England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
LIVERPOOL DISTRICT REGISTRY
MR JUSTICE NICOL
[2009] EWHC 1831 (QB)

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/11/2009

Lord Justice Sedley :

1. This appeal was brought on speedily because the claimant was dying of mesothelioma. She died, aged 49, the day after we had heard this appeal and had announced that it was to be dismissed for reasons that were to follow. These are our reasons.
2. Mrs Willmore's damages were agreed, if liability was established, at £240,000 before statutory deductions. At trial in Liverpool before Nicol J the appellant council, in its capacity as local education authority, was held liable on the ground that it or its predecessor had, by failing to take precautions, contributed materially to the claimant's exposure to airborne asbestos fibre while she was a pupil at what is now Bowring comprehensive school.
3. The House of Lords in Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC32 decided that it is sufficient, in order to establish liability in mesothelioma cases, to show that the asbestos exposure for which any one defendant is responsible has contributed materially to the risk which has now materialised. The issue for the judge was therefore whether such exposure as Mrs Willmore could establish had been significant or material in the sense that it was more than minimal.
4. Mesothelioma is an invariably fatal cancer, strongly associated with exposure to asbestos fibre, commonly with a long latency period. When Mrs Willmore's mesothelioma was diagnosed, it was first suspected that the source of exposure had been spoil-heaps left in the course of demolishing prefabs and a primary school in her road, and proceedings were issued on this footing. But when it became apparent that there had been no ascertainable asbestos in the spoil, the finger of suspicion moved to the secondary school she had attended between 1972 and 1979, then called Page Moss Comprehensive, which was known to have had asbestos in its structure, and the pleadings were amended accordingly.
5. The epidemiology of mesothelioma has legal implications because there is an inescapable level of ambient air pollution which may well include asbestos elements. Culpable exposure has therefore to be at a level which materially enhances the background risk. What is material in this context is not measured or measurable: see Rolls Royce v Cox [2007] EWCA Civ 1189, §21, per Maurice Kay LJ. It must, however, be sufficient to escape the application of the maxim de minimis non curat lex – in other words, be more than minimal or trivial or inconsequential.
6. There is no issue about any of this. The judge directed himself accurately about it and about the duty and standard of care: see [2009] EWHC 1831 (QB), §3-11. What persuaded Moses LJ to give permission to appeal was the submission that the judge's findings of fact were, in enough respects to undermine his conclusion, not supported by the evidence. This ground is advanced in the appellant's skeleton argument as a subsidiary ground dependent on establishing the faults of approach alleged in the first two grounds: that the judgment conflates or confuses exposure to fibres with exposure to risk; and that even if it was correctly addressed to the former, it failed to establish more than minimal exposure.
7. While not shutting it out, Moses LJ was sceptical of the merits of the first contention - that the judge had mistakenly considered that the question he was trying was exposure not to a risk of harm but to "a risk of asbestos fibres". He expressed no view on the second. Since the third ground is predicated on the first two, however, they need to be dealt with in order.
8. The suggestion that Nicol J substituted risk of exposure for risk of harm, or that he confused or conflated the two things, is in my judgment unreal. It is based on the highlighted wording (or in the second case a gap in the wording) of two passages in his judgment:

53. In consequence I find that the Claimant was further exposed to the risk of asbestos fibres by her use of the Girls' toilets because from time to time the asbestos ceiling tiles were damaged and, on one occasion at least, ceiling tiles, some of which were broken, were stored there.

…..

55. To summarise, I have found that the Claimant was exposed to a risk [from] asbestos fibres in the following circumstances:

a. From the work done to the ceiling in the T shaped corridor and the temporary stacking there of ceiling tiles (some of which were broken or chipped) over a few days;

b. From damage to ceiling tiles by the misbehaviour of pupils removing them and pushing bags and items of clothing up into the ceiling void;

c. From vandalism to the girls' toilets in the Junior Block and the storage of damaged tiles there for a period of about two weeks.

9. It is perfectly true that the risk which has to be shown to be created or increased by a defendant is the risk of harm. It is also true that there is no such thing as a risk of asbestos fibres – the risk is from them. If, therefore, the preposition which has gone missing from the first line of §55 is "from" rather than "of", the objection is met. But Mr Feeny, for the appellant, points out that this is not how §53 is phrased.
10. Is it to be inferred therefore that the judge was asking himself the wrong question? One has only to read on to §56 to see that he was not:

"Were these matters which materially increased the Claimant's risk of contracting mesothelioma?"

