Rice & Anor v Secretary of State for Trade & Industry & Anor [2007] EWCA Civ 289

[2007] EWCA Civ 289Case No's: B3/2006/1397; B3/2006/1528
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM HIGH COURT OF JUSTICE (QB)/MANCHESTER DIST. REG.
THE HON. MR. JUSTICE SILBER
OL304927/4OL00141
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 4 April 2007
Before
LORD JUSTICE MAYLORD JUSTICE KEENELADY JUSTICE SMITH
Between
Winifred Rice (Widow and Executrix of the Estate of Edward Rice Deceased)Claimants/Robert Francis ThompsonRespondents
John Hendy QC and Jonathan Davies(instructed by John Pickering & Partners LLP) for Claimant/RespondentMichael Kent QC and Michael Rawlinson(instructed by Beachcroft, London) for 1 st Defendant/AppellantHearing Hearing dates : 30 & 31 January 2007
JudgmentLord Justice May :Introduction
[1]It has now been so well known for so long that asbestos is deadly that it is difficult to understand how things were in the Liverpool docks in the 1950s and 1960s. The volume of shipping then loading and unloading cargo was vastly greater than it is today. The means of doing so were much less sophisticated. There were many more dock workers whose routine conditions of work would not have measured up to today’s standards. Yet much of all this was no doubt taken for granted. It was half a century ago, when present day principles of the law of negligence were only partly developed.[2]Edward Rice was a dock worker at Liverpool docks between 1955 and 1967. He has died of asbestos related illness and his wife brings these proceedings on her own behalf as widow and on behalf of his estate. Francis Thompson was a dock worker at Liverpool docks between 1966 and 1967. He suffers from asbestos related illness and brings proceedings on his own account. I shall refer to Mr Rice or his widow and Mr Thompson as “the claimants”.[3]During the times that the claimants worked in Liverpool docks, a shipping line called Clan Line delivered asbestos there from South Africa. The asbestos was in hessian sacks, which so easily allowed clouds of asbestos dust to escape. No wonder that the claimants, and no doubt others, contracted their deadly illnesses. Today you cannot handle asbestos at all, other than to remove it from existing structures; and then under the strictest safety precautions. Yet virtually no precautions were taken by or on behalf of these dock workers.[4]As I shall explain, the claimants were working for Clan Line when they were unloading the asbestos. It is assumed in the present proceedings that Clan Line were in breach of duty to the claimants in not taking due precaution for their safety. But Clan Line and its successor, the second defendant, are no longer in existence and their erstwhile insurers are not identifiable. These proceedings are therefore brought against the Secretary of State for Trade and Industry as statutory successor to the obligations of the National Dock Labour Board. The claimants say that they have a cause of action in negligence against the NDLB, in that their illnesses were caused by the NDLB’s breach of a duty of care owed to them. On 26 May 2006, Silber J, sitting in Manchester, heard and determined an agreed preliminary issue as to whether the NDLB did indeed owe the claimants a duty of care. He held that they did owe a duty of care. This is the Secretary of State’s appeal against that decision, Silber J himself having given permission to appeal.

The preliminary issue

[5]The terms of the agreed preliminary issue which Silber J determined were:
“Did the National Dock Labour Board owe a duty of care to Edward Rice and/or Robert Thompson to take reasonable steps to protect their health and safety in respect of work carried out by them as registered dock workers, whether for the Second Defendant or any other registered employer to whom they had been allocated by the National Dock Labour Board pursuant to the provisions of the National Dock Labour Board Scheme 1947 or that scheme as subsequently amended?”
[6]The judge was concerned that he was being asked to determine whether the NDLB owed the claimants a duty of care without the scope or extent of the duty of care also being determined. That is a concern which I share. Negligence claims are habitually advanced and analysed compartmentally by considering whether the defendant owed the claimant a duty of care; whether the defendant was in breach of that duty; and whether the defendant’s breach of duty caused the claimant loss. This may often be convenient, but it is conceptually suspect. Damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the claimant claims to have suffered. As Lord Bridge of Harwich said in Caparo Industries plc v Dickman [1990] 2 AC 605 at 627:
“It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398, at 486, when he said:
“The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such… that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”
Accordingly, the bare question whether a defendant owes a claimant a duty of care, without defining the scope of the duty with reference to the injury or loss for which the claimant claims damages, is conceptually questionable. The parties before this court accepted this difficulty, but both urged the court to proceed to hear and determine the appeal upon an agreed reformulation of the preliminary issue as follows:
“Did the NDLB owe a duty at common law to take any positive steps so as to prevent or reduce the exposure of the claimants to asbestos dust following their allocation to or selection by Clan Line?”
[7]The High Court of Australia were apparently untroubled in Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59 in deciding by a majority that the Committee owed Mr Crimmins a duty of care, without defining the steps which a reasonable authority would have taken in the circumstances of the case. Mr Crimmins was an Australian dock worker who handled asbestos and who suffered from asbestos related illness; and the Committee were an organisation which carried out functions with some similarities to those to the NDLB. Their functions and relationship to dock workers were, however, materially different, and the decision is not directly applicable to the present appeal.[8]With some hesitation, I am prepared to consider whether the NDLB owed the claimants a duty of care whose scope and content will remain to be determined. I note that the pleaded scope of any duty of care implicit in the particulars in paragraph 8 of the Amended Particulars of Claim in Mrs Rice’s case is, by modern standards, fairly limited. The case now advanced on behalf of the claimants was helpfully synthesised by Mr John Hendy QC, on their behalf, before us to the effect that, if the NDLB had taken one or more of the following steps, the claimants’ exposure to asbestos would have been significantly diminished or prevented. It is said that they should have a) requested that port employers provide: i) masks and respiratory equipment (whether in accordance with the recommendation of the Regional Medical Officers to the Chief Welfare Officer and hence to the National Dock Labour Board, or otherwise); ii) extraction plant or equipment or arrangements to dampen the asbestos during handling; iii) transport for asbestos in sealed pallets or impermeable packaging; b) warned the registered dock workers of the risks of exposing themselves to asbestos and/or trained them how to avoid or minimise such risks – whether or not this led to their unions applying collective pressure; c) warned the registered port employers of the risks of exposing their employees to asbestos; d) informed registered dock employers and workers that the workers would not be disciplined for refusing to unload asbestos in an unsafe condition and without sufficient safety measures; e) otherwise encouraged or persuaded the port employers to take steps to minimise the risk of exposure to asbestos.

