Rice v Secretary of State for Trade and Industry & Anor

A statutory body may owe a common-law duty of care to workers even where the workers are allocated to, and controlled by, another employer. The existence of a contractual or tortious remedy against that employer does not exclude a concurrent duty.

The court applies foreseeability, proximity, and fairness, justice and reasonableness. Relevant considerations include the body’s statutory responsibilities for welfare and training, knowledge of the risk, control or influence over protective measures, and the claimant’s vulnerability. The duty may exist even though its precise content and extent remain to be determined later.

The claimants were dock workers who alleged that they had contracted asbestos-related illnesses while working at Liverpool Docks under the National Dock Labour Board Scheme. They pursued damages from the Secretary of State, who had assumed the liabilities of the National Dock Labour Board.

The preliminary issue was whether the Board owed them a duty of care to take reasonable steps to protect their health and safety while they worked as registered dock workers, including when allocated to registered employers. The court also considered the duration of the Board’s employment relationship with the claimants and whether a duty could arise despite the employers’ control of the work.

1. Preliminary issue answered affirmatively. The National Dock Labour Board owed the claimants a duty of care to take reasonable steps to protect their health and safety. The content and extent of the duty were left for later determination if not agreed.
2. Under the Scheme, employment by the Board ended when a worker was selected or allocated to a registered employer. The allocation occurred in the pens when the employer or the Board’s representative selected the worker. Powell v Docks and Inland Waterways Executive was applied.
3. The Board nevertheless retained material statutory responsibilities. These included making satisfactory provision for training and welfare, investigating whether employers made such provision, and using every endeavour to allocate workers accustomed to employers’ operations and cargoes. Welfare included matters affecting health.
4. The conventional approach in Caparo Plc v Dickman, as explained in Marc Rich & Co v Bishop Rock Ltd, required consideration of foreseeability, proximity, and whether it was fair, just and reasonable to impose a duty.
5. Foreseeability was established by the known dangers of asbestos dust, the claimants’ regular exposure, the absence of suitable protective equipment, and the poor safety arrangements of many registered employers. Proximity was established by the identifiable class of workers, the Board’s welfare responsibilities, its medical staff, its knowledge or constructive knowledge of the risks, and the claimants’ inability to refuse allocated work without serious sanctions.
6. The Board’s lack of power to inspect cargoes or control day-to-day working practices did not prevent a duty. Reasonable steps could have included making inquiries, giving advice, encouraging impermeable packaging and protective equipment, obtaining expert advice, or excusing workers from discipline where asbestos was dangerously packed.
7. The existence of remedies against registered employers did not preclude a duty owed by the Board. The statutory scheme was consistent with, and supported, the duty. The court regarded the case as a small extension of an existing category, assisted by Crimmins v Stevedoring Industry Finance Committee.
8. The alternative six-question approach discussed by McHugh J in Crimmins was assumed, without deciding its correctness, to be applicable. Each question was answered in favour of the claimants, including foreseeability, power to protect, vulnerability, knowledge, absence of core policy-making liability, and the absence of overriding policy reasons.