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Supreme Court extends protection for asbestos victims.McDonald image

The Supreme Court has extended protection for victims of asbestos-related diseases, by ruling that the Asbestos Industry Regulations 1931 applied to all workers in factories where asbestos was being processed.

Lord Kerr said any worker in a factory where asbestos processing took place within the scope of the regulations was protected, even if they were not involved in mixing asbestos or directly employed by the occupiers of the building.

“It would be remarkable if the group to be protected was confined to those who were carrying out the process but those who were at risk from exposure because of their proximity to it should remain unprotected,” Lord Kerr said.

“Where the risk of injury arises from inhalation of dust or fumes (and, of their nature, processes which generate these do not discriminate as to who inhales them), there does not appear to me to be any logical reason to exclude those employees who are liable to be affected by exposure solely because they do not actively work on the processes.”

The Supreme Court heard in McDonald v The National Grid Electricity Transmission plc [2014] UKSC 53, that Percy McDonald died of mesothelioma at the beginning of this year. The case was continued by his widow.

Mr McDonald visited Battersea power station in the 1950s as a lorry driver, regularly going into areas where asbestos dust was generated by lagging work.

The trial judge dismissed his claims for negligence, which were later dropped, and his claims under the Asbestos Industry Regulations 1931 and Factories Act 1937. The Court of Appeal upheld his claim under the regulations.

Lord Kerr, Lady Hale and Lord Clarke dismissed National Grid’s appeal against this ruling. Lords Neuberger and Lord Reed disagreed.

However, by a majority of four to one, with Lady Hale dissenting, the justices also dismissed Mr McDonald’s cross-appeal on the Factories Act.

Alida Coates, partner in the asbestos-related disease team at Irwin Mitchell, acted for the McDonald family. “This is a victory for all victims of asbestos-related diseases who have been exposed to the deadly dust while visiting factory premises as part of their day-to-day job,” she said.

“It makes perfectly clear that the occupiers of the factory building have responsibility for protecting people engaged in processes on their site, not just their direct employees.

“This case is the latest in a long line of challenges over the past few years as insurers have sought to limit access to justice for victims of asbestos diseases. This judgment will give all people who work on factory sites additional protection in their working environment.”

Republished with kind permission. This post originally featured on the Litigation Futures Blog which can be found here.

Nick Hilborne is an experienced legal journalist and qualified solicitor. Formerly news editor of Solicitors Journal, he has also worked for the Law Society Gazette and The Lawyer, as well as The Times Educational Supplement.