Scottish Court of Session Decisions

 

OUTER HOUSE, COURT OF SESSION   [2006] CSOH 26
A2479/01	OPINION OF R F MACDONALD QC (Sitting as a Temporary Judge)   in the cause   JAMES HENNON AND OTHERS Pursuers   against   CAPE BUILDING PRODUCTS LTD AND OTHERS Defenders     ­­­­­­­­­­­­­­­­­________________

 

 

Pursuers: Marshall, Solicitor; Thompsons

First Defenders: Miss Paterson; Bishops

 

10 February 2006

 

 

Introduction

[1] The late Mrs Esther Hennon ("the deceased") died on 12 March 1998. This action has been brought by her husband James Hennon, who is the first pursuer, and other members of her immediate family against five separate parties. It is averred that at various times the first pursuer was exposed to asbestos dust in the course of his periods of employment with the third defenders, the fourth defenders' predecessors and the fifth defenders, that he regularly returned home from work with his person, clothes and overalls covered in asbestos dust and that the deceased was thereby exposed to breathing in an atmosphere at home impregnated by particles of asbestos dust in consequence of which she died of mesothelioma. It is further averred that the first pursuer's duties required him to work with marinite panels, which were made of asbestos insulation and manufactured and supplied by Marinite Limited ("Marinite"), the first defenders' predecessors, at and from their factory premises in Petershill Road, Glasgow. The case against the first defenders is that it was the duty of Marinite to warn the first pursuer's employers and the occupiers of the yards to whom they supplied asbestos as to the nature and extent of the risk to health caused by inhalation of asbestos dust from their products and to take reasonable care to provide instruction and advice in relation to use of their asbestos products to minimise said risks.

[2] The case called on procedure roll on the first defenders' third plea-in-law, which is in the following terms:

"On the hypothesis of fact averred by the pursuers, there being no duty of care incumbent upon the first defenders relative to the deceased, the action insofar as directed against the first defenders should be dismissed."

 

Submissions for the first defenders

[3] Miss Paterson commenced by outlining three chapters to her submissions: (1) no foreseeability of harm either in law or on averment; (2) no proximity: and (3) no proper duties averred against the first defenders. She then went on to draw attention to the detailed averments upon which the case of fault against the first defenders was based. In condescendence 2 at p 14D it was averred that the first pursuer's duties required him to work with marinite panels made of asbestos insulation and manufactured and supplied by Marinite. The detailed averments of fact setting out how the deceased came to be exposed to asbestos dust were to be found in condescendence 3 and were as follows:

 

"By reason of the said work and working conditions as hereinbefore condescended upon the first pursuer was exposed to considerable quantities of asbestos dust. Throughout the periods hereinbefore condescended upon the first pursuer regularly returned home from work with his person, clothes and overalls covered in asbestos dust. He resided with the deceased in a room and kitchen with one bedroom adjoining it. Upon coming home he would go into the kitchen and change. There was no door separating the kitchen from the living room. He took his clothes and put them in the basket in the kitchen for putting them on the next day. He would wash in the sink in the kitchen. He did not wash his hair on each occasion. He would go to bed each evening with his hair unwashed and his hair and person would contain asbestos dust and fibres. His clothes were washed twice a week and he would attend at his mother's house approximately three times a week for a bath. Prior to a wash, the deceased shook out his clothes to free them from dust. She also removed dust manually which had been caught in the recesses of his clothes including emptying his pockets. She did this in her home at the kitchen sink or in the wash house. The floor in the kitchen/living room was made of linoleum and partially covered by carpets. The dust from his overalls would settle onto the linoleum and said carpets. Dust would also become trapped underneath the carpet between it and the linoleum. The deceased swept up the dust with a brush and shovel and put it into a bin inside the house. In addition to using a brush and shovel the deceased also used a carpet cleaner for the carpets. The carpet cleaner was a manual sweeper on four wheels which brushed up dust by means of a brush which rotated as the cleaner was pulled backwards and forwards. The dust was swept up into a container in the cleaner. When full the container was opened and the dust poured out. This was done by the deceased onto a newspaper. She would normally require to kneel down when doing so. After pouring the dust onto the newspaper the deceased took the ends of the paper and and wrapped up the dust and then deposited the paper containing the dust into the bin. They had a coal fire and at times she would throw the dust into the fire. In clearing the coal fire for stoking and lighting she would shovel the dust from the coal fire onto paper and then dispose of it outside. There was a small carpet by the fire which she cleaned by brushing. She would also hang it outside on a rope and beat it clean. Asbestos dust was given off into the air in and around the deceased by the said release of asbestos from the first pursuer changing his clothes, putting them into the basket, putting them back on again, from his person, from cleaning the linoleum, carpets, coal fire and washing said clothes. Consequently during the first pursuer's said periods of employment the deceased was exposed to breathing in an atmosphere at home impregnated by particles of asbestos which were brought to the deceased's home by the first pursuer and as a result of his exposure in the course of his employment ..... through use of materials manufactured and supplied by the first defenders' predecessors ..... In consequence of said exposure the deceased contracted mesothelioma and died on 12 March 1998."

