Regulation 2 (a) Asbestos Industry Regulations 1931 applied to a visiting lorry driver

McDonald v (1) Dept for Local Government (2) National Grid Electricity [2013] EWCA

Lord Justice McCombe’s judgment in this case rewards careful reading.  This mesothelioma claim resulted in a decision that is notable for three reasons: 

• In the way it illustrates the wide remit of the absolute liability imposed under the 1931 Regulations where there was (a) no foreseeable risk, (b) no breach of duty at common law, (c) no liability under section 47 (1) of the 1937 Act for dust of such a character as was “likely to be injurious” and (d) no infringement of the ‘substantial quantity of dust’ provisions of section 47 (1) of the 1937 Act.

• It is also significant because it seems this claim only succeeded under the 1931 Regulations because the Court of Appeal felt constrained to follow the Cherry Tree ratio, under the Young v. Bristol Aeroplane Co Ltd [1944] KB 718 principle by which the Court of Appeal is bound by an earlier decision.  The Court of Appeal appears to have had some sympathy with the Defendant’s contentions that the Cherry Tree was wrongly decided and that the Asbestos Industry Regulations 1931, as their title implies, are directed to the asbestos industry alone.  Accordingly, it is possible that when this appeal is heard by the Supreme Court, it may disapprove of the Cherry Tree decision and restore a narrower scope to the 1931 Regulations; one that restricts its application to industrial manufacture of asbestos products, as opposed to their use elsewhere.

• Finally, the case provides an almost textbook illustration of the differences, not only between common law and statutory duties of care but also between the qualified / relative duty of care under generic health and safety legislation on the one hand, where the common law concept of reasonable foresight is relevant, and the asbestos specific regulations that impose an absolute duty, on the other.  In the latter case, these regulations are subject only the defence of ‘practicality’, and that only in the sense of that the precautions stipulated should be impracticable to implement from a physical viewpoint and where an appreciation of the risk presented by the exposure to asbestos is not required.

Brief facts:

The claimant was diagnosed with mesothelioma that claimed he had contracted during his employment during his employment as a lorry driver between 1954 and 1959.  His duties had involved collecting pulverised fuel ash from Battersea Power Station run by the National Grid Electricity Transmissions PLC.  It was claimed that he made 68 collections over the four year period.

He alleged that he was exposed to asbestos on his visits to the power station.  His case was that asbestos dust had been regularly released into the air from routine heat insulation maintenance and repair operations undertaken by others on site: preparing the asbestos mixture and in its application as a heat insulator to piping.  However, all this had occurred in locations where he had no reason to be as his role was confined to collecting and removing ash from an entirely different part of the building.  His case was that he had become friendly with some of the workers at the facility and had been free to roam and to socialise whilst waiting for collections.  The claimant’s statement gave the impression that he had been regularly exposed to clouds of asbestos dust. 

The claimant contended that D1, his employer, was liable at common law for failing to take reasonable care for his safety and for failing to warn him of the dangers involved.  His claims against D2 were founded on three separate causes of action:

• Breach of the common law duty of care,
• Breach of s47 (1) Factories Act 1937,
• Regulation 2 (a) Asbestos Industry Regulations 1931.

The trial judge did not accept that the claimant had been exposed to the degree of exposure he claimed.  HHJ Denyer QC.  He found that it had been only modest, on limited occasions and for short periods.

As to the allegation of breaches of the common law duty, he considered Williams v University of Birmingham [2011] CWCA Civ 1242 and held that in the mid to late 1950s...

‘...it would not reasonably have been foreseen that the quantities and intensity of any asbestos dust given off to which this Claimant was exposed would be likely to be injurious or offensive to his health.’

His claim was dismissed at first instance on all three grounds.   However, he succeeded on appeal under Regulation 2 (a) Asbestos Industry Regulations 1931.

If the appeal proceeds to the Supreme Court, the decision that the Court of Appeal felt constrained to make may well be overturned

My full commentary and analysis is Published in Butterworths Personal Injury Litigation Service Bulletin issue 112 and is featured in my Asbestos Fundamentals training for the Association of Personal Injury Lawyers.