Legacy Claims - McDonald (Deceased) v The National Grid Electricity Transmission Plc (Supreme Court)

Supreme Court decides whether lorry driver could recover for exposure to asbestos even though he was not required to go to a particular area where dust was generated

The claimant in this case died from mesothelioma earlier this year. He had worked as a lorry driver in the 1950s, when he would drive to Battersea power station in order to collect ash (which did not contain asbestos). Whilst at the power station he would go to other areas where asbestos dust was generated by lagging work (the work in question required the mixing of asbestos powder with water). The trial judge found that his exposure to asbestos was "of a modest level on a limited number of occasions over a relatively short period of time". Furthermore, he was not required to go to those areas in order to carry out his duties. The issue in this case was whether he could nevertheless sue the occupiers of the power station for breach of their statutory duties (namely, the Asbestos Industry Regulations 1931 and the Factories Act 1937). By a majority of 3:2, the Supreme Court has now held that he could.

The majority held that the 1931 Regulations had a wide scope and applied even if the main business of the workshop/factory was not the manufacture of asbestos and the work in question took place only occasionally. The term "mixing" in the Regulations should not be given a restricted, technical meaning either. It was also held that "it would be remarkable if the group to be protected was confined to those who were carrying out the process but those who were at risk from exposure because of their proximity to it should remain unprotected".

Nor did it matter that the claimant was not employed by the occupiers of the power station and was not required to go the that part of the site where he inhaled the dust which led to his development of mesothelioma. Citing an earlier Court of Appeal decision, it was held that there was nothing in the 1937 Act to justify the "gloss" that an employed person is protected only so long as he is acting within the scope of his employment.

The occupiers were under a duty to take practicable measures whenever a considerable quantity of (any kind of, not just injurious) dust was given off, and it did not matter whether that quantity of dust was considerable at the moment of inhalation.

COMMENT:

• Whilst the claim is bought under the Asbestos Industry Regulations 1931, the burden of proof of establishing that an exception to liability is on the occupier (rather than the Claimant proving he comes within the regulations)

• Claimants are more likely to succeed with pre-1965 (the generally accepted date of knowledge for mesothelioma) exposure cases. The position in the Court of Appeal case of Cherry Trees 2001 therefore remains unchanged.

• Further cases that have previously not been brought may now surface. Defendants are still able to defend against these earlier cases if the process did not involve “mixing”

• Section 47 applies to all types of dust and fumes, bringing bronchitis, silicosis, asthma and cancer within the remit

• Practically, Defendants will need produce evidence to show either that the initial production of dust was not “substantial” or that they took the practicable steps, as required by s.47(1)

• Given the wide interpretation of “person employed” in the Factories Act 1937 insurers may now see cases previously regarded as public liability are now brought under employers’ liability