 

According to condescendence 2, this exposure of the deceased to asbestos dust took place between 1964-5 and 1968.

 

[4] It was essential for the success of the pursuers' case that a duty of care was owed by the manufacturer of the panels to the deceased. There was no statutory case against the first defenders, and it was not suggested that Marinite were in the relationship of occupier or employer to the deceased. The case against the first defenders was one of pure common law fault and was averred in condescendence 7 in the following terms:

"Separatim the deceased's said condition was caused by fault and negligence of the first defenders' predecessors ..... It was the duty of the first defenders' predecessors ..... to warn the first pursuer's employers and the occupiers of the yards to whom they supplied asbestos as to the nature, extent and risk (sic) to health caused from inhalation of asbestos dust from their products. It was their duty to take reasonable care to provide instruction and advice in relation to use of their asbestos products to minimise said risk. It was their duty to take reasonable care to advise the first pursuer's employers and occupiers of the said yards at all material times of the steps to be taken and the use of products including use of a sufficient number of suitable and efficient exhaust appliances to extract dust from the workplace at source before it escaped into the atmosphere of the workplace, to separate off workplaces from which asbsestos dust were (sic) created from each other and from places which asbestos dust were not created (sic) in order to better control the spread of such dust in the workplace, to advise the provision (sic) of maintenance and (sic) proper and efficient ventilation of the workplace in order to supply fresh air to remove asbestos dust from the breathing zone, to advise on a system whereby floors, benches, ledges and other internal surfaces were damped down to prevent dust arising therefrom before cleaning, to advise on suitable protecting (sic) clothing being available, to advise on the provision for adequate accommodation for working and non working clothes, to advise on the provision of bathing and shower facilities."

 

What was required in a case such as this was set out in Walker on Delict (2^nd Ed) at pps 170 et seq. At p 180 the learned author stated that the prime question is always whether or not a legal duty existed in the circumstances. The present case involved a novel area, for the court was being asked to find a manufacturer liable for the manner and place in which their products were used. The products in question were not in themselves dangerous: it was the cutting of the boards which caused the asbestos fibres to be released (see the averments in condescendence 2 at pps 14E-15A). It was the employers who determined how the product was to be used, where and by whom, and what precautions should be taken. We were not here in the area where the product being supplied was by its very nature a hazard or where those using it did not know, by reason of its content, that it was a hazard: this was not a case of a hidden danger. It was here being claimed that the duty of care on the manufacturers extended not only to the purchaser of the product, namely, the employer, but onward through him to the employee and the employee's spouse. In Gibson v Orr 1999 SC 420 police officers who attended a collapsed bridge put a warning to oncoming drivers on one side but not the other. The pursuer was a passenger in a car which approached from the side with no warning and fell into the river, causing him injury. It was accepted on behalf of the defender, the Chief Constable, that injury was foreseeable in the circumstances but submitted that the police officers at the scene were under no duty of care to the pursuer. The Lord Ordinary, Lord Hamilton, held that, on the basis of the three-element test in Caparo plc v Dickman [1990] 2 AC 605 per Lord Bridge of Harwich at pp 617H-618B, a duty of care existed. In that well-known passage Lord Bridge stated as follows:

"What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon one party for the benefit of the other."

