England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

		06/08/2008

The Hon Mrs Justice Swift DBE :

The claimant

1. This is a claim by Pauline Richardson, the widow of Anthony Richardson, deceased (the deceased), for damages under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976 (as amended). The deceased died on 24 February 2005, at the age of 67 years, from a right-sided pleural mesothelioma. The claimant alleges that the defendant exposed the deceased to asbestos dust in the course of his employment negligently and/or in breach of statutory duty and that his exposure made a material contribution to the risk that he would develop a mesothelioma.
2. The quantum of damages has been agreed, subject to the issue of liability, in the sum of £118,610, inclusive of interest.

The deceased's employment

3. Between 1953 and 1970 or 1971 (save for two years when he was doing National Service), the deceased was employed as a plumber/heating engineer by a small firm called J. Cotterell and Sons (Cotterells), which was based in Fallowfield, Manchester. During that time, he was exposed to asbestos dust in circumstances which I shall describe hereafter.
4. In about 1975, the deceased began work as a plumber/heating engineer for the defendant, who ran a firm known as G.F Russell (GFR). That firm, which is now based in Lytham, Lancashire, carried out work in the local areas of Lytham, St Annes and Blackpool. The claimant alleges that, during his employment with GFR, the deceased was exposed to and inhaled significant quantities of asbestos dust.
5. In 1987, the deceased left GFR and went to work as a maintenance man at the Royal Lytham & St Anne's Golf Club (the Golf Club). That was a residential position and the claimant and the deceased lived on the premises. The claimant recalls that the deceased had some exposure to asbestos dust while working in the boiler rooms at the Golf Club and over a period of about eight weeks in the late 1980s/early 1990s, when a new central heating system was being installed in the Golf Club's Dormy House. The medical evidence is that any exposure during his employment with the Golf Club is unlikely, because of its timing, to have had any relevance to the development of his mesothelioma.
6. So far as is known, the deceased had no other asbestos exposure during the course of his working life. He retired in December 2002, at the age of 65 years. At that time, he appeared to be in good health.

The issues

7. The issues which I have to decide are:

i) Was the deceased exposed to asbestos dust when working for the defendant?

ii) If so:

a) Did that exposure occur as a result of any breach of duty owed by the defendant to the deceased?

b) Was that exposure such as to make a material contribution to the risk that the deceased would develop mesothelioma?

