Rice & Anor v Secretary of State for Trade & Industry & Anor

In negligence, a duty cannot be analysed as a bare yes-or-no question. Its scope must be related to the damage claimed, with attention to foreseeability, proximity or assumed responsibility, the statutory context and whether imposing liability is fair, just and reasonable.

A statutory body is not immune merely because its functions arise from statute. A broad public duty owed to the public at large will rarely create a parallel common-law duty sounding in damages. A specific statutory duty, coupled with a close relationship and a known serious risk, may do so. The statutory obligation to provide dock-worker welfare, including work-related health, therefore supported a common-law duty, although its precise scope remained to be determined.

Edward Rice, a deceased dock worker, and Robert Thompson, another dock worker, suffered asbestos-related illness after unloading asbestos for Clan Line at Liverpool docks. It was assumed that Clan Line had breached its duty, but the claimants pursued the Secretary of State as statutory successor to the National Dock Labour Board.

Silber J decided an agreed preliminary issue, reported at [2006] EWHC 1257, and held that the Board owed the claimants a duty of care. The Secretary of State appealed. The central issue was whether the Board’s statutory functions and relationship with registered dock workers could give rise to a common-law duty to take positive steps to reduce asbestos exposure.

The appeal was dismissed unanimously. May LJ gave the judgment, with which Keene LJ and Smith LJ agreed.

1. The court accepted that the bare question whether a duty of care existed was conceptually incomplete. The scope of the duty had to be considered by reference to the kind of damage claimed, together with foreseeability, the relationship between the parties and the statutory context. The formulations in Caparo Industries plc v Dickman [1990] 2 AC 605, Murphy v Brentwood District Council [1991] 1 AC 398 and Merrett v Babb [2001] EWCA Civ 214 were consistent with that approach.
2. The National Dock Labour Board was not an ordinary employer. The relationship was hybrid, although the Board was the employer for some purposes and some periods. The position of registered dock workers could not simply be equated with that of employees under an ordinary contract of service. That did not, however, establish any general immunity for statutory bodies.
3. The authorities concerning statutory powers and omissions, particularly Stovin v Wise and Norfolk County Council [1996] AC 923 and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, required close attention to statutory purpose and policy. A broad target duty owed to the public at large, without a private right to damages, would rarely create a parallel common-law duty. The position could differ where the statutory framework created a specific relationship and the authority had assumed responsibility. The distinction between a statutory power and a statutory duty was material.
4. Section 1(2)(d) of the Dock Workers (Regulation of Employment) Act 1946 and paragraph 3(1)(g) of the 1947 Scheme imposed an obligation to provide training and welfare, including port medical services, where adequate provision did not otherwise exist. In that context, welfare extended to the work-related health of dock workers. The statute did not itself create a private remedy, but its policy was directed to protecting that health.
5. On the assumed facts, Clan Line had made no satisfactory provision against the known serious risk from asbestos dust. The Board therefore had an implicit obligation to ascertain what provision was necessary and to provide it within the scope of its statutory functions. Its close, employment-like relationship with the claimants made it fair, just and reasonable to impose a common-law duty. The precise scope of that duty remained for later determination, but taking no protective action was not an available option. Contemporary legal analysis was properly applied to the historical evidence.

• Court of Appeal (Civil Division): The appeal by the Secretary of State was dismissed on 4 April 2007. The court upheld the preliminary finding that the National Dock Labour Board owed the claimants a common-law duty of care.
• High Court of Justice (Queen’s Bench Division): Silber J decided the agreed preliminary issue on 26 May 2006 and held that the Board owed the claimants a duty of care. The decision is reported at [2006] EWHC 1257.