UK: Occupiers To Prove Asbestos Regulations 1931 Do Not Apply

Last Updated: 13 April 2015
Article by Clyde & Co LLP

McDonald (Deceased) (Represented by Mrs Edna McDonald) v The National Grid Electricity Transmission Plc [2014] UKSC 53


The Claimant had been employed as a lorry driver by the first Defendant during the 1950s. He alleged that he had been exposed to asbestos dust, from which he had developed Mesothelioma, whilst attending premises controlled by the predecessor of the second Defendant. He bought claims against both Defendants under the Asbestos Industry Regulations 1931, and the Factories Act 1937.

At first instance the claim was dismissed, on the basis that the exposure had been modest and on a limited number of occasions only over a relatively short period of time. The Claimant appealed.

Court of Appeal

The Court of Appeal agreed that, with the state of scientific knowledge at the time, no-one could have foreseen the harm from the exposure, so the case in common law negligence against both Defendants failed.

The Claimant's claim under the Factories Act 1937 similarly failed because the Claimant was not able to show, as required under Section 47(1) that a "substantial quantity" of dust of any kind had been given off. The Claimant, in this respect, was simply unable to garner sufficient evidence as to the quantities of dust discharged. The Claimant was also unable to show that he was a "person employed" as required by the Act.

The Court of Appeal then considered the Asbestos Industry Regulations 1931. The Court noted that their scope was defined in a way which is unfamiliar in modern legislative drafting but, essentially, provided that regulation in respect of the operation said to have been responsible for the Claimant's condition, namely the mixing of asbestos with water in drums, would not be governed by the regulations if the mixing process was carried out "only occasionally" and the person injured was not employed on the part of the factory for more than eight hours per week.

As the regulation was drafted in such a way as to apply to the occupier of the premises unless the occupier established an exception, the burden of proof fell on that occupier to demonstrate that the Claimant was outside the ambit of the regulations and the second Defendant had failed to do this, then the second Defendant was liable.

Supreme Court

The second Defendant appealed to the Supreme Court against the decision that it was liable under the Asbestos Industry Regulations 1931 and the Claimant appealed against the decision that Section 47(1) of the Factories Act 1937 did not apply.

The Supreme Court dismissed the appeal and the cross appeal.

The Court found (on a majority of 3 to 2) that the Asbestos Industry Regulations 1931 were not confined to the asbestos industry, but all factories using asbestos.

It was also held that the term "mixing" under regulation 2(a) was not to be given a restricted, meaning, but was to be construed more broadly and taken to cover the mixing of asbestos powder with water.

It was also found that the Claimant was a "person employed" for the purposes of Section 47(1) of the Factories Act 1937. The relevant test was whether the Claimant was a person employed in the factory and not whether he was employed by the occupier. However the Claimant failed to prove that a "substantial quantity" of dust had been given off by the lagging work.

Key points for Defendants

  • Whilst the claim is bought under the Asbestos Industry Regulations 1931, the burden of proof of establishing that an exception to liability is on the occupier (rather than the Claimant proving he comes within the regulations)
  • Claimants are more likely to succeed with pre-1965 (the generally accepted date of knowledge for mesothelioma) exposure cases. The position in the Court of Appeal case of Cherry Trees 2001 therefore remains unchanged. Further cases that have previously not been brought may now surface
  • Defendants are still able to defend against these earlier cases if the process did not involve "mixing"
  • Section 47 applies to all types of dust and fumes, bringing bronchitis, silicosis, asthma and cancer within the remit
  • Practically, Defendants will need produce evidence to show either that the initial production of dust was not "substantial" or that they took the practicable steps, as required by s.47(1)
  • Given the wide interpretation of "person employed" in the Factories Act 1937 insurers may now see cases previously regarded as public liability are now brought under employers' liability

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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