Claims arising as a result of work related disease caused in an industrial setting, such as asbestosis or mesothelioma, can be complicated especially if there are arguments surrounding the period of exposure to asbestos dust or the work involved different time periods and employers. Often the work would have been carried out many years ago and it is not always clear who the employer was at a given period of time. This was the situation which was considered in a recent High Court case (judgment given 22 February 2018) of Heynike (Executer of the estate of David Hill deceased) v (1) 00222648 Limited (formerly Birlec Limited) (2) MOD (3) Special Metals Wiggin Limited [2018] EWHC 303 (QB).

David Hill died on 22 July 2012 aged 63. The cause of his death was mesothelioma which developed as a result of his exposure to asbestos at work. He was a brick layer working in the UK in the early 1970’s. His work included maintenance and refurbishment of industrial furnaces and during this work he was exposed to asbestos. He worked at factories occupied by the second and third defendants. He was not employed by them but his services were provided to them by the first defendant Birlec Ltd. Birlec obtained his services from another company by whom he was nominally employed, Lou Brawn (Staffs) Ltd.

It was admitted by the defendants that Mr Hill was exposed to asbestos in the course of his work and that the mesothelioma was caused by the asbestos exposure. The trial which took place was only concerned with which of any of the defendants were liable. There were a number of issues to determine including whether Birlec was Mr Hill’s employer and also what was the extent of the second and third defendants obligations and duties as occupiers to Mr Hill as they were not his employers, but he was doing work for them.

As far as the employment position was concerned the court could imply a contract of employment between Mr Hill and Birlec provided certain characteristics were satisfied even though Mr Hill considered that he was employed by Lou Brawn Ltd. This would be similar to an agency type of situation where workers are employed by an agency and provided to companies as labour for work. For a contract of employment to be inferred between Birlec and Mr Hill there would need to be some words or conduct which entitles the court to conclude that the agency arrangements did not dictate or adequately reflect how the work was actually being performed, and that the reality of the relationship was only consistent with the implication of an employment contract. It would be necessary to show that Mr Hill had been working not pursuant to the agency arrangements between Birlec and Lou Brawn, but because of mutual obligations between himself and Birlec, binding upon them both, which were incompatible with agency arrangements. The court decided that there was no contract of employment to be implied between Mr Hill and Birlec. Factors taken into account included the facts that Mr Hill did not consider himself employed by Birlec, his wages were paid by Lou Brawn Ltd, and the nature of the relationship between Birlec and Mr Hill was explicable by the contract between Birlec and Lou Brawn.

The judge considered in detail the work that Mr Hill carried out for the second and third defendants and their obligations as occupiers of the factories where Mr Hill worked. He considered that there were breaches of the Factories Act 1961 and the requirement for a safe place of work. The judge concluded that there was evidence of excessive amounts of dust being produced in the work which was quite clear to Birlec’s supervisors and to the factory defendants’ own supervisory staff. Birlec were in breach of their duty of care to Mr Hill. An obvious risk to health and safety generally was created by them within the second and third defendants’ own factory premises. In those circumstances a duty of care arose at common law and on the evidence the factory defendants were in breach of that duty as well. It was no defence for the second and third defendants to argue that the hazard created by the dust was the responsibility of Birlec who they had engaged as specialist contractors as they had the power to intervene to deal with it, failed to do so.

The trial concentrated on the defendants liability to the claimant and having found that they were liable the judge adjourned off to a separate hearing the question of each of the individual defendants apportionment of liability and how much of the claim they were each responsible for.