Rice v Secretary of State for Trade and Industry & Anor [2006] EWHC 1257 (QB)

Case No 304927

Neutral Citation Number: [2006] EWHC 1257 2006

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISON

Venue MANCHESTER DISTRICT REGISTRY

The Queen Elizabeth II Law Courts

Derby Square,

Liverpool L2 1 XA

Date Date: 26 May 2006

Before

THE HONOURABLE MR JUSTICE SILBER

Between

WINIFRED RICE (Widow and Executrix of the Estate of EDWARD RICE, DECEASED)Claimant

SECRETARY OF STATE FOR TRADE AND INDUSTRYFirst Defendant

STUNTBRAND LINE LIMITEDSecond Defendant

ROBERT FRANCIS THOMPSONClaimant

SECRETARY OF STATE FOR TRADE AND INDUSTRYFirst Defendant

STUNTBRAND LINE LIMITEDSecond Defendants

John Hendy QC and Jonathan Davies (instructed by John Pickering and Partners of Oldham) for Claimants.

Jonathan Harvey QC (instructed by Davies Arnold and Cooper) for First

Defendant.

for The Second Defendants were not represented

(Hearing dates 3-5 April 2006

Further written submissions 11 and 13 May 2006)

JUDGMENT

Summary

(This summary does not form part of the judgment)

x1. Paragraphs 1-4 of the judgment contain the introduction to the judgment and explain how the preliminary issue arises.

x2. The National Dock Labour Board (“NDLB”) Scheme is described in paragraph 5-15 of the judgment and the case for claimants is set out in paragraphs 16-19.

x3. The issue of the period during which the claimants were employed by the NDLB is covered in paragraphs 21-40.

x4. Paragraphs 41-43 explain the approach taken to the issue of whether the NDLB owed a duty of care to the claimants. Paragraphs 44- 49 set out the distinctive and relevant features of the Scheme. Paragraphs 50- 58 are concerned with the state of knowledge of the dangers of asbestos dust before 1967 and what NDLB knew or ought to have known about them. Paragraphs 59 – 75 deal with what NDLB could have done on safety issues and what it actually did on safety issues.

x5. Paragraph 76 explains the approach that will be taken to determining the preliminary issue. The conventional Caparo approach is explained in paragraph 77.

x6. The judgment then covers foreseeability (paragraph 78), proximity (paragraphs 79-86) and the issue of reasonableness and fairness (paragraphs 87-92) with the conclusion set out in paragraph 92.

x7. MacHugh J‘s approach in the Australian High Court’s decision in Crimmins is considered in paragraphs 93 -103.

x8. The conclusions to the judgment are then set out.

The Honourable Mr Justice Silber

I. Introduction

[1]Edward Rice worked as a dock worker at Liverpool Docks from 1955 to 1967. Robert Francis Thompson also worked as a dock worker at Liverpool Docks from 1966 to 1967. In these proceedings, it is contended that they have both suffered from asbestos-related illnesses which were contracted during these periods of employment. Sadly Edward Rice has died. His widow brings a claim on behalf of his estate for damages as does Mr Thompson. For the sake of convenience, I will refer to Mr. Thompson and Mr. Rice as “the claimants”.

[2]While the claimants were employed there, Liverpool Docks were subject to the National Dock Labour Board (“NDLB”) regime and their contention is that they contracted asbestos-related diseases whilst working for Clan Line in the unloading of asbestos for which the second defendant is the successor-in-title but that company has now been dissolved. Thus, the claimants are now only pursuing their claim for damages from the Secretary of State for Trade and Industry (“the defendant”), who took over the liabilities of the NDLB after it was wound up in 1989.

[3]The preliminary issue agreed for determination is; “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?” 4.A. Mr John Hendy QC on behalf of the claimants contends that such duty was owed in one of three different ways but that is disputed by Mr Jonathan Harvey who appears for the defendant. In order to understand the submissions it is necessary for me to explain the salient features of the NDLB scheme. Thus, I am not concerned with the extent of any duty, which might be owed but I mention in passing that the Amended Particulars of Claim contend that the duty is of limited scope as I will explain when I comment in paragraphs 90 C and 92 B below on Mr. Harvey’s contentions that it would not be fair and reasonable to impose a duty of care in this case. With the benefit of hindsight, it would have been more sensible if the issue of the extent of the duty had also been considered at this hearing, because Mr Harvey understandably made submissions relating to the difficulties which would arise if a duty existed; these submissions would have been best considered in the context of determining what any duty would entail. The parties would not have been in a position to consider the extent of the duty at the hearing in front of me.

[4]B. There was limited oral evidence called by the claimants. The defendant did not call any evidence, which is not surprising as the preliminary issue relates to the state of affairs, which existed more than 40years ago. The claimants had served on the defendants before the hearing a report of Professor Peter Turnbull of the Cardiff Business School, who has done much research into the NDLB in which he brought together much information relating to working conditions in the docks in the period before 1967. Mr Harvey pointed out that the claimants did not have permission to adduce this evidence but when it became clear that it was only to be relied upon for background evidence, Mr. Harvey did not ask for me to rule on its admissibility. Professor Turnbull gave evidence but he was not cross-examined. Both sides in their closing submissions then relied on what Professor Turnbull had said, I have relied on his evidence essentially but not exclusively when he quotes from a report of Lord Devlin on port conditions. II. The NDLB Scheme.

[5]Section 1 of the Dock Workers (Regulation of Employment) Act 1946 (“ the 1946 Act”) provided for a scheme to be made for “ensuring greater regularity of employment for dock workers and for securing that an adequate number of dock workers is available for the efficient performance of their work”.

[6]The Scheme envisaged under the 1946 Act was provided by the Dock Workers (Regulation of Employment) Order 1947 (No. 1189), which came into force in Merseyside on 30th June 1947, and which was later amended by the Dock Workers (Regulation of Employment) (Amendment) Order 1961 (No. 2107) (“the regulations”). This Scheme created the NDLB and under its umbrella, various local dock labour boards. Specific provision was made for the NDLB to be sued as “The National Dock Labour Board” under clause 4(1) and the defendant is its successor-in –title.

[7]The NDLB had specific obligations under the regulations and these included having responsibilities for the: i. allocation of registered dock workers to registered port employers for work – clauses 3(1) (b) and 6(1) (e); ii. 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 - clause 3(1) (g).This would have necessitated co-operation between the NDLB and registered port employers, port authorities and other organisations with an interest in accident prevention and health and safety at work. Professor Turnbull has explained in a report, which he adopted in his evidence at the trial, that the shipping lines and the other port users were often lax in their attention to accident prevention and safety at work and in the provision of basic training and safety equipment; iii. remunerationof registered Dock Workers. The local boards were responsible to the NDLB for paying the dock workers attendance pay funded by the NDLB and earnings from work with registered port employers which was also directly paid by the NDLB and reclaimed from the registered port employers– clause 6(1)(f). Dock workers’ pay was subject to a minimum weekly wage paid by the NDLB, provided the worker had made sufficient attendances at calls (or hirings) – clause14. The NDLB also paid holiday pay to its registered Dock Workers – clause 13; iv.disciplineof registered Dock Workers – clause

15. It fell to the NDLB alone to discipline a dock worker for misconduct whilst performing duties for a registered port employer to whom he had been allocated; v. registration of dockworkers. All dockworkers had to be registered with the NDLB to work in the Dock Industry. Non-registration precluded an individual from working on the docks, reinforced against employers as a criminal offence under Clause 10(1) and (2) of the Scheme and Section 1(5) of the 1946 Act; vi. Employment of dockworkers. Pursuant to the scheme, a registered Dock Worker in the pool, available for work, “shall be in the employment of the National Board” – Clause 8(2). After 1961, this was amended to “A daily worker when not employed in pursuance of the scheme by any other employer shall be in the employment of the National Board”. Furthermore clause 8(3) provided that after 1961, a registered Dock Worker “shall not engage himself for employment by a registered employer unless he is allocated to or selected by that employer in accordance with the Scheme or unless he is engaged as a weekly worker”. Prior to 1961, there were in force slightly different restrictions on the ability of a registered dock worker to work for a registered port employer.

[8]Thus all registered dock workers were allocated their work by the NDLB, unless separately selected by a registered port employer at the allocation call, or engaged as a weekly worker.

[9]The dock workers too had explicit obligations under the Scheme. Under Clause 8(4), dock workers available for work in the employment of the National Board “shall carry out the directions of the local boardand shall –(a) report at such call stands or control points at such times as required but subject to any agreement come to with the appropriate joint industrial organisation;

(b) accept any employment in connection with dock work, or any other work agreed by the local board for which he is considered by the local board to be suitable in pursuance of such agreement as aforesaid;

[10]Thus dock workers not already allocated to a port employer (usually for the time it took to discharge or to load a ship although a very few, usually skilled men such as crane drivers, were kept on for much longer periods by employers) were required to attend calls for allocation of work at 8am each day and 2pm if not allocated work at the 8am call. The dock workers were only ever paid by the NDLB.

[11]The pens were locked during the allocation process.

[12]The claimants attended a pen from which men were allocated to an area of Liverpool docks used by amongst others, the Clan Line. Accordingly, from time to time, they were allocated to Clan Line ships carrying asbestos to be discharged. This occurred once every two months for Mr Rice.

[13]Registration as a port employer was a formality. All that was really required was a desire to employ dockworkers. Under Clause 9of the Scheme the duties of operational employers were essentially administrative.

