WINIFRED RICE (EXECUTRIX OF THE ESTATE OF EDWARD RICE, DECEASED) v (1) SECRETARY OF STATE FOR BUSINESS ENTERPRISE AND REGULATORY REFORM (2) STUNTBRAND LINE LTD : ROBERT FRANCIS THOMPSON v (1) SECRETARY OF STATE FOR BUSINESS ENTERPRISE & REGULATORY REFORM (2) STUNTBRAND LINE LTD (2008)

[2008] EWHC 3216 (QB)

QBD (Manchester) (Silber J) 19/12/2008

NEGLIGENCE - PERSONAL INJURY

ASBESTOSIS : BREACH OF DUTY OF CARE : CAUSATION : DOCK WORKERS : MEASURE OF DAMAGES : MESOTHELIOMA : DOCK WORKERS' EXPOSURE TO ASBESTOS DUST WHILST UNLOADING CARGOES : DISCHARGE OF EMPLOYER'S DUTY OF CARE THROUGH WARNINGS. TRAINING AND PROVISION OF RESPIRATORS

Former dock workers had proved that they had been exposed to asbestos dust whilst unloading cargoes, and their employer had been in breach of its duty of care to them by failing to warn them about the risk that even transient contact with asbestos dust could cause mesothelioma and pulmonary cancer, to train them about the risks of such contact, and to advise them to use respirators when they came into contact with asbestos dust.

As that breach of duty was causative of the asbestos related illnesses they subsequently suffered, the dock workers were entitled to damages for personal injury. The claimants (R and T) claimed damages for personal injury from the first defendant secretary of state. During periods of employment as dock workers with the National Dock Labour Board (N), R's husband (E) and T had been required to handle cargoes containing asbestos. E and T subsequently suffered from asbestos-related diseases which they alleged had been contracted during that employment. E died and R brought her claim on behalf of his estate.

The court determined as a preliminary issue that N had owed a duty of care to take positive steps so as to prevent or reduce dock workers' exposure to asbestos dust. After the second defendant company, which was N's successor-in-title, went into liquidation, R and T pursued their claim for damages only against the secretary of state, whose predecessors took over N's liabilities.

The secretary of state conceded that the conditions within the holds of certain ships during the unloading of asbestos cargo as described in E and T's witness statements, if proved, were matters of constructive or actual notice to N and that such exposure gave rise to a foreseeable risk of some absestos related pulmonary injury.

It fell to be determined (i) whether, in the terms of the secretary of state's concession, E and T's contentions were proved; (ii) how N should have discharged its duty of care to E and T; (iii) whether N had been in breach of those duties; (iv) whether any breaches were causative of the illnesses suffered by E and T; (v) what damages, if any, were payable. HELD: (1) E and T had regularly been exposed to and covered by heavy concentrations of asbestos dust in the course of their employment as dock workers whilst unloading asbestos packed in either unlined hessian or paper sacks or from damaged lined sacks. Neither E nor T had been given any information nor any warning that exposure to asbestos dust would give rise to a risk of pulmonary or any injury whatsoever, and neither had received any training about how to handle asbestos cargo and thereby avoid exposure to asbestos dust.

The only protection provided against such exposure had been the occasional supply of simple muslin or hessian used like a surgical mask but which quickly became unusable and was not always replaced.

E and T had not been provided with or used respirators. The matters set out in E and T's witness statements were, accordingly, proved and the secretary of state's concession took effect.

(2) N had had an obligation in discharge of its duty of care (a) to warn E and T about the risk that even transient contact with asbestos dust could cause mesothelioma and pulmonary cancer; (b) to train them about the risks of such contact; (c) to advise them to use respirators when they came into contact with asbestos dust.

(3) N had been in breach of the duty of care which it owed to E and T.

(4) In determining whether that breach was causative of E and T's illnesses, it was necessary to consider what the effect would have been if N had issued the warnings which should have been given about the dangers of inhaling asbestos dust or had given training along those lines or had provided dock workers with respirators.

On the evidence, any warning given to E and T about the dangers of contact with asbestos dust would have led to them and other dock workers collectively to refuse to handle asbestos cargoes which were not properly secured because of the dangers which would have included the risk of suffering from lung cancer and mesothelioma.

The dock workers would also have insisted on using respirators if they had been warned appropriately. In those circumstances, N's breach of duty was causative of the illnesses suffered by E and T. (5) R, as E's executor, was awarded damages of £120,376 and T was awarded damages of £37,000. Interest was added to those sums but the necessary statutory deductions were also made.

Judgment for claimants

For related proceedings see Rice v Secretary of State for Trade and Industry (2007) EWCA Civ 289 and Rice v Secretary of State for Trade and Industry (2006) EWHC 1257 QB

Counsel:
For the claimants: Nigel Cooksley QC, Brian Cummins
For the first defendant: Michael Kent QC, Michael Rawlinson
For the second defendant: No appearance or representation

Solicitors: For the claimants: John Pickering and Partners
For the first defendant: Beechcroft

LLP LTL 5/1/2009 (Unreported elsewhere)

Judgment: Official - 48 pages Document No.: AC0119448