Forseeability

[9]Mr Michael Kent QC, for the Secretary of State, sensibly accepted before this court that, in the circumstances of their employment, injury to the claimants’ health from handling asbestos as they did was reasonably foreseeable. I take this to be an acceptance that, at the times of the claimants’ employments, the NDLB knew or ought reasonably to have known that handling asbestos in hessian sacks without taking precautions was dangerous and likely to cause injury to the claimants’ health. This matter was in issue before the judge, who considered it in paragraphs 50 to 58 of his judgment, which may be found at [2006] EWHC 1257. The judge referred at some length to an unreported decision of Tucker J in Walker v Port of London Authority (4 September 1988), and to a passage in the opinion of Lord Bingham of Cornhill in Fairchild v Glenhaven Funeral Services [2003] 1 AC 32 at paragraphs 6 and 7. He referred to other material, including a document of 21 November 1955, which described the main functions of the Port Medical Services of the NDLB. He did not accept evidence in a 1983 statement of Dr John Jackson, who had been a Port Medical Officer, who stated that he had no recollection that asbestos dust was considered to be a particularly hazardous material until about 1966 or 1967. The judge concluded in paragraph 58 of his judgment that the NDLB:
“(a) were involved through their medical officers in providing regular advice on a range of health and safety issues to dock workers; (b) knew or ought reasonably to have known through its medical staff, if not through others, that in Tucker J’s words ‘exposure to heavy concentrations of asbestos dust could cause asbestosis, and, by 1947 that it was also highly probable that it could also cause lung cancers’; and (c) knew through the local boards if not through its medical staff, first, that the claimants were coming into contact with asbestos powder, which had not been properly packed, and second, that they were not being given any protective equipment by their employers to deal with the risks caused by them coming into contact with asbestos dust.”
As I have said, Mr Kent does not challenge any of this in this Court. He invited us to treat the judge’s factual findings about asbestos as established. The relevant facts in the present case are not, he said, borderline.

Relationship

[10]The question whether the NDLB owed the claimants a relevant duty of care turns on the relationship between the Board and the dock workers whom it managed. As I shall explain, this relationship was not, as Mr Hendy for the claimants contends, a conventional employer/employee relationship. The preliminary issue cannot, in my view, be determined simply by saying that the NDLB was in the position of an ordinary employer, who therefore owed the claimants duties which every employer owes to his employees as in Wilson & Clyde Coal Co. Limited v English [1938] AC 57. I would reject the claimants’ alternative reason to this effect for upholding the judge’s decision in their Respondent’s Notice. The relationship was peculiar to the National Dock Labour Board’s scheme and the way it operated in Liverpool docks. It does not encompass an unvarnished employer/employee relationship from which a relevant duty of care can without more be derived – see Lord Keith of Avonholm in Vine v National Dock Labour Board [1957] AC 488 at 508 to the effect that it is impossible to equate the position of a registered dock worker in relation to the NDLB with that of an employee under an ordinary contract of service.

The National Dock Labour Board Scheme

[11]The Scheme as it operated in Liverpool docks when the claimants worked there derived from section 1 of the Dock Workers (Regulation of Employment) Act 1946. This itself derived from wartime provisions under the Emergency Powers Act 1939, and was expressed to be to ensure greater regularity of employment for dock workers and to secure that an adequate number of dock workers was available for the efficient performance of their work. Mr Kent stressed that a main purpose of the legislation was to keep the docks working in the aftermath of the war by ensuring that an adequate number of dock workers was available.

(d) of the 1946 Act enacted that the Scheme might provide:

