NEGLIGENCE—Duty of care to whom? — Dock workers — Dock workers developing asbestos related illness — National Docks and Labour Board under express statutory duty to make satisfactory provision for welfare of dock workers— Whether owing dock workers common law duty of care — Whether Secretary of State liable as board’s successor — Dock Workers (Regulation of Employment) Order 1947, art 3(1)(g)
Rice and another v Secretary of State for Trade and Industry and another
CA: May, Keene and Smith LJJ: 4 April 2007
The Secretary of State for Trade and Industry as statutory successor to the obligations of the National Dock Labour Board owed a common law duty of care to dock workers who had contracted asbestos related illnesses from unloading cargoes of asbestos.
The Court of Appeal so held dismissing the appeal of the defendant, the Secretary of State for Trade and Industry, as statutory successor to the National Docks and Labour Board (“NDLB”) from the decision of Silber J on a preliminary issue on 26 May 2006 that the NDLB owed a duty of care to the claimants, Winifred Rice (widow and executrix of the estate of Edward Rice, deceased) and Robert Francis Thompson, to take reasonable steps to protect their health and safety in respect of work carried out by them as registered dock workers.
MAY LJ said that the relationship between the NDLB and the claimants was not a conventional employer/employee relationship. It was peculiar to the NDLB’s scheme and the way it operated in Liverpool docks. The two main grounds of appeal were that the judge had (i) given an unduly wide meaning to the words “training and welfare” in art 3(1)(g) of the Dock Workers (Regulation of Employment) Order 1947 and (ii) wrongly imposed a common law duty of care on a statutory body to take positive action when the statutory body could not be made liable for any breach of statutory duty. The bald proposition that a body created by statute could not be recognised as owing as common law duty of care was untenable: see Barrett v Enfield London Borough Council [2001] 2 AC 550 and Phelps v Hillingdon London Borough Council [2001] 2 AC 619. There was an obvious distinction between a statutory power and a statutory duty. A statute containing broad target duties owed to the public at large, and which did not in itself confer on individuals a right of action for breach of statutory duty, was unlikely to give rise to a common law duty of care, breach of which would support a claim by an individual for damages. Such a public law duty was enforceable, if it was justiciable at all, only by judicial review. There might, however, be relationships, arising out of the existence and exercise of statutory powers or duties, between a public authority and one or more individuals from which the public authority was to be taken to have assumed responsibility to guard against foreseeable injury or loss to the individuals caused by the breach of the duty. There was then a sufficient relationship of proximity and it was fair, just and reasonable that a duty of care should be imposed. In order to determine whether the law should impose such a duty, an intense focus on the particular facts and the particular statutory background was necessary. In the present case art 3(1)(g) imposed on the NDLB an express statutory duty to make satisfactory provision for the welfare of dock workers which encompassed making satisfactory provision for their health. On the facts, the policy of the statute could only be seen as enabling a relationship such that the law should impose a common law duty of care. It was a specific duty requiring the NDLB to protect their individual employees against a known serious risk to their health, and which it was fair just and reasonable to impose. The scope of the duty had yet to be determined. But the court could at least agree that to do nothing was not on the evidence an option available to the NDLB if they were to perform the duty which in His Lordship’s judgment they owed to the claimants.
KEENE and SMITH LJJ agreed.
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