New Judgment: McDonald (Deceased) v National Grid Electricity Transmission plc  UKSC 53
22 Wednesday Oct 2014
On appeal from:  EWCA Civ 1346
Mr McDonald had worked as a lorry driver and attended Battersea power station between 1954 and 1959 to collect pulverised fuel ash as part of his work. As part of this, Mr McDonald went into areas where asbestos dust was generated by lagging work. Mr McDonald was subsequently diagnosed with mesothelioma in 2012 and passed away in February 2014. Mr McDonald had claimed for breach of statutory duty against The National Grid Electricity Transmission plc, the successor to the occupier of the power station, under the Asbestos Industry Regulations 1931 and the Factories Act 1937. He initially also claimed in negligence against National Grid and the successors to his former employers but the claims were dropped. His widow took his place in the court proceedings.
At trial, the judge dismissed all of the claims. The Court of Appeal allowed Mr McDonald’s appeal under the 1931 Regulations but dismissed his appeal under the 1937 Act. National Grid appealed to the Supreme Court in the first appeal. Mr McDonald’s representative cross-appealed in the second appeal.
The majority of judges (Lord Reed and Lord Neuberger disagreeing) dismissed National Grid’s appeal, holding that the 1931 Regulations apply to all factories and workshops processing asbestos and not only those dealing with it in a raw, unprocessed form. It was noted that the Secretary of State intended for the Regulations to address the harm that could be caused by the manipulation of asbestos, rather than focusing on any particular setting where it might take place. Further, the mixing of asbestos during lagging work fell within the 1931 Regulations and is consistent with Cherry Tree Machine Co Ltd v Dawson sub nom Jeromson v Shell Tankers (UK) Ltd  EWCA Civ 101.
Lord Kerr further noted that a worker in a factory or workshop where processing of asbestos took place was within the scope of the 1931 Regulations, even if he is not mixing asbestos himself or directly employed by the occupiers of the premises where that is taking place.
The majority of judges (Lady Hale disagreeing) then dismissed the cross-appeal under the 1937 Act, noting that there was insufficient evidence to rebut the Court of Appeal’s earlier conclusion that Mr McDonald had not established that a “substantial quantity of dust” was given off by the mixing process.