The evidence of exposure

The evidence called on behalf of the claimant

The claimant

8. The claimant met the deceased while he was working for Cotterells. She said that Cotterells was a small firm which carried out plumbing, joinery and general building work locally. The firm had a maintenance contract with the BBC and would also carry out work in shops and houses. The claimant said that the deceased would come home from work covered in white dust. He told her that the dust came from asbestos lagging which he had to remove before repairing pipes or boilers and also from working with asbestos sheeting and bath panels.
9. The claimant said that, before the deceased became ill, the topic of asbestos came up in conversation between the two of them on a number of occasions. When the dangers of exposure to asbestos were mentioned in the course of television programmes or in the newspaper, the deceased told her that he had been in contact with asbestos dust both at Cotterells and at GFR. She remembered in particular one television programme which was shown two or three years before the deceased was diagnosed with his mesothelioma, and which highlighted the dangers of ripping out old boilers and pipework lagged with asbestos. The deceased told the claimant that he had done that type of work and expressed fear of the possible consequences. The claimant said that, during these conversations, the deceased made no distinction between his exposure to asbestos at Cotterells and at GFR.
10. By early February 2005, it had been suspected for some time that the deceased was suffering from mesothelioma. On 3 February 2005, the claimant and the couple's son, Mr Paul Richardson, went to see the deceased's consultant and the diagnosis was confirmed. The claimant and her son were told that the deceased had a very limited time to live. They then drove to the hospice where the deceased was at that time being cared for to tell him the news. The claimant and her son knew that mesothelioma was an asbestos-related disease and asked him about his asbestos exposure. In the conversation that ensued, the deceased confirmed to them that he had been exposed to asbestos in the course of his employment with Cotterells and GFR. The claimant did not discuss the matter with him again, but Mr Richardson subsequently had further discussions with his father about his past asbestos exposure.
11. In her witness statements, the claimant said that the deceased had told her that, while employed by GFR, he was involved in the installation of central heating and plumbing in Victorian houses, some of which were being converted into flats. He also worked in hotels (which also tended to be Victorian buildings) and at the Golf Club. The claimant believed that it was at these premises that he had been exposed to asbestos dust. He had also worked at other premises owned by Clifton Engineers and at premises whose lavatories and wash rooms were serviced by the Welcome Organisation. She was unaware of any exposure at these premises.
12. The claimant said that, on 3 February 2005, the deceased told her that, in the course of his work with GFR, he had to rip out pipes and boilers which were lagged with asbestos insulation. He would brush up asbestos dust dry at the end of the day. She recalled that the deceased had told her that, when employed by GFR, his work took him into the boiler houses at the Golf Club, both in the main building and in the Dormy House. He would have to remove asbestos insulation from around the pipes and from the boilers in order to carry out necessary maintenance work. It was while he was carrying out maintenance work at the Golf Club in or about 1987 that he was approached by the Club secretary and invited to apply for a permanent job there. One of the reasons for this invitation being issued was, she said, his familiarity with the Golf Club's plant and equipment as a result of his regular work there.
13. In oral evidence, the claimant said that, during her conversation with the deceased about his asbestos exposure, he mainly talked about his time at GFR because that had been more recent than his time with Cotterells. He did, however, mention his contact with lagged piping at Cotterells. He told her that he had come across asbestos regularly. He said that he knew that it was dangerous but not, in the “early days”, just how dangerous it was.
14. When asked about the detail of what the deceased had said during their conversation, the claimant told me that she remembered him saying that he had been involved in the removal of the boiler in the main building at the Golf Club and the installation of the new boiler. He said that this work had involved exposure to asbestos. She believed that he had been involved in the work for a few days, possibly about a week. The claimant said that the deceased also told her that he sometimes came into contact with asbestos on pipework and in the panels of baths in the bathrooms of Victorian private houses.
15. In answer to a question from the defendant's counsel, Mr Evans, the claimant agreed that specialist asbestos contractors had been employed by the Golf Club to remove asbestos lagging from the boiler in the Dormy House at the Golf Club. The contractors came in to do this work during the period when the claimant and the deceased were living there.

Mr Paul Richardson

16. In his witness statement, Mr Paul Richardson said that the deceased told him that, while employed at both Cotterells and GFR, he had had to replace old water tanks and boilers, especially back boilers. This involved the removal of flue pipes. The flue pipes were grouted into position and, in order to remove them, the deceased would have to break up the grout with a hammer; this had the effect of disturbing the asbestos material surrounding the boiler flue. Mr Richardson said that his father also told him that he had to remove fire surrounds and replace bath panels. These tasks sometimes involved breaking up the asbestos-based materials used in the surrounds and panels. He said that his father had also mentioned to him his work at the Golf Club whilst employed by GFR. He told him that he would be called out to do (among other things) repairs on the boiler and to the heating system.
17. In oral evidence, Mr Richardson said that he had not been aware before his father told him that flues and bath panels might contain asbestos materials. The deceased had told him that he used Asbestolux boards in the course of his work. He told me that, when talking to him, the deceased made no distinction between his asbestos exposure whilst working for Cotterells and for GFR.
18. Mr David Cameron, who was employed by GFR for about ten years from 1980, was called to give evidence on the claimant's behalf. He estimated that he worked with the deceased for 50% of his time as an apprentice. He told me that, on occasion, when replacing an old boiler, it was necessary to take down an asbestos flue pipe and throw it away or re-use it. He said that he could not think of any other circumstances in which he or the deceased came into contact with asbestos dust. He conceded that it was possible that some of the items with which they came into contact may have been made of asbestos material and he may have been unaware of that fact. He said that fabric masks were provided and it was up to each individual employee whether or not he chose to wear one.

