Percy Leonard McDonald (Claimant/Appellant) v Department for Communities and Local Government and Another

JurisdictionEngland & Wales
JudgeLord Justice McCombe,Lady Justice Gloster,Lord Dyson, Master of the Rolls
Judgment Date06 November 2013
Neutral Citation[2013] EWCA Civ 1346
Docket NumberCase No: B3/2013/1743
CourtCourt of Appeal (Civil Division)
Date06 November 2013

[2013] EWCA Civ 1346

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM BRISTOL DISTRICT REGISTRY QBD

His Honour Judge Denyer QC (sitting as a High Court Judge)

2BS91162

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Dyson, Master of the Rolls

Lord Justice McCombe

and

Lady Justice Gloster

Case No: B3/2013/1743

Between:
Percy Leonard McDonald
Claimant/Appellant
and
(1) Department for Communities and Local Government
(2) National Grid Electricity Transmission PLC
Defendants/Respondents

David Allan QC and Simon Kilvington (instructed by Irwin Mitchell LLP) for the Claimant/Appellant

Matthew White (instructed by the Treasury Solicitor) for the First Defendant/Respondent

Dominic Nolan QC (instructed by Plexus Law) for the Second Defendant/Respondent

Lord Justice McCombe

(A) Introduction

1

This is an appeal by Mr Percy McDonald from the order dated 24 June 2013 of His Honour Judge Denyer QC, sitting as a Judge of the High Court. By that order the learned judge dismissed Mr McDonald's claim against the Defendants/Respondents for damages for personal injuries, alleged to have been sustained by him in the course of his employment by the First Respondent's predecessor and while visiting premises controlled by the Second Respondent's predecessor owing to their respective negligence and/or breach of statutory duty. It is Mr McDonald's case that the condition of mesothelioma, from which, on 12 July 2012, he was diagnosed as suffering, was caused by exposure to asbestos at the Second Respondent's premises, as a result of these breaches of duty. Claims in negligence are levelled against both Respondents. In addition, Mr McDonald alleges that the Second Respondent was in breach of its statutory duties under the Asbestos Industry Regulations 1931 and the Factories Act 1937. Permission to appeal to this court was refused by the Judge and by Goldring LJ on the papers; it was granted upon an oral application by Beatson LJ.

(B) Background Facts

2

Certain of the grounds of appeal relate to the Judge's factual findings and to these points I will return. However, some non-contentious background facts can be stated at the outset.

3

Mr McDonald was born on 30 October 1930 and between 1954 and 1959 he worked at the Building Research Station at Watford, initially as a lorry driver and subsequently (from January 1957) as a fitter. The First Respondent is the successor body to Mr McDonald's employer at that time. The Second Respondent is the successor body to the occupier of the relevant premises at the times in question, the Battersea Power Station in London. During the course of his employment in the relevant period Mr McDonald attended the Second Respondent's premises for the purposes of collecting in his lorry pulverised fuel ash ("PFA"). It was during these visits, he alleges, that he suffered the exposure to asbestos dust from which his condition developed some 55 years or so later.

(C) The parties' cases on the facts

4

Mr McDonald's evidence was received by way of his three witness statements. It had been envisaged throughout the proceedings, until a very late stage before trial, that he would attend the trial and would give his evidence orally. Unfortunately, by the time of the trial (and only shortly before it), it became apparent that his health would not permit him to do this. He was not, therefore, cross-examined on the statements, either before the Judge or before an examiner of the court prior to trial. However, his statements were admitted at trial before the Judge as his evidence in the case.

5

Mr McDonald said in the statements that he was employed by the Building Research Station from 1954 until March 1959. Between 1954 and 1957, his attendance at the power station was as a driver about twice a month. In January 1957 he became a maintenance fitter and was asked to go to the premises rather less often, about twice every three months on average, when others could not do the trip or if there was not much to do at his work base. The nature of Mr McDonald's evidence as to what occurred on his visits to Battersea can be derived from some short passages from his three statements.

6

In paragraphs 13 to 16 of his first statement he said this:

"13. I drove a lorry (tipper) to Battersea Power Station and it would be filled up beneath a shoot (sic). PF ash was a fine dust. It took me about an hour to drive to Battersea Power Station and I would normally be there for between 1–2 hours and it would normally take me about an hour and a half to drive back. Nearly all of the occasions I visited Battersea Power Station, there would be a queue of vehicles waiting for various deliveries. I would simply park up my lorry and then go into the power station. I estimate that, on average, I spent about an hour or so in the power station. I had to deal with paperwork and talk to the Manager about my delivery. I got to know the workers in the power station very well and they would show me around and I would also have lunch in the power station. I would always be talking to the power station workers about what they were doing and about football etc. I generally waited in the power station until my lorry was ready.