“… for making satisfactory provision for the training and welfare of dock workers, in so far as such provision does not exist apart from the Scheme.”
[12]The Scheme envisaged by the 1946 Act came into force in Merseyside in June 1947 as provided by the Dock Workers (Regulation of Employment) Order 1947 (No. 1189), which was later amended by a 1961 Amendment Order (No. 2107). These regulations repeated the objects of the Scheme as contained in section 1(1) of the 1946 Act. Regulation 3 established the NDLB, referred to as the National Board, as being responsible for the administration of the Scheme. The functions of the National Board were to include all activities and operations to further the objects of the Scheme. In particular their functions included:
“(a) ensuring the full and proper utilisation of dock labour for the purpose of facilitating the rapid and economic turnaround of vessels and the speedy transit of goods through the port; (b) regulating the recruitment and entry into and the discharge from the Scheme of dock workers, and the allocation of registered dock workers to registered employers; … (d) keeping, adjusting and maintaining the employers’ registers, entering or re-entering therein the name of any person by whom dock workers are or are to be employed and where occasion requires it, removing from the register the name of any employer either at his own request or in accordance with the Scheme; (e) keeping, adjusting and maintaining the registers or records of dock workers… … (g) making satisfactory provision for the training and welfare of dock workers, including port medical services, in so far as such provision does not exist apart from the Scheme.”
The function of making satisfactory provision for the training and welfare of dock workers, including port medical services, was expressed in the regulations as obligatory, whereas in the statute it was expressed permissively. … …[13]Regulation 3(3) obliged the National Board to delegate appropriate functions to local boards. By regulation 5(2), the local board was to consist of equal numbers of those representing dock workers and those representing employers. By regulation 6(1), the local board was to be responsible to the National Board for matters of local policy and local administration of the Scheme. In particular, the local board was responsible for:
“(c) the employment and control of registered dock workers available for work when they are not otherwise employed in accordance with the Scheme; … (e) the allocation of registered dock workers who are available for work to registered employers, in doing which the local board shall – (i) use every endeavour to supply men accustomed to the employer, and his operations and cargoes, (ii) be deemed to act as agent for the employer except when by arrangement with the local board, the employer or his representative attends to call and make his own selection of men, (iii) make the fullest possible use of registered dock workers in the reserve pool … (f) (i) the payment as agent of the registered employer to each daily worker of all earnings properly due to the daily worker from the employer, and the payment to such daily workers of all monies payable by the National Board to those workers in accordance with the provisions of the Scheme.”
Regulation 6(2) provided that all dock workers other than weekly workers who were in the employment of an employer to whom the Scheme applied should be deemed to have been allocated to that employer. Regulation 8(2) provided that a registered dock worker in the reserve pool who was available for work was to be in the employment of the National Board. By regulation 8(4), such a dock worker was required to accept work for which he was considered to be suitable. By regulation 8(5) a registered dock worker who was available for work was required to carry out his duties in accordance with the rules of the port or place where he was working when he was allocated by the local board to employment by a registered employer. By regulation 9(5), registered employers were required to submit all information about their current and future labour requirements. … (i) use every endeavour to supply men accustomed to the employer, and his operations and cargoes, (ii) be deemed to act as agent for the employer except when by arrangement with the local board, the employer or his representative attends to call and make his own selection of men, (iii) make the fullest possible use of registered dock workers in the reserve pool …[14]By regulation 12, it was an implied condition of the contract between a registered dock worker available for work and a registered employer that the rates of remuneration and conditions of service should be in accordance with national and local agreements. By regulation 13, dock workers were to be granted by the National Board an annual holiday with pay. By regulation 14, registered dock workers who were available for work but unemployed or not fully employed were entitled to receive from the National Board an appropriate payment under terms agreed by the National Joint Council for the Port Transport Industry. Regulation 16 provided circumstances in which a registered employer might be removed from the employer’s register for failing to comply with the provisions of the Scheme. This did not on the face of it include operating a system of unloading regarded as unsafe for the dock workers. Regulation 16(2) had a disciplinary procedure for registered dock workers. Regulation 17 provided circumstances in which the employment of a registered dock worker in the reserve pool might be determined.[15]In summary, the structure of the Scheme was as follows. There were registered dock workers and registered employers. The dock workers were from time to time allocated to employers. When the allocated dock worker was working for a registered employer, for example unloading a ship, he was employed by the registered employer under a contract entitling him to payment at nationally or locally agreed rates. He was paid for this by the local board as agent for the employer. The local board arranged the allocation of dock workers who, where it was possible, were accustomed to the employer, his operations and cargoes. When they were not allocated to or working for a registered employer, as when they were unemployed in the reserve pool or on annual holiday, the dock workers were in the employment and under the control of the local board. The National Board had a function to make satisfactory provision for the training and welfare of dock workers, including port medical services, in so far as those did not exist apart from the Scheme.[16]The way in which the local board in Liverpool performed its functions in practice was as follows. Registered dock workers were required to attend for allocation of work at 8 a.m. each day, and again at 2 p.m. if they had not been allocated at 8 a.m. They were herded into pens which were locked. Some were selected by employers; others were allocated by the local board. Those who were not selected or allocated remained in the reserve pool. Some dock workers were no doubt better suited by experience to particular employers. No doubt working for some employers was regarded as more congenial than working for others.[17]Each of the claimants was from time to time allocated to Clan Line to unload cargoes of asbestos in hessian sacks. Since the rates of pay for working for an employer were higher than the rates for those in the reserve pool, there was a strong incentive not to try to avoid working. It is not suggested that a dock worker allocated to Clan Line to unload asbestos had any real choice whether to do that work, if he wished to remain employed as a registered dock worker.