[14]Professor Turnbull’s evidence is that these registered employers were unlikely to provide machinery or equipment but instead many hired cranes from Port Authorities. According to his evidence, a Committee of Inquiry presided over by Lord Devlin reported in 1965 (Final Report of the Committee of Inquiry under the Rt. Hon. Lord Devlin into Certain Matters Concerning the Port Transport Industry (Cmnd 2734,1965)) found that(i) many of these registered employers “do practically no work at all and many are casual workers who do an occasional job”(paragraph 23) (This is significant as the preliminary issue has been drafted so that I am required to consider whether the duty of care arose when the claimants were working for any “registered employer”) ,

(ii) “many did not even have any premises and ‘were unable to ensure proper working conditions for the men they employ or to maintain a proper standard of skilled supervision’”(paragraph 24) and

(iii) “in general, they lacked ‘competent personnel policies’”(paragraph 25). This evidence, which has not been contradicted, is relevant because, as I have explained in paragraph 7(ii) above, the obligation of the NDLB was to provide for the training and welfare of dockworkers in so far as such provision did not exist apart from the Scheme

[15]This kind of registered employer did not continue after 1967, with the implementation of new regulations requiring engagement of dockworkers as permanent employees. They could not afford permanent employees and had insufficient work to maintain them. This case is, however, concerned with conditions before 1967, which is when the claimants ceased to work in the Liverpool Docks. III. The Claims.

[16]The primary submission of Mr. Hendy is that dock workers were employed by the NDLB at least until the dock workers started work for the employer to which he had been allocated. His submission is that the contract of employment arose under legislative provisions, which required the NDLB to allocate dock workers to registered port employers, who needed them to load or discharge cargo on and off vessels.

[17]Mr. Hendy’s case is that in deciding to which employer a dock worker should be allocated, the NDLB was acting as the employer of that dock worker. Indeed, he contended that the NDLB remained the employer at least until the dock worker started work for the employer to which he had been allocated. The case for the claimants is that in making that decision therefore the NDLB owed the duty of care of an employer to its employees to take reasonable steps to safeguard the health, safety and welfare of its employee. The extent of that duty of care and the manner in which it should be discharged in the circumstances are matters outside the scope of this preliminary issue.

[18]The second and alternative submission of the claimants is that even if the NDLB was not the employer at the point or in the immediate lead up to allocation, the NDLB nonetheless owed duties analogous to those owed by an employer.

[19]Mr. Hendy’s third and alternative submission is that following allocation of employment, and then after commencement of work with the port employer, there remained a concurrent residual duty on the NDLB to take reasonable steps to safeguard the health and safety of the dock workers. The claimants’ written skeleton argument explains that: “notwithstanding employment from time to time with the Second Defendants, the claimant dock workers remained employees of the NDLB at all times”.

[20]It seems appropriate to consider these submissions, which are strongly contested by the defendant by first considering for how long the dock workers were employed by the NDLB. The parties attached great significance to this issue although I am not convinced that the resolution of it will assist in resolving the preliminary issue. IV.

(i) The effect of allocation

[21]It is common ground that after 1961, the dock workers were employed by the NDLB when in the words of clause 8 of the Regulations they are not being, “employed in pursuance of the [NDLB] scheme” namely by a registered employer. The issues with which I am now concerned relate to whether this employment by the NDLB continued either until the dock worker started work or arrived at the side of the ship as contended for in the claimants’ first submission or even during the dock worker’s employment with the ship-owner as contended for in the claimants’ third submission.

[22]There have been a number of occasions in which the terms of the NDLB scheme or similar schemes have been judicially considered usually in a context of a personal injury claim. In Powell v Docks and Inland Waterways Executive (1949) 83 Lloyd’s List LR 107, the Court of Appeal held that the plaintiff (who had been allocated to the railway company under a dock labour scheme, which was a predecessor of but slightly different from the NDLB Scheme) was at the time of the accident an employee of the railway company and not of the predecessor of the NDLB. The scheme under consideration in that case shared with the NDLB scheme the feature that prior to allocation to particular employers, the port transport workers would be in the employment of the Executive. The Court of Appeal held that defendant was not the employer of the worker after allocation. It has not been suggested that there were any significant material differences relevant to the determination of the preliminary issue between the NDLB scheme and the scheme in operation in Powell’s case. So the true position is that the dock workers would only be employed by the NDLB until allocation and this is borne out by the approach of the Court of Appeal in Powell’s case.

[23]Jenkins LJ explained that the position was, with emphasis added, that: “one has employment by the [Executive] while the transport worker is in the reserve pool, superseded by the employer when an allocation takes place” (page 116).

[24]Tucker LJ said of the employee, who had been allocated that: “only while he is in the reserve is he in the employment of the [Executive]. When he is allocated to a particular employer for work, I think that he comes, under the Scheme, into a contractual relationship with that employer in exactly the same way as he did before the Scheme came into operation” (page 118).

[25]In Vine vNational Dock Labour Board

[1957] AC 498

, the House of Lords was concerned with the disciplinary powers of the NDLB but nevertheless the relationship between the NDLB and dockworkers was considered. Lord Cohen explained that he did, “not think that the [NDLB] are in the position of an ordinary employer” (page 504).

[26]Lord Keith of Avonholm having described the NDLB scheme said that: “it is impossible, in my opinion, to equate the position for a registered dock worker in relation to the [NDLB] with that of an employee and an ordinary contract of service” (page 508).

[27]In my view, the decision in Powell’s case establishes that on allocation, the dock worker ceases to be employed by the NDLB but that has to be subject to Mr. Hendy’s argument that some recent authorities on employment agencies show that there can be an implied contract of employment between the worker and the body which facilitates his employment irrespective of whether this entity actually then uses the worker’s services. In other words, it is contended by Mr. Hendy that the claimants continued to be employed by the NDLB after allocation even though they were then also employed by the ship owner. (ii). A concurrent contract of employment with the NDLB after allocation

[28]The cases relied upon by Mr. Hendy deal with the tripartite position where the functions of the employer are divided between two bodies with one entity (“entity A”) being the entity, which facilitates the work of the worker with the end-user and which pays that worker his wages while the other entity (“entity B”) provides and supervises the work. Although those cases usually arise in the context of claims for unfair dismissal, the issue often is whether entity A is the concurrent employer under an implied contact of employment and that is the issue on which I am now focussing.

[29]The following general principles have been established: a. “a contract of service may be implied- that is, deduced- as a necessary inference from the conduct of the parties and from the circumstance surrounding the parties and the work done” (per Mummery LJ in Dacas v Brook Street Bureau Ltd

[2004] IRLR 358

, 362[16]); b “the totality of the triangular arrangements may lead to a necessary inference of a contract between such parties, when they have not actually entered into an express contract, either written or oral, with another” (ibid [17]): c. the absence of control, direction or supervision by entity A on the work to be done by the end-user would preclude a finding that there was an implied or any contract of service (Montgomery v Johnson Underwood

[2001] IRLR 264

); d. the mere fact that entity A performs some of the functions that an employer normally performs does not mean that entity A is the employer in the absence of the irreducible minimum of mutual obligations necessary for a contract of service, namely an obligation to provide work and an obligation to perform it, coupled with the presence of control (see Dacas (supra) 365[49] and 367[64] and see also Carmichael v National Power

[2000] IRLR 43

at pages 45 and 47 per Lord Irvine LC and Lord Hoffmann respectively); e. “in a typical triangular case, the worker will usually be held not to be an employee of the agency [i.e. entity A]” (per Smith LJ giving the judgment of the Court of Appeal in Cable & Wireless Plc v Muscat

[2006] EWCA Civ 220

[24])

[30]It is of substantial importance that in the present case, the NDLB, which is the equivalent of entity A, did not control the way in which the claimants performed their functions and duties after they had been allocated to the second defendants or to any port employer. Paragraph 8 (5) of the Regulations provides that:

“A daily worker while in the employment of a registered employer shall a. carry out his duties in accordance with rules of the port or place where he is working; and b. work for such periods as are reasonable in his particular case”

[31]There were no provisions in the Regulations which gave the NDLB the right or the duty to control the way in which the dock workers carry out their work for their employers after they have been allocated to a particular registered employer. The evidence is that after allocation, it was the registered employer, who alone decided what work the dock worker should do. This point is made clearly in some of the witness statements of the defendant’s witnesses such as Mr. Francis Mathews, who was employed by the NDLB in different capacities from 1948 until 1989 and I accept this evidence in the absence of any contradictory evidence.

[32]It follows that in the absence of any right of the NDLB to control how the dock workers performed their work after allocation, there is no material which would indicate that a contract of service has to be implied and as Smith LJ explained in the Cable & Wireless case to which I referred in paragraph 29 (e) above “in a typical triangular case, the worker will usually be held not to be an employee of the agency [i.e. in this case that would be the role of the NDLB]”.

[33]So the position remains as was described by the Court of Appeal in Powell’s case namely on allocation the employment by the NDLB is in Tucker LJ’s words “superseded by the employer when an allocation takes place”. Indeed, as I will explain, the mode of working under the NDLB scheme was that the NDLB did not have any control over the dock workers’ mode of working after allocation. (iii). When did allocation occur?

[34]Mr. Harvey contends that allocation occurred when the dock worker was chosen for work with a particular employer or when he was allocated to an employer. Mr. Hendy’s case is that allocation takes place much later in the process. In his written skeleton argument, he stated that it occurred when the dock worker started work for his employer while in his oral submissions, he contended that allocation occurred when the dock worker arrived at the side of the ship on which he was due to work.