 

Noble v De Boer 2004 SC 548 was a case involving an accident on a fishing vessel. It was an appeal from the Sheriff Court to the Inner House. At p 554, paras 10 and 11 Lord Marnoch stated:

"In relation to all the above submissions, reference was made to Gibson v Orr, which was said to be authority for applying to the existence of particular duties not only the well known test of reasonable care but also the more recent formulation of the 'fair, just and reasonable' test.

In my opinion, all the foregoing submissions are without merit. So far as the proposition based on Gibson v Orr is concerned, I have to say that my understanding of the law is that the 'fair, just and reasonable' test only falls to be applied in deciding whether in a novel context the law should recognise any duty of reasonable care. It does not operate to restrict the existence of such a duty once its scope is established."

 

[5] It was submitted that the present case was a novel one and that the pursuer failed both in relation to foreseeability of damage and proximity. So far as foreseeability of damage was concerned, the decision of the Court of Appeal in Maguire v Harland & Wolff plc [2005] EWCA Civ 1 involved secondary exposure to asbestos dust. The husband worked as a boiler-maker in the defendants' shipyard and was exposed to asbestos dust. From his marriage in December 1961 until his employment ceased in early 1965 his wife suffered domestic or familial exposure to the asbestos dust which he brought home on his clothing at the end of each working day. As a result of the exposure which she suffered Mrs Maguire contracted mesothelioma and died in May 2004. The issue before the court was when the employers should have been aware of the harmful effects of asbestos dust in the domestic or familial context. At first instance Morland J fixed the date as 1960, but in the Court of Appeal Judge LJ and Longmore LJ fixed it as 1965. There had to be knowledge brought home to the manufacturers that the family of people who used their products might suffer injury. At para 21 Judge LJ issued the following warning:

"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...... Quite apart from the absence of any warnings of familial risk in the literature, Mr Clark was unable to identify a time prior to 1965 when, as a matter of prudent practice, careful employers began to address the risk of asbestos-related injury in the families of their employees. There is no evidence in this case, and indeed there was none in Gunn, which suggested that, prior to 1965, the risk described by Morland J as 'obvious' gave rise to any echoing concern among responsible employers for the safety of members of the family of employees who worked with asbestos dust, or indeed among those with wider responsibility for health and safety generally."

 

Between 1964-1968 exposure to asbestos in the asbestos industry was permitted by the Asbestos Industry Regulations 1931 (SR&O 1931, No 1140), which remained in force until 1970.

[6] In the present case the averments of foreseeability in condescendence 5 at p 26 were in the context of an employer and employee in a factory, not between the manufacturer of a product and a housewife. At p 27B-C were to be found averments to be attributed to employers and the steps to be taken by them in relation to their use of asbestos. The manner in which a product was used was not within the control of the manufacturer: for the manufacturer to be liable it would have to have been reasonably foreseeable to him that marinite panels would be cut within a confined space, with the employers not fulfilling their duties. It was even more difficult for liability to attach to the manufacturer in the present case because the victim was at one remove from the employee. Nothing was said in any of the publications mentioned in condescendence 5 to give rise to knowledge on the part of the manufacturer that there was a risk to the health of the families of men using his product. Averments were made at p 30 about publications concerning the risk to the health of families of men working with asbestos where proper precautions had not been taken. At p 30E-31A it was averred that Marinite knew or should have known that employees other than their own would be engaged in the use and application of their products and the extent to which they would have been exposed to asbestos fibres, but these averments of foreseeability were without the foundation of the required factual averments. It was not averred how they knew how their products were being used and applied. There were no factual averments setting out the exposure of people using their products and how that came to their attention. Foreseeability could therefore not be established. In Robb v Dundee District Council 1980 SLT (Notes) 91 Lord Jauncey said at p 92:

"Foreseeability falls to be determined from facts and circumstances and if no such facts and circumstances are averred foreseeability cannot be established."

