Asbestos - Landmark judgment on mesothelioma

Percy McDonald, who died in February 2014 from mesothelioma, was a lorry driver attending Battersea Power Station between 1954 and 1958 to pick up waste products.

Although the Devon resident was not in direct contact with asbestos in his official duties, he did go into areas of the plant where asbestos dust was generated and was exposed to the substance.

At the original trial in Bristol, the court dismissed his claim, finding his exposure to asbestos was of a ‘modest level’ and unlikely to pose any health risk.

The defendant, National Grid Electricity, had argued he could not receive compensation because he was not employed by the occupier of the site and his primary work was not directly involved with asbestos.

"Hopefully other people affected will now be able to succeed in their legal battles too."

McDonald appealed on the grounds that working with asbestos was a risk even if the work was occasional or for limited periods. The Court of Appeal allowed the appeal, with the occupier of the site then appealing to the Supreme Court.

In the Supreme Court, a majority of three judges to two ruled that under the Factories Act 1961 the occupier of the premises is responsible for all people on site, not just direct employees. The judgment also stated that asbestos-industry regulations applied to all factories using asbestos – not just those involved in the asbestos industry.

Lord Kerr said it was a ‘fallacious’ argument to say liability depended on a ‘substantial’ quantity of the dust being inhaled. Lord Clarke and Lady Hale also supported the appeal, while Lord Reed and Lord Neuberger disagreed.

National firm Irwin Mitchell, which represented the McDonald family after he died the week before the Supreme Court hearing, said the ruling gives greater protection to current and future victims of industrial diseases.

Alida Coates, a partner in the asbestos-related disease team, said: ‘This is a victory for all victims of asbestos-related diseases who have been exposed to the deadly dust while visiting factory premises as part of their day-to-day job. 

‘It also extends the scope of the Factories Act to assist those injured during their work on factory sites. It makes perfectly clear that the occupiers of the factory building have responsibility for protecting people engaged in processes on their site, not just their direct employees.’

McDonald’s son Eric said: ‘Hopefully other people affected will now be able to succeed in their legal battles too.’

Damon Burt, a partner at Plexus law who represented National Grid, said: ‘Naturally we will respect the decision of the court. For our part, it is disappointing that the well-argued findings of Lord Reed and Lord Neuberger, the president of the Supreme Court, did not persuade the majority.’

Around 2,500 people currently die each year from mesothelioma, with the figure expected to reach its peak in 2020. Symptoms usually take at least 30 years to develop.

Source: The Law Gazette

Post date: 13 Feb 2015

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