Rice v Secretary of State for Trade and Industry
| Jurisdiction | England & Wales |
| Judge | Lord Justice May |
| Judgment Date | 04 April 2007 |
| Neutral Citation | [2007] EWCA Civ 289 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No's: B3/2006/1397; B3/2006/1528 |
| Date | 04 April 2007 |
[2007] EWCA Civ 289
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE (QB)/MANCHESTER DIST. REG.
THE HON. MR. JUSTICE SILBER
OL304927/4OL00141
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Keene and
Lady Justice Smith
Case No's: B3/2006/1397; B3/2006/1528
John Hendy QC and Jonathan Davies (instructed by John Pickering & Partners LLP) for the Claimant/Respondent
Michael Kent QC and Michael Rawlinson (instructed by Beachcroft, London) for the 1 st Defendant/Appellant
Hearing dates : 30 & 31 January 2007
Introduction
It has now been so well known for so long that asbestos is deadly that it is difficult to understand how things were in the Liverpool docks in the 1950s and 1960s. The volume of shipping then loading and unloading cargo was vastly greater than it is today. The means of doing so were much less sophisticated. There were many more dock workers whose routine conditions of work would not have measured up to today's standards. Yet much of all this was no doubt taken for granted. It was half a century ago, when present day principles of the law of negligence were only partly developed.
Edward Rice was a dock worker at Liverpool docks between 1955 and 1967. He has died of asbestos related illness and his wife brings these proceedings on her own behalf as widow and on behalf of his estate. Francis Thompson was a dock worker at Liverpool docks between 1966 and 1967. He suffers from asbestos related illness and brings proceedings on his own account. I shall refer to Mr Rice or his widow and Mr Thompson as “the claimants”.
During the times that the claimants worked in Liverpool docks, a shipping line called Clan Line delivered asbestos there from South Africa. The asbestos was in hessian sacks, which so easily allowed clouds of asbestos dust to escape. No wonder that the claimants, and no doubt others, contracted their deadly illnesses. Today you cannot handle asbestos at all, other than to remove it from existing structures; and then under the strictest safety precautions. Yet virtually no precautions were taken by or on behalf of these dock workers.
As I shall explain, the claimants were working for Clan Line when they were unloading the asbestos. It is assumed in the present proceedings that Clan Line were in breach of duty to the claimants in not taking due precaution for their safety. But Clan Line and its successor, the second defendant, are no longer in existence and their erstwhile insurers are not identifiable. These proceedings are therefore brought against the Secretary of State for Trade and Industry as statutory successor to the obligations of the National Dock Labour Board. The claimants say that they have a cause of action in negligence against the NDLB, in that their illnesses were caused by the NDLB's breach of a duty of care owed to them. On 26 May 2006, Silber J, sitting in Manchester, heard and determined an agreed preliminary issue as to whether the NDLB did indeed owe the claimants a duty of care. He held that they did owe a duty of care. This is the Secretary of State's appeal against that decision, Silber J himself having given permission to appeal.
The preliminary issue
The terms of the agreed preliminary issue which Silber J determined were:
“Did the National Dock Labour Board owe a duty of care to Edward Rice and/or Robert Thompson to take reasonable steps to protect their health and safety in respect of work carried out by them as registered dock workers, whether for the Second Defendant or any other registered employer to whom they had been allocated by the National Dock Labour Board pursuant to the provisions of the National Dock Labour Board Scheme 1947 or that scheme as subsequently amended?”
The judge was concerned that he was being asked to determine whether the NDLB owed the claimants a duty of care without the scope or extent of the duty of care also being determined. That is a concern which I share. Negligence claims are habitually advanced and analysed compartmentally by considering whether the defendant owed the claimant a duty of care; whether the defendant was in breach of that duty; and whether the defendant's breach of duty caused the claimant loss. This may often be convenient, but it is conceptually suspect. Damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the claimant claims to have suffered. As Lord Bridge of Harwich said in Caparo Industries plc v Dickman [1990] 2 AC 605 at 627:
“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398, at 486, when he said:
“The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such… that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”
Accordingly, the bare question whether a defendant owes a claimant a duty of care, without defining the scope of the duty with reference to the injury or loss for which the claimant claims damages, is conceptually questionable. The parties before this court accepted this difficulty, but both urged the court to proceed to hear and determine the appeal upon an agreed reformulation of the preliminary issue as follows:
“Did the NDLB owe a duty at common law to take any positive steps so as to prevent or reduce the exposure of the claimants to asbestos dust following their allocation to or selection by Clan Line?”
The High Court of Australia were apparently untroubled in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 in deciding by a majority that the Committee owed Mr Crimmins a duty of care, without defining the steps which a reasonable authority would have taken in the circumstances of the case. Mr Crimmins was an Australian dock worker who handled asbestos and who suffered from asbestos related illness; and the Committee were an organisation which carried out functions with some similarities to those to the NDLB. Their functions and relationship to dock workers were, however, materially different, and the decision is not directly applicable to the present appeal.
With some hesitation, I am prepared to consider whether the NDLB owed the claimants a duty of care whose scope and content will remain to be determined. I note that the pleaded scope of any duty of care implicit in the particulars in paragraph 8 of the Amended Particulars of Claim in Mrs Rice's case is, by modern standards, fairly limited. The case now advanced on behalf of the claimants was helpfully synthesised by Mr John Hendy QC, on their behalf, before us to the effect that, if the NDLB had taken one or more of the following steps, the claimants' exposure to asbestos would have been significantly diminished or prevented. It is said that they should have
a) requested that port employers provide:
i) masks and respiratory equipment (whether in accordance with the recommendation of the Regional Medical Officers to the Chief Welfare Officer and hence to the National Dock Labour Board, or otherwise);
ii) extraction plant or equipment or arrangements to dampen the asbestos during handling;
iii) transport for asbestos in sealed pallets or impermeable packaging;
b) warned the registered dock workers of the risks of exposing themselves to asbestos and/or trained them how to avoid or minimise such risks – whether or not this led to their unions applying collective pressure;
c) warned the registered port employers of the risks of exposing their employees to asbestos;
d) informed registered dock employers and workers that the workers would not be disciplined for refusing to unload asbestos in an unsafe condition and without sufficient safety measures;
e) otherwise encouraged or persuaded the port employers to take steps to minimise the risk of exposure to asbestos.
Forseeability
Mr Michael Kent QC, for the Secretary of State, sensibly accepted before this court that, in the circumstances of their employment, injury to the claimants' health from handling asbestos as they did was reasonably foreseeable. I take this to be an acceptance that, at the times of the claimants' employments, the NDLB knew or ought reasonably to have known that handling asbestos in hessian sacks without taking precautions was dangerous and likely to cause injury to the claimants' health. This matter was in issue before the judge, who considered it in paragraphs 50 to 58 of his judgment, which may be found at [2006] EWHC 1257. The judge referred at some length to an unreported decision of Tucker J in Walker v Port of London Authority (4 September 1988), and to a passage in the opinion of Lord Bingham of Cornhill in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 at paragraphs 6 and 7. He referred to other material, including a document of 21 November 1955, which described the main functions of...
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