 

[7] The duties averred against the first defenders in condescendence 7 were all duties owed by an employer to an employee and they were non-delegable: Munkman on Employer's Liability (13^th Ed, 2001) at paras 4.13 and 5.71. What was being said by the pursuer was that the employers knew of the steps to be taken and that there was also a duty on Marinite to advise them what steps to take. In any event there was no proximity between Marinite and Mr and Mrs Hennon, who did not fall into the category of neighbours. The family of employees not in his own industry and not within his control could not be within the contemplation of the manufacturer unless he had some specific knowledge: Home Office v Dorset Yacht Co [1970] AC 1004 per Lord Reid at p 1027E and Lord Morris at p 1034 et seq. There was nothing which brought home to the manufacturer of marinite panels in the mid 1960s that his product would be used in such a way and in such circumstances as to give rise to injury to a person who had no direct contact with the marinite panel itself. There was no legal authority for a duty being imposed on him and nothing in the averments which could give rise to such a duty. The mischief arose here through the intermediate activity of the employer and employee and the manufacturer had no immediate control over that intermediate activity: he did not know where the activity was being carried out, for how long, whether precautions were being taken and what facilities were available to the workforce. According to the averments in condescendence 5, the manufacturer was aware that the inhalation of asbestos dust was harmful to health and those to whom he supplied the marinite boards were aware of that hazard and of the steps to be taken. The pursuers nevertheless asserted that the manufacturer had to advise and warn the employers to take the steps which they (the employers) already knew they should take.

[8] Moreover, if a duty was incumbent on the manufacturer, it was not a breach of it which resulted in the harm: it was the employers' failure which resulted in the harm. It was not averred that, had the advice and warning been given by the manufacturer to the employers, it would have been heeded by the latter: see McWilliams v Sir Wm Arrol & Co 1962 SC (HL) 70. For the pursuers to plead a relevant case they would have to aver that had the manufacturer given advice it would have been heeded and applied, and as a result the employees would not have left the workplace contaminated with asbestos. The only duty which could arise was that at p 39E to advise on the provision for adequate accommodation for working and non-working clothes and on the provision of bathing and shower facilities: breach of the earlier duties averred in condescendence 7 would not have affected the deceased if Mr Hennon had changed and showered before going home.

[9] It was not being suggested that under no circumstances could there be a duty of care owed by a manufacturer to an employee of someone using his products, but for such a duty to exist there would have to be something which brought home to the manufacturer knowledge of the employee's working environment and knowledge that the employers were unaware of the harm which could arise from the use of the product in the way it was being used. Responsibility for health and safety rested with the employers who chose to buy the product, knew what it contained and controlled what was done with it. In these circumstances it could not be fair, just and reasonable that the manufacturer should be held liable. The first defenders' third plea-in-law should be sustained and the action, so far as directed against them, dismissed.

 

 

Submissions for the pursuers

[10] In moving that the first defenders' third plea-in-law should be reserved and a proof before answer allowed, Mr Marshall began his submission under a series of points which covered generally the topics addressed by Miss Paterson. These were:

1.     The fact that Mr Hennon's employers were aware that asbestos was dangerous did not render the same awareness on the part of the manufacturer irrelevant.

2.     If there were a series of people in a chain of proximity to an injured person and each was negligent, the fact that those nearer the injured person were negligent did not absolve those further away in the chain from negligence.

3.     If goods were inherently dangerous, there was a duty on the manufacturer to take precautions or advise on the use of his product.

[11] So far as knowledge of the hazard was concerned, it was too narrow a reading of the averments of knowledge in condescendence 5 at p 26 to say that they related only to employers. Marinite were not only the manufacturers of asbestos products but also themselves employers and they more than anyone else ought therefore to have been aware of the danger attendant on the use of asbestos products. All knowledge of the danger of asbestos products arose from the manufacturing process. There was a duty on the manufacturers to advise every purchaser on the safe use of an inherently dangerous product. Marinite were also users of the product, as averred at p 28B. They knew in general what was going to happen to their products. They had to take reasonable care to see that their products were used safely. Everyone had to be given the same advice. It was averred at p 29D that Newhouse and Thomson in an article in 1965 entitled "Mesothelioma of Pleura and Peritoneum following exposure to asbestos" found that risk of mesothelioma arose from both occupational and domestic exposure to asbestos. Marinite were therefore under a legal duty to issue a general warning and to advise on the safe use of their products. The similarities between the averments of fault against the employers in condescendence 6 and the averments of fault against Marinite in condescendence 7 ought not to occasion any great surprise. The manufacturers should have made it clear that unless certain precautions were taken people were at risk from this dangerous product, including people "down the line" like the deceased.

