McDonald v Department for Communities and Local Government & Anor

Common-law negligence requires a foreseeable risk judged by contemporary knowledge. A non-delegable employer’s duty does not make the employer liable for an occupier’s statutory breach where no negligence is established. The Factories Act 1937 dust duty protects persons employed in the relevant process, not visitors. The Asbestos Industry Regulations 1931 may apply outside the asbestos industry. Under regulation 2(a), the occupier must prove the exemption and must use an exhaust draught unless dust suppression is not practicable; foreseeability of the full health risk is unnecessary.

The claimant developed mesothelioma after visiting Battersea Power Station while employed by the predecessor of the First Respondent. He alleged exposure to asbestos dust and claimed in negligence against both respondents, together with breaches by the Second Respondent of the Factories Act 1937 and the Asbestos Industry Regulations 1931.

His Honour Judge Denyer QC dismissed the claim. The claimant appealed, challenging the assessment of his exposure, the foreseeability findings, the scope of the statutory duties, the burden of proving the regulatory exemption, and the requirement for practicable dust suppression. The central issues were whether either respondent was liable in negligence, whether section 47 applied to the claimant, and whether regulation 2(a) applied and had been breached.

Disposition. The appeal was dismissed against the First Respondent and allowed against the Second Respondent. Lord Justice McCombe gave the leading reasoning; the Master of the Rolls agreed, and Lady Justice Gloster agreed with both judgments.

1. The judge was entitled under section 4 of the Civil Evidence Act 1995 to assess the weight of the claimant’s untested witness statements in their procedural context and against the inherent probabilities. He was not required to accept them word for word.
2. The findings of modest exposure on limited occasions were open to the judge. In the state of knowledge in the 1950s, injury from that exposure was not reasonably foreseeable. The negligence claims therefore failed. The employer’s non-delegable duty did not import liability merely because the occupier might have breached a statutory duty. The cases were distinguished from Smith v Austin Lifts [1959] 1 WLR 100, where the employer knew or ought to have known of a danger.
3. Section 47(1) of the Factories Act 1937 protected persons employed in the dust-releasing process, not a visitor employed by another undertaking. The claim under that provision therefore failed. In any event, the evidence did not establish that a substantial quantity of dust had been given off.
4. The Asbestos Industry Regulations 1931 could apply to a factory outside the asbestos industry where a specified process was carried on. The court followed Cherry Tree Machine Co Ltd v Dawson [2001] EWCA Civ 101 and held that a possible misunderstanding of the Merewether and Price report did not justify treating that decision as per incuriam.
5. The occupier bore the burden of proving that the proviso exempting occasional work of limited duration applied, and of proving that the required exhaust draught was practicable. The judge had wrongly placed the first burden on the claimant. Regulation 2(a) required dust suppression so far as practicable, not so far as reasonably practicable. Foreseeability of the full mesothelioma risk was therefore unnecessary, and breach was established.
6. Causation had not been addressed at trial. If the claimant had no other asbestos exposure, causation could be established conventionally. If background exposure existed, material increase in risk could suffice under Sienkiewicz v Grieif (UK) Ltd [2011] UKSC 10.

• Court of Appeal (Civil Division): On 6 November 2013, the court dismissed the appeal against the First Respondent and allowed it against the Second Respondent, holding that liability arose under regulation 2(a) of the Asbestos Industry Regulations 1931: [2013] EWCA Civ 1346.
• High Court: His Honour Judge Denyer QC, sitting as a High Court Judge, dismissed the claimant’s personal-injury claim by an order dated 24 June 2013. Permission was refused by the judge and by Goldring LJ on the papers, but granted by Beatson LJ on an oral application.