Rice v Secretary of State for Business Enterprise & Regulatory Reform & Anor

A statutory body responsible for dock workers may owe a common law duty to take positive steps to protect them from a known and serious occupational risk, even where it is not their conventional employer.

Where the body knows that workers are exposed to asbestos dust, the duty may require warnings, training, approved respirators and protection from disciplinary consequences if unsafe work is refused. The adequacy of the precautions depends on knowledge of the risk at the relevant time. A failure to take such steps is causative where it materially increases the risk of disease. For a divisible asbestos-related condition, liability is limited to the share attributable to the defendant’s breach, but full recovery may be available where compliant precautions would have avoided the exposure or reduced it to a negligible level.

These consolidated claims concerned asbestos-related illness suffered by two former Liverpool dock workers, Edward Rice and Robert Francis Thompson. They had worked under the National Dock Labour Board scheme and had regularly unloaded asbestos cargoes for Clan Line in conditions involving substantial asbestos dust.

A previous preliminary judgment held that the National Dock Labour Board owed them a duty of care. The Court of Appeal held that the duty required positive steps and that doing nothing was not an available option. The trial therefore addressed the factual conditions, the content and breach of the duty, causation, and the apportionment of Mr Thompson’s divisible disease.

1. Duty and breach. The National Dock Labour Board’s statutory functions concerning the welfare and training of dock workers supported a common law duty to protect individual workers from the known serious risk posed by asbestos dust. The duty required positive action despite the existence of the National Joint Council and despite the Board not being the conventional employer.
2. Required precautions. In light of the medical and industrial information available at the relevant times, the Board should have warned the workers that even transient exposure could cause serious pulmonary disease, lung cancer and mesothelioma. It should also have provided appropriate training, advised that approved respirators be used, requested employers to provide them and supplied them itself if necessary. Workers should not have been disciplined for refusing unsafe asbestos work without adequate protection.
3. Factual findings. The claimants were regularly exposed to heavy concentrations of asbestos dust. They received no effective warnings or training, and the muslin or hessian masks supplied were ineffective. The Board took no adequate steps to discharge its duty and was therefore in breach.
4. Causation. Applying McGhee v National Coal Board [1973] 1 WLR 1, Transco v Griggs [2003] EWCA Civ 564 and Brown v Corus (UK) Limited [2004] PIQR, a material increase in the risk of disease was sufficient. The court found that proper warnings, training and respirators would have caused both claimants to refuse unsafe asbestos work, thereby avoiding or materially reducing the risk.
5. Damages. Mr Rice’s mesothelioma was indivisible. Under Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 and section 3 of the Compensation Act 2006, the claim succeeded in full. Mr Thompson’s diffuse pleural thickening was divisible. Applying Holtby v Brigham and Cowan Limited [2000] ICR 1086, with the consequential psychiatric injury apportioned under Rahman v Arearose Limited [2001] 1 QB 351, he also recovered in full because compliant precautions would have avoided his asbestos exposure or reduced it to a negligible level.
6. The executor of Mr Rice was awarded £138,965.65. Mr Thompson was awarded £25,329.

The judgment records that a preliminary issue was determined in the 2006 judgment, [2006] EWHC 1257. The Court of Appeal dismissed the defendant’s appeal in the Court of Appeal judgment, cited as [2007] EWHC Civ 289, holding that the National Dock Labour Board owed a duty of care requiring positive action.