14. Most of the time I went to the power station there was some type of lagging and de-lagging work taking place. Boilers, pipe work and equipment was being lagged with asbestos insulation and asbestos insulation was also being removed in some places. For the new asbestos insulation I saw the laggers mixing up asbestos powder in oil drums to make up a paste and apply to the pipe work, equipment or boilers. There was dried paste on the floor and I remember walking on it. There were visible clouds of asbestos in the air and on the surfaces and it was generally a very dusty place to be. I just got used to seeing that amount of asbestos dust in the air. The laggers were also cutting pre-formed sections to fit to pipe work and the boilers/equipment. The laggers also removed some of the old asbestos as I remember seeing them ripping it off the pipe work. I do not know why they were removing the old asbestos. Usually I was only 10–15 feet away from the work of the laggers and fitters.

15. Back at the British (sic) Research Station, the foreman was Harold Jordan. I would tell Harold that I had been in the power station talking to the workers in there. Harold was aware that nearly all of the delivery drivers would go into the power station whilst waiting for their lorry to be filled up with the PF ash.

16. I was not given any training about the dangers of asbestos. I was given no breathing protection to wear."

In paragraphs 4 to 6 of the second statement, Mr McDonald added:

"4. When I arrived at the Power Station it took me 5 minutes inside the Power Station to walk to the managers' office. On nearly every occasion there were other people waiting to speak to the manager and there were usually about half a dozen people waiting. Once I got all my paperwork completed I would usually speak to the workers who were dealing with my delivery and ask them about how long it would take and if there were any delays as I was on a schedule. If there were any delays I would try and see if they could be avoided and speak to the workers and managers. The workers/managers would take me to where the PF ash processes were being dealt with and show me what they were doing when there were delays. I found that when I spoke to the workers/managers and watched over what they were doing, the quicker I would get my delivery and be able to leave. The more noise I made, the quicker I was able to leave.

5. I would use the Battersea Power Station toilet that was within the Power Station also. The only reason I was taken around the Power Station was to deal with any issue regarding my delivery.

6. As I have said in my statement of 31 August 2012, laggers and fitters were in close proximity to the areas where I visited in the Power Station. Sometimes they were above me and I could see asbestos dust falling down, and regularly they would be within just a few feet of where I was speaking to managers and workers."

Finally, in paragraph 3 he said this about his discussions with his foreman, Mr Jordan:

"When I spoke to Harold Jordan I did tell him a few times that the work of the laggers was very skilled and artistic in how they applied the asbestos lagging material to pipework and boilers. Harold replied that after such a long time the laggers had got used to their job and that's what they were being paid to do."

7

The First Respondent observed that in Mr McDonald's case, he visited the premises something like 68 times over a four year period, about once a month averaged over the four years. It was to be doubted, said the First Respondent, that he was exposed to asbestos on each occasion or even on a majority of them. It was pointed out that Mr McDonald's activities in seeing the station manager, having lunch, using the lavatories and talking with other workers were hardly likely to be in the presence of significant asbestos dust; the relevant parts of the premises no doubt being relatively dust free. It was submitted that the bulk of Mr McDonald's activity would have to have been carried out in areas related to the loading of PFA, which were at some distance from the asbestos lagging areas.

8

The Second Respondent advanced similar points. The PFA plant was in a different area from where asbestos activity was carried out. The need for Mr McDonald to go to the boiler house of the power station or the turbine house, where asbestos lagging activities took place, would have been limited. There was no need for any lagging work in the...

To continue reading

Request your trial
1 cases
  • McDonald (Deceased) v National Grid Electricity Transmission Plc
    • United Kingdom
    • Supreme Court
    • 22 Octubre 2014
    ...[2014] UKSC 53 THE SUPREME COURT Michaelmas Term On appeal from [2013] EWCA Civ 1346 Lord Neuberger Lady Hale Lord Kerr Lord Clarke Lord Reed UKSC 2013/0267 UKSC 2013/0263 McDonald (Deceased) (Represented by Mrs Edna McDonald) (Respondent) and National Grid Electricity Transmission Plc (Ap......
1 books & journal articles
  • Legislating Dangerously: Bad Samaritans, Good Society, and the Heroism Act 2015
    • United Kingdom
    • The Modern Law Review No. 80-1, January 2017
    • 1 Enero 2017
    ...617 (PC) 642–643.93 [1987] AC 241, 269.94 See, for example, as illustrative of the point: McDonald vDept for Communities and Local Govt[2013] EWCA Civ 1346 at [106]. On further appeal, negligence was not in issue: [2014] UKSC53 at [5].95 Gospel of Luke 10: 25–37.104 C2017 The Author. The M......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT