Asbestos case may open claim flood gates

Rice and Thompson v Secretary of State for Trade & Industry and Stuntbrand Line (Court of Appeal - 4 April 2007)

The Court of Appeal upheld the trial judge's decision that the National Dock Labour Board owed a duty of care to two former Liverpool dock workers who had suffered asbestos-related illnesses.

The case arose from workers in the 1950s and 1960s unloading asbestos for a shipping line, which no longer exists. The insurer was unidentifiable. Virtually no safety precautions were taken and it was assumed that the shipping line was in breach of its duty to the workers.

Proceedings were brought against the Secretary of State for Trade and Industry as successor to the NDLB. By way of a statutory scheme, workers were allocated to an employer but were paid by the NDLB as the employer's agent. When not working, workers were in the employment of the NDLB. The NDLB's responsibility was also to provide for the workers' training and welfare.

The judge concluded that a duty of care existed. The Secretary of State for Trade and Industry appealed on two bases: firstly, the judge's definition of "training and welfare" was too wide and should not have included provision for the workers' health; welfare referred to canteens and social clubs and secondly, the NDLB had no power to control the workers when working for an employer. Holding that the NDLB owed a duty of care amounted to imposing a common law duty on a statutory body to take action when that body could not be made liable for any breach of statutory duty.

The Court of Appeal held that the policy of the statute was aimed at protecting dock workers' health in their employment and that the relationship between the workers and the NDLB was hybrid - close to an employment relationship. For some of the time, the NDLB was the employer.

The statutory duty required the NDLB to provide for training and welfare, which included provision for their health and thus, with the employer loading asbestos, the NDLB was obliged to provide the workers with relevant health services.

In practice, therefore, the NDLB owed a duty of care to the claimants and should have known or found out what safety precautions were required. The policy of the statute imposed a common law duty of care and the NDLB had a specific duty to protect their workers from a known risk.

COMMENT

A statutory duty can give rise to a common law duty of care to protect the individual from foreseeable injury caused by breach of duty, depending upon the policy of the statute and the particular facts of the case. Hundreds of former dock workers suffering from asbestos-related illnesses will now be able to sue the government for compensation. Malcolm Keen, BLM London.

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