Rice v Secretary of State for Trade and Industry & Anor

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”.

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.

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.

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”.

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 30^th 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.

The NDLB had specific obligations under the regulations and these included having responsibilities for the:

Thus all registered dock workers were allocated their work by the NDLB, unless

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 board and shall –

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.

The pens were locked during the allocation process.

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.

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

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

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.

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.

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.

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.

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”.

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.

The effect of allocation

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.

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.

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).

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).

In Vine v National 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).

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).

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.

A concurrent contract of employment with the NDLB after allocation

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.

The following general principles have been established:

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”

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.

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]”.

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.

When did allocation occur?

Mr. Harvey contends that allocation occurred when the dock worker was chosen for

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”

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”

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”

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”

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.

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.

Introduction

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

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.” .

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”

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.

The distinctive features in the Regulations.

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…”

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

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..”

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:

The effect of these provisions in the Regulations is that:

What NDLB knew or ought to have known up till 1967 about the dangers of asbestos dust until 1967.

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.

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).

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. 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”.

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

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”

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

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”.

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:

What could the NDLB have done on safety issues before 1967and what did the NDLB actually do?

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

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.

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.

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”.

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.

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

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”

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:

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”

There was also evidence from Mr William Denton, who had been Deputy Port

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”

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.

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]”

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.

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 that exposure 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.

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.

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.

My conclusion about the evidence from the NDLB’s witness statements and the other material before me is that:

The law

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.

Introduction

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:

Foreseeability.

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:

Proximity

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.

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”

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 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”.

Second, Lord Browne-Wilkinson accepted in the Bedfordshire case at 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.

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

The following matters which I do not list in any order of importance are of relevance on the proximity issue and they are that:

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.

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.

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.

Introduction

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”.

The application of McHugh J’s test.

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 :

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.

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

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”

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.

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

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”.

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”

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.

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.

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.

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.

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.