The Supreme Court UK’s McDonald judgement – narrow victory for mesothelioma victims

Posted: 23rd Oct 14 11:44 AM

The Supreme Court judgement in the case of McDonald v The National Grid Electricity Transmission PLC was a welcome result for mesothelioma sufferers.

The ruling states that the Asbestos Industry Regulations 1931 apply to all industries and not just the asbestos manufacturing industry. The ruling also gives helpful guidance that the Factories Act provides protection to all persons in the factory, whether or not they were employed by the factory owner.

The facts of McDonald are that between 1954 and March 1959 Percy McDonald visited Battersea power station as part of his employment as a lorry driver for a firm known as Building Research Station to collect pulverised fuel ash. Between 1954 and January 1957 he was at the power station about twice a month but this fell to about twice every three months from January 1957.

While at the power station Mr McDonald went into areas where asbestos dust was generated by lagging work. The lagging work involved mixing asbestos powder with water in order to make a paste, as well as sawing asbestos sections and stripping old asbestos lagging.

Mr McDonald was diagnosed with mesothelioma in July 2012. He died in February 2014.

At trial it was alleged that the occupiers of the power station had been in breach of their statutory obligations under the Asbestos Industry Regulations 1931 and the Factories Act 1937.

The original trial dismissed all Mr McDonald’s claims. The Court of Appeal later allowed Mr McDonald’s appeal under the Asbestos Industry Regulations 1931 but dismissed his appeal under the Factories Act 1937.

The Supreme Court found in favour of Mr McDonald with regard to the Asbestos Industry Regulations 1931. By a majority of three to two, the judges concluded that the 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition.

This is excellent news for workers in a factory or workshop where work with asbestos took place, even if not mixing asbestos himself or directly employed by the occupiers of the premises where asbestos was being mixed. Such work is judged to be within the scope of the 1931 Regulations.

Protection is now given to all workers in power stations and other factories where lagging work has been carried out or where substantial dust (of any kind and with only a small amount being asbestos) has been released. In these circumstances mesothelioma sufferers or their dependants can bring a case against the power station or factory owner even if the contractor he worked for is no longer trading or cannot be found.