11. Nicol J proceeded to give his answer:

57. I conclude that they did materially contribute to the Claimant's risk for the following reasons:

a. I recall the evidence of Dr Rudd that mesothelioma can occur after low level exposure and there is no threshold dose below which there is no risk.

b. I have also quoted above from the unchallenged evidence of Dr Rudd to the effect that what is significant is

'"a level above that commonly found in the air in buildings and the general outdoor environment." It would be appropriate for the Court to conclude that each such exposure materially increased the risk that she would develop mesothelioma.'

c. If 'each such exposure' materially increases the risk, I cannot accept Mr Feeny's submission that some degree of regularity was necessary before the risk rose above the de minimis level.

d. Even on Dr Rudd's evidence, the exposure must rise about the level commonly found in the air in buildings and the general outdoor environment, but on the findings that I have made in the three situations which I have identified the Claimant was likely to have been closely proximate to asbestos materials which had been disturbed and so generated asbestos fibres.

e. I have looked at the evidence regarding each of those situations. I could not find that any of them created a risk which was only de minimis. However, even if I am wrong about that, I must consider their collective effect. I am clear that when viewed together the risk was not minimal and that they materially increased the risk to the Claimant that she would develop mesothelioma much later in her life.

f. During the hearing I tried to press Mr Allan to give me a touchstone for characterising a material risk. He resisted doing so and the Rolls Royce case shows that he was right to take that course. No specific measurement of the duration of exposure is necessary to fix the Defendant with liability. Only if the exposure was de minimis would it be immaterial. I have found that it was not de minimis.

12. In my judgment there is no discernible error either in the judge's approach to the question whether the claimant's exposure had been minimal or material, or in his resolution of the question. It has to be remembered that where asbestos is involved, all exposure constitutes a risk of harm. So long as there was evidence capable of justifying his findings, the conclusion that avoidable exposure in the school had made a material contribution to the risk and therefore to the eventual materialisation of the claimant's illness was an entirely reasonable one.
13. So was there evidence to support these findings? Although it is advanced in the skeleton argument as "a subsidiary ground", it is the ground which Mr Feeny has most effectively developed in support of the council's appeal, and – as Moses LJ anticipated – has required close attention.
14. Mrs Willmore was in the first intake of pupils to the newly built school in 1972. Asbestos is now known to have been used in its construction and fitting out, but where and in what form is not fully known.
15. The first source of exposure which Nicol J found established (he rejected some others) was from ceiling tiles in the T-shaped corridor along which pupils regularly passed and repassed. Mrs Willmore, whose evidence the judge found generally dependable, recalled workmen taking down the ceiling tiles in order to route cables to the sports hall and the loose tiles being stacked in the corridor. Nicol J found that this had gone on for some days and that the tiles more probably than not had contained asbestos. He based this finding, as he was entitled to do, on the fact that in 2002 a ceiling panel in the corridor was found to contain amosite, a form of asbestos once thought to be relatively innocuous but now known to be at least as dangerous as others. He found too that it was probable that in the handling of these tiles asbestos dust had been liberated. He made no finding, however, as to the likely volume of dust, save that it was intermittent over the course of a few days.
16. Secondly the judge found that there had been a persistent form of bullying in which academically inclined pupils would have their satchels and blazers snatched and put beyond their reach. Their tormentors would do this by removing ceiling tiles, putting the bags or coats into the cavity, and replacing the tiles. Nicol J accepted that this practice was common and found that it had been a further source of exposure to asbestos dust. What he seems, however, to have overlooked was that the room or rooms in which, under cross-examination, Mrs Willmore located it were rooms with concrete ceilings. It is true that she may only have meant to give these rooms as examples which had lodged in her memory of a practice which was spread throughout the school, but that is not how she expressed it or how the judge interpreted her evidence.
17. Thirdly there was evidence, which the judge accepted, that ceiling tiles, some of them broken, were stored for a substantial period - Mrs Willmore thought it was a couple of weeks – in the girls' toilets. The judge accepted, unsurprisingly, that a great deal of activity went on there, including bullying, smoking and vandalism, and that the latter included damage to ceiling tiles including release of asbestos fibres. He also found that the tiles stored there probably may well have had an asbestos content and that the activity of girls using the toilets could well have disturbed it.
18. The judge expressed his conclusions in this way:

58. The Amended Defence admits that the Defendant knew or ought to have known that any more than minimal exposure to asbestos dust was foreseeably hazardous. In the course of the hearing Mr Feeny did not dispute that if there was a reasonably practicable alternative that did not expose the pupils to such dust, it ought to have been used.

