A mesothelioma sufferer whose work as a lorry driver did not put him in direct contact with asbestos is entitled to compensation, the Supreme Court has held.
Percy McDonald, who died earlier this year, picked up deliveries of waste product from Battersea Power Station between 1954 and 1959, and visited areas of the plant affected by asbestos dust. National Grid Electricity, defending the claim, argued he was not employed by the site and his primary work did not involve direct contact with asbestos.
In a 3-2 majority decision, the court held that the occupier of the site was responsible for all workers on the site not just employees, under the Factories Act 1961, and that industry regulations apply to all factories using asbestos not just those involved in the asbestos industry, in McDonald v National Grid [2014] UKSC 53.
Alida Coates, partner at Irwin Mitchell, who acted for McDonald, says the decision extends the scope of the Factories Act, and makes it “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”.
David Pugh, a partner at Keoghs and a member of the Forum of Insurance Lawyers' disease sector focus team, says: “This is clearly a very complex decision turning on highly technical interpretations of regulations written a long time ago.
“The judgment is very finely balanced, with a bare majority finding in the claimant's favour. The effect of the decision is to make employers (and their insurers) liable to pay damages even when they could not have foreseen that the claimants were being put at risk.
"The decision will make it harder for insurers to defend claims, especially those which come from asbestos exposure in the years before the dangers were fully appreciated. It is difficult to say just how many more claims insurers will face since some of the cases affected might not previously been brought.”