The evidence called on the defendant's behalf

The defendant

19. The defendant said that GFR was initially a very small firm. It was started by the defendant in 1957. He worked on his own at first. In 1975, the deceased joined him. In 1979, the defendant's son, Mr Peter Russell, began working in the firm as an apprentice. He has worked for GFR ever since and is now a director of the firm. Mr Cameron started as an apprentice with the firm at the age of 16 in 1980. The firm has grown in size over the years and now employs six people.
20. The defendant told me that GFR's business has always been 85-90% domestic in nature. In the late 1970s/early 1980s, they had a bathroom showroom and a large proportion of their work during that period was the replacement of bathrooms in private houses. In addition, it was the time when central heating was being installed in many homes for the first time and GFR undertook a lot of installation work. Apart from domestic work, GFR carried out work in hotels, one factory and in lavatories and washrooms in various premises which were serviced by the Welcome Organisation. GFR was also contracted to carry out maintenance work on the plumbing and heating systems at the Golf Club.
21. The defendant said that he would frequently work alongside the deceased. Even when he was not doing so, he would be aware of the conditions in which the deceased was working since, in most cases, he would have inspected the job in advance and provided a quotation.
22. In his witness statement, the defendant said that he had never seen any asbestos lagged pipes or boilers on any jobs he had inspected. In oral evidence, he appeared to moderate his position and indicated that he had seen lagged pipes (for example at a school) but there had been no need to disturb the lagging in order to carry out the necessary work. In his witness statement, he said that there was “no possibility” that the deceased would have come across pipes or boilers lagged with asbestos. He was adamant that GFR's employees never did any work which involved removing asbestos insulation to gain access to pipes or valves.
23. The defendant said that the deceased was mainly employed on the installation of bathrooms, in which he was particularly skilled. He estimated that, for the first seven years of his employment with GFR, a large proportion (about 70%) of his time would be spent on this work. He said that there would be no contact with asbestos in domestic bathrooms. He denied that bath panels would ever be made of asbestos or that the deceased would have encountered asbestos-based panels in airing cupboards or behind boilers.
24. In cross-examination, the defendant accepted that some panels in fire surrounds may have been made of asbestos material. However, he said that they would usually be painted or covered with wallpaper and it would not have occurred to him to think that they might contain asbestos. He told me that such panels would be removed in one piece without any danger of asbestos dust being produced. In answer to a question from Mr Cowan for the claimant, he did accept that the boards in fire surrounds might be decayed by heat and have become friable over time.
25. The defendant accepted that, on occasion, when removing a solid fuel boiler prior to installing central heating, there would be an asbestos cement flue pipe that would have to be removed or pieced out. The replacement flues which were installed did not contain asbestos. He emphasised that there was not always an asbestos flue pipe and, even if there was, it did not always have to be removed.
26. The defendant acknowledged that the flue pipes sometimes had to be broken up on site. However, he said that they were usually taken out in one piece, since it was easier for them to be transported back to the yard in that state. On occasion, it would be necessary to saw a flue pipe. The defendant said that this would produce very little dust. He stressed that it would happen infrequently. The flue pipes which had been removed would be transported back to the firm's yard in the employee's van. The defendant said that he himself would break them up in a skip at the premises.
27. So far as work at the Golf Club was concerned, the defendant said that GFR did plumbing and heating work there. In addition, they had removed an oil-fired boiler from the main building and replaced it with a gas-fired boiler. He accepted that the deceased was probably employed on this job. He said that the oil-fired boiler had been installed only about ten years before, in the early 1960s. It had replaced a solid fuel boiler. The only reason for the change to a gas boiler was the rising price of oil. The defendant said that the work involved removal of the old boiler and the installation of the new one, and the removal and replacement of the existing pipework. There was a flue pipe made of asbestos material which had to be pieced out. He said that the work involved a maximum of about two metres of pipe.
28. The defendant was adamant that neither the pipework nor the boiler which were taken out had been covered in insulating material. At one point in cross-examination, he appeared to accept that there might have been some cladding on the boiler which might have contained asbestos material within a jacket, but I understood his final position to be that there was no insulation at all. He said that he installed cladding (which did not contain asbestos) on the new gas-fired boiler.
29. The defendant's evidence was to the effect that there was no asbestos exposure in the course of work done on hotels. He said that most of the work involved the installation of en suite bathrooms, which did not involve removing old boilers and pipework. Insulation was put in, but was made of fibreglass. He referred in particular to the Fernlea Hotel, with which he has been associated for many years. He said that GFR had replaced the boiler there on two occasions, the first in the 1960s. Neither the boiler nor the pipework had any insulation until the most recent boiler was installed. On that occasion, the boiler and the pipework were fitted with fibreglass and/or felt lagging. He said that the deceased would have had no asbestos exposure at any other hotel at which he worked.
30. The defendant said that, apart from “the odd heating job” where he had contact with an asbestos flue pipe, the deceased would have had no contact with asbestos at all during his employment with GFR. In the mid-1980s, the claimant was employed more or less full time on work for the Welcome Organisation. Thereafter, he was replaced, and he returned to his usual plumbing duties for a short time before leaving GFR in 1987.
31. As to his knowledge of the dangers of asbestos, the defendant told me that he had been aware since the 1970s that asbestos was dangerous. He did not seek any professional advice about how to protect his employees from asbestos dust. He provided masks; he agreed that he had no reason to believe that they would provide effective protection, but observed that he also had no reason to believe that they would not. He said that he had never instructed his employees not break up flue pipes made of asbestos material, but had no reason to believe that they would do so.

