Not as scandalous as all that: the Germans have made their standard action for BSD dependent on fault for over 100 years, with no apparent ill-effects. See BGB 823.II, second sentence (" Ist nach dem Inhalt des Gesetzes ein Verstoß gegen dieses auch ohne Verschulden möglich, so tritt die Ersatzpflicht nur im Falle des Verschuldens ein").

Andrew

On 04/11/2014 17:34, Ken Oliphant wrote:

Sadly (and IMO scandalously), the BSD action will not be available in future for breach of health and safety regulations in the UK: Enterprise and Regulatory Reform Act 2013, s 69

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On 4 November 2014 00:50, Neil Foster <neil.foster@newcastle.edu.au> wrote:

Dear Colleagues;

Sorry to be a bit late with this one. At first glance the decision in McDonald v National Grid Electricity Transmission Plc [2014] UKSC 53 (22 October 2014)  http://www.bailii.org/uk/cases/UKSC/2014/53.html  looks like one only a lover of BSD claims could enjoy :). It is technical, long and involves a close reading, not only of regulations from 1931 and 1947, but also underlying reports going back even earlier. But it strikes me that it may have some interesting implications on a wide scale; as Lord Reed says at [138]

1. Although the legislation in question was repealed long ago, the questions raised as to its interpretation are of continuing practical significance. As the facts of this case demonstrate, the consequences of exposure to asbestos may not become apparent for many years. When they emerge, the resultant claims are often of substantial value and of considerable importance to the individuals affected, to the insurance industry and to the Government (which has succeeded to potential liabilities, particularly as a result of the nationalisation of industries in which asbestos was used). The ambit of the legislation is therefore a matter of general public importance.

Mr McDonald died (not long before this appeal was heard) from asbestos-related disease. He claimed that he had been exposed to asbestos in the 1950’s as a regular visitor to a power plant, where he was collecting a by-product of the power plant operations in his employment as a driver for another company. His claim was against those responsible for the way the power plant was run. He alleged that while waiting for loads to be prepared he would regularly be present in parts of the plant where asbestos was being mixed for “lagging” pipes, and that this was what led to his disease.

The claim in common law negligence failed, it not being shown that the limited exposure he had received created a foreseeable risk at the time. But he also made 2 claims in breach of statutory duty (BSD) based on alleged breach of 2 regulations which he claimed covered the situation. The case is an interesting illustration, to my mind, of the continuing power of the BSD action to plug gaps left by the law of negligence.

His estate's claim based on breach of one regulation succeeded at the CA and, by a 3-2 majority, here in the Supreme Court (Lord Kerr, Lady Hale and Lord Clarke; Lords Reed and Neuberger dissenting.) The claim based on the other regulation failed at the CA and also by majority of 4-1 in the Supreme Court (Lady Hale dissenting on this one.) But since he only needed to succeed on one claim, his action was successful.

I won’t go here into the precise details of the regulations and why the various claims succeeded and failed. Some of the issues considered, however, included:

• Were the 1931 Asbestos Industry Regulations confined in coverage only to the “industry” of processing and shaping asbestos? The majority said not, they were relevant wherever asbestos was used in a range of factories.
• Was the word “mixing” as used in the relevant 1931 reg a technical term referring to a stage in the process of manufacture of an asbestos product? No, said the majority, the word had its general meaning.
• Did the 1931 Regulations only “cover” those employed by the occupiers of the place where the asbestos mixing happened? No, they extended to people like Mr McDonald who were there as part of their employment by a customer of the plant, since collecting material from the plant contributed to its business.
• Where the 1947 regulations operated if a “substantial” quantity of dust was generated, did that mean that it had to be shown that a substantial quantity was inhaled? No, according to all the members of the Court. (Where this claim failed, according to the 4-1 majority, was that there had not been enough evidence at the trial of the production of this “substantial” quantity.)

One final point- the issue of causation was briefly mentioned. But all the members of the Court accepted that, in light of decisions such as Fairchild (not mentioned, but implied) and Sienkiewicz) causation could be established by “increased risk” once it was shown that some dust had probably been inhaled. See Lord Clarke’s comment at [128]. That issue would of course have been much more important in jurisdictions (like Australia) where Fairchild causation is not accepted. But that issue aside, the ongoing impact of the BSD action is clear.

Regards

Neil

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