Mesothelioma Claimant wins in the Court of Appeal

Posted: 14th Nov 13 1:29 PM

There has been a recent important decision affecting mesothelioma Claimants decided by the Court of Appeal.  The decision was handed down on the 6th November 2013 in the case of Percy Leonard McDonald v Department for Communities and Local Government and National Grid Electricity and Transmission PLC.

The facts of the case are that Mr McDonald was a lorry driver who collected loads of pulverised fuel ash from the ash plant at Battersea Power Station between 1954 and 1959.  The First Defendant was his employer and the Second Defendant was the successor body to the occupiers of the power station.

Mr McDonald alleged that he was exposed to asbestos when he visited the operational parts of the power station whilst waiting to collect loads of ash.  Mr McDonald described seeing the activities of the laggers mixing asbestos.

After hearing the evidence, the trial judge concluded that any exposure Mr McDonald had to asbestos was at a modest level and on a number of limited occasions over a short period of time.  On this basis he concluded that it was not foreseeable to his employers or to the owners of the power station that there was a foreseeable risk of injury and the claim in negligence was dismissed.  The Court of Appeal upheld the trial judges findings that there was no breach of duty in negligence by either Defendant.

However, the Court of Appeal found that the owners of the power station breached Regulation 2(a) of the Asbestos Industry Regulations 1931.  The Court of Appeal held that the Asbestos Industry Regulations 1931 applied to power stations and to the mixing of asbestos in power stations and that the onus was on the Defendant to show that all practicable steps had been taken to supress dust.  The Court of Appeal also upheld that foreseeability of risk was not required to establish a breach of Regulation 2(a) thereby rejecting the Defendants argument that the decision in Baker v Quantum meant that it could not be practicable to provide an exhaust draft to meet risk which was not foreseen in the 1950s.  The effect of the decision is that a claim under Regulations 2(a) of the Asbestos Industry Regulation 1931 will succeed where the Claimant can show exposure to some dust from mixing asbestos and where the Defendant cannot prove that practical steps were taken to ensure the suppression of dust.

There is a proviso to the Asbestos Industry Regulations which provides that the occupier will not be liable if the mixing of asbestos is carried on only occasionally, and no person is employed doing it more than 8 hours in any one week.  The Court of Appeal found that the burden was on the Defendant to show that it fell within this exception and in this case the Defendant could not.

The case also had an important bearing on the interpretation and scope of Section 47(1) of the Factories Act 1937.  At first instance before the trial judge the application of Section 47(1) was conceded, however on appeal the applicability of the Factories Act was challenged, and the Court of Appeal allowed the argument to be taken.  The Court of Appeal held that Section 47(1) of the Factories Act 1937 applies to protect only those “persons employed in the process” and not to someone who was either not employed in the process or who was just visiting the power station.  However, the Court of Appeal did not have in front of it the benefit of a transcript of Buxton J’s careful and reasoned judgment in Owen v IMI Coppertube 15th June 1995 (unreported) in which Buxton J had concluded that the equivalent section 63 (1) in the 1961 Factories Act extended to protect all those employed in the factory, whether they were engaged in the process or not.

Consequently, there may yet be further litigation in the future on the scope of the Factories Act.  In any event, the Court of Appeal found that Mr McDonald had not proved exposure to substantial dust, one of the requirements to establish liability under the Factories Act.

In this decision the Court of Appeal felt bound to follow the decision of the Court of Appeal in Cherry Tree Machine Company Limited and ANOR v Dawson, a decision of the Court of Appeal in 2001.  However, the Court of Appeal did appear to accept that the reasoning of Lord Justice Hale in the Cherry Tree case may have been flawed in that she may have misinterpreted the report which led to the 1931 Regulations, namely the Report on the Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry by Merewether and Price.  Lord Justice Hale in Cherry had concluded that the definition of mixing asbestos in the Regulations applied to other industries outside of the asbestos industry (in the instant case a power station).  The Court of Appeal seemed to agree with the Defendant’s argument that the 1930 report by Merewether and Price related only to the Asbestos Industry, and that the 1931 Regulations should be interpreted in the light of that report to apply only to the Asbestos Industry.  However, the Court of Appeal felt bound to follow the decision in the Cherry Tree case.

The Defendant has now sought permission to appeal the decision to the Supreme Court, and in the light of the support of Lord Justice McCombe for the argument that the 1931 Asbestos Regulations apply only to the Asbestos Industry, it appears that permission may be granted.