McDonald v National Grid Electricity Transmission Plc: SC 22 Oct 2014

Contact visiting plants supported asbestos claim

The deceased had worked as a lorry driver regularly collecting pulverized fuel ash from a power station. On his visits he was at areas with asbestos dust. He came to die from mesothelioma. His widow now pursued his claim that the respondent had failed to comply with the 1931 Regulations.
Held: The appeal by National Grid *Reed and Neuberger LL dissenting) and cross appeal by Mrs McDonald (Hale L dissenting) were both dismissed. The 1931 Regulations apply to all factories and workshops processing asbestos, not just those dealing with asbestos in its raw, unprocessed condition: ‘The words in section 47(1), ‘a process’ carried on in any factory should be given their plain and natural meaning. To suggest that they import some intimate connection with the manufacture of a product introduces an unnecessary and unwarranted gloss on the subsection. If it is a process that is a normal feature of the factory’s activity, it is a process for the purposes of the legislation. I would therefore hold that the lagging work which Mr McDonald encountered in the power station constituted a process for the purposes of section 47 and that the first condition necessary to show breach of subsection (1) of that section has been met.’
As to the cross appeal, while the rest of the statutory criteria were met, the evidence did not rebut the conclusion that the exposure to asbestos had not been in the form of a ‘substantial quantity of dust’ given off by the mixing process as was required by s. 47(1) of the 1937 Act.

Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Reed
[2014] WLR(D) 439, [2014] UKSC 53, UKSC 2013/0263, [2014] ICR 1172, [2014] 3 WLR 1197
WLRD, Bailii, Bailii Summary
Asbestos Industry Regulations 1931 2(a), Factories Act 1937 47
England and Wales
CitedShell Tankers UK Limited v Jeromson; The Cherry Tree Machine Company Limited, Shell Tankers UK Limited v Dawson CA 2-Feb-2001
The claimant’s husband had been employed as an apprentice fitter in a factory which manufactured dry cleaners’ presses. For two years, it was part of his job to mix asbestos flock with water in a bucket and then apply it to the plattens of a press . .
Appeal fromMcDonald v Department for Communities and Local Government and Another CA 6-Nov-2013
The claimant was a lorry driver making collections from a power station. On his visits, he visited areas where asbestos sludge was being used. He contracted mesothelioma, and now sought damages. The defendants replied that he was not a worker at the . .
CitedAsociatia Accept v Consiliul National Pentru Combaterea Discriminarii ECJ 25-Apr-2013
ECJ Social policy – Equal treatment in employment and occupation – Directive 2000/78/EC – Articles 2(2)(a), 10(1) and 17 – Prohibition of discrimination on grounds of sexual orientation – Concept of ‘facts from . .
CitedWatt v Fairfield Shipbuilding and Engineering Company Limited and Upper Clyde Shipbuilders Ltd and Energy and Marine (Weirside) Limited SCS 3-Nov-1998
The pursuer sought reparation against three former shipbuilders. He had developed extensive bilateral pleural plaques and asbestosis.
Held: Lord Gill felt that it was possible to give the proviso a satisfactory meaning, notwithstanding his . .
CitedCanadian Pacific Steamships Ltd v Bryers HL 1957
A regular member of a ship’s crew was injured when the ship was in dry dock. The Court of Appeal had held that the Regulations applied even though he was not emplyed by the appellant company.
Held: Affirmed. The power contained in section 79 . .
CitedBrophy v J C Bradfield and Co Ltd CA 1955
Singleton LJ said as to regard to section 47: ‘That section again deals with work rooms and with processes carried on in the factory. For the reason I have given with regard to section 4(1) I do not think that section 47(1) applies to the facts of . .
CitedBanks v Woodhall Duckham and Others CA 30-Nov-1955
The plaintiff had been employed by the first defendant as a pipe fitter at two steel works occupied and operated by predecessors of the second defendant. He had worked two years at each of the sites erecting pipes, breaking into old pipes and . .
CitedNurse v Morganite Crucible Ltd HL 1989
The House considered what was meant by the term ‘process’ in the Act and the Regulations. The point of law certified was ‘Whether for the purposes of the Factories Act 1961 and Regulations thereunder ‘process’ carried on in a factory means a . .
ApprovedOwen v IMI Yorkshire Copper Tube QBD 15-Jun-1995
Buxton J explained the decision in Brophy, on the basis that when the fumes came from the factory heating supply and not from any part of the manufacturing process it was not a part of the process carried on in the factory.
The protection . .
CitedHarrison v National Coal Board HL 1951
The plaintiff sought damages from his employer after suffering injury when a co-worker fired a shot in the colliery, acting in breach of the regulations.
Held: There was no vicarious liability duty in law on the managers to ensure compliance . .
CitedMassey-Harris-Ferguson (Manufacturing) Ltd v Piper QBD 1956
‘persons employed’ where that expression was used in section 60 of the 1937 Act included not only servants of the occupier, but any other person who might be called on to do work in the factory, including a painter employed by an independent . .
CitedGroves v Lord Wimborne CA 1898
The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for . .
CitedHartley v Mayoh and Co 1954
The expression ‘persons employed’ does not extend to a fireman who enters a factory in order to put a fire out, though the occupier may well have a duty to warn firemen of an unexpected danger or trap of which he knows or ought to know. . .
CitedRichards v Highway Ironfounders (West Bromwich) Ltd CA 1955
The plaintiff was found to have had to work in clouds of silica dust. . .
CitedGregson v Hick Hargreaves and Co Ltd CA 1955
The plaintiff suffered illness having inhaled noxious particles of silica which formed part of a substantial quantity of dust given off by a process. The presence of the silica, and its harmfulness, had not been known at the time.
Held: The . .
CitedNash v Parkinson Cowan Ltd 1961
. .
CitedWigley v British Vinegars Ltd HL 1964
A window cleaner employed by an independent contractor was injured at the factory.
Held: There is nothing new in construing legislation designed for the protection of workers as inapplicable to other visitors to the relevant premises. Viscount . .
CitedUddin v Associated Portland Cement Manufacturers Ltd CA 1965
Mr Uddin, the plaintiff was a machinery attendant in a cement grading and packing factory. He wanted to catch a pigeon sitting behind the revolving shaft of a machine. He climbed a vertical steel ladder to a platform where he knew he was not . .
CitedGrant v National Coal Board HL 1956
The House considered the effect of a statutory provision that: ‘the roof and sides of every travelling road, outlet and working place shall be made secure’
Held: Lord Reid said: ‘I cannot see why it should matter just how the accident was . .

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Personal Injury, Health and Safety

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Updated: 01 November 2021; Ref: scu.537831