The claimants’ case

[18]The preliminary issue has proceeded on the basis that Clan Line took no significant precautions to protect the claimants from injury by breathing in asbestos dust; and neither the NDLB nor the local board took any steps either to protect the claimants or see that Clan Line did so. The workers were not provided with breathing masks. No steps were taken to see that the asbestos was packed in less permeable bags or containers. It is not, I think, suggested in these proceedings that the NDLB had the practical ability to refuse to allocate dock workers to Clan Line ships. But it is half-heartedly suggested that they could have declined to discipline any dock worker who refused to be allocated or to work the Clan Line ships. It is certainly suggested that there were steps which the NDLB or local board could and should have taken to reduce the claimants’ exposure to asbestos dust and that they were in breach of duty not to do so. They must be taken to have known that Clan Line were unloading asbestos and the circumstances in which this happened. Mr Kent made a muted attempt to submit that this was not established, but it seems to me to be obviously correct. The judge so found as part of his extended account of the effect of the regulations in paragraph 49 of his judgment. The claimants do not submit that, in the circumstances prevailing at the time, the NDLB were obliged to prevent or refuse to allow absolutely the unloading of asbestos (as would be so today). But they do say that their statutory function of “making satisfactory provision for the training and welfare of dock workers, including port medical services, in so far as such provision [did] not exist apart from the Scheme” embraced a duty to dock workers to guard them against the risks to health from unloading dusty asbestos in hessian sacks. There should, for instance, have been training directed to the risks of breathing in asbestos; training to encourage or require the use of suitable breathing masks. Steps should have been taken to require Clan Line to have the asbestos packed in impermeable containers; and so forth. In short, doing nothing was a breach of duty. The claimants say that “welfare” in the regulations should extend to encompass matters affecting the dock workers’ health. They point to the juxtaposition of “welfare” with “port medical services”. They say more broadly that the close relationship between the NDLB, through the local board, and the dock workers was such as to make it fair, just and reasonable to impose on the NDLB a duty of the kind contended for to guard the claimants against the now admittedly foreseeable risk of serious injury from breathing in asbestos dust. The judge’s decision[19]The judge in a long and careful judgment upheld the claimants’ contentions. In paragraphs 59 to 75 of his judgment he considered evidence about what the NDLB could have done by way of safety and what they did. His conclusions in paragraph 75 were that:
“(a) the NDLB had no power to inspect cargoes or working practices although … [they were, in practice, permitted entry]; (b) the NDLB did not become involved in working practices with the dock workers, which were the responsibility of the registered employers; (c) the NDLB had the duties set out in paragraph 49 above; (d) the NDLB had the expertise to train workers and they employed doctors, who were concerned with the welfare of dock workers and the reduction of illnesses, such as chest infections; (e) the NDLB did give training to dock workers by organising training schools and training programmes, which covered training on handling hazardous cargoes; and (f) the NDLB carried out enquiries into illnesses affecting dock workers.”
Paragraph 49 was where the judge gave an extended account of his analysis of the effect of the regulations.[20]The judge applied to the facts what he referred to as the conventional approach to the law in cases such as Caparo. He addressed in turn forseeability, which is no longer in issue, proximity and whether it was fair, just and reasonable that there should be a duty of care. He re-emphasised that he was not concerned with the extent of the duty, and reckoned that it would have been more sensible if he had been. He examined reasons advanced on behalf of the Secretary of State why the relationship was not such as should give rise to a duty of care. These were in summary because the NDLB were not relevantly the claimants’ employer when the claimants were unloading the asbestos; because the NDLB’s duties were defined and confined by the structure of the statutory Scheme; because the claimants had had a remedy against the port employers; and because the NDLB had no power to inspect cargoes or control working practices. He concluded that a duty of care did exist although the nature and extent of it had still to be determined. If there were no duty, it would mean that the NDLB would have been immune from action if they had taken no action to warn dock workers, even if they were being required to handle cargoes which would almost certainly have resulted in them contracting some fatal or lethal illness.[21]The main factors which influenced the judge in reaching his conclusion that the NDLB did owe the claimants a duty of care were because the NDLB knew or ought reasonably to have known that exposure to heavy concentrations of asbestos dust could cause asbestosis and, from 1947, that it was also highly probable that it could also cause lung cancer; because the NDLB knew that the claimants were coming into contact with asbestos powder which had not been properly packed; because they knew that the claimants were not being given any protective equipment; because they must have realized that many of the employers were unable to ensure proper working conditions or maintain a proper standard of skilled supervision; because the claimants were part of an easily identifiable and ascertainable class; because the NDLB employed medical officers who knew or ought to have known the dangers caused by asbestos dust; because the claimants had no right to refuse work to which they were allocated; because the 1946 Act and the 1947 Regulations obliged the NDLB to make satisfactory provision for the claimants’ training and welfare including port medical services in so far as such provision did not exist apart from the Scheme, and because the claimants were dependant on the NDLB in these respects; because these provisions meant that the NDLB were obliged to find out if training and welfare provided by the employers were adequate; because the NDLB’s medical officers saw it as their duty to recommend at one annual conference the mass use of protective devices for dock workers working with dirty cargo; because the NDLB were obliged to make enquiries about cargoes as part of their obligation to supply men accustomed to the employers’ cargoes; because the claimants were permanent employees of the NDLB when they were not employed by registered port employers and the NDLB played a significant role in allocating dock workers to registered employers; and because the NDLB did recognize their responsibilities to dock workers by organising training schools and programmes.[22]I have abstracted these considerations relied on by the judge as a composite whole from his extended compartmental consideration of forseeability, proximity and what is fair, just and reasonable because, in my view, the question is a composite one to whose composite answer each factor is capable of contributing. Although the Caparo approach to causes of action in negligence remains firmly entrenched (see for example the recent decision of the House of Lords in Sutradhar v National Environment Research Council [2006] UKHL 33), there are other ways in which the same essential conceptual approach may be articulated. An extended discussion on this topic is not, I think, necessary to resolve the present appeal. But, as I have said elsewhere, it is often, in my view, helpful to ask whether a defendant is to be taken to have assumed responsibility to the claimant to guard against the injury or loss for which the claimant claims damages; or, more simply, whether in the circumstances the law recognizes that there is a duty of care – see for this formulation Merrett v Babb [2001] EWCA Civ 214; [2001] QB 1174 at paragraph 41, and the cases these cited and in particular Phelps v Hillingdon London Borough Council [2001] 2 AC 619. As Lord Nicholls of Birkenhead said in Stovin v Wise and Norfolk County Council [1996] AC 923 at 932C, proximity is convenient shorthand for a relationship between two parties which makes it fair and reasonable one should owe the other a duty of care.