[12] Turning to consider the chain of proximity, Mr Marshall began by looking at the facts in Donoghue v Stevenson 1932 SC (HL) 31 and pointed out that neither of the intermediaries, the café proprietor or the purchaser, had any way of knowing of the danger. At p 44 Lord Atkin stated:

"The liability for negligence, whether you style it such or treat it as in other systems as a species of culpa, is no doubt based upon a general public sentiment of moral wrongdoing for which the offender must pay. But acts or omissions which any moral code would censure cannot, in a practical world, be treated so as to give a right to every person injured by them to demand relief. In this way rules of law arise which limit the range of complainants and the extent of their remedy. The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question."

 

At p 70 Lord Macmillan stated:

"The law takes no cognisance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence, and entails the consequences in law of negligence. What then are the circumstances which give rise to this duty to take care? In the daily contacts of social and business life, human beings are thrown into, or place themselves in, an infinite variety of relations with their fellows; and the law can refer only to the standards of the reasonable man in order to determine whether any particular relation gives rise to a duty to take care as between those who stand in that relation to each other. The grounds of action may be as various and manifold as human errancy; and the conception of legal responsibility may develop in adaptation to altering social conditions and standards. The criterion of judgment must adjust and adapt itself to the changing circumstances of life. The categories of negligence are never closed. The cardinal principle of liability is that the party complained of should owe to the party complaining a duty to take care, and that the party complaining should be able to prove that he has suffered damage in consequence of a breach of that duty. Where there is room for diversity of view, it is in determining what circumstances will establish such a relationship between the parties as to give rise, on the one side, to a duty to take care and, on the other side, to a duty to have care taken."

 

Reference was also made to Walker on Delict (2^nd Ed) at pps 207 and 210. Grant v Sun Shipping Co 1948 SC (HL) 73 concerned the liability of the shipowners and ship repairers for injuries sustained by a dock labourer in an accident which occurred when he fell through an uncovered and unlighted hatch on the deck of a ship. It was held by the House of Lords that, on the facts, both the shipowners and ship repairers were guilty of negligence. At p 94 Lord du Parcq stated:

"I regard it as a well-settled principle that, when separate and independent acts of negligence on the part of two or more persons have directly contributed to cause injury and damage to another, the person injured may recover damages from any one of the wrongdoers, or from all of them. The Lord Ordinary's view was that 'the effect of any negligence of the second defenders was broken by the later negligence of the first defenders'....... With the greatest respect for the Lord Ordinary's opinion I think that his reasoning is fallacious. If the negligence or breach of duty of one person is the cause of injury to another, the wrongdoer cannot in all circumstances escape liability by proving that, though he was to blame, yet but for the negligence of a third person the injured man would not have suffered the damage of which he complains. There is abundant authority for the proposition that the mere fact that a subsequent act of negligence has been the immediate cause of disaster does not exonerate the original offender."

 

[13] Why, then, in this case should there be any difference between the employers and independent contractors (the second defenders who were insulation contractors who worked in the vicinity of the deceased) on the one hand and the employers and manufacturers (the first defenders) on the other hand? The relationship in the present case between the manufacturers and the deceased was a close one although at first glimpse it appeared to be a distant one. The injured party was precisely the class of person whom the 1965 Report had demonstrated to have been injured in this way. That report had revealed the danger of the transmission of asbestos dust from the workplace into the domestic environment. This was therefore not a novel situation, but, if it was, then it was just, fair and reasonable to impose upon the manufacturers a duty of care towards the deceased.

