Ronald Quinn (Plaintiff) v Ministry of Defence

This is an appeal from a judgment of Astill, J. of the 28 ^th February, 1997, whereby he dismissed the claim by the Plaintiff, Ronald Quinn, against the Ministry of Defence.

The Judge was trying a preliminary issue, namely whether Section 10 of the Crown Proceedings Act, 1947, afforded the Defendant as the Crown an immunity from suit in respect of the Plaintiff's claim for damages. It is common ground that if the Plaintiff was successful on that issue then he was entitled to succeed and that if he failed on that issue then his claim would be dismissed.

The facts were agreed as follows:

"1. From the 11 ^th January 1949 to 13 ^th May 1951 and from 20 ^th September 1952 to 19 ^th June 1956 the Plaintiff served as an enlisted member of the Royal Navy. He served in various capacities including Stoker, Stoker Mechanic, Boiler Cleaner and Mechanical Engineer First Class. He served pursuant to the then prevailing Queen's Regulations for the Royal Navy and their then current appendices, and pursuant to the then prevailing terms of Service regulations.

2. The Plaintiff served aboard the Royal Naval ships wherein was located……. equipment, all of which habitually was insulated by material either made from or comprising asbestos.

3. In the course of his service on three or four occasions when Naval ships upon which the Plaintiff was assigned to serve, including H.M.S. Glory, in about 1951/1952 in his capacity as Boiler Cleaner, when the ships were not at sea, the Plaintiff was one of the crew engaged in maintenance or repair or cleaning of boilers. On each occasion the process would last for between 6 and 8 weeks. On each occasion the task involved stripping or removing all the lagging or insulation material comprising or containing asbestos, including brushing old lagging insulation off the boilers or pipe work. In the course of undertaking the aforesaid task, substantial quantities of dust were liberated in the confined spaces in which the Plaintiff had to work, which included asbestos dust and fibre which dust the Plaintiff inhaled. The procedure was that only at the conclusion of the stripping operation was debris collected and swept up for disposal, upon which task the Plaintiff also was engaged.

4. In the course of the aforesaid processes the Plaintiff inhaled quantities of dust including asbestos dust and fibre, which caused or materially contributed to causing the development of both bi-lateral plural thickening and Mesothelioma from which conditions the Plaintiff suffers.

5. By date no later than 11 ^th January, 1949, the Crown either knew or ought to have known that exposure of the Plaintiff to dust including asbestos dust fibre in the aforesaid quantities for the aforesaid durations and in the aforesaid circumstances could cause or materially contribute to some respiratory illness or disability.

6. During the course of the Plaintiff's service, he was not afforded by the Crown any warning of the risk of respiratory illness or disability associated with inhalation of asbestos dust or fibre, or any protection whether in the form of respirators or otherwise, against inhalation of asbestos dust or fibre, and inhalation of asbestos dust or fibre by the Plaintiff was not prevented by any system or systems of work instituted or operated by the Defendant's. Had the Plaintiff been warned of the danger to his health of inhalation of asbestos, he would not have worked with it or in close proximity to where others worked with it unless inhalation by him was prevented, and had a respirator or other suitable personal protective equipment made available to him, he would have worn or used it.

7. It is agreed for the purposes of this action that, subject to legal submissions as to whether the Crown owed to the Plaintiff a duty of care whether in contract or in tort, or whether the Crown enjoy any immunity from suit for breach of such duty, the Plaintiff's pain, injury loss and damage were caused by the breaches particularised in paragraph 6 of the Particulars of Claim."

Section 2(1) of the Crown Proceedings Act, 1947 , provides:

"Subject to the provisions of this Act, the Crown shall be subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject:-

(a) in respect of torts committed by its servants or agents;

(b) in respect of any breach of those duties which a person owes to his servants or agents of common law by reason of being their employer; and

(c) in respect of any breach of the duties attaching at common law to the ownership, occupation, possession or control of property."

Section 10(1) provides:

"Nothing done or omitted to be done by a member of the Armed Forces of the Crown while on duty as such shall subject either him or the Crown to liability in tort for causing the death of another person, or for causing personal injury to another person, insofar as the death or personal injury is due to anything suffered by that other person while he is a member of the Armed Forces of the Crown if "(a) at the time when that thing is suffered by that other person, he is either on duty as a member of the Armed Forces of the Crown or is, though not on duty as such, on any land, premises, ship, aircraft or vehicle for the time being used for the purposes of the Armed Forces of the Crown and" (b) the Secretary of State certifies that his suffering that thing has been or will be treated as attributable to service for the purposes of an entitlement of an award under the Royal Warrant, or Order in Council, or Order of his Majesty relating to the disablement or death of members of the Force of which he is a member: provided that this sub-section shall not exempt a member of the Armed Forces from liability in tort in any case in which the court is satisfied that the actual mission was not connected with the execution of his duties as a member of those Forces."

Section 10(2) provides:

"No proceedings in tort shall lie against the Crown for death or personal injury due to anything suffered by a member of the Armed Forces of the Crown if (a) that thing is suffered by him in consequence of the nature or condition of any such land, premises, ship, aircraft or vehicles aforesaid, or in consequence of the nature or condition of any equipment or supplies used for the purposes of those Forces; and (b) the Secretary of State certifies as mentioned in the preceding sub-section; nor shall any act or omission of an officer of the Crown subject him to liability in tort for death or personal injury, insofar as the death or personal injury is due to anything suffered by a member of the Armed Forces of the Crown being a thing as to which the conditions aforesaid are satisfied."

Section 10(3) provides:

"The Admiralty or a Secretary of State, if satisfied that it is the fact: -

(a) that a person was or was not on any particular occasion on duty as a member of the armed forces of the Crown; or

(b) that at any particular time any land, premises, ship, aircraft, vehicle, equipment or supplies was or was not, or were or were not, used for the purposes of the said forces;

may issue a certificate certifying that to be the fact; and any such certificate shall, for the purposes of this section, be conclusive as to the fact which it certifies."

Section 2 made the Crown liable for the first time in respect of (a) vicarious liability, (b) as an employer and (c) in respect of occupiers' liability.

Section 10 provides immunity to the Crown for liability in certain particular circumstances relating to members of the Armed Forces. Mr. Langstaff for the Appellant submits that the Crown cannot claim immunity on the facts of this case. Mr. Leveson for the Crown submits that the Crown is immune by reason of the provisions of Section 10(2). Mr. Leveson specifically did not invite the Court to consider whether the provisions of Section 10(1) apply, and accordingly we have not done so.

Mr. Langstaff submits as an alternative that there was a contract of employment between the Plaintiff and the Crown and that he is entitled to sue for breach of the contract between an employer and employee for, inter alia, a failure to provide a safe system of work. Mr. Leveson submits on this issue that it is well established in the law of England and Wales that there is no contractual relationship between a member of the Armed Services and the Crown.

Astill, J. upheld Mr. Leveson's submissions. He held that the Plaintiff must fail, following the reasoning of this Court in Pearce v. Secretary of State for Defence [1988] 1 A.C. 755, that in any event the Plaintiff's injury, mesothelioma was due to the nature and condition of the ship within Section 10(2) and that there was no contractual relationship between the Plaintiff, who was during the material years, between 1949 and 1956 a serving member of the Royal Navy, and the Crown. Mr. Langstaff submits that under the provisions of Section 10(2) the Crown is not exempt from a liability in tort in respect of an unsafe system of work. He submits that under Section 10(2) there are 5 separate components:

(1) Personal injury i.e....