Grounds of appeal

[23]There is a number of surviving grounds of appeal. The two main grounds are(i) that the judge gave an unduly wide meaning to the words “training and welfare” in paragraph 3(1)(g) of the 1947 regulations, when the NDLB had no relevant control over the critical unloading operations; and(ii) that the judge wrongly imposed a common law duty of care on a statutory body to take positive action when the statutory body could not be made liable for any breach of statutory duty.[24]Mr Kent’s submission in summary is as follows. The NDLB was a body established by statute whose powers and duties were defined and confined by the statutory provisions. There was no statutory duty to take steps to protect dock workers from the harmful effects of asbestos when they were working for and employed by the port employers. The NDLB’s statutory powers did not extend to enable them to take or require protective measures. They had a statutory duty to allocate dock workers to ships of registered port employers and no power to refuse to do so because cargoes were unhealthy. They had no power to require port employers to protect their employees, the dock workers; and no power to remove port employers from the register, if they did not protect dock workers. In short, they had no control over the dock workers’ employment when they were working for a port employer. Mr Kent refers to the emphasis placed by Lord Hoffmann on the degree of control which a defendant has over a situation which involved potential injury in Sutradhar v NERC at 501J with reference to the judgment of Hobhouse LJ in Perrett v Collins [1982] 2 Lloyd’s Rep. 255.[25]Mr Kent submits that the question whether the law should recognise a common law duty of care within the context of this statutory structure and, if so, its ambit must be profoundly influenced by the statutory framework within which the NDLB had to operate – see Lord Browne-Wilkinson in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739B. However, the context in which Lord Browne-Wilkinson was then speaking was that ordinary common law principles apply, if the facts give rise to a claim which is justiciable; and, in brief, matters which are not justiciable may include those which raise questions of policy or comprise the exercise of a discretion as to the extent to which, and the methods by which, statutory duties are to be performed. The questions at issue in the present appeal do not seem to me to comprise matters of policy or discretion. But, as Lord Browne-Wilkinson went on to explain at page 739D, a common law duty cannot be imposed on a statutory duty if the observance of such common law duty of care would be inconsistent with, or have a tendency to discourage, the due performance of the statutory duty.[26]Mr Kent submits that an omission to exercise statutory powers does not give rise to a claim in negligence. He refers to East Suffolk Rivers Catchment Board v Kent [1941] AC 74 at page 102, where Lord Romer referred nevertheless to a “mere” power; and to Stovin v Wise [1996] AC 923, which I consider later in this judgment. However, the principal part of the regulations relied on by the claimants – paragraph 3(1)(g) of the Scheme – is expressed in obligatory terms as a duty, not a mere power. The NDLB had to make “satisfactory provision for the training and welfare of dock workers, including port medical services, in so far as such provision does not exist apart from the Scheme”. Mr Kent has no answer to this, so far as it goes, except to submit that “welfare” has a more restricted meaning than that given to it by the judge. It should not be construed, he says, as requiring the NDLB to make satisfactory provision for the health of dock workers, certainly not when they are working for port employers, who would be themselves responsible for such matters. “Welfare” was concerned rather with providing canteens, social clubs and so forth. Mr Kent points to Part IV of the Factories Act 1937, whose headings separate “Welfare” from “Health” and “Safety”, and to Part III of the 1937 Act, which has general “Welfare” provisions with sections concerning the supply of drinking water, washing facilities, accommodation for clothing, facilities for sitting and first aid. I do not find this reference to the 1937 Act more than of general interest. In this Scheme, the very words of paragraph 3(1)(g) include “port medical services” within the scope of welfare (since the medical services can scarcely be included in “training”) and the word “welfare” is broad enough to include, in an appropriate context, questions relating to the dock workers’ health. On the judge’s findings, the NDLB did have medical officers who in fact concerned themselves with matters concerning dock workers’ health. In my judgment, therefore, the NDLB had a statutory duty to make satisfactory provision for the health of registered dock workers in so far as this did not exist apart from the Scheme. In the context, this must refer to their health insofar as it was affected by their employment as dock workers. The port medical facilities were plainly not intended to operate as a general practitioner’s surgery dealing with illness unrelated to work. Port employers shipping asbestos, in particular Clan Line, did not make satisfactory provision for the dock workers’ health. Accordingly, the NDLB had a general statutory duty to do so which was capable of profoundly affecting the existence and scope of a common law duty of care. The scope of any duty would have been affected by what in contemporary circumstances would or should have been regarded as “satisfactory provision”, which, because of the terms of the preliminary issue, is for future consideration. Furthermore, the NDLB had a training obligation of which it is alleged they were in breach. I would not regard the provision of training necessary to alleviate known hazards to health as a matter of policy which is not justiciable, as Mr Kent submits.[27]The bald proposition that a body created by statute cannot be recognised as owing a common law duty of care is untenable. The Bedfordshire case, Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619 are all authorities to the contrary. The question depends on the statutory framework, the relationship between the claimant and the statutory body, the kind of injury or loss for which the claimant claims damages, and whether the injury or loss was caused by a negligent act or omission by or on behalf of the statutory body. As Lord Phillips of Worth Matravers MR said in Watson v British Boxing Board [2001] QB 1134 at paragraph 74, “if the board were given the statutory function of directing what medical assistance should be provided to boxers at the stadium, I consider that it would be at least arguable that it owed boxers a duty of care in exercising that function”. The proposition that a statutory authority cannot be made liable for damage sustained by a member of the public by reason of a failure to exercise a mere power assumes a number of elements of the composite question in favour of the answer. At the least, a “mere” power predicates a statutory framework which cannot sustain an obligation; and the relationship between a statutory authority having such a power with “a member of the public” may be insufficiently close and particular for that purpose.