[14] So far as the question of the duty to advise on inherently dangerous goods was concerned, Mr Marshall referred to Walker on Delict (2^nd Ed) at p 608 et seq. In Donoghue v Stevenson Lord Atkin said at pps 54-55:

"I do not find it necessary to discuss at length the cases dealing with duties where the thing is dangerous, or, in the narrower category, belongs to a class of things which are dangerous in themselves. I regard the distinction as an unnatural one so far as it is used as a logical differentiation by which to distinguish the existence or non-existence of a legal right. In this respect I agree with what was said by Scrutton LJ in Hodge & Sons v Anglo-American Oil Co (1922) 12 Ll L Rep 183 at p 187, a case which was ultimately decided on a question of fact. 'Personally, I do not understand the difference between a thing dangerous in itself, as poison, and a thing not dangerous as a class, but by negligent construction dangerous as a particular thing. The latter, if anything, seems the more dangerous of the two; it is a wolf in sheep's clothing instead of an obvious wolf.' The nature of the thing may very well call for different degrees of care, and the person dealing with it may well contemplate persons as being within the sphere of his duty to take care, who would not be sufficiently proximate with less dangerous goods; so that not only the degree of care but the range of persons to whom a duty is owed may be extended. But they all illustrate a general principle. In the Dominion Natural Gas Co v Collins and Perkins [1909] AC 640 the defendants had installed a gas apparatus and were supplying natural gas on the premises of a railway company. They had installed a regulator to control the pressure, and their men negligently made an escape-valve discharge into the building instead of into the open air. The railway workmen - the plaintiffs - were injured by an explosion in the premises. The defendants were held liable. Lord Dunedin, in giving the judgment of the Judicial Committee .... , after stating that there was no relation of contract between the plaintiffs and defendants, proceeded (at p 646): 'There may be, however, in the case of anyone performing an operation, or setting up and installing a machine, a relationship of duty. What that duty is will vary according to the subject-matter of the things involved. It has, however, again and again been held that in the case of articles dangerous in themselves, such as loaded firearms, poisons, explosives, and other things ejusdem generis, there is a peculiar duty to take precaution imposed upon those who send forth or install such articles when it is necessarily the case that other parties will come within their proximity.' This, with respect, exactly sums up the position. The duty may exist independently of contract. Whether it exists or not depends upon the subject-matter involved; but clearly in the class of things enumerated there is a special duty to take precautions. This is the very opposite of creating a special category in which alone the duty exists. I may add, although it obviously would make no difference in the creation of a duty, that the installation of an apparatus to be used for gas perhaps more closely resembles the manufacture of a gun than dealing with a loaded gun. In both cases the actual work is innocuous; it is only when the gun is loaded or the apparatus charged with gas that the danger arises."

 

At p 65 Lord Macmillan stated:

"The exceptional case of things dangerous in themselves, or known to be in a dangerous condition, has been regarded as constituting a peculiar category outside the ordinary law both of contract and of tort. I may observe that it seems to me inaccurate to describe the case of dangerous things as an exception to the principle that no one but a party to a contract can sue on that contract. I rather regard this type of case as a special instance where the law exacts a degree of diligence so stringent as to amount practically to a guarantee of safety."

 

[15] There may be cases where it would be absurd to suggest that the manufacturers should be liable for events down the line. It was not necessarily helpful to consider other possible examples. In the Dominion Natural Gas Co case, referred to by Lord Atkin in the passage cited above, Lord Dunedin had gone on at pps 646-7 to draw a distinction between a negligent act and a wilful intention to cause harm:

"The duty being to take precaution, it is no excuse to say that the accident would not have happened unless some other agency than that of the defendant had intermeddled with the matter. A loaded gun will not go off unless some one pulls the trigger, a poison is innocuous unless someone takes it, gas will not explode unless it is mixed with air and then a light is set to it. Yet the cases of Dixon v Bell (1816) 5 M & S 198, Thomas v Winchester (1852) 6 NYR 397 and Parry v Smith 4 CPD 325 are all illustrations of liability enforced. On the other hand, if the proximate cause of the accident is not the negligence of the defendant, but the conscious act of another volition, then he will not be liable. For against such conscious act of volition no precaution can really avail."

