McDonald (Deceased) v National Grid Electricity Transmission Plc
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Neuberger,Lord Clarke,Lord Reed,Lord Kerr |
| Judgment Date | 22 October 2014 |
| Neutral Citation | [2014] UKSC 53 |
| Docket Number | UKSC 2013/0267 |
| Court | Supreme Court |
[2014] UKSC 53
Lord Neuberger
Lady Hale
Lord Kerr
Lord Clarke
Lord Reed
UKSC 2013/0267
UKSC 2013/0263
Appellant
Dominic Nolan QC Philip Godfrey (Instructed by Damon Burt, Plexus Law)
Respondent
David Allan QC Simon Kilvington (Instructed by Satpal Singh, Irwin Mitchell LLP)
Heard on 12 and 13 February 2014
Percy McDonald was diagnosed as suffering from mesothelioma in July 2012. Sadly, at the beginning of February 2014, just before the appeal in his case was due to be heard by this court, Mr McDonald died. His widow, Edna McDonald, has been substituted as respondent in the appeal. The period between diagnosis and death in Mr McDonald's case is entirely consistent with experience of this insidious disease. Survival for no more than a period of months after diagnosis is the almost invariable outcome.
Mesothelioma is a form of cancer that develops from cells of the mesothelium, the protective lining that covers many of the internal organs of the body. It usually affects the pleura, the outer lining of the lungs and the internal chest wall. It is most commonly caused by exposure to asbestos. Symptoms or signs of mesothelioma may not appear until 50 years (or more) after exposure.
Mr McDonald was employed by a firm known as Building Research Establishment, operated by the government. Between 1954 and March 1959 he attended Battersea power station in the course of his employment. This was for the purpose of collecting pulverised fuel ash. Between 1954 and January 1957 he was at the power station approximately twice a month. Between January 1957 and March 1959 he was there about twice every three months. The plant where the ash was collected did not contain asbestos. But Mr McDonald, while visiting the power station, went into other areas where asbestos dust was generated by lagging work. This happened particularly in the boiler house. It is suggested by the appellant that his visits to these areas took place because of curiosity on his part or because he was on friendly terms with workers employed there. At the times he was exposed to asbestos, Mr McDonald was, the appellant's counsel, Mr Nolan QC, suggested, a "sightseer" or an "interested visitor".
The lagging work involved mixing asbestos powder with water in large drums in order to make a paste. It also included the sawing of preformed asbestos sections and the stripping off of old asbestos lagging. On occasions Mr McDonald walked through dried asbestos paste. 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 … [and] … was not greater than those levels thought of in the 1950s and 1960s as being unlikely to pose any real risk to health".
The appellant is the successor body to the occupiers of the power station and, at trial, Mr McDonald alleged that those occupiers were negligent and in breach of their statutory obligations under regulation 2(a) of the Asbestos Industry Regulations 1931 and section 47 of the Factories Act 1937. He also claimed against his employers that they had been guilty of negligence. The trial judge, His Honour Judge Denyer QC, dismissed all the claims against both defendants. On appeal, the Court of Appeal allowed Mr McDonald's appeal under the 1931 Regulations but dismissed his appeal under the 1937 Act and in negligence. The appellant appeals to this court against the judgment under the 1931 Regulations and Mrs McDonald cross appeals against the dismissal of her husband's claim under section 47 of the 1937 Act. Negligence is no longer in issue.
These Regulations were made pursuant to the provisions of the Factory and Workshop Act 1901, section 79 of which provided:
"Where the Secretary of State is satisfied that any manufacture, machinery, plant, process or description of manual labour, used in factories or workshops, is dangerous or injurious to health or dangerous to life or limb, either generally or in the case of women, children or any other class of persons, he may certify that manufacture, machinery, plant, process or description of manual labour to be dangerous; and thereupon the Secretary of State may, subject to the provisions of this Act, make such regulations as appear to him to be reasonably practicable and to meet the necessity of the case."
In a letter of 15 September 1931 the Secretary of State indicated that he would use his powers under this section and he enclosed a draft of the Regulations that he proposed to make "for the protection of the workers employed in certain processes involving exposure to asbestos dust". He gave notice in the letter that he had "formally certified as dangerous the manipulation of asbestos and the manufacture or repair of articles composed wholly or partly of asbestos and processes incidental thereto …" The letter further intimated that the Secretary of State had decided to give effect to recommendations contained in two reports, "Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry" by Merewether and Price published in March 1930 and the Report of Conferences between Employers and Inspectors concerning Methods for Suppressing Dust in Asbestos Textile Factories, which had been published shortly before the Secretary of State's letter was sent. That letter continued:
"The draft Regulations follow generally the provisions recommended in the two Reports already mentioned, with certain additions and modifications which have been made after taking into consideration observations submitted by the General Council of the Trades Union Congress."
Section 82(1) of the 1901 Act provided:
"The regulations made under the foregoing provisions of this Act may apply to all the factories and workshops in which the manufacture, machinery, plant, process or description of manual labour, certified to be dangerous, is used (whether existing at the time when the regulations are made or afterwards established) or to any specified class of such factories or workshops. They may provide for the exemption of any specified class of factories or workshops either absolutely or subject to conditions."
The breadth of the anticipated application of the Regulations should be noted. This subsection foreshadowed their application to a wide range of processes. It also presaged that processes etc which did not exist at the time the Regulations were made could come within their embrace when later established. The potentially wide scope of the Regulations was also reflected in section 83 of the Act which provided:
"… Regulations made under the foregoing provisions of this Act may, among other things —… (b) prohibit, limit or control the use of any material or process;"
This broadly based theme was continued in the text of the Regulations themselves. In the preamble it was directed that they were to apply to
"… all factories and workshops or parts thereof in which the following processes or any of them are carried on:-
(i) breaking, crushing, disintegrating, opening and grinding of asbestos, and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto;
(ii) all processes in the manufacture of asbestos textiles, including preparatory and finishing processes;
(iii) the making of insulation slabs or sections, composed wholly or partly of asbestos, and processes incidental thereto;
(iv) the making or repairing of insulating mattresses, composed wholly or partly of asbestos, and processes incidental thereto;
(v) sawing, grinding, turning, abrading and polishing, in the dry state, of articles composed wholly or partly of asbestos in the manufacture of such articles;
(vi) the cleaning of any chambers, fixtures and appliances for the collection of asbestos dust produced in any of the foregoing processes."
The extent of the potential application of the Regulations was mitigated by a proviso to the preamble which was in the following terms:
"Provided that nothing in these Regulations shall apply to any factory or workshop or part thereof in which the process of mixing of asbestos or repair of insulating mattresses or any process specified in (v) or any cleaning of machinery or other plant used in connection with any process, is carried on, so long as (a) such process or work is carried on occasionally only and no person is employed therein for more than eight hours in any week; and (b) no other process specified in the foregoing paragraphs is carried on."
Although this proviso cut down the scope of the Regulations, it gives some insight into the width of their intended ambit. It carried the clear implication that the Regulations applied even if the main business of the factory or workshop was not the manufacture of asbestos goods. Moreover, the processes identified in the preamble, other than those listed in the proviso, were to come within the Regulations even if the work involved in them took place only occasionally or for limited periods. Also, in relation to those processes listed in the proviso, including mixing, the Regulations were to apply unless the work was carried out occasionally and no person undertook it for more than 8 hours a week. A further proviso, not directly relevant for present purposes, permitted the chief inspector of factories to suspend or relax the Regulations, if satisfied that, by reason of the restricted use of asbestos or the methods of working, they could be suspended or relaxed without danger to...
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