England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANSFIELD COUNTY COURT
RECORDER T CLARK
LOWER COURT NO: 5SE01748

		Royal Courts of Justice Strand, London, WC2A 2LL
		22/11/2007

Lord Justice Maurice Kay :

1. Derek Cox (the Deceased) was a welder. During his working life he was employed by a number of companies which contracted to do maintenance work at power stations then operated by the Central Electricity Generating Board. In the tax year 1996/1997, an Inland Revenue document establishes that he was employed by three companies, Kilard & Co, International Combustion Ltd and Warren Bros (Newhall) Ltd. The same document establishes employment by a number of companies, several of which were engaged on power station maintenance work between 1961 and 1985, when the Deceased ceased employment by reason of an injury. In 2001 the Deceased began to complain of chest problems. On 25 September 2001 a diagnosis of mesothelioma was confirmed. The Deceased died on 13 February 2002. Following a post mortem examination, the cause of death was certified as malignant mesothelioma of the pleura.
2. On 8 February 2005, Mrs Angela Cox, the widow and personal representative of the estate of the Deceased, issued proceedings against Rolls Royce Industrial Power (India) Ltd pursuant to the provisions of the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. That company is the corporate successor to International Combustion Ltd. Although the proceedings were issued in the High Court, they were later transferred to the County Court and, on 5 February 2007, a Recorder sitting in the Mansfield County Court gave judgment for the claimant. Quantum was agreed in the sum of £100,000. There is now before this court an appeal against the finding of liability, permission having been granted by the Rt Hon Sir Henry Brooke on 5 April 2007.
3. There is no doubt that the Deceased was exposed to asbestos fibres in the course of his employment by several employers between 1961 and 1985. Equally, there is no doubt that he worked for some of those employers on more occasions and probably for longer periods than he worked for International Combustion, the only reference to which in the Inland Revenue document is as one of three employers in the year 1966 to 1967. However, it seems that the other employers who exposed the Deceased to asbestos fibres no longer exist or have become unidentifiable. As a matter of causation, it is not possible for Mrs Cox to prove that the malignant mesothelioma was caused during the period of employment with International Combustion in 1966/67. However, relying on Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, she succeeded in fixing International Combustion with liability. The ultimate issue was whether the Deceased had been exposed to asbestos fibres in the course of his employment by International Combustion to the extent that the company had been in breach of its duty of care and that, as a result of that exposure, there had been a material increase in the likelihood of the Deceased contracting mesothelioma. Although Fairchild assists claimants in relation to causation, it does not relieve them of the requirement to prove a breach of the duty of care on the part of a defendant: see Brett v University of Reading [2007] EWCA Civ 88.
4. In this, as in other similar cases, there are obvious evidential difficulties arising from the fact that the events to be investigated occurred decades ago and the person who would have been in the best position to describe them is no longer alive. The central submission of Mr Patrick Limb QC, on behalf of the appellant company, is that the Recorder was wrong to conclude that the evidence before him was sufficient to prove the case.

The evidence

5. The starting point in the evidence is the Inland Revenue document which establishes employment by International Combustion in part of 1966 to 1967. In the years between 1961 and 1985, it also establishes intermittent employment by at least four other companies known to have been involved in contract maintenance work at power stations. The report of an expert witness, Mr Robert Clark, who has long experience of asbestos-related cases, stated that International Combustion was one of the UK's major boiler makers and had

"… expertise and experience to design, fabricate, erect and commission steam boilers at customers' sites and … they employed a large number of various tradesmen who erected, commissioned and repaired such boilers."

6. Basing himself on the Inland Revenue document, Mr Clark considered it probable that the Deceased had been employed by International Combustion on a short-term basis to undertake maintenance and/or repair work at one or more operational power stations during the summer shutdown period during 1966 rather than on the erection of boilers at a new power station under construction. Although some of the power stations at which the Deceased is known to have worked did not become operational until after 1968, Mr Clark identified some four power stations at which the Deceased could have worked in 1966.
7. The Inland Revenue document did not come to hand until after the Deceased had died. However, he had begun to take steps with a view to litigation after diagnosis. He had also made a claim for Industrial Injuries Disablement Benefit. In support of the latter he had written on 19 October 2001:

"From 1964 until 1985 I worked for numerous contracting firms on power station maintenance all over the country. This included working around the boilers and at all times I would be exposed to asbestos. I worked for some firms more than once or twice but all times doing the same job as a welder. Here is a list of some of the firms that I can remember. Warren Bros, Kilard Engineering, CLS, Flexhill Engineering. I can't remember the dates I worked for these firms and I can't get in touch with them as they have all finished trading."