[35]In order to determine when allocation took place, it is in my view necessary to look at the evidence to determine what procedure was adopted by the employers for selecting the claimants to unload their ships. Mr. Rice made a written statement, which was subject to a Civil Evidence Act notice and which was duly admitted; in it, he explained that:

“52 The system of work under the [NDLB] scheme when I started in 1955 was that every day hundreds of men would be crushed into a pen. The bosses of the ship came along and they took what men they wanted to unload the ships. He came along and took your book and tapped you on the shoulder, which indicated that he wanted you to work for them. I then followed to whatever boat he wanted me to work on…. 54. The ships boss kept my book until I had finished loading the cargo for them. He used to stamp it everyday that I worked for them. At the end of the week I was paid by the [NDLB]. I did not have a written contract of employment … 57. During the period 1955 to 1965, I used to work for Clan Line regularly about once every two months. During the time I unloaded about thirty cargoes for Clan Line which contained asbestos in hessian sacks. 58. It was the ships boss that was employed by Clan Line, who told me which ship to unload. Frank Woolestoft, my father-in-law, was the ships boss from Clan Line. Because we knew what we were doing, we got on with unloading of the ship when we were told by the ships boss which hold to unload”

[36]Mrs. Rice made a witness statement in which she explained that:

“ 6…My father, as quay foreman or boss used to select the men he wanted to work for him in the pens”

[37]Mr. Thompson gave oral evidence at the trial in which he verified the truth of his witness statement in which it was stated that:

“19. We were required to report to our nominated pen each morning by 8.00am. The pens were in what was like a hall beside the docks. I was in pen number 2 in the Hornby Dock. This also covered the Alexandra Dock. This was a pen where men from Bootle were allocated. 20. Within that hall, there were lines painted on the floor. We filed into the hall by one door and we all stood in our designated areas. I stood in the area for porter holdsman. Bogey drivers stood in another area and fork lift truck drivers in another, crane drivers in yet another. We were packed in there closely and we were sweating. It was important to try to get near the front to have a better chance of being picked. I was only about 26 then and I used to wear an old battered cap to make it look as though I was more experienced. 21. The pen manager was called Les Sakney. When a ship had docked in the Alexandra or Hornby Dock the ships boss would come into the hull or pens along with the manager, Les. He went to each area choosing the bogey drivers, crane drivers and porter holdsmen and deck hands he required. He touched you on the shoulder and Les then took my registration desk. As soon as I was picked I then went through the other door and made my way down to the boat”

[38]So both claimants explained that it was “the ships’ boss”, who selected the dock workers for work on their ship, which was a view supported by Mrs. Rice. The evidence of William Webb was, with my emphasis added, that:

“9 If there were boats to be unloaded a ships boss from one of the stevedoring companies or often one of the shipping lines such as Clan Line came around with the pen boss. If he picked you out you gave your pass book to the time keeper. The pass book had my NDLB number which was A315225”

[39]The critical evidence was that of the claimants in the sense the important issue was to ascertain by whom and how they were selected. The claimants’ evidence was clear that it was the shippers, who selected the dockworkers concerned. I will assume that this system applied with other employers.

[40]My conclusion is that allocation took place in the pens either when the employers selected the dock workers who they wished to work for them or when the NDLB’s representative selected the dock worker for the particular registered employer. This selection meant that the dock workers thereafter ceased to be employed by the NDLB thereafter while they worked for the second defendants or any other registered employer. In reaching that conclusion, I have not overlooked Mr. Hendy’s submission that the allocation only took place when the claimants reported to the employers’ representative by the side of the ship to be unloaded but my conclusion is that the selection had taken place in the pen and thereafter the dock worker was subject to the instructions of the registered employers. I am uncertain whether the issues of when allocation took place and the length of time for which the dock worker was employed are of crucial or of great importance in resolving the preliminary issue but as I heard detailed submissions on them, I have given my conclusions. V.

(i) Introduction

[41]Mr. Hendy contends that such a duty existed while Mr. Harvey submits that such a duty of care was only owed by the registered employer to the claimants but not by the NDLB. I was initially concerned about whether I could find a duty on the part of the 45. NDLB “to take reasonable steps to protect [the claimants’] health and safety” without also seeking to define that duty. In Crimmins v Stevedoring Industry Finance Committee [1999] HCA 59, the High Court of Australia had to decide whether the defendants owed a duty of care to the deceased. In answering this question in the affirmative, Gaudron J explained that: “35 ….No question arises in this appeal as to what steps a reasonable authority would have taken in the circumstances of this case .It is, however, appropriate to note that that if there is a common law duty of care, that question was one to be decided by a jury.” .

[42]So if I accept Mr. Hendy’s submission that the NDLB owed a duty of care to the claimants, the ambit of such a duty would in the absence of agreement between the parties have to be determined at a subsequent hearing . In order to determine if a duty was owed by the NDLB to the claimants, it is necessary to follow the approach of Lord Steyn in Marc Rich & Co v Bishop Rock Ltd

[1996] AC 211

at 236 when he said that:

“None of the cases cited provide any realistic analogy to be used as a spring board for a decision one way or the other in this case. The present case can only be decided on the basis of an intense and particular focus on all its distinctive features, and then applying established legal principles to it”

[43]So I must now consider the evidence in order to identify “the distinctive features” of this case and I bear in mind that the submission s have to be considered in the light of the port operations in Liverpool as a whole. (ii). The distinctive features in the Regulations. 44 A. I have already explained that the NDLB had no control over the way in which the dock workers performed their work when employed by registered employers but I now have to consider what interest the NDLB had in the working conditions of and demands made of the dock workers. There are three provisions in the Regulations, which constitute distinctive features relevant to the possible existence of a duty of care. They each have to be considered in the light of the fact that the NDLB was also charged with the duty of appointing local dock labour boards in each port and there were to be equal numbers of representatives of the dock workers and of the employers; paragraph 5 (1), (2) and (3) of the Regulations. 44.B. The first relevant provision is, as I have explained, that the section 1 (2) (d) of the 1946 Act which created the NDLB provided that a scheme could make “.. satisfactory provision for the training and welfare of dock workers, insofar as such provision does not exist apart from the scheme…”. This provision was repeated in paragraph 3 (1) (g) of the Regulations. As I have explained,Professor Peter Turnbull state that the shipping lines and the other port users were often lax in their attention to accident prevention and to safety at work and in the provision of basic training and safety equipment. The conclusions of Lord Devlin’s Committee of Inquiry, to which I referred in paragraphs 14 and 15 above, provide strong supporting evidence. It is not suggested that there was any organisation other than the registered employers who could make provision for the training and welfare of dock workers. This meant that if the registered employers did not make satisfactory provision for the training and welfare of dock workers, the NDLB then in consequence had real obligations in relation to the training and welfare of dock workers. In any event, the NDLB must have had the obligation of investigating whether registered employers had made “satisfactory provision for the training and welfare of dock workers” because it was only by carrying out that exercise that the NDLB could ascertain if it had to provide provision for training and welfare. This meant that the NDLB had the duty to carry out inquiries about what registered employers were doing in respect of the “training and welfare of dock workers”. The “welfare” of the dock workers must have included conditions which would adversely affect the health of the dock workers. I cannot understand why the training of these workers should exclude matters which would damage their health.

[45]The second relevant provision is paragraph 6 of the Regulations, by which it was provided (with my emphasis added) that:

“(1)…the local board shall be responsible to the National Board for matters of local policy and for local administration of the scheme, and in particular, without prejudice to the generality of this clause (e) the allocation of daily workers in the reserve pool to registered employers, in doing which the local board shall i. use every endeavour to supply men accustomed to the employer, and his operation and cargoes…” (e) the allocation of daily workers in the reserve pool to registered employers, in doing which the local board shall i. use every endeavour to supply men accustomed to the employer, and his operation and cargoes…”

[46]Although this provision was inserted for the benefit of the registered employers, its significance is that because the local board was entrusted with the task of using every endeavour to supply men accustomed not merely to the employer but also to his operations and cargoes, the local board had the responsibility of making inquiries concerning the cargoes on any vessel for which the employer sought registered employees, such as the claimants. Unless the local board carried out some sort of inquiry, it is not clear how this responsibility could be discharged although it was a duty for the benefit of registered employers as it sought to provide them with suitable dock workers. The significance of this provision is that it refutes the defendant’s argument that the NDLB had no obligations to make inquiries about cargoes

[47]The third relevant regulation, which is paragraph 8 of the Regulations, which provides in mandatory terms (with emphasis added in so far as is material to the preliminary issue) that the dock worker in the reserve pool “..4….shall carry out the directions of the local board and shall: … (b) accept any employment (whether or not on dock work) for which he is considered by the local board to be suitable, having regard to the provisions of any agreement..” … (b) accept any employment (whether or not on dock work) for which he is considered by the local board to be suitable, having regard to the provisions of any agreement..”

[48]If the dock worker did not comply with a direction given by the local board as the agent of the NDLB to accept any such employment, the consequences were severe as paragraph 15 of the Regulations provided (with my emphasis added) that then after investigation, the dock worker: …4...“shall not be entitled to any payment or such part of any payment as the board thinks fit..in respect of the pay week in respect of which such failure occurred or continued”… 6...

(d) dismiss him summarily”

[49]The effect of these provisions in the Regulations is that:(a) the dock worker was unable to protect his own interests because he was obliged to do such work for which he was considered by the Board to be suitable;

(b) if he did not comply with the Board’s instruction, he was liable to disciplinary procedures, which significantly included the ability to prevent the dock worker remaining within the NDLB scheme with the consequent and inevitable loss of his livelihood as non-registration precluded a dock worker from working in the docks as explained in paragraph 7(v) above;

(c) as was explained by Gaudron J in the Crimmins case (supra) about a dock worker’s work under the Australian equivalent of the NDLB “the casual nature of his employment precluded the development of any longstanding employer-employee relationship in which he might usefully seek to secure his own health and welfare” [44]. This factor was also true of the dock workers’ relationship with their many different registered employers;

(d) the dock worker had no right to refuse to do the work that he was told to do or to make any inquiries about the cargo to be unloaded as his duty was to obey the instructions;

(e) the local board of the NDLB on the other hand had the obligation to use its best endeavours to supply men accustomed to, among other things, the employer’s operations and his cargo. This duty was for the benefit of the registered employers as it was to ensure that they received suitable dock workers;

(f) this obligation imposed a duty on the local board of the NDLB to ascertain if the dock worker was suitable for handling any particular cargo and this meant that some investigation had to be conducted by the local board. The significance of this provision is that it refutes the defendant’s argument that the NDLB had no obligations to make inquiries about cargoes;

(g) the NDLB also had the duty to make satisfactory provision for the welfare and training of dock workers especially as the evidence indicates that many employers were often lax in these areas, which meant that as a consequence of the default of those employers, the NDLB had those important obligations;

(h) in any event, the NDLB had the duty to carry out inquiries about what registered employers were doing in respect of the “training and welfare of dock workers” in order to ascertain whether they had the obligations because of the employer’s default. The “welfare” of the dock workers in this context must have included conditions which would adversely affect the health of the dock workers;

(i) these duties required the NDLB or the local board of the NDLB on behalf of the NDLB (i) to carry out inquiries about ( but not make inspections of ) the cargo or at least using its best endeavours to do so and it must not be forgotten that the board was drawn from equal numbers of representatives of the dock workers and of the employers’ representatives, (ii) to ascertain whether the individual employers had taken steps for the satisfactory provision for the welfare and training of dock workers and (iii) if the employers had not done so, to take steps for the satisfactory provision for the welfare and training of dock workers; and

(j) the NDLB therefore had some duties to carry out some form of inquiries of the working conditions of the claimants and the cargoes, which the claimants would have had to unload;

(k) those duties might have entailed merely asking the employers questions by letter but it is important to stress that the scope of any duty is not a matter which has to be investigated at his stage and it certainly does not follow, as Mr. Harvey submits to be the position, that the existence of a duty of care would mean that all cargoes and working practices would have to be investigated as I will explain in paragraph 90 below; and

(l) if the NDLB did not have any duties under the Regulations, it is difficult to see how the NDLB could comply with the requirements of paragraphs 44B and 45 above. The existence of duties owed by the NDLB under the Regulations does not mean that a duty of care was owed to the claimants by the NDLB as the existence of such a duty of care depends on many other factors such as proximity and whether it is fair, just and reasonable to impose a duty (see paragraph 77 below) and I will return to consider those issues. (iii). What NDLB knew or ought to have known up till 1967 about the dangers of asbestos dust until 1967.