[28]Stovin v Wise and Gorringe v Calderdale Metropolitan Borough Council [2004] 1 WLR 1057, both decisions of the House of Lords, are relied on heavily by Mr Kent. They were both cases in which persons involved in road traffic accidents sought to establish breach of a common law duty of care against a highway authority. The duty was said to derive from statutory powers or duties of the highway authority to maintain the highway so as to improve its intrinsic safety at the place where the accidents had occurred.[29]In Stovin v Wise, the House of Lords held that the question of whether the existence of a statutory power gave rise to a common law duty of care required an examination of the policy of the statute; that the absence of a statutory duty would normally exclude the existence of a common law duty of care; and that the minimum preconditions for basing a duty of care on the statutory power were, first, that it would have been irrational not to have exercised the power so that there was in effect a public law duty to act, and secondly that there were exceptional grounds for holding that the policy of the statute required compensation to be paid to persons who suffered loss because the power was not exercised.[30]There is an obvious distinction between a statutory power and a statutory duty. In the present case, there was, as I have indicated, a statutory duty. Stovin v Wise emphasises distinctions between injury or loss caused by positive acts in pursuance of a statutory duty and injury or loss caused by omission to act in pursuance of such a duty. Mr Kent submits that the present case is one of omission. Lord Nicholls of Birkenhead was in the minority as to the result in Stovin v Wise, but not, I think, in points of principle. Echoing what he said at 929H, the starting point is that the NDLB did not create the source of danger. Lord Nicholls went on to say, at 930B, that the distinction between liability for acts and liability for omissions is based on a recognition that it is one matter to require a person to take care if he embarks on a course of conduct which may harm others. He must take care not to create a risk of danger. It is another matter to require a person, who is doing nothing, to take positive action to protect others from harm for which he was not responsible, and to hold him liable in damages if he fails to do so. There must be some special justification for imposing an obligation of this latter character. Lord Nicholls pointed out at 930E that familiar instances of common law obligations to take positive action include those which might arise in tort between employer and employee. Recognizing (at 931C) the legal position that a bystander does not owe a drowning child or a heedless pedestrian a duty to take steps to save him, Lord Nicholls said that there must be some additional reason why it is fair and reasonable that one person should be regarded as his brother’s keeper and have a legal obligation in that regard. He said (at 933H) that an omission may constitute a breach of the authority’s public law obligations; and that the common law had long recognised that in some situations there may be a duty to act. It is necessary to consider the legislative intention. In the case under consideration, Lord Nicholls said (at 934D) that this gave rise to the difficulty of how much weight should be accorded the fact that, when creating the statutory function, the legislature held back from attaching a private law cause of action. Lord Nicholls then said (at 935B) that public authorities discharging statutory functions operate within a statutory framework, and the common law should not impose a concurrent duty inconsistent with this framework. Sometimes, as I think in the present case, a concurrent common law duty would not impose an additional burden, in the sense of requiring an authority to act differently from the course already required by its public law obligations.[31]In Stovin v Wise, the highway authority had decided to take steps to improve visibility at the place where the accident occurred, but had failed to proceed with reasonable diligence. In that context, Lord Nicholls said (at 936E) that the common law duty would impose, not a duty to act differently, but a liability to pay damages if the council failed to act as it should. This was the consequence which considerations of proximity must especially address. Was the relationship between the parties such that it was fair and reasonable for the council to be liable in damages for failing to behave in a way which merely corresponded to its public law obligations. Because Parliament stopped short of imposing a statutory duty in favour of the plaintiff, there must be some special circumstances, beyond the mere existence of the power, rendering it fair and reasonable for the authority to be subject to a concurrent common law duty sounding in damages. The special circumstances must be sufficiently compelling to overcome the force of the fact that when creating the statutory function, Parliament abstained from creating a cause of action sounding in damages for its breach.[32]Lord Nicholls then gave (at 937B-F) a list of factors, by no means exhaustive, with reference to various authorities, to be taken into account. These were the subject matter of the statute; the intended purpose of the statutory power; whether a concurrent common law duty might inhibit the proper and expeditious discharge of the statutory function; the ability of the plaintiff to protect himself; and the presence or absence of a particular reason why the plaintiff was relying or dependent on the authority. Applying these principles to the facts of Stovin v Wise, Lord Nicholls identified (at 939G to 941C) eight factors which, in his view, taken together constituted special circumstances of sufficient weight for a common law duty of care to be found. As I have said, he was in the minority as to the conclusion, but not, I think, on the principles to be applied. His eight factors included that the subject matter was physical injury; that the authority in that case knew of the danger; and that a common law duty would not impose on the authority any more onerous obligation.[33]Lord Slynn of Hadley agreed with Lord Nicholls that the appeal should be dismissed for the reasons which Lord Nicholls gave. The majority opinion, allowing the appeal, was given by Lord Hoffmann, with whom Lord Goff of Chieveley and Lord Jauncey of Tullichettle agreed.