right direction”
We understand that the factory owners may be seeking permission to appeal to the Court of Appeal on the case. Should there be any change in the law then we will update you. The judgment can be read by clicking this link
If you or a family member have been affected by asbestos disease in the last three years then contact our special team now. Call us FREE for a no obligation chat on (0800) 083 7839.