 

[16] Manufacturers advised when there was a risk of injury from the foreseeable use of their product. In this case the manufacturers, being aware of the dangerous nature of their product, should have advised on the restricted circumstances in which it could safely be used. The intervention of another party after the manufacturers did not necessarily exclude their liability: Clerk & Lindsell on Torts (18^th Ed, 2000) at paras 2-44, 2-45, 9-29, 9-30 and 9-31. In Miller v South of Scotland Electricity Board 1958 SC (HL) 20 Lord Denning stated at p 37:

"If the pursuer avers facts from which it may be inferred that the defenders were negligent and that negligence was one of the causes of the injury, then he makes out a prima facie case; and his claim is not to be defeated by the fact that subsequently someone else was also negligent and that person's negligence was also one of the causes of the injury. It is a fallacy to suppose that the last cause is the sole cause. It is often only one of the causes..... It follows that a pursuer need not negative the existence of other causes. He need not negative the opportunity of inspection by others. Suffice for him to aver that the neglect of duty of which he complains was a cause of the injury and then leave the issue of causation to be determined at the trial."

 

The above passage was applied in Clay v A J Crump & Sons Ltd [1964] 1 QB 533.

[17] The product in this case was the equivalent of a loaded gun, or more in the nature of a gas cylinder, as it did not become hazardous until it was broken up. The pursuers were doing no more than positing a duty to warn of a known danger. A proof before answer should be allowed.

Response for the first defenders

[18] Miss Paterson began her response by submitting that, while she did not quarrel with Mr Marshall's three propositions as propositions in law, they were irrelevant in this case. In the cases cited there was separate and independent wrongdoing by each defender and each could by his own act have prevented the accident. The present case was different, because all the warnings in the world from the manufacturers would not have prevented the deceased's death unless they had been acted upon by the first pursuer's employers. The pursuers did not offer to prove that these warnings would have been acted upon and it therefore went back to the question of control. Lord Macmillan put the matter thus in Donoghue v Stevenson at p 72:

"It must always be a matter of circumstances whether the carelessness amounts to negligence, and whether the injury is not too remote from the carelessness. I can readily conceive that, where a manufacturer has parted with his product and it has passed into other hands, it may well be disposed to vicissitudes which may render it defective or noxious, for which the manufacturer could not in any way be held to blame. It may be a good general rule to regard responsibility as ceasing when control ceases."

In the present case the employers were in control of the product once it had been sold to them and the manufacturers had no control over the activities of the employers in relation to the product. The case had to be approached on the basis of the issue of control. The manufacturers could not force the employers to follow their advice (McWilliams). Advice from the manufacturers would not in itself have prevented the injury.

[19] This was not a case involving dangerous goods as Mr Marshall had accepted that marinite panels were not in themselves dangerous. Analogies with poison and a loaded gun were therefore not helpful. The conduct of a third party was always involved. Here the product could have been used in (what was thought to be) a safe manner and the employers knew how to use it safely. The employers had manipulated the product in a manner they knew or ought to have known created a hazard for their employees and their spouses. It was difficult to see how both the manufacturers and the employers could be liable: it was either one or the other. If the employers were liable, the manufacturers escape liability because their advice would have made no difference.

Discussion and Conclusion

[20] The question which I have to determine is whether, on the facts averred, it can be held that Marinite did not owe to the deceased the duty of care which the pursuers aver they did.

[21] Before I turn to deal with that question I think it is necessary to deal with the issue of joint and several liability on the part of the manufacturers and the employers in this case. It was contended by Miss Paterson that, if the employers were liable to the deceased, the manufacturers could not also be liable. I have no hesitation in rejecting that submission. In my opinion the second point enunciated by Mr Marshall at the outset of his submission was correct. He later phrased his proposition by stating that the intervention of another party after the manufacturer does not exclude the liability of the manufacturers, but I think it is necessary to insert the words "of itself" before the word "exclude". Joint and several liability of course depends upon there being a duty of care on each of the parties in the first place. If each is under a duty of care, the fact that the conduct of one occurred after the conduct of the other does not exclude liability on the part of the latter: see Grant v Sun Shipping Co 1948 SC(HL) 73 per Lord du Parcq at p 94 and Miller v South of Scotland Electricity Board 1958 SC(HL) per Lord Denning at p 37.

