Occupiers To Prove Asbestos Regulations 1931 Do Not Apply

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

Background

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...