8. So far as a claim for damages was concerned, his wife had provided solicitors with a list of employers which included the ones to which I have just referred but did not include International Combustion. At the same time she provided a short statement at his behest which said:

"I first started working on power stations in 1961 as a welder with Warren Bros … I must have worked about 15 times each time on power stations. All the times that I worked there I was not told about asbestos. When the boiler came off for repairs we did what we called a strip down. All the time we were doing this we were exposed to asbestos. We would be walking about in it and people working above us would be kicking it down on us as they walked about. I have even laid down on it to get to some difficult parts of the boiler."

9. In her witness statement in these proceedings, Mrs Cox described first meeting the Deceased when he was working for Kilard & Co. In her oral evidence she said that she had met the Deceased in 1966 and "I know he was working on the power stations then". Her witness statement contains a list of eight employers, including International Combustion, for whom the Deceased worked on power stations. When not working on power stations he was employed by small engineering firms close to home. At the time of his employment at the power stations, it seems that the Deceased did not talk much about his daily work. In her witness statement, Mrs Cox stated:

"He later commented that there was asbestos dust in the air everywhere and they used to lie in it as they were doing welding work. Whilst he was working at the power stations, he used to go on about the dust and he knew that he was working with asbestos. He was not aware of the dangers of working with asbestos at the time."

10. After referring to his account of asbestos dust dropping on to him and his colleagues from those working above them, she added:

"I asked Derek when he had got ill whether he had got masks to wear at work. He told me that they just had cotton Martindale masks. I asked whether he had them all the time. He said that they weren't able to wear them all the time because when they were doing welding, sparks would fly up and land on the mask, causing them to catch fire … I do not think that Derek was aware of the dangers of working with asbestos whilst he was still working as a welder."

11. After the death of the Deceased, the medical assessment in relation to the claim for Industrial Injuries Disablement Benefit attributed his condition to "power station welding – asbestos exposure".
12. It was put to Mrs Cox in cross examination that she was unable to describe conditions in particular power stations but to that she answered:

"No that's right. It seems that it was very similar no matter where – which power station … it was a general description basically."

13. Mrs Cox's sister, Ruth Warren, also met the Deceased in 1966. In her witness statement she stated:

"When I got to know Derek he was always working away, contracted on power stations working as a welder … Derek often told us that he had to work in very difficult conditions in confined spaces. He occasionally mentioned working with asbestos and talked about how dirty it was, although I don't think he knew then at the time that it was dangerous."

14. She mentioned some of the companies for which the Deceased had worked, including International Combustion.
15. The Deceased's daughter, Deborah Staley, also gave evidence. She could not deal with events in the 1960s as she was not born until 1970. However, she described his working arrangements in later years when the Deceased would travel with a gang to work on boilers.
16. The remaining evidence came from the expert witness, Mr Clark. It was in the form of a written report which was received into evidence without complaint, it having been made clear on behalf of the appellant company that, whilst the evidence was not agreed, nor was there any wish to cross examine Mr Clark. I have already referred to some of his evidence. He described the structure of the power supply industry from the 1950s onwards. He referred to International Combustion as one of three "major boiler makers" which were "heavily involved with the refurbishment of old boilers and with the supply, erection and commissioning of their standard types of boilers at new power stations". He said that until the late 1960s or early 1970s asbestos-based lagging materials and products were extensively used for insulation in power stations. It would be disturbed during repairs, cleaning, inspections and overhauls. Having inferred that the Deceased would probably have been employed by International Combustion on a short-term basis to undertake maintenance and repair work at one or more power stations during the summer shut-down period, he described how those carrying out such work at that time would have been "heavily exposed to and contaminated by lagging-derived debris and dusts". His report also described how prolonged exposure to asbestos fibres had been recognised as a health hazard for many years before the mid-1960s but that it was the publication of the seminal paper Mesothelioma of Pleura and Peritoneum following Exposure to Asbestos in the London Area by Newhouse and Thompson in the issue of the British Journal of Industrial Medicine for October 1965 and a subsequent feature in The Sunday Times on 31 October 1965 that drew attention to the potential of even slight or transient exposures to asbestos fibres as causes of mesothelioma at a later date. Mr Clark also described steps which could have been taken by prudent employers in 1966 to avoid or reduce the risks.