[50]One of the factors to be considered in determining whether a duty of care was owed to the claimants by the NDLB is whether the injuries suffered by the claimants were foreseeable. That must depend on the state of knowledge of dangers to the claimants of working as they did with asbestos until 1967. So it is appropriate now to ascertain what was known about the dangers of asbestos dust .No direct oral evidence was adduced in the present trial about the knowledge of the dangers of asbestos in the 1960s and at my request, counsel helpfully drew my attention to various decisions in which evidence had been given about this and in particular, the claimants’ solicitors produced a transcript of the invaluable but still unreported decision of Tucker J in Walker v Port of London Authority (4 September 1988) in which a successful claim was brought by a dock worker’s widow for damages after her husband had died from the inhalation of asbestos dust. I will now seek to summarise this evidence bearing in mind that the claimants’ case is that they were contaminated by asbestos dust prior to 1967. I gave all counsel opportunities to comment on what was said in the authorities to which I will now refer about the state of knowledge on the connection between, on the one hand, the handling of asbestos and, on the other hand, serious or fatal illnesses suffered by dock workers. Neither counsel submitted that I should not consider this material, although Mr. Harvey made helpful written submissions, which I will take into account. So I will now summarise the evidence.

[51]An overview to this issue was given by Lord Bingham of Cornhill in Fairchild v Glenhaven Funeral Services [2003]1 AC 32 when he was summarising the development of knowledge of the risks of asbestos exposure leading to mesothelioma and he stated that: “6. It has been recognised for very many years, at any rate since the “Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry” by Merewether and Price in 1930 and the making of the Asbestos Industry Regulations 1931(SR &O 1931/1140) that it is injurious to inhale significant quantities of asbestos dust. At first, attention was focused on the risk of contracting asbestosis and other pulmonary diseases” (Page 42) and “7. From about the 1960s, it became widely known that exposure to asbestos dust and fibres could give rise not only to asbestosis and other pulmonary diseases, but also to the risk of mesothelioma. This is a malignant tumour, usually of the pleura, sometimes of the peritoneum...But the incidence of a tumour among those occupationally exposed to asbestos dust is about 1,000 times greater than in the general population…” (Page 43).

[52]Tucker J summarised the evidence of the state of knowledge of the dangers of asbestos dust at different times in the Walker case (supra) but unfortunately the only copies of this judgment, which are now available, are very difficult to read. He stated that:a. “Since at least 1930 it has been recognised that the inhalation of asbestos dust over a period of years results in the development of a serious type of fibrosis of the lungs called asbestosis”(page 12H to 13 A). In that year, Merewether and Price (to whom Lord Bingham had also referred ) were two factory inspectors, who stated in their “Report on Effects of Asbestos Dust on the Lungs and Dust Suppression in the Asbestos Industry” at page 13 that “from the data so far obtained it seems clear that fibrosis of the lungs is a definite occupational risk amongst asbestos workers as a class. Furthermore it appears that the risk falls most heavily on those longest employed and on those engaged in the most dusty processes”. I add that the claimants both stated that in unloading the asbestos bags, they became covered in dust;

b. “Knowledge of this danger developed as the years went by” (Page 13 C). The Annual Report of the Factory Inspectors for 1938 stated at page 63 (with my emphasis added) that “one of the greatest problems facing industry today is that of dust ...There can be no doubt that dust if inhaled is physiologically undesirable... It is not many years ago when the dust of asbestos was regarded as innocuous, while today it is recognised as highly dangerous…” At page 78 of that report, it was also stated that “the possibility was recognised of a relationship between asbestosis and cancer of the lung” (page 12 F);

c. By 1947, the report of the Factory Inspectors stated there had been 235 reported deaths either caused by asbestosis or in which asbestosis had been proved at autopsy. Cancer of the lungs or pleura was found to be present in 31 of them;

d. In 1949, in the report of the Factory Inspectors, there was a reference at page 144 to the necessity of preventing as far as possible the inhalation of asbestos fibre and dust. At page 146 of the same report, it was stated that “the unsatisfactory practice of packing raw asbestos fibre into unlined Hessian or jute bags ...which renders workers handling them liable to considerable exposure to dust and fibre… In handling packages which are not impermeable, the use of an approved form of respirator by all workers concerned is very important”;

e. In their 1956 Report, the Factory Inspectors stated at page 142 about asbestos that “the handling of this very dry and dusty material presents a serious health hazard, which is all the more serious because the work is often done in confined spaces…. The persons who do it are, however, regularly engaged on it and are constantly exposed to risk”. The evidence of Mr. Rice was that he unloaded about thirty cargoes for Clan Line, which included asbestos materials in Hessian sacks and some were either split before unloading started or ripped open when they were lifted up with the result that the asbestos dust got everywhere. Similar evidence was given by Mr. Thompson;

f. In 1960, a paper by Wagner and others was published in the British Journal of Industrial Medicine entitled “Diffuse Pleural Mesothelioma and Asbestos Exposure in the North Western Cape Province” which included eight case histories of which two showed only a short exposure to asbestos. At page 269, the authors stated that “The pathological evidence of associating these tumours with asbestos exposure is not conclusive...these findings tend to add support to asbestos being the common factor in the development of these tumours, and to counter the suggestion that there may be some other environmental cause in the region of Griqualand West”. It is noteworthy that Tucker J pointed out that the witnesses in his case were aware of that article and one of them explained that it came as a bolt out of the blue to discover that “this terrible disease came from a very short or transient exposure”(page 15 H-16A);

g. This article provoked interest and in 1964, Dr. Leathart wrote an article in the Journal for Industrial Nurses entitled “Asbestos- a Medical Hazard of the 20th Century” and it is stated in the introduction that “It is now quite clear that asbestos did not limit its effect to those who handle it in the industry but produces disease in many people who have had only a passing contact with it. One of these...is a fatal tumour”. The final page of the article contained the conclusion that “wherever asbestos is used steps should be taken to prevent dust entering the workers’ lungs”; h.In early 1965, the British Journal of Industrial Medicine published an article entitled “Mesothelioma of the Pleura and the Peritoneum following Exposure to Asbestos in the London Area” and this referred to the death of a dock worker’s wife who brushed her husband down when he used to come home “white with asbestos”. This revelation caused great concern as well as much unrest among the dock workers.

[53]A. Mr. Harvey was asked for his written comments on Tucker J’s judgment and his helpful written response was that: “The question of how knowledge of the risks of exposure to asbestos dust developed is not straightforward. From the early 1930s it was known that heavy, prolonged exposure among asbestos workers gave rise to a risk of lung fibrosis (asbestosis). The Asbestos Industry Regulations 1931 were aimed at that risk. In 1955 Professor Doll published research showing that those with asbestosis were at increased risk of lung cancer. In 1960 Dr Wagner and others published a paper in the British Journal of Industrial Medicine which noted an apparent association between exposure to blue asbestos (crocidolite) and mesothelioma among South African asbestos miners: he called for further research. In 1965 Drs Newhouse & Thompson published a paper showing an increased incidence of mesothelioma among people living next to an asbestos factory in East London, suggesting that the disease might arise from much lower levels of exposure than previously thought. The Sunday Times reported that paper. A good deal of research took place following Newhouse & Thompson in an effort to confirm, understand and quantify the risk. There were further controls - HM Factory Inspectorate's 1968 UK standard of 177 particles of asbestos per cubic centimetre; and further regulations - The Asbestos Regulations 1969; and then H.M. Factory Inspector's Technical Data Note 13 of March 1970 providing for a Threshold Limit Value of 2 fibres/ml for white and brown asbestos and 0.2 fibres/ml for blue asbestos, each being a time-weighted average over a period of 4 hours. There is much flesh to be put on those bare bones”. 53.B. What is significant about all this material is that there were clear warnings given during the time when the claimants were working in Liverpool docks about the dangers of asbestos causing asbestosis and lung cancer even though these dangers were not contained in any form in the Minister of Labour’s statement in Parliament in 1967. The material that has been provided (which includes Lord Bingham’s summary set out in paragraph 51 above ) nevertheless leads me, in relation to the position of the NDLB in the present case, to the same conclusion as Tucker J when he concluded in the Walker case at page 14H that: “It follows that at all material times the defendants either knew or ought to have known that 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 cancer”.