[34]Lord Hoffmann said (at 943G) that there are sound reasons why omissions require different treatment from positive conduct. It is one thing for the law to say that a person who undertakes some activity shall take reasonable care not to cause damage to others. It is another thing for the law to require that a person who is doing nothing in particular should take steps to prevent another from suffering harm from the acts of third parties or natural causes. He said (at 946G) that it has been clear law, since Mersey Docks and Harbour Board Trustees v Gibbs (1866) LR 1 HL 93, that in the absence of express statutory authority, a public body is in principle liable for torts in the same way as a private person. But its statutory powers or duties may restrict its liabilities. In the case of positive acts, the liability of a public authority in tort is in principle the same as that of a private person but may be restricted by the statutory powers and duties. The argument in Stovin v Wise, however, was that whereas a private person would have owed no duty of care in respect of an omission to remove the hazard at the road junction, the duty of the highway authority was enlarged by virtue of its statutory powers. The existence of the statutory powers was said to create a “proximity” between the highway authority and the highway user which would not otherwise exist.[35]The heart of Lord Hoffmann’s decision as to the principle to be applied is at page 952E. He said that whether a statutory duty gives rise to a private cause of action is a question of construction. It requires an examination of the policy of the statute to decide whether it was intended to confer a right to compensation for a breach. The same is true of omission to perform a statutory duty. If such a duty does not give rise to a private right to sue for breach, it would be unusual if it nevertheless gave rise to a duty of care at common law which made the public authority liable to pay compensation for foreseeable loss caused by the duty not being performed. In summary, Lord Hoffmann considered that the minimum preconditions for basing a duty of care upon the existence of a statutory power, if it can be done at all, are, first, that it would in the circumstances have been irrational not to have exercised the power so that there was in fact a public law duty to act, and secondly, that there are exceptional grounds for holding that the policy of the statute requires compensation to be paid to persons who suffer loss because the power was not exercised.[36]The House of Lords in Gorringe v Calderdale applied Stovin v Wise in holding that the public law duties in section 39(2) and (3) of the Road Traffic Act 1988, which were not in themselves enforceable by a private individual in an action for breach of statutory duty, did not give rise to a parallel duty of care at common law to take appropriate measures including the painting of warning signs on roads.[37]Lord Steyn, agreeing with the opinions of the other members of the judicial committee, said at paragraph 2 that the relationship between negligence and statutory duties and powers is a subject of great complexity and very much an evolving area of law. It is a subject on which an intense focus on the particular facts and on the particular statutory background, seen in the context of the contours of our social welfare state, is necessary. Sometimes cases may not obviously fall in one category or the other. Truly difficult cases arise. He said at paragraph 3 that, on a very careful study of earlier decisions of the House of Lords, there is a principled distinction which is not always in the forefront of discussions. In a case founded on breach of statutory duty the central question is whether from the provisions and structure of the statute an intention can be gathered to create a private law remedy. In contradistinction, in a case framed in negligence against the background of a statutory duty or power, a basic question is whether the statute excludes a private law remedy. An assimilation of the two enquiries will sometimes produce wrong results. He said, at paragraph 4, that Lord Hoffmann’s summary in Stovin v Wise at page 953, which I have summarised earlier in this judgment, had been qualified in Barrett v Enfield and Phelps v Hillingdon.[38]The claim in Gorringe had firstly been put as a breach by the highway authority of its duty to repair the highway in failing to erect or paint on the road a warning sign. This was rejected. Lord Hoffmann explained that the alternative claim in common law negligence was said to arise in parallel with general duties in section 39(2) and (3) of the 1988 Act. These were expressed in the widest and most general terms. No one suggested that they are enforceable by a private individual in an action for breach of statutory duty. They are enforceable, in so far as they are justiciable at all, only in proceedings for judicial review. Lord Hoffmann referred to his opinion in Stovin v Wise, and said of it, at paragraph 23, that, since the existence of the statutory powers was the only basis upon which common law duty was claimed to exist, it seemed to him relevant to ask whether, in conferring such powers, Parliament could be taken to have intended to create such a duty. If the statute does not create a private right of action, it would be, to say the least, unusual if the mere existence of the statutory duty could generate a common law duty of care. There had been some misunderstanding of the majority judgment in Stovin v Wise because, having concluded that the council owed no relevant duty to road users, it went on to discuss, in the alternative, what the nature of the duty might have been. The suggestion that there might exceptionally be a case in which a breach of a public law duty could found a private law right of action had proved controversial and it may have been ill-advised to speculate on such matters. Lord Hoffmann went on to consider at some length, and to disapprove, the decision of this court in Larner v Solihull Metropolitan Borough Council [2001] RTR 469. In this context, Lord Hoffmann said at paragraph 32:
“Speaking for myself, I find it difficult to imagine a case in which a common law duty can be founded simply upon the failure (however irrational) to provide some benefit which a public authority has power (or a public law duty) to provide”
But he said at paragraph 38:
“My Lords, I must make it clear that this appeal is concerned only with an attempt to impose upon a local authority a common law duty to act based solely on the existence of a broad public law duty. We are not concerned with cases in which public authorities have actually done acts or entered into relationships or undertaken responsibilities which give rise to a common law duty of care. In such cases the fact that the public authority acted pursuant to a statutory power or public duty does not necessarily negative the existence of a duty.”