59. I will consider first the work on the T shaped corridor. There was little evidence as to what precise work had led to a need for the ceiling panels to be removed. There was no evidence that it was of such urgency that it could not be done during the school holiday, or at weekends, or even at night when the school would have been empty. Even if it had to be done during the school day, the corridor, or the relevant section of it, could have been isolated while the work was undertaken. There must also have been reasonably alternative places to store the ceiling tiles rather than leaving them stacked in a busy corridor along which pupils were passing back and forth. If tiles were left there, the risk of them being knocked and damaged should have been obvious.

60. Second, the pupil misbehaviour in hiding belongings above the ceiling tiles may not have been known to staff immediately (as the Claimant herself admitted). However, on the evidence of the Claimant's witnesses, this was a fairly regular form of bullying. As time passed, it becomes harder to accept that no word of it reached the staff. In any case, the damage to the ceiling panels would have been visible to the school authorities. Had they been alive to the risks from disturbed asbestos, they should have realised that the panels needed replacing and with a material which would not expose pupils to danger if they were damaged again.

61. For the same reasons, the damage to the ceiling tiles in the girls' toilets should have been detected and led to their replacement with a non-asbestos product. It would have been readily foreseeable that ceiling tiles stacked in the toilets might be knocked and broken.

62. In short, I conclude that all three of the situations which I have found exposed the Claimant to a material risk, amounted to a breach of duty on the part of the Defendant.

19. Mr Feeny has satisfied me that the evidence was insufficient to support the second of the sources of exposure found by Nicol J. On such evidence as there was, the undoubted bullying cannot have taken place in the rooms recalled by Mrs Willmore, leaving uncertain the composition of the ceiling tiles which were disturbed in the course of it.
20. As to the first source, the corridor, there is force in Mr Feeny's submission that more was needed than a finding that tiles, even if they contained asbestos, were being taken down and replaced: it was necessary to find, he submits, that they were being prised off or fractured in the process so as to give off dust. But at §33 the judge gave attention to this question:

33. I also find that it was more likely than not that in handling of these tiles asbestos dust was released. This may have happened from the fashioning of tiles to make them fit the available space. It is fair to say that the Claimant did not remember seeing tiles being cut. However, we know from the interdepartmental memo of 11^th January 1982 that the cutting of asbestos board ceiling tiles was a specific matter of concern for the Defendant's safety section. Additionally or alternatively, asbestos dust could have come from friction or from pieces of tile chipping off. Some handling was obviously necessary to get the tiles out of and back into the metal grid from which they seem to have been suspended. The 1982 Memorandum makes clear that for some time the practices of workmen in handling asbestos products within the school had been a cause of concern to the Defendant's Safety Section. It would also have been consistent with these rather lax practices for the tiles to have been stacked in the most convenient location (i.e. in the corridor itself) while the work was being done in the ceiling void. The Claimant and Ms Welsh knew about this because they were still able to pass along the corridor. If they could do so, other pupils could presumably do so as well. The pushing, shoving and fighting that the Claimant recalled in the corridors is rather what one would expect. The likelihood that stacked tiles would get knocked or chipped was very real.

21. This seems to me a tenable finding on adequate, albeit indirect, evidence.
22. Nor, in my judgment, has Mr Feeny succeeded in displacing the judge's finding about the third source of exposure, the tiles stacked in the girls' toilets. He is right, without doubt, to say that there was no direct evidence that the tiles were disturbed so as to liberate dust, but there was perfectly adequate material from which the judge could infer it.
23. It is not enough, as Mr Feeny recognised, to eliminate one source of exposure if another or others remain in place, because there is no safe dose of asbestos. Once exposure above a minimal level is found, as Nicol J found it to be in each separate instance, a risk of harm is established. I recognise that there is much in the judge's findings which depends on probability and inference, so that none of his findings was a foregone conclusion even on the primary evidence. But, for the reasons I have given, he was entitled to find a likelihood of significant exposure from two of the three sources he identified, and that, in the absence of any error of law, is enough to sustain his judgment.

Lady Justice Smith:

24. I agree.

Lord Justice Ward:

25. I also agree.