[54]I now turn to consider what the NDLB would have known about the risk of the injury to the claimants from coming into contact with asbestos dust. First, the NDLB would have known that the claimants were regularly coming into contact with asbestos dust. The claimants have explained how they were covered in asbestos dust at the end of their shifts and that there was much asbestos dust around. None of the witness statements of the defendants deal with the claimants’ assertions that they had much contact with asbestos dust and indeed none of the makers of the defendants’ witness statements appears to have worked in Liverpool Docks while the claimants worked there. I accept the claimants’ evidence as correct. It must have been known to the NDLB through its local board in Liverpool composed as it was of equal numbers of representatives of employers and dock workers that the claimants were regularly unloading cargoes of asbestos which split with the result that the claimants came into contact with much asbestos dust and were covered with it .In any event, the duties of inquiry imposed on the NDLB and to which I referred in paragraph 49, above when considered in the light of the evidence about the dangers of asbestos dust must have meant that the NDLB must have had substantial and realistic duties to investigate working conditions of employers in relation to the handling of asbestos. cargoes, which the claimants would have had to unload. The NDLB in consequence and in pursuance of these duties as well from what their medical officers would have learnt must have appreciated that there were substantial amount of asbestos dust with which the claimants were coming into contact when unloading badly packed asbestos cargo. Second, the NDLB must have known from what their local boards saw, from what the medical advisers knew and from any inquiries made by them, as the claimants explained in their evidence that they were not being given protective equipment by their employers to deal with the risks caused by them coming into contact with asbestos dust. None of the witness statements relied upon by the defendants suggest anything to the contrary. 55A. Third, the medical officers of the NDLB would have known about the risk of the injury to the claimants from coming into contact with asbestos. Professor Peter Turnbull stated that the NDLB “provided regular advice on a range of health and safety measures to the registered dock labour force, via the Board’s Medical Officers”. 55B. This shows that the NDLB were conscious of and were purporting to fulfil their obligations to make “satisfactory provision for the training and welfare of dock workers, in so far as such provision does not exist apart from the Scheme”. So the NDLB can be safely assumed through the medical officers, who they appointed, to have the same actual or constructive knowledge of the risk that exposure to heavy concentrations of asbestos dust could cause asbestosis and more serious illnesses, as that of the defendants in the Walker case.

[56]It is also relevant to point out that in a document entitled “Observations on the Port Medical Services of the [NDLB]” dated 21 November 1955 and which was sent to the Chairman of the Committee of Inquiry into the Dock Labour Scheme by Dr. C H Hoskyn, who had been the Medical Officer for London to the NDLB from 1949 to 1952 and who had thereafter worked as a medical adviser to wharfingers and a shipping line, it was stated that:

“the main functions of a port medical service can be summarised as… 4. A service for the investigation and control of special problems affecting the occupational health of workers in the port transport industry especially… The main functions of a port medical service can be summarised as follows … 4. a service for the investigation and control of special problems affecting the occupational health of workers in the port transport industry especially…(c) (c)the investigation of dangers to health of the handling of contaminated or hazardous cargoes together with research into the provision and use of protective clothing”

The main functions of a port medical service can be summarised as

follows …

[57]This supports the evidence of Professor Turnbull referred to in paragraph 55A, and also in itself indicates clearly that the medical staff employed by the NDLB would have been concerned with the investigation of the dangers of asbestos dust for dock workers in the periods when the claimants were working there and would have paid particular attention to the medical information to which I have referred in paragraphs 52 ad 53 above. As I have explained, the NDLB employed medical officers and Dr. John Jackson, who was 62. one such medical officer, explained in a statement made in June 1983 that he and a fellow medical officer at some time apparently before 1966/67 carried out a survey of dock workers after it became clear that dock workers had a high incidence of chronic bronchitis which was due to dust in cargo from among other materials, asbestos. He said in a witness statement apparently made in 1983 in another action that “he had no recollection that asbestos dust was considered to be particularly hazardous material until in about 1966/1967 when there was publicity in the national newspapers concerning asbestosis and mesothelioma amongst asbestos workers”.

[58]Dr. Jackson was unable to give live evidence and I have had to consider his written evidence without hearing him being cross-examined about the state of knowledge of the dangers of contact with asbestos dust, which are set out in paragraphs 51 and 52 above. I find his evidence very surprising in the light of all the evidence referred to by Tucker J and the conclusions of Lord Bingham to which I referred in those paragraphs and so I do not accept Dr. Jackson’s evidence on these points. In the light of the material before the court and in particular the material to which Tucker J referred as well as the role of medical officers in the NDLB, I conclude that the NDLB:(a) were involved through their medical officers in providing regular advice on a range of health and safety issues to the 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 cancer”; 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. (iv). What could the NDLB have done on safety issues before 1967and what did the NDLB actually do?

[59]A. Mr. Harvey places great weight on the fact that the NDLB had no power to investigate cargoes and that if the NDLB owed a duty of care to the claimants, it would have meant that they would have had to inspect all cargoes. The claimants’ case as pleaded does not contend that if a duty of care is owed to the claimants by the NDLB, that could only be satisfied by carrying out investigations of the cargoes. In fact, many of the allegations relating to the duty of care contained in the Amended Particulars of Claim are very general in nature and require the NDLB to encourage the second defendants to pack it in impermeable packaging and to take expert advice on packing the asbestos so that it is not dangerous to unpack. If the duty of care was, for example to be limited to these matters, the question of what powers the NDLB had to investigate the cargoes ceases to be of importance especially as the NDLB through its medical officer or its local board was aware that claimants were coming into contact with loose asbestos, which fell out of inappropriately insecure hessian bags. Nevertheless as evidence was adduced and submissions made on the powers of the NDLB to investigate, I must give my conclusions on it. 59B. It is common ground between the parties that the NDLB and the local boards did not have the right to inspect the ships which were to be unloaded. There was evidence adduced from various retired officials of the NDLB but none of them gave oral evidence probably because this case concerns events and the practice in the Liverpool docks in the 1960s. This meant that unfortunately their evidence could not be clarified, elaborated on or challenged by cross-examination in the way that it would have been if the evidence had been adduced orally. In some cases, the reliability of their evidence can be considered in the light of other evidence or material.

[60]Mr Francis Matthews, who worked for the NDLB in different locations from 1948 until 1989 ultimately rising to be the Port Manager in London, has explained in a witness statement that the NDLB did not become involved in running docks. He said that all matters concerning working practices were the responsibility of the employers and he also explained that the NDLB was responsible for operating training courses and that they ran medical centres.

[61]According to Mr. Mathews, the NDLB had no control or power over the day- to-day work upon which men were employed as that was the sole responsibility of the individual employer companies. His evidence was that “once allocated, the dock worker was the responsibility of those employing him” and if there was a dispute they would sort that out with union representatives. He did not explain how the NDLB performed its duties under the regulations to which I referred in paragraph 49 above.

have explained, the NDLB employed medical officers and Dr. John Jackson, who was

[62]Mr Matthew’s evidence, with my emphasis added, was that the representative of the NDLB had: “no automatic right to enter into the working areas of the docks although they were, in practice, permitted entry but were required to carry a pass. …It is certainly not correct to suggest that the NDLB had any power to enquire into the nature or type of cargos ships were bringing into ports”.

[63]He said the process was that the NDLB were informed of the requirements of various employers for manpower which they wished to have met. Planning meetings were, he said, held at fairly regular intervals between the various companies, the NDLB and various union representatives in order to discuss and decide upon the priority for the labour, which was available in the following days. His evidence was that the actual work done by dock labour force was subject to local agreements between each employer company and the various unions on matters such as wage rates and protective handling.

[64]Mr. Mathews said that the NDLB did not employ personnel with sufficient expertise to decide what was or what was not a dangerous cargo and it was assumed that the employers would have such expertise available to them. He also explained that the NDLB operated training schools and gave safety lectures. Mr. Mathews also said that the NDLB introduced a training programme for the dock workers in 1961 and this included reference to training and safety measures although it would not have covered the hazards presented by any particular hazards such as asbestos. Surprisingly, no reason is given as to why these hazards were not covered.

[65]He said that in the late 1960’s matters as to the safe handling of particular cargos would be discussed by the Enclosed Docks Joint Committee which consisted of members of various employers and unions which were set up to handle those problems. Mr. Matthews explained that:

“the NDLB had no powers whatsoever to require the employer companies to satisfy them that the work for which they were seeking labour carried no health risk”

[66]Mr Matthews said that when negotiations took place in 1972 concerning the handling of asbestos, the participants were the employers and the unions and “the NDLB were not involved directly because the port employers always accepted they were responsible for the workforce”. This approach ignores the legal position which was as I explained in paragraph 49 above, that the NDLB had the duty either directly or through the local board of the NDLB on its behalf:(i) to carry out inquiries about the cargo or at least to use its best endeavours to do so and it must not be forgotten that the board was drawn from equal numbers of representatives of the dock workers and of the employers’ representatives;

(ii) to ascertain whether the individual employers had taken steps for the satisfactory provision for the welfare and training of dock workers; and

(iii) if the employers had not done so, to take steps for the satisfactory provision for the welfare and training of dock workers

[67]In another statement admitted as evidence Mr John Wells, who had been employed by the NDLB from 1964 having previously worked for ship owners as a Stevedoring Superintendent and as a Wharf Manager, explained that officers of the NDLB would never have attempted to interfere with working practices on board ship or on the quay because if they had done so, they would have been informed that the working practices were not the concern of the NDLB. He pointed out that the registered employers had to comply with the provisions of the Dock Regulations 1934 and the relevant part of the Factories Acts. His evidence was that no training was given by the NDLB:

“in handling asbestos cargoes specifically although they do train workers to handle hazardous chemical cargoes and to deal appropriately with spillages etc”

[68]There was also evidence from Mr William Denton, who had been Deputy Port 75. Manager at Liverpool from 1949 until he became London Port Manager in 1962. He then remained employed by the NDLB until 1972. He explains in a witness statement made in 1983 that:

“the [NDLB]’s officers in the call stands may have some general knowledge of the cargos to be handled either by experience of the particular cargos handled by certain employer companies or by the name of the ship involved. For example, New Zealand cargos generally indicated frozen meat; Elders and Fyffes and Geests indicating the cargo was probably bananas, and so it went on. However, it is extremely doubtful, in my view, that the [NDLB]’s officer would known of any asbestos cargos and certainly I had no knowledge of any firm specialising in any import or export of such cargos”

[69]He went on to explain that the NDLB did not become involved in anything to do with safe working practices except for operating training schemes which included an element of instruction upon safety. The wharfs and quays were not enclosed and the NDLB’s officers could go there if they wished to do so but their duties were mainly concerned with office administration. The registered employers had control of the people entering their warehouses and an employer of the NDLB would not go on board ship without an invitation from the ship’s officer or the employer responsible for discharging or loading of cargos. Neither Mr. Wells nor Mr. Denton explains what the NDLB did in relation to its duties to which I referred in paragraph 49 above.