Lord Hoffmann then gave examples from decided cases of circumstances in which a common law duty of care can arise.[39]Lord Scott of Foscote, referring at paragraph 71 to Stovin v Wise, agreed that whether a statutory duty can be relied upon to support the existence of a common law duty of care is not exactly a question of construction, because the cause of action does not arise out of the statute itself. But the policy of the statute is nevertheless a crucial factor in the decision. He would be inclined to go further. If a statutory duty does not give rise to a private right to sue for breach, the duty cannot create a duty of care that would not have been owed at common law if the statute were not there. If the policy of the statute is not consistent with the creation of a statutory liability to pay compensation for damage caused by a breach of the statutory duty, the same policy would exclude the use of the statutory duty in order to create a common law duty of care that would be broken by a failure to perform the statutory duty. Where the defendant has done nothing at all to create the duty of care and all that is relied on to create it is the existence of the statutory duty, Lord Scott did not accept that a common law duty of care could grow parasitically out of a statutory duty not intended to be owed to individuals. He said, however, at paragraph 73 that there are, of course, many situations in which a public authority with public duties has a relationship with a member of the public that justifies imposing on the public authority a private law duty of care towards that person. The steps required to be taken to discharge that private law duty of care may be steps comprehended within the public duties.[40]Lord Rodger of Earlsferry, giving additional reasons, agreed with Lord Hoffmann, Lord Scott and Lord Brown of Eaton-under-Heywood. Lord Rodger said at paragraph 90 that section 39 of the 1988 Act involved the kind of target duty that gives rise to no right to damages for its breach at the suit of an individual, even where the breach of duty had consisted in the negligent failure of the local authority to take the appropriate measures to prevent accidents.[41]Lord Brown agreed, at paragraph 100, with Lord Hoffmann in distinguishing the line of authorities which included X (Minors) v Bedfordshire, Barrett v Enfield and Phelps v Hillingdon, essentially because the common law duty of care in those cases was found or suggested to have arisen, not by reference to the existence of the respective authorities’ statutory powers and duties, but rather from the relationship in fact created between those authorities and the children for whom in differing ways they had assumed responsibility.[42]Drawing together and synthesising the threads of these authorities, a statute containing broad target duties owed to the public at large, and which does not itself confer on individuals a right of action for breach of statutory duty, is unlikely to give rise to a common law duty of care, breach of which will support a claim by an individual for damages. Such a public law duty is enforceable, if it is justiciable at all, only by judicial review. There may, however, be relationships, arising out of the existence and exercise of statutory powers or duties, between a public authority and one or more individuals from which the public authority is to be taken to have assumed responsibility to guard against foreseeable injury or loss to the individuals caused by breach of the duty. There is then a sufficient relationship of proximity and it is fair, just and reasonable that a duty of care should be imposed. In order to determine whether the law should impose such a duty, an intense focus on the particular facts and the particular statutory background is necessary.[43]In the present case, the general statutory framework was that of an immediate post-war necessity to keep the docks, then vital to the nation’s well-being, operating properly. But it would be wrong to suppose (and Mr Kent does not suggest) that the conditions under which dock workers were required to work and their health were, within the framework of the legislation, subordinated to national necessity. In general, the 1946 Act and the 1947 Regulations were close in time to the inception of the National Health Service. In particular, as I have explained, regulation 3(1)(g) imposed on the NDLB an express statutory duty to make satisfactory provision for the training and welfare of dock workers in so far as this did not exist apart from the Scheme, and this duty encompassed making satisfactory provision for their health as dock workers. The statute, properly construed, did not create a private remedy. But the policy of this part of the statute was clearly aimed at protecting the health of dock workers in their employment.[44]The relationship between the NDLB and dock workers was not, as I have explained, an ordinary unvarnished relationship as between employer and employee. It was hybrid. But it had close affinities with such a relationship and, for some purposes and part of the time, the NDLB was the employer of the dock workers. Since the statutory duty required the NDLB to make satisfactory provision for training and welfare, including health, in so far as this did not exist apart from the Scheme, the NDLB had a clear implicit obligation to find out, in so far as they did not already know, what provision was necessary and to what extent this did not exist apart from the Scheme. With Clan Line and the unloading of asbestos in hessian sacks, there was no satisfactory provision apart from the Scheme, so that the NDLB were themselves obliged to provide it as part of their relationship with the dock workers, which was akin to one of employment and in part was actual employment. The NDLB knew or ought to have known that unloading asbestos in hessian sacks carried a serious risk of serious injury to the dock workers’ health, to put it no higher for the years in question. In these circumstances and on these quite startling facts, in my judgment, the policy of the statute can only be seen as enabling a relationship such that the law should impose a common law duty of care. This was not a broad target power or duty directed at the public at large. It was on the facts a specific duty requiring the NDLB to protect their individual employees against a known serious risk to their health, and which, in my judgment and in agreement with the judge, it is fair, just and reasonable to impose. The scope of the duty has yet to be determined. But this court can at least agree that to do nothing was not on the evidence an option available to the NDLB if they were to perform the duty which in my judgment they owed to the claimants. Although the NDLB were a body created by statute to whom the principles discussed in Stovin v Wise and Gorringe apply, they would in my view have undertaken an equivalent common law duty if they had been a private organisation in an equivalent relationship with the dock workers and performing and undertaking equivalent functions.[45]For these reasons, I would dismiss the appeal. I only add that I have been generally concerned lest it would be erroneous to apply values of the early 21st century to the very different world of 50 years ago. I conceive, however, that the court is obliged to apply contemporary legal analysis to the evidence, including what did and did not happen in the 1950s and 1960s. In the latter respect, the critical facts, in my view, in this case are that forseeability is no longer in issue; that the relationship was that of employer and employee, although in a hybrid sense; that one part of the policy of the statutory relationship was that the NDLB should make satisfactory provision for the dock workers’ health; and that the NDLB must be taken to have known that Clan Line took no precautions to guard against the risk to their health of dock workers unloading asbestos in hessian sacks.

Keene LJ:

[46]I agree.

Smith LJ:

[47]I also agree.

Cited in 3 later judgments