[22] Turning to the question of duty of care, in my opinion the question whether Marinite owed a duty of care to the deceased in the circumstances depends upon foreseeability of injury and proximity between the parties being established. It is accepted that the panels which were sold by Marinite were not in themselves dangerous: they had to be cut up in certain circumstances before they constituted a danger. The cutting up of the panels in circumstances such as to lead to danger to health by reason of exposure to asbestos dust was the act of the first pursuer on the instructions of his employers, who were at different times the third and fifth defenders and the fourth defenders' predecessors. For the deceased (who had no direct contact with Marinite's panels) to suffer injury the first pursuer then had to transport the asbestos dust home on his clothing or person and thereafter expose the deceased to it. Accordingly, after Marinite parted with the panels to the first pursuer's employers, there were two intervening acts of other persons, over which Marinite had no control, which led to the deceased suffering injury, namely, (1) the act of the employers in having the panels cut up; and (2) the act of the first pursuer in transporting the asbestos dust home on his clothing or person. For any duty of care towards the deceased to be incumbent upon Marinite these actings would have to be reasonably foreseeable to them, and that would be the case only if they knew or ought to have known that such actings would occur after they supplied the panels to the employers of the first pursuer. In my opinion there are no averments of fact on the basis of which it could be held that Marinite knew or ought to have known of these actings, which are averred in detail in condescendence 3 (Robb v Dundee District Council, supra). In this connection I consider that the submissions of Miss Paterson set out at paras [6], [7] and [18] above are well founded and that she was correct to say that the mischief arose through the intermediate activity of the employers and employee. In my opinion the passage in the speech of Lord Macmillan in Donoghue v Stevenson at p 72, which I have cited above at para [18] applies to the circumstances of this case.

[23] It therefore seems to me that lack of foreseeability of injury prevents the imposition of a duty of care in this case, both in its own right and also because it gives rise to the lack of the necessary proximity between Marinite and the deceased. In Donoghue v Stevenson Lord Atkin in his famous passage at p 44 posed the question "Who, then, in law, is my neighbour?" and answered it by saying "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question". I do not think that the deceased in this case can be said to be a person who was so closely and directly affected by the acts or omissions of Marinite that they ought reasonably to have had her in contemplation when they were directing their minds to the question whether, and if so, what advice they should give to the first pursuer's employers. It may even be said that she is a good example of someone who was neither closely nor directly affected by their acts or omissions, but rather someone who was remotely affected. Put another away, she was outwith the ambit of any duty of care owed by Marinite. As Lord Porter observed in Bourhill v Young 1943 SC(HL) 78 at p 98:

"The duty is not to the world at large. It must be tested by asking with reference to each several complainant: was a duty owed to him or her?"

 

[24] On the view I have taken so far the policy question whether it would be fair, just and reasonable for the court to impose the duty averred does not arise, but if it did, I would hold that it would not be fair, just and reasonable for such a duty to be imposed. The imposition of such a duty would, in my opinion, amount to an unjustified extension of the boundaries of negligence, particularly in a case where there is at least potential liability against other parties whose acts and omissions were more closely and directly connected with the deceased.

[25] Accordingly, in my opinion the duties averred by the pursuers in condescendence 7 as being incumbent upon Marinite were not in law incumbent upon them.

[26] In my opinion the pursuer's case also fails to pass the test of relevancy on the question of causation. The duty averred against Marinite is a duty to provide instruction and advice to the first pursuer's employers, but it is not averred that, had such instruction and advice been given, it would have been followed and acted upon by employers in question: McWilliams v Sir Wm Arrol & Co.

Decision

[27] For the reasons given above I shall sustain the third plea-in-law for the first defenders and dismiss the action so far as directed against them.