Mr Peter Russell

32. The defendant's son, Mr Peter Russell, said that he spent a large part of his apprenticeship helping the deceased with the installation of bathrooms and central heating systems in domestic premises. After his apprenticeship ended, he continued to work with the deceased, mainly on domestic premises and hotels. He told me that, on occasion, he would come across asbestos in flue pipes. Sometimes, the existing flue pipes would fit the new boiler and could be left in place. On other occasions, the old flue pipes would have to be re-positioned or removed altogether.
33. Mr Russell said that he also remembered working at the Fernlea Hotel and at the Golf Club. He did not come across asbestos at either of those places, save that each boiler had an asbestos flue pipe. He said that he did not disturb the flue pipe at the Fernlea Hotel. At the Golf Club, the flue pipe had to be pieced out. He said that, sometimes, dust would be created if it was necessary to chip out the plaster around the flue pipe. He had no recollection of sawing a flue pipe. He said that the boiler and the pipework that were removed at the Golf Club were not insulated. He could not remember ever being in a large boiler room where the boiler or pipework was lagged with asbestos. He would install felt insulation on new plant.

The expert evidence

The claimant's expert

34. Mr John Browne, a very experienced consulting engineer from Strange Strange and Gardner, Consulting Forensic Engineers, gave evidence for the claimant. He has a wide experience of cases of industrial disease.
35. On the issue of exposure, Mr Browne referred to his experience of the incidence of asbestos materials in domestic premises. He said that it was not common for boilers and hot water pipes in private houses to be lagged with asbestos. However, there was use (which he described as “extensive”) of asbestos in airing cupboards and in fireplaces where a coal fire had been replaced by a solid fuel or gas fire. In those circumstances, a plumber working in the airing cupboard or fireplace was liable to disturb the asbestos material and be exposed to dust there from. Mr Browne said that, sometimes, it may have been necessary to remove a fireback containing asbestos material which had been stuck into place. Mr Browne said that lots of bath panels were made of Asbestolux. Taking out the panels would cause dust if they broke or snapped.
36. Mr Browne said that the use of asbestos cement flue pipes was also common. Such flue pipes would be secured by fire cement. They would have to be broken up and this would inevitably involve the production of dust, including asbestos dust. The sawing of asbestos flue pipes would also cause significant quantities of dust. Mr Browne said that the amount of dust would vary from time to time, but any dust containing asbestos was dangerous.
37. Mr Browne went on to say that he would be “amazed” if the boiler which GFR removed from the Golf Club had not been lagged. He said that this would be unique in his experience. He accepted, however, that he had no information about the size of the boiler in question. He was less surprised at the evidence that the boiler at the Fernlea Hotel had not been lagged, although he said that it would be unusual in his experience in premises of this type.

