• Robert Spicer

Mesothelioma:Asbestos Exposure:Supreme Court Decision:First Instance Trial In Bristol

Mesothelioma: causation: exposure to asbestos

Case McDonald v National Grid Electricity Transmission plc [2014] UKSC 53

Facts M worked as a lorry driver collecting loads of fuel ash from Battersea Power Station between 1955 and 1959. He had no direct contact with asbestos in the course of his work. He sometimes entered the power station and went into areas where asbestos dust was generated by lagging work. In 2012 he was diagnosed with mesothelioma. He died in 2014 and was represented by his widow. She claimed compensation for breaches of the Asbestos Industry Regulations 1931 and the Factories Act 1937, the legislation which applied during the period of his employment. The defendant (National Grid) was the successor to the occupier and operator of Battersea Power Station.

At first instance, the trial judge in Bristol dismissed the claims on the basis that his exposure to asbestos had been of a modest level and unlikely to pose any health risk. The defendant had submitted that M had not been employed by the occupier of the premises and that his main work was not directly involved with asbestos.

M appealed to the Court of Appeal. It was argued on his behalf that working with asbestos was a risk even if the work was occasional or for limited periods. The Court allowed the appeal under the 1931 Regulations but dismissed the appeal under the 1937 Act. The defendant and M appealed to the Supreme Court.

Decision 1. The occupier of a site is responsible under the Factories Act 1937 for all persons on the site. This responsibility is not limited to direct employees.

2. There was insufficient evidence to rebut the finding of the Court of Appeal that M had not established that a substantial quantity of dust was given off by the lagging process. There was no liability under the Act of 1937.

3. The Asbestos Industry Regulations 1931 applied to all premises using asbestos and was not limited to those dealing with it in a raw, unprocessed form. The Regulations were intended to address harm which could be caused by the manipulation of asbestos rather than focusing on any particular setting where it might take place.

4. A worker in a factory or workshop where the processing of asbestos takes place is within the scope of the 1931 Regulations even if he is not mixing asbestos himself or is directly employed by the occupiers of premises where that is taking place.

5. It was a fallacious argument to submit that liability depended on a substantial quantity of asbestos dust being inhaled.

6.The appeals were dismissed.

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