The judgment

17. It is common ground that the Recorder correctly stated the law as it had been expounded in Fairchild. By piecing together several of the items of evidence to which I have referred, he concluded that the Deceased had been employed by International Combustion at some stage in the tax year 1966-7 and that the real concentration of his work at power stations had been between 1961 and 1967, although it continued thereafter. He was satisfied that in the document prepared for the solicitors (paragraph 8, above) the Deceased had been referring to his general working conditions at power stations at that time and not simply to conditions at the premises of Warren Bros. He acknowledged that the Deceased had not referred expressly to International Combustion in his documents for his solicitors or in connection with his claim for Industrial Injuries Disablement Benefit and he further acknowledged, at least by implication, the elusiveness of some of the evidence and the potential dangers of Mr Clark's evidence. However he rejected Mr Limb's submission that Mr Clark's evidence was partisan and speculative. Turning to the single documented period of employment by International Combustion, the Recorder stated:

"I am satisfied that there is no reason to conclude that he worked there just for a day or for some other period that would be de minimis in relation to his exposure to asbestos. There is no reason to suppose he was working there for other than a significant period in 1966 to 1967. The presence of the reference to International Combustion in 1966 to 1967, amongst two other employers, causes me to conclude that he was working for International Combustion for at least as long as the individual other employers, so a period of at least four months, certainly weeks at least. On a balance of probability I conclude that it would be weeks at least and could have been a few months rather than being for a very short time."

18. The Recorder was satisfied that the descriptions of working conditions in power stations at the time were referable to International Combustion, amongst others. He thought it more likely than not that the Deceased had been engaged on working at power stations during summer shutdowns including in 1966. He concluded:

"I am satisfied that the defendants, as the other employers, had a duty of care, and that in obliging Mr Cox to work in the conditions which are set out, that marks a breach of that duty and that the nature of the breach, its extent and duration, constituted a material increase in the risks to Mr Cox of him contracting mesothelioma."

19. Finally, the Recorder declined the suggestion of Mr Limb that he should specify a minimum period of employment which a claimant must satisfy in order to succeed in a claim of this sort. The Recorder did not find it necessary to formulate the test otherwise than by reference to an exposure that was not de minimis.

Discussion

20. Essentially, the criticism of the judgment advanced with great care by Mr Limb is that the material before the Recorder was so sketchy that it was not open to him to make the findings of fact which proved decisive. He submits that the evidence is no more than that the Deceased worked for International Combustion for an unspecified period of time in 1966 to 1967 and that it did not even establish that whilst working for International Combustion he was deployed at power stations or that his work entailed exposure to asbestos. I have no difficulty in rejecting these submissions. It is plain from the evidence of Mr Clark what the nature, size and scale of International Combustion's work was at the material time. From all the evidence it was clearly open to the Recorder to conclude that, whilst working for International Combustion in 1966 to 1967, the Deceased was deployed to work as a welder at power stations on substantial tasks which involved stripping down large boilers with exposure to asbestos. The Recorder was also entitled to find that the bulk of this sort of work occurred in the summer rather than the winter months for obvious reasons.
21. Mr Limb is on stronger ground when he seeks to criticise the Recorder for his findings in relation to duration, ie. "at least four months, certainly weeks at least". I can see no basis whatsoever for the finding of "at least four months". It seems to be the result of dividing the 12 month period equally between the three named employers referred to in the Inland Revenue document. That is not a permissible finding. On the other hand, nor was it a necessary finding. For the claim to succeed, the judge needed to be satisfied that the extent and duration of the exposure had constituted a material increase in the risk to the Deceased of contracting mesothelioma. No specific measurement of the duration is necessary and the Recorder was right to resist the invitation to fix one. Exposure that would fall within the de minimis formula would be insufficient. However, the type of contract work undertaken by International Combustion at power stations and the role of the Deceased in that work, coupled with his generic description of conditions in power stations at the time, undoubtedly justified the finding that this was not a de minimis case. Mr Limb frankly conceded that to work in such conditions at a particular location for a week would not be de minimis. The probability is that the Deceased worked for International Combustion in such circumstances for at least a week and, notwithstanding the reference of the Recorder to "at least four months", his finding that "there is no reason to suppose he was working there for other than a significant period" is, in my judgment, unassailable.
22. The final question is whether the evidence justified the finding that International Combustion breached its duty of care by requiring the Deceased to work in the conditions found by the Recorder. There was certainly no evidence that International Combustion provided conditions or protection in a way which the other employers failed to do. Mr Limb accepts that a reasonable employer would have had knowledge of the risk of short or transient exposure in 1966. Moreover, the evidence of Mr Clark demonstrated how the risk could have been avoided or minimised by reasonable precautions. I am satisfied that the Recorder was entitled to find that the exposure to asbestos fibres whilst in the employment of International Combustion was the result of breaches of duty by that company and that there was a material increase in the risk to the Deceased of his contracting mesothelioma.

Conclusion

23. It follows from what I have said that I would dismiss this appeal. Cases of historic and multiple exposure to asbestos fibres are rarely simple. This one is no exception. However, I do not consider that the Recorder was wrong to conclude that the case against International Combustion had been proved in the light of the approach required by Fairchild.

Lord Justice Hooper:

24. I agree.

Lord Justice Tuckey:

25. I also agree.