[70]Dr. John Jackson was a medical officer of the NDLB from 1958 until after 1976. He explained that bronchitis was “a very big problem” at London Docks where he worked and eventually he and another doctor carried out a survey, which concluded that:

“dock workers had a very high incidence of chronic bronchitis which was due in part to dust from such cargos [which included asbestos]”

[71]According to Dr. Jackson, there were annual conferences of the medical and welfare officers of the NDLB and after they became aware that dust played a role in causing or exacerbating chest problems, there was a discussion at the annual conference which culminated in a recommendation that there should be a mass issue of face masks and respirators etc to the dock workers who, when working with dusty cargo, frequently would wear handkerchiefs around their nose and mouth He explained that in his view it was not for the NDLB to issue these protective items but it was the employers’ duty.

[72]Dr. Jackson said that he had no recollection that asbestos was considered to be particularly hazardous until 1966/67 when there was publicity in the press about asbestosis and considerable unrest in the docks amongst dock workers. As I have explained in paragraph 53 above, I am unable to accept this evidence in the light of the material to which I have referred in paragraphs 51 and 52 above. In any event, the NDLB ought to have known through their doctors thatexposure to heavy concentrations of asbestos dust could cause asbestosis, and, as Tucker J explained convincingly, by 1947, that it was also highly probable that it could also cause lung cancer.

[73]The evidence of Dr. Jackson shows that the medical officers of the NDLB considered that it was their duty to investigate causes of illness and they were in the advantageous position that they would have been aware of the nature and extent of all illnesses among dock workers because they examined dock workers when they applying for jobs and when they were ill during their time as registered dock workers.

[74]Mr. Edward Line worked in different part of London Docks from 1946 until the 1980s. He explained that the NDLB would not have been told anything about the cargo to be unloaded other than that it was particularly heavy so that suitable men would be allocated. Mr. Line said that the representatives of the NDLB did not interest themselves in safety procedures for dock workers as this was left to the employers and the union representatives of the dock workers to resolve. If this was true, it would have meant that the NDLB either itself or through its local boards were probably not complying with their obligations especially those set out in paragraph 49 above.

[75]My conclusion about the evidence from the NDLB’s witness statements and the other material before me is that: (a) the NDLB had no power to inspect cargoes or working practices although in Mr.

(v) The law

[76]I will start by applying the facts to the conventional approach adopted in cases such as Caparo Plc v Dickman

[1990] 2AC 605

. I asked counsel to make submissions on the basis of the approach adopted by McHugh J, who formed part of the majority in the decision of the High Court of Australia in Crimmins, at paragraph 93. I should add that the facts in Crimmins are different from those in the present case but it is the criterion for determining whether a duty of care exists which may possibly be relevant although no submissions were made on the correctness of that decision. Both counsel contend that whichever test is applied, the result of its application supports their submissions. VIII. The Conventional Approach.

(i) Introduction

[77]As Lord Steyn explained in his speech in the Marc Rich case (supra), from which I quoted in paragraph 42 above, it is now necessary to apply “established legal principles” to those facts. Those principles are: a.“what emerges is that, in addition to the foreseability of damages, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed, a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other” ( per Lord Bridge inCaparo (supra) at617H -618 A); b. “it has been settled law that the elements of foreseeability, and proximity as well as considerations of fairness, justice and reasonableness are relevant to all cases whatever the nature of the harm sustained by the [claimant ]” (per Lord Steyn inMarc Rich(supra) at 235E); and c. “when confronted with a novel situation the court does not…consider these matters [foreseeability, proximity and whether it is fair, just and reasonable to impose a duty] in isolation. It does so by comparison with established categories of negligence to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would affect a significant extension to the law of negligence. Only in exceptional cases will the court accept the interests of justice justify such an extension of the law” (per Phillips LJ (as he then was) in Reeman v Department of Transport [1997] P.N.L.R.618 at 625 A -B) (ii). Foreseeability.

[78]The test of reasonable foreseeabilty concentrates on the knowledge, which someone in the position of the NDLB, would have been expected to possess at the relevant time. It is the case that the greater awareness of the potential for harm, the more likely it is that this criterion will be satisfied. It is true that there was no evidence prior to 1967 that dock workers had suffered from the conditions, which had subsequently afflicted the claimants but those illnesses invariably as the research has shown take a long period often in the region of 40 years before they become apparent. In this case, four factors lead me to the conclusion that the NDLB through its local boards and/or its medical officers must have known of or ought to have known of the risk for the claimants not only of harm but also of very serious harm in the form of cancer or of asbestosis. Those factors in no particular order of importance are that the NDLB through its medical staff (who were concerned with providing advice on health issues to the labour force) or through its local boards:(a) knew or ought reasonably to have known 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 cancer”;

(b) knew that the claimants were coming into contact with asbestos powder, which had not been properly packed. The claimants gave evidence about their frequent contact with asbestos dust. Dr. Jackson explained in his witness statement that he and Dr. Blow carried out a survey and they found that they were exposed to dust from, among other substances, asbestos. There is no evidence from the NDLB’s staff that they were unaware of the claimants’ frequent contact with asbestos dust;

(c) knew that the claimants were not being given by their employers any protective equipment to deal with the risks caused by them coming into contact with asbestos dust; and they

(d) must have realised that many of the employers were in the words of Lord Devlin’s Report (which I have taken from Professor Turnbull’s report) “unable to ensure proper working conditions for the men they employ or to maintain a proper standard of skilled supervision”. (iii). Proximity

[79]Mr. Harvey submits that there was no proximity and he stresses that the claimants after allocation were no longer in a contractual relationship with the NDLB but in my opinion that factor is not determinative of whether the NDLB owed the claimants a duty of care. Indeed the need to ascertain if a duty of care is owed to the claimants will often only arise if there is no contractual duty. The fact that Mrs. Donoghue could have sued the shopkeeper, who had sold her the bottle of ginger beer, did not prevent the manufacturer of the bottle owing a duty of care to her (Donoghue v Stevenson

[1932] AC 562

). That decision also provides the answer to the contention that just because the dock workers could sue the registered employers, they should be precluded from suing the NDLB.

[80]I was concerned about the relevance of the NDLB statutory scheme on the existence of a duty of care. In X (Minors) v Bedfordshire County Council

[1995] 2 AC 633

at 739 C, Lord Browne-Wilkinson when discussing whether a duty of care arose in respect of the performance of statutory duties stated that “..the question of whether there is such a common law duty, and if so its ambit, must be profoundly influenced by the statutory framework within which the acts complained of were done”

[81]Indeed in Reeman’s case (supra), it was the nature of the statutory scheme for certifying the seaworthiness of fishing vessels which was one of the reasons why it was held that the Department did not owe a duty of care to the claimants, who had purchased a vessel and then could not use it because of an error in the certificate which led to the certificate being withdrawn. Phillips L J (as he then was) explained at page 631 B, ”the protection of those whose commercial interests may foreseeably be affected by the unseaworthiness of vessels forms no part of the purpose for which Fishing Vessel Certificates are issued”

[82]The present case is different because of the duties imposed on the NDLB, which I outlined in paragraph 49 above and which include duties on the NDLB or on the local board of the NDLB(i) to carry out inquiries about the cargo or at least using its best endeavours to do so and it must not be forgotten that the board was drawn from equal numbers of representatives of the dock workers and of the employers’ representatives,

(ii) to ascertain whether the individual employers had taken steps for the satisfactory provision for the welfare and training of dock workers and

(iii) if the employers had not done so, to take steps for the satisfactory provision for the welfare and training of dock workers. Therefore imposing a duty of care on the NDLB is consistent with, if not supportive of, the NDLB scheme. I am fortified in coming to this conclusion by two matters. The first is the approach of the majority in Crimmins who like Kirby J in paragraph 219 did: “not regard the recognition of a private right of action in an individual waterside worker as incompatible with [the statutory provisions]. Certainly, there is no provision in the Act for any specific remedy, available to an individual waterside worker, which would expel the amenability of the Authority to a private claim framed in negligence”.

[83]Second, Lord Browne-Wilkinson accepted in the Bedfordshire caseat page 739 A-B that:

“if [the claimant’s] complaint alleges carelessness, not in the taking of a discretionary decision to do some act, but in a practical manner in which the act has been performed…the question whether or not there is a common law duty of care falls to be decided by applying the usual principles i.e. those laid down in Caparo…”

In this case, that is precisely the claim, which is being made by the claimants and so the statutory scheme does not preclude a duty of care on NDLB’s part being owed to the claimants.

[84]In order to determine if there is proximity, it is critical, if not crucial, to show that the persons to whom the duty is alleged to be owed falls within an identifiable or ascertainable group of people. Thus, in Caparo (supra),the claimants who read the statutory audit and relied on it for the purpose of making investment decisions did not fall within such a group with the result that no duty of care was owed to them. I have already explained that the NDLB had responsibilities for the welfare of the dock workers and that must have been an essential function of the medical officers. Unlike the position in Caparo (supra) and in Reeman (supra), the only beneficiaries of the duty in issue were the claimants. In the present case, the claimants as dock workers, who unloaded bags of asbestos as part of the work to which they were allocated under the NDLB scheme constituted an identifiable and an ascertainable class at the time when it is contended that the NDLB should have acted. I have already explained why it was foreseeable that their health would be affected by a failure to exercise reasonable care.

