A landmark decision from the Supreme Court dealing with asbestos exposure affecting visitors to premises will assist thousands of others diagnosed with asbestos related illnesses in claiming asbestos disease compensation.
Percy McDonald was from just outside Plymouth, Devon and sadly developed the incurable asbestos related cancer, mesothelioma during July of 2012 after suffering exposure to asbestos when working at Battersea Power Station. Mr McDonald sadly passed away from the condition on 5th February 2014, only a week before the Supreme Court heard both sides’ appeals in his case.
The case is an extremely important one as it involved the examination of asbestos exposure experienced by Mr McDonald when visiting the power station as a delivery driver, working for a company known as Building Research Station, between 1954 and January of 1957.
Cause of Exposure
Whilst visiting the power station, Mr McDonald regularly had cause to walk through areas where various employees of the power station and other contracting firms were engaging in “lagging” tasks. Whilst, like many other mesothelioma sufferers, he never worked directly with asbestos, such work carried out around him, resulted in asbestos dust floating around in the general working environment which he inhaled on a passive basis when visiting.
All courts hearing his case noted Mr McDonald’s evidence of witnessing workers mixing asbestos powder with water in order to create a paste like mixture to be smothered onto pipework at the station. The workers were also said to have sawed through pre-cut asbestos lagging on a regular basis.
Who was liable?
As Mr McDonald was not employed by the Defendants, National Grid and the Department for Communities and Local Government predecessors directly, the Defendants disputed his entitlement to mesothelioma compensation on the basis that:-
- He was not employed by the occupier of the power station and;
- Their primary form of work was not directly involved in the asbestos industry
Mr McDonald’s expert legal team, David Allan QC and Simon Kilvington of Byrom Street Chambers, Manchester, regularly used by Asbestos Justice in their own work, argued that the successors to the power station had been in breach of their statutory obligations under:-
- Regulation 2 (a) of the Asbestos Industry Regulations 1931 and;
- Second 47 of the Factories Act 1937.
Whilst, Mr McDonald’s original case at Trial failed, the Court of Appeal allowed his appeal under the 1931 Asbestos Regulations but dismissed this under the 1937 Factories Act. The Defendant appealed and Mr McDonald cross appealed up to the highest court in the land, the Supreme Court.
The final judgment
Five Supreme Court judges heard the case and provide clarity in their judgment which will assist mesothelioma solicitors nationwide in their fight to secure compensation awards for their clients who suffer from this terrible illness and other types of asbestos related conditions.
The majority of judges led by Lord Kerr concluded that the 1931 Regulations do apply to all factories and workshops “processing” asbestos. It had been argued unsuccessfully by the Defendants that the Regulations only applied to employers dealing with asbestos in its raw, unprocessed condition, a classic example of which would be Cape Plc, operating from their asbestos manufacturing site in Barking, Essex.
The judges also held that the wording of the Regulations was clear, in that they concentrated on the processes in question rather than the nature of the industry. It was found that the government had passed the legislation to protect people from the harm that could be caused by the “manipulation” of asbestos rather than focusing on any particular setting where this may have occurred.
Importantly, the Defendant National Grid’s appeal against the Court of Appeal’s finding of liability under Regulation 2 (a) of the Regulations was dismissed with guidance being provided. This confirms that the term “mixing” should be given its ordinary and natural meaning. The protection is extended not only to employees of Defendant companies but also to other employed persons who are not, when suffering exposure, acting within the scope of their employment.
It was also emphasised that any form of exposure would be sufficient to establish a breach under the Regulations. Any such exposure causing a material increase in the risk of developing mesothelioma would be sufficient to establish the causation stage of the liability test.
The judgment also establishes that under the Factories Act of 1937, it is the occupier of the premises which is responsible for the welfare of people on site, not simply those that are directly employed.
Asbestos Justice case study
Asbestos Justice’s specialist solicitor Mr James Cameron stated:-
“The decision of the Supreme Court is most welcome in providing clear guidance to practitioners in this area, but more importantly still, ensures access to justice for those who have suffered exposure to asbestos when visiting premises in their work.
I am currently acting for an asbestos disease sufferer who worked for a company at a power station who suffered similar exposure to Mr McDonald. No insurance for his actual, now defunct employer can be located but I have pursued the case against the successor of the power station under the same legislation referred to in the McDonald judgment. My client will not be the only asbestos disease sufferer to benefit from this landmark case.
Mr McDonald’s case is one of many time consuming challenges brought by Defendants in the field of asbestos disease litigation, in an attempt to protect the balance sheets of their insurers, only to fail at the highest hurdle. The McDonald family’s strength and resolve should help to protect future Claimants’ right to claim the compensation they deserve.”
Mr. McDonald’s son Eric told his local paper:-
“As a family we wanted to carry on the case after Dad’s death because we knew how important it was to him and he wanted to ensure that others would be protected in future.”
Mr. McDonald’s final wish was granted on the 22nd October 2014 in the Supreme Court.
Image credit: Percy McDonald – Plymouth Herald
If you or a family member are suffering from an asbestos disease, contact Asbestos Justice on 0800 038 6767 for expert legal advice.