Rice v Secretary of State for Trade and Industry: [2007] EWCA Civ 289

CA: May, Keene and Smith LJJ: 4 April 2007

The claimants were dock workers who had been employed between 1955 and 1967 to unload shipments of asbestos, often contained in hessian sacks. They formed part of a pool of labour registered with the National Dock Labour Board, from which men were selected by, or allocated to, a registered employer, pursuant to the scheme contained in the Dock Workers (Regulation of Employment) Order 1947. Under the scheme, when they were not working for an employer, dock workers were in the employment of the local dock labour board. Subsequently both claimants contracted asbestos related illnesses. They brought proceedings against the defendant Secretary of State, as the statutory successor to the board, for damages in negligence, claiming that the board had owed them a duty of care under regulation 3(1)(g) of the 1947 Order, whereby one of the board's functions was "making satisfactory provision for the training and welfare of dock workers, including port medical services". On a preliminary issue, the judge held that the board did owe the claimants a duty of care, albeit that its scope and content remained to be determined.

The Secretary of State appealed.

The Court of Appeal held:
The claimants' relationship with the labour board, while it did not equate to that of an employee under an ordinary contract of service, had close affinities with such a relationship and, for some purposes and part of the time, the board was their employer. Regulation 3(1)(g) of the 1947 Order imposed on the board a statutory duty to make satisfactory provision for the health of registered dock workers in so far as it did not exist apart from the scheme. The board knew or ought to have known that unloading asbestos in hessian sacks carried a serious risk to health, and it was fair, just and reasonable to impose a specific duty of care requiring the board to protect the individual workers against that risk. Although the scope of the duty had not been determined, to do nothing was not an option for the board, when it had to be taken to have known that the claimants' employer took no precautions to guard against the risk from the asbestos.

The appeal was dismissed.

Appearances: Michael Kent QC and Michael Rawlinson (Beachcroft) for the Secretary of State; John Hendy QC and Jonathan Davies (John Pickering & Partners LLP) for the claimants.