[85]The following matters which I do not list in any order of importance are of relevance on the proximity issue and they are that:(a) the claimants were people, who formed an easily identifiable and ascertainable class, who would have been affected by any failure of the NDLB to show any regard for the claimants’ safety especially in the light of Lord Devlin’s criticisms of the approach of registered employers to the safety of the dock workers as explained in paragraph 14 above. The NDLB knew or ought to have known this;

(b) the NDLB through its local boards and its medical officers knew or ought to have known that the claimants were coming into contact with loose asbestos dust and that they did not have any protective equipment;

(c) the NDLB employed medical officers, who knew or ought to have known of the dangers caused by asbestos dust to dock workers who did not have and use protective equipment;

(d) for the reasons set out in paragraphs 47 to 49 above, the claimants had no right to refuse to do work to which they had been allocated and if they did, they could be disciplined and even dismissed. Thus the claimants were unable to choose what work they did or to negotiate with their employers or with the NDLB for themselves on safety issues. As Gaudron J said in Crimmins at paragraph 44 “The casual nature of [the claimants’] employment precluded the development of any longstanding employer-employee relationship in which [they] might usefully seek to secure [their] own health and welfare” So the claimants were vulnerable not only for that reason but also in the light of the very serious consequences of inhaling asbestos dust;

(e) the Act authorising the setting up of the NDLB stated in section 1 that the scheme “… (2) may provide… (d) for making satisfactory arrangements for the training and welfare of dock workers insofar as such provision does not exist apart from the Scheme”. This was repeated in the Regulations and it was important because in the words of Lord Devlin quoted in paragraph 14 above “many [of the registered employers] do not even have any premises and ‘were unable to ensure proper working conditions for the men they employ or to maintain a proper standard of skilled supervision’”;

(f) the claimants would therefore have been dependent on the NDLB looking after their training and welfare so as to ensure that they would be able to handle the asbestos cargoes safely;

(g) the existence of the provision set out in e. above meant that the NDLB was obliged to carry out inquiries to ascertain if training and welfare provisions were provided by employers;

(h) the NDLB’s medical officers saw it as their duty to recommend at one of their annual conferences the mass use of protective devises for dock workers who when working with a dirty cargo would wear handkerchiefs around their nose and throat as was explained by Dr. John Jackson. Thus the NDLB was conscious of the need to take steps to ensure that the health of the dock workers was not jeopardised; (i)the NDLB did have some obligations to make inquiries about the cargoes, because, as I explained in paragraph 46 above, the local board was charged with the duty under the Regulations of in the words of regulation 6 (1) (e) of “using every endeavour to supply men accustomed to...cargoes” and that entailed knowing what was on the ships. Thus there was a duty on the part of the local boards on behalf of the NDLB to make inquiries of shippers concerning the nature of cargoes, which the dock workers had to unload; (j) the claimants were permanent employees of the NDLB when not employed by registered port employers and they would return to their permanent employment whenever employment with a registered employer ceases. The NDLB played a significant role in allocating the dock workers to the registered port employers; (k) the NDLB appreciated their responsibility to the dock workers such as the claimants by training them, by organising for them training schools and training programmes, which covered training on handling hazardous cargoes (l) the proximity of the claimants to the NBLB is consistent with the NDLB scheme as explained in paragraph 82 above.

[86]The picture that emerges was first that the NDLB with its medical staff was in a position to appreciate that the claimants regularly came into contact with asbestos dust; second that there were substantial risks caused by asbestos dust to the claimants if they were not given protective equipment; third that protective equipment was not being given by the employers to the claimants who came into regular contact with asbestos dust; fourth that the claimants were unable to refuse to handle cargos which included asbestos dust without the risk of severe sanctions being imposed on them for such refusal; fifth that the NDLB gave in Professor Turnbull’s words “regular advice on a range of health and safety issues to the registered labour force via the Board’s Medical officers”; sixth the fact that the NDLB had no right to enter the ships did not prevent the NDLB having a duty of care to, for example, take the steps that I have set out in paragraph 90 B below; and finally that if the NDLB did not take any reasonable steps to protect the claimants against the risk of the dangers from asbestos dust, they would run the risk of contracting asbestosis or cancer. For principally all these reasons, I consider that there was sufficient proximity between the claimants and the NDLB to satisfy the proximity test. (iv)Fairness and reasonableness 87A. I have, however, been able to reach conclusions on this issue which I will now explain but it has to be emphasised that I am only considering whether a duty existed and not the extent of the duty. Mr. Harvey makes a number of submissions why he says that it was not fair or reasonable for the NDLB to have owed the claimants a duty of care. As I have already explained, with the benefit of hindsight, it would have been more sensible if the issue of the extent of the duty had also been considered at this hearing, because Mr Harvey understandably made submissions relating to the difficulties which would arise if a duty existed; these submissions would have been best considered in the context of determining what any duty would entail. 87B. First, Mr. Harvey says that it is not necessary to impose a duty of care because the claimants have a remedy against the port employers. There is no reason why the existence of a remedy against a party precludes another party owing a duty of care to the claimants. Indeed, as I have explained, first that in Crimmins (supra), the Australian equivalent of the NDLB was held to under a duty of care to dockworkers even though they also had a remedy against their employers; and, second, that Mrs Donoghue could have sued the seller of the bottle of ginger beer but nevertheless the manufacturer was also held to owe her a duty of care.

[88]Mr. Harvey also contends that the NDLB had no power to inspect cargoes or to control working practices. Although this is correct, the evidence set out in paragraph 46 above was that in practice the NDLB would have been permitted entry. Further, the NDLB was aware that asbestos was being unloaded and it knew or ought to have been aware of the risk of dangers to health that were caused by asbestos dust. There is no evidence that any registered employer would have rejected a polite and reasoned request by the NDLB to put asbestos in impermeable containers or to take expert advice on the handling of asbestos dust. Similarly, the NDLB could have stated that it would excuse dock workers from disciplinary action for refusing to handle asbestos which was not packed in impermeable containers. As I have explained earlier, I am not being asked to define the duty of care owed by the NDLB but merely whether such duty existed. 89A. I am also unable to accept Mr. Harvey’s further submission that the NDLB had neither the knowledge nor the expertise to decide what a safe cargo was. There was clear evidence available about the dangers of asbestos as well as the role and the knowledge of the NDLB’s medical officers, which I have outlined in paragraphs 52 and 54 above. In any event, the NDLB had the expertise to train dock workers and did so. There is also no evidence to support Mr. Harvey’s further submission that any efforts of the NDLB to persuade the employers to adopt safe practices for the handling of asbestos dust would have been unsuccessful. 89B. The existence of a duty of care does not mean that the NDLB had duties to take in respect of all cargoes. It was the potential damage that could be caused by asbestos dust which would affect the extent of such a duty. Again this is a matter which is only relevant when the extent of the duty of care is considered. 90A. It was also argued that if the NDLB owed the claimants a duty of care, it would mean that the public would have to pay compensation to the claimants. I do not agree as if a duty on the NDLB is found to have existed in the 1960s, this was at a time when it was funded by a levy on its members and not on the public. The fact that the NDLB scheme has subsequently been ended cannot be relevant to the issue of whether a duty was owed in the 1960s. I also do not consider it relevant that the DTI has taken over the liabilities of the NDLB or that no other dock worker is known to have sued the NDLB as my task is to consider whether as a matter of law a duty of care was owed to the claimant during the claimant’s employment in the docks. 90B. Mr. Harvey also contended that to impose a duty of care on the NDLB would mean that it had the duty to ascertain the “nature of cargo to be handled by each allocated dock worker to see whether it contained asbestos-or asbestos in hessian bags- and then to make an assessment of any risk of injury to a dockworker”. Any duty imposed on NDLB would have to be tailored to take account of its position in relation to the registered employers, including its limited ability to make inquiries and to ascertain what was in cargoes. There would still be, even in the light of these restrictions, matters which might fall within a duty of care. Indeed the Amended Particulars of Claim contains some examples, such as to have encouraged, caused or required the employers to ensure that “shipping lines palletised asbestos cargoes in impermeable packaging to obviate or minimise the risk of the contents spilling or discharging” or to have caused or encouraged the employers to adopt a safe system or to obtain expert advice on systems, which would have protected the claimants against the dangers of asbestos. 90C. There were therefore many simple steps that the NDLB could have taken, which would have or which might have removed or reduced exposure of the claimants to asbestos dust without any protective equipment.

[91]As I explained in paragraph 77 above, Phillips LJ in Redman (supra) stated at page 625B that it is necessary:

“to see whether the facts amount to no more than a small extension of a situation already covered by authority, or whether a finding of the existence of a duty of care would amount to would affect a significant extension to the law of negligence”. 92A. The decision of the High Court of Australia , which of course is the highest court of appeal in Australia, in Crimmins (supra) provides a useful precedent but, unlike the Australian scheme, the NDLB scheme does not first give the NDLB the power to appoint inspectors; or, second, have the same duties. The functions of the Australian authority are expressed differently as being, “ with a view to securing the expeditious, safe and efficient performance of stevedoring” (section 8 of the Industry Act) while the NDLB had the function of making “satisfactory provision for the training and welfare of dock workers, insofar as such provision does not exist apart from the scheme..”

. Although there are differences between the Australian scheme and the NDLB scheme, there are many significant similarities in that both entities are responsible for organising work on a casual basis by being involved in the allocation of dock workers to employers, who then controlled the dock workers in their work. Nevertheless many of the objections taken to the existence of a duty of care in Crimmins were relied on by Mr. Harvey for the defendant in the present case. In my view, the present case amounts to what was described in Reeman as a “small extension of a situation covered by authority”, namely the decision in Crimmins. 92B. My conclusion is that it would be fair and reasonable that the NDLB should owe a duty of care to the claimants in the light of the factors to which I have referred. If I had been in any doubt about this, I would have come to this conclusion also because of the limited extent of the duty of care claimed by the claimants. The Amended Particulars of Claim set out the steps which it is alleged that the NDLB should have taken in performance of this duty and they include encouraging the second defendant to provide breathing apparatus, protective equipment, extraction equipment, encouraging that cargoes of asbestos were properly sealed as well as restricting registration to employers who provided safe systems of work. Although I have not heard full argument on this issue, there is nothing, which seems to me to have been unfair or unreasonable in requiring the NDLB to take these steps. 92C. For the reasons which I have sought to explain, I consider that by applying the common law principles, a duty of care did exist although the nature and extent of it has still to be determined. Indeed if the NDLB did not owe the claimants a duty of care, it would mean that the NDLB would have been immune from action if they had taken no action to warn the claimants if they had known that they were being required to handle cargoes which would have almost certainly resulted in them contracting avian flu or some other fatal or lethal illness; many would think that would not be reasonable or fair. IX.