The defendant's expert

38. Mr Michael Walker, an associate with Consulting Engineers, RHMA, is a chemist by profession. He was for eight years a Chemical Inspector of Factories for the Health and Safety Executive. Much of his time was spent advising other Inspectors on all aspects of occupational hygiene, including asbestos-related health hazards. Since 1982, Mr Walker has been a private consultant dealing with the general topic of safety with hazardous chemicals, including asbestos.
39. Mr Walker agreed with Mr Browne that it was not common for boilers and hot water pipes in houses and small hotels to be lagged with asbestos. He said that the use of asbestos insulation tended to be associated with high temperature applications, such as steam-generating boilers, rather than with water heaters of the type found in domestic premises. He said that he had never seen a domestic-type appliance with asbestos lagging on it. He said that he had visited many boiler houses in the course of his work and did not agree with Mr Browne that it would have been surprising not to find asbestos lagging material on the boiler and pipework at the Golf Club and at larger hotels.
40. In his report, Mr Walker said that asbestos cement flue pipes were common, although in oral evidence he appeared to contradict that. He said that he was not aware of the use of asbestos in coal fireplaces or back boilers and was not aware of its use in bath panels, although he conceded that he was not an expert in plumbing of this kind.
41. In his report, Mr Walker concluded that, on a balance of probability, the deceased's exposure to asbestos was de minimis. Even if he had been involved in the frequent removal of asbestos lagging material, his asbestos exposure calculated over a lifetime dose basis would, he said, have been extremely small, below the level of risk associated with asbestosis and/or lung cancer. In this context, he referred in his report to the Helsinki Criteria, although, in cross-examination, he was compelled to admit that those Criteria have no relevance whatsoever to mesothelioma, which is not dose-related and can be caused by very light exposure to asbestos dust.

