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PI and Civil Litigation

Law - practice - procedure

26 NOV 2013

Percy Leonard McDonald v (1) Department for Communities & Local Government (2) National Grid Electricity Transmission Plc [2013] EWCA Civ 1346

Personal Injury - Negligence - Torts - Asbestos - Employers' liability - Mesothelioma - Foreseeability - Occupiers' Liability, Reg 2(A) Asbestos Industry Regulations 1931 - Factories Act 1937, s 47

Court of Appeal

Dyson LJ, McCombe LJ, Gloster LJ

6 November 2013


A judge had wrongly dismissed a claim made by a lorry driver and fitter suffering from mesothelioma which he alleged was caused by exposure to asbestos dust whilst he was required to attend at a power station during the course of his employment during the 1950s. The judge had wrongly reversed the burden of proof to the claimant and concluded that the second defendant was not in breach of their statutory duty under reg 2(a) of the Asbestos Industry 1931 Regulations.


The claimant born in October 1930 was a lorry driver employed by the predecessor of the first defendant who was required to attend the Battersea Power Station, which was occupied by the predecessor of the second defendant. The claimant attended the power station twice per month whilst working as a lorry driver between 1954 and 1957 and twice every three months whilst working as a fitter between 1957 and 1959. The judge concluded that any exposure to asbestos dust was at a modest level on a limited number of occasions over a relatively short period of time.

It was held that the judge was correct in his finding that the claimant's exposure to asbestos was modest and that an employer in the state of knowledge of the problem at the time, could not reasonably have foreseen that it was likely to cause him any harm. The first defendant was therefore not liable in negligence and due to the state of the knowledge at the time that some exposure to asbestos dust could be accepted as tolerable neither could the second defendant be found negligent in common law.

It was held that the judge was correct to dismiss the claim based upon s 47 of the Factories Act 1937. The claimant could not be considered to be a ‘person employed' either in the sense of being employed at the factory or in the process of handling asbestos. In any event the material was not adequate to demonstrate that there was the giving off of any ‘substantial quantity of dust of any kind' which the second defendant had failed to take "all practicable measures" to protect against.  In the circumstances, it was not necessary to decide what practicable measures were required to be taken to provide protection. Banks v Woodhall Duckham & others (1995) applied.

The claimant's evidence was that ‘mixing of asbestos' was carried out at the power station. The case of Cherry Tree Machine Co Ltd & anor v Dawson [2001] EWCA Civ 101 was applied and it was held that the Regulations did apply to this case. The operation responsible for the claimant's condition was the mixing of asbestos with water in drums.  The breach of the regulations alleged was a breach of reg 2(a) namely the mixing without ‘an exhaust draught effected by mechanical means so designed and maintained to ensure so far as is practicable the suppression of dust during the process'. The regulation did not apply so long as the process was carried on only occasionally or if the person was not employed for more than 8 hours per week in the factory or workshop. The judge had held the claimant had failed to prove the exceptions did not apply to him. However, the judge had wrongly reversed the burden of proof as to the applicability of the proviso. The authority of Nimmo v Alexander Cowan & sons Ltd [1968] was relied upon. The onus fell upon the second defendant to show that there was an ‘exhaust draught effected by mechanical means so designed and maintained to ensure so far as is practicable the suppression of dust during the process'. The known danger was dust, even if the full extent of the danger was not known at the time; there was evidence that such protection was possible. The second defendant was therefore in breach of their statutory duty under reg 2(a). Appeal allowed against second defendant.


This case demonstrates that claimants can successfully recover damages even in circumstances where there has been no negligence or breach of statutory duty on the part of their employers; if they can give evidence that any exposure to asbestos dust falls within the provisions of the Asbestos Industry Regulations 1931, which is not only applicable to those who have worked directly in the asbestos industry.  

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