(i) Introduction

[93]McHugh J’s test has the merit of dealing with the specific issue of what duty was owed by a body which had similar function to the NDLB. Both parties made submissions about how it could apply to resolve the present preliminary issue. I stress that I have not formed any view on whether this test is an appropriate test to apply but I will assume that it is applicable without deciding that issue. Having considered the relevant authorities, McHugh J explained that: “93.. in a novel case where the [claimant ] alleges that a statutory authority owed him or her a common law duty of care and breached that duty by failing to exercise a statutory power, the issue of duty should be determined by the following questions: 1.Was it reasonably foreseeable that an act or omission of the defendant, including a failure to exercise its statutory powers, would result in injury to the [claimant] or his or her interests? If no, then there is no duty. 2.By reason of the defendant’s statutory or assumed obligations or control, did the defendant have the powers to protect a specific class including the [claimant] (rather than the public at large) from a risk of harm? If no, then there is no duty. 3.Was the [claimant] or were the [claimant’s] interests vulnerable in the sense that the [claimant] could not reasonably be expected to safeguard himself or herself or those interests from harm? If no, there is no duty. 4. Did the defendants know, or ought the defendants to have known, of the risk of harm to the specific class including the [claimant] if it did not exercise its powers? If no, then there is no duty. 5. Would such duty impose liability with respect to the defendant’s exercise of “core policy –making” or “quasi-legislative” functions? If yes, then there is no duty. 6. Are there any supervening reasons in policy to deny the existence of a duty of care (e.g. the imposition of a duty is inconsistent with the statutory scheme, or the case is concerned with pure economic loss and the application of principles in that field deny the existence of a duty)? I f yes, then there is no duty”. (ii). The application of McHugh J’s test.

[94]On question 1, Mr. Harvey contends that it was not reasonably foreseeable that an act or omission of the defendant would result in injury to the claimants because the issue of safe works and practices was subject to “formal or informal employer/ union/factory inspector procedures”. I am unable to agree because the evidence shows that while the claimants were working for the Second Defendants and in Liverpool Docks, it was known or ought to have been known to NDLB that :a. asbestos dust was a source of serious injury;

b. the claimants were actually coming into contact with asbestos dust or at least were very likely to come into contact with it ; c.to avoid the claimants suffering illnesses from the effects of asbestos dust, protective steps had to be taken; and. d. those coming into contact with asbestos dust were not provided with any such protection. .

[95]Thus, it was reasonably foreseeable that an act or omission of the defendant to takesteps to protect the claimant would result in injury to them. Turning to question 2, Mr. Harvey contends that the NDLB did not have the power to protect and he points out that Mr. Wells said that the NDLB did not have the power to interfere with working practices on the ship. Although that is correct, it must not be forgotten that the issue for determination on the preliminary issue is not the breadth of the NDLB’s duty or whether it could control the unloading of the ships of the Second Defendants but whether it had any duty to take reasonable steps to protect the claimants.

[96]The absence of a power on the part of the NDLB to interfere with the working practices on ships did not preclude the NDLB from having and exercising a power of, for example, writing to ship-owners urging them to ensure that protective clothing was provided for those coming into contact with asbestos dust. The possibility that the employers would then have accepted that advice cannot be ignored especially as their insurers might then have encouraged them to take such steps. The NDLB could also, for example, perhaps have told dock workers that they would not be disciplined if they refused to unload cargoes which had asbestos in bags, which were not securely fastened. There are probably many other steps which the NDLB could have taken to protect the claimants and the other dock workers from the risk of injury from asbestos dust. In my view, NDLB did have the power to protect from the risk of harm those dock workers who unloaded cargoes which included asbestos dust.

[97]On question 3, Mr. Harvey submits that it is equivocal as to whether the claimants were vulnerable in the sense that they could not reasonably be expected to adequately safeguard themselves from harm. As I have explained in paragraph 49 above, dock workers had to carry out any work which a registered employer, such as the Second Defendant required them to do and if they did not comply, they would be vulnerable to dismissal or other disciplinary sanctions. The only way in which the claimants could seek to protect themselves was according to Mr. Rice and Mr. Thompson by using the muslin provided on a daily basis by the second defendants. Mr. Thompson said that the second defendants:

“61….used to give me muslin cloth when I started to unload the cargoes. This was to try to prevent any dirt and dust getting down your throat. The muslin cloth was useless. It did not prevent the dust going through and it quickly became clogged. I used to ask the hatch boss for a clean muslin cloth but I was never given one. I used to improvise a mask by using a handkerchief….. 73. The dust got everywhere. It got into the seams and folds of my overalls. 74. It made me sneeze and I breathed it in”

[98]I accept that evidence as being reliable and accurately describing what happened. Mr. Rice also said of the pieces of muslin given out to him by the second defendants that “it did not work well”. This muslin failed to have the protective qualities of the equipment, which should have been provided. I understood Mr. Harvey to accept that the second defendants did not provide adequate safety equipment to the claimants and I would, in any event, have found that to be the case. Indeed there is no evidence that any of the other employers of the claimants supplied any suitable protective equipment. I repeat what I explained in paragraph 49 above about the vulnerability of the dock workers, who worked under the NDLB scheme.

[99]On question 4, Mr. Harvey contends that there was no evidence that the NDLB knew or ought to have known of the risk to the class of dock workers, including the claimants if it did not exercise its powers. The reason why I cannot accept this contention is that for the reasons which I have explained in paragraphs 50 to 55 above, I consider that the NDLB must have known or ought to have known first that there was a serious risk that those came into contact with asbestos dust would suffer harm unless they wore protective equipment at least through their medical staff and also from the discontent of dock workers and second that there was at least a risk that this had not been provided to those who came into contact with asbestos dust.

[100]So I am satisfied that the NDLB knew or ought to have known of the risk to a class of dock workers including the claimants if it did not exercise its powers. Moving on to question 5, the defendant’s case is that imposing a duty of care to the claimants would “impose a liability with respect to the NDLB’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions”. Mr. Hendy disagrees and he contends that holding a duty of care has nothing to with the NDLB’s “core policy-making”. I agree because even if the NDLB had core policy-making functions or duties, which I doubt, the existence of a duty of care of the kind referred to in the preliminary issue has nothing to do with any policy-making function. By the same token, I do not think that finding a duty of that kind relates to the “quasi-legislative functions” of the NDLB although I doubt if it had such functions. In any event for the reasons set out in paragraphs 80 to 83 above, I do not consider that imposing a duty of care on the NDLB would interfere in any way with its functions. So I do not consider that to find a duty of the kind sought by the claimants would “impose a liability with respect to the NDLB’s exercise of ‘core policy-making’ or ‘quasi-legislative’ functions”.

[101]On question 6, Mr. Harvey submits that there are other reasons of policy why there should not be a finding of the kind of duty sought by the claimants and in support of this submission; he relies on the passage in the dissenting judgment of Hayne J in Crimmins when he said that:

“310. Imposing a duty on the Authority would not have deterred those who had primary responsibility for those workplaces from persisting in what are now alleged to be unsafe work practices. Indeed, had the injured worker been able to look to the Authority, rather than the employer, the transient nature of employment would have made it much more likely that claims were directed to the Authority, not the employers. Especially would that have been the case where the worker complained of injury as a result of prolonged or repeated exposure to harmful substances or unsafe systems of work. Far from encouraging safer work practices, imposing a duty on the Authority may well have produced the opposite result because employers would have thought themselves relieved of principal responsibility for the safety of their workers”

[102]The majority of the High Court rejected that approach and I respectfully agree with their conclusion in so far as it might apply in this country. If the NDLB was held to be under a duty and was liable, it would almost invariably be able to obtain a contribution if not an indemnity from the employer under the provisions of section 1(1) of the Civil Liability (Contribution) Act 1978.

[103]I conclude that considerations of fairness and reasonableness favour the imposition of a duty of care especially in the light of the factors set out in Section VIII of this judgment. X. Conclusions.

[104]In summary, the claimants were compelled to do work to which they had been allocated with the risk of serious consequences for them if they did not comply even though there was a foreseeable risk of serious injury being caused to them by asbestos dust. This rose in circumstances in which the NDLB through its medical staff and or the local boards knew or ought to have known of this foreseeable risk and that the employers of the claimant did not provide protective equipment and/or had `working conditions, which were so strongly criticised by Lord Devlin’s Committee as I have explained in paragraph 14 above. For these reasons and for the other reasons to which I have referred, a duty of care was owed by NDLB to the claimants and this arose irrespective of the precise time at which the claimants were allocated to registered port employers. I have explained that prior to this allocation, the claimants would have been employed by the NDLB. The contents and extent of the duty owed by the NDLB to the claimants will have to be considered on another occasion if the parties cannot reach agreement.

[105]I was concerned for some time about the terms of the preliminary issue as it appeared to be too wide as first unlike the allegations in the claim, it was not limited to contamination by asbestos but it related to a very general duty and second, again unlike the allegations in the claim, it related to employers other than the second defendants. I therefore raised these matters with counsel and they were both content with the presently formulated general issue. Mr. Hendy indicated that he would be content with another formulation but Mr. Harvey did not agree with this approach. So I did not propose to redraft it unless I was asked to do so in the light of the draft of this judgment.

[106]When I circulated a draft of this judgment, I asked for counsel’s written submissions on the appropriate order in this case. They all agreed that I should merely order that the preliminary issue be answered in the affirmative and I so order. The defendant can take some consolation from the fact that all points that could have been taken on his behalf by Mr. Harvey have been argued orally and in writing with conspicuous skill by him and Mr. Hendy has done likewise on behalf of the claimants.

Rice v Secretary of State for Trade and Industry & Anor [2006] EWHC 1257 (QB)

(i) The effect of allocation

(i) Introduction

(d) dismiss him summarily”

follows …

have explained, the NDLB employed medical officers and Dr. John Jackson, who was

(v) The law

(i) Introduction

(i) Introduction

Cited in 2 later judgments