Discussion and conclusions on asbestos exposure

42. I found the claimant to be a patently honest witness who was doing her best fairly to recount what her husband had told her over the years, and during their conversation of 3 February 2005, about his exposure to asbestos dust. I found Mr Paul Richardson to be a straightforward and honest witness also. I am satisfied that neither of them was in any way seeking consciously to overstate the extent of the deceased's exposure to asbestos.
43. Mr Cameron, on the other hand, was a reluctant witness, whose answers were given in a defensive manner. I did not the gain the impression that he was assisting the court as fully as he could have done. It would, however, be wrong for me to speculate as to why he gave his evidence as he did, or as to what he might have said had he chosen to, and I shall not do so. In any event, he was a very young man when he joined GFR and may not have a particularly good memory of the early years. I place little reliance on his evidence.
44. The context in which the deceased spoke to his wife and son about his asbestos exposure was not one in which he was likely to exaggerate or misrepresent that exposure. When he mentioned it in response to media stories about asbestos, he was expressing his personal fears about the possible effects of his previous exposure. The conversation on 3 February 2005, and the subsequent conversations with his son, took place at a time when the deceased knew he was dying and when no litigation was in train or, as far as is known, even being contemplated. There is therefore, no reason to doubt the truth of what he told his wife and son. It is highly significant, in my view, that their clear recollection is that he drew no distinction between his work at Cotterells and at GFR and that, during the course of the conversation of 3 February 2005, he spoke more of his exposure with GFR than with Cotterells. There was no reason for this; his development of mesothelioma could have been entirely explained by his exposure with Cotterells. The fact that he dwelt on his exposure with GFR is, to my mind, a very strong indicator that he had a significant amount of asbestos exposure when working for them.
45. It is clear from the evidence that the deceased was on occasion exposed to asbestos dust produced by the removal and piecing out of asbestos flue pipes. I am satisfied also, on a balance of probability, that he had to saw flue pipes on occasion. Since he did not appreciate the dangers of asbestos dust and he and his colleagues had been given no instructions about how to avoid or minimise exposure, the work would not have been done with any particular regard for minimising the dust produced. The same goes for the asbestos-based material contained in boards which I find had on occasion to be removed from fireplaces. The boards would have deteriorated with heat and, in some cases, would have been friable and have produced dust. While it may have been possible on occasion for sections of flue pipe and/or asbestos board to be removed whole, without breaking them up, there were plainly occasions when this was not feasible and when dust would be produced when they were taken out.
46. I accept the defendant's evidence that the deceased worked on the installation of bathrooms more often than on the installation of central heating. I am satisfied, on a balance of probability, that he would frequently encounter asbestos-based materials in airing cupboards and bath panels. While it may on occasion have been possible to carry out his work without breaking into those materials, I find that it is probable that he had to do so quite regularly and that dust would result.
47. In making these findings, I prefer the claimant's evidence and that of her son to the evidence of the defendant. I did not find him an impressive witness. It was clear that he had never considered the dangers posed by asbestos exposure (of which he said he had been aware of at the relevant time) in the context of his employees' safety, and had not informed himself about any precautions that could and should have been taken to reduce or minimise asbestos exposure. He had not applied his mind as to whether some of the materials which his employees would be handling (e.g. boards in fire surrounds or in airing cupboards) might be asbestos-based.
48. I am satisfied, in the light of the evidence of Mr Paul Richardson and of Mr Browne that the defendant is wrong when he said that the bath panels never contained asbestos. I believe that he had just not applied his mind to the possibility that they might.
49. My impression was that the defendant was, to some extent at least, “in denial” about the incidence of asbestos in the work carried out by himself and his employees. There are a number of reasons why this may be so, not least an unwillingness to acknowledge the fact that he and his son might also have been put at risk. As for Mr Peter Russell, it seems to me that he also did not appreciate that there was asbestos in some of the materials he handled. He was, of course, very young when he started work at GFR and it may be that he had only limited recollection of conditions over the first few years of his employment.
50. I accept the evidence of the defendant and his son (which was confirmed by the experts) that pipes and boilers in domestic premises were not generally - if ever - lagged. It seems to me that the claimant must have misunderstood what the deceased said to her about the circumstances in, and frequency with which, he encountered asbestos insulation material. She may have assumed that the dust and dirt with which he was frequently covered was associated with asbestos exposure, whereas this would not necessarily have been the case.
51. I do, however, find, on a balance of probability, that there were occasions when the deceased did have to strip off or otherwise disturb asbestos lagging material on pipework and boilers in order to carry out his work. I reject the defendant's evidence that GFR never carried out work which involved the removal or disturbance of asbestos lagging material. It is clear, for example, that the boiler in the Dormy House at the Golf Club was lagged with asbestos material, since specialist contractors were brought in to remove the lagging some time after 1987. GFR were contracted to carry out maintenance work at the Golf Club and the claimant's evidence was that the deceased carried out work on that boiler, as well as the boiler in the main building, during his employment with GFR.
52. As to the issue of whether there was asbestos lagging in the boiler house in the main building at the Golf Club when the boiler was changed, I am unable to find, on a balance of probability, that there was. The boiler had been changed only ten years previously and it is plausible in my view that any asbestos lagging which had been there had been removed at that time. The defendant and his son were quite clear that there was no asbestos lagging and I am not persuaded by Mr Browne's assertion that all such boilers would necessarily have been lagged with asbestos at that time. It is significant in my view that, in the claimant's witness statements, the references to asbestos exposure at the Golf Club during the deceased's employment with GFR are all concerned with the servicing and repairing of the boilers there. Mr Paul Richardson also recalled his father telling him about repairs carried out on boilers at the Golf Club. I find that it was in the course of servicing and repairing the boiler in the Dormy House that the deceased was exposed to asbestos dust.
53. I regard it as likely that the deceased also encountered asbestos lagging when working on some hotels. I do not feel able to rely on the defendant's assertion that there was no asbestos lagging in any of the hotels in which his employees worked. It is possible that he may not have been aware of it. I do not consider it likely that such exposure occurred frequently but, having heard the evidence, I am quite satisfied that it did happen on occasions.
54. I find also that, in all the circumstances when he encountered asbestos material, the deceased would have swept up at the conclusion of his work and would usually have transferred the waste to the firm's yard in his van. In that way, he would have been further exposed to asbestos dust.
55. My finding on exposure is therefore that, in the course of his employment with GFR (in particular, during the first ten years or so), the deceased had fairly regular exposure to relatively low levels of asbestos dust from decaying or broken asbestos boards, from the sawing, removal and piecing out of asbestos flue pipes and as a consequence of sweeping up the debris from these operations. This exposure was punctuated by short periods of exposure to higher levels of asbestos dust, when removing asbestos lagging material from pipework and boilers in order to carry out servicing, repair and replacement work, and when disposing of such lagging material. I find that his asbestos exposure was comparable with his exposure during his time working for Cotterells. The two firms appear to have been very similar in size and type of work and it is clear from the evidence that the deceased himself regarded the extent of his asbestos exposure during his exposure with both firms as comparable.

Breach of duty

56. As to the state of knowledge about the dangers of asbestos dust in the period from 1975 to 1987, Mr Browne's evidence was that it was clear from the mid-1960s that exposure to even small amounts of asbestos dust could give rise to the risk of mesothelioma, and that there was therefore no safe limit for exposure to asbestos dust. He quoted the Annual Report of the Chief Inspector of Factories for 1964, which referred to the growing evidence of an association between exposure to asbestos and the occurrence of mesothelioma. The 1966 Annual Report indicated that, although crocidolite (blue asbestos) appeared to be especially associated with the occurrence of mesothelioma,

“…no one can say that other forms of asbestos may not be implicated”.

and

“…only epidemiological studies extending over many years can provide the answers. Whilst such studies are proceeding the only safe course is to eliminate the escape of asbestos dust into the air”.

57. Mr Walker's evidence on the question of knowledge was somewhat opaque. In the experts' joint statement, he expressed the view that “non-specialist” employers may not have been aware in the 1970s of the extreme dangers of asbestos dust. He said that any exposure to asbestos which the deceased may have had would have been of “such a low order of magnitude as to preclude any sensible estimations of risk”. In oral evidence, he was reluctant to say what advice about the risks would have been given to an employer at the relevant time.
58. I unhesitatingly accept Mr Browne's evidence on this matter. The defendant accepted that he was aware, by the 1970s, of the risks associated with asbestos. Had he taken proper advice about the nature and extent of those risks, as he should have done, he would – or should – have been informed that there was no safe limit for exposure to asbestos and that the only prudent course was to take steps to eliminate – or at least minimise – the exposure of his employees to asbestos dust. However, the defendant took no such advice. The only precaution which he took was to provide fabric masks that afforded no adequate protection. As Mr Walker had eventually to concede, there were straightforward, inexpensive measures (the provision of oro-nasal masks, the damping down of asbestos materials before handling them and, where necessary, the provision of extraction) that could have been taken to eliminate or minimise exposure. I have no doubt that, in failing to take these precautions, the defendant was negligent.
59. The claimant also alleges that the defendant was in breach of certain provisions of the Construction (General Provisions) Regulations 1961, the Construction (Working Places) Regulations 1966 and the Asbestos Regulations 1969. I heard argument on the question of whether these Regulations were applicable to the work upon which the deceased was engaged. In the event, having regard to my findings on the issue of negligence, it seems to me that the question is entirely academic. It is therefore unnecessary for me to determine the issue.

Material contribution

60. In the case of Fairchild v Glenhaven Funeral Services Ltd and Others [2003