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Judgment was handed down in the above case last Wednesday following the appeal by the Claimant Mcdonald that the Defendants were not liable to him for damages for exposing him to asbestos.

McDonald v. (1) Department for Communities and Local Government and (2) National Grid Electricity Transmission (2013)" was changed successfully. 

MD was a lorry driver employed by D1 to collect ash from a Power Station owned by D2. His evidence was that he was exposed to asbestos dust from lagging operations on site. He estimated that he made 68 visits over the period 1954 to 1959. When there he said he visited  areas of the power station where lagging and delagging was taking place. His witness statement stated:

"For the new asbestos insulation I saw the laggers mixing up asbestos powder in oil drums to make up a paste and apply it to the pipe work, equipment or boilers. There was a dried paste on the floor and I remember walking on it. There were visible clouds of asbestos in the air and on the surfaces and it was generally a very dusty place to be "

At first instance the Court found that the exposure to asbestos was minimal. It is worth noting that the Claimant did not attend the hearing to give evidence owing to his ill health. The claim had been pleaded in negligence and under the Factories Act 1947 and the Asbestos Regulations 1937 (Statute).

At First Instance the Court found both Defendants were not liable  in negligence as they would not have had the foresight in the 1950s of the risk of injury from asbestos. The claim also failed under Statute for the Act and Regulations not having application.

However on appeal D2 was found liable under the Asbestos Regulations 1937  which were found to have application to the type of work being carried out at the Power Station.

Appeal

Firstly on appeal the decision at first instance under negligence was upheld.  Secondly, the  Court accepted that the Factories Act did not apply as MD was not a person employed by D2 which was a pre requisite for the Act to apply.  However, the  Court applied the decision of LJ Hale in the Cherry Tree Case  to the Asbestos Regulations.  This case had established that the 1937 Regulations scope applied beyond the ambit of simply the heavy asbestos industry. The preamble to the Asbestos Regulations states that they apply to : "The breaking, crushing, disintegrating, opening and grinding of asbestos , and the mixing or sieving of asbestos, and all processes involving manipulation of asbestos incidental thereto"

In  short, in Cherry Tree Hale LJ  considered the construction of the Regulations and stated that she found that there was nowhere within them that said that they only applied to factories and workshops whose main business is the process of raw asbestos or the manufacture of products made out of asbestos.

The Court on Appeal found themselves bound to follow the decision and to find that the Regulations applied to the work of mixing asbestos in oil drums that MD came into contact with which were done without a ventilation system in place to suppress dust.  As a result of there being no ventilation system D2 was found liable as they had not shown that they had taken all reasonable steps to minimise dust or to bring themselves within the exception to the Regulation that the process was only carried on occasionally and that no person was employed therein for more than 8 hours in any week.

The extent to which the Court made the decision to follow an earlier Judgment remains to be seen as will whether the matter will be subject to a further Appeal on this point.

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About the Authors

Julie is a Senior Legal Executive in our Personal Injury team with over 18 years of experience in compensation claims.

Julie Donovan
Email Julie
023 8085 7322

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Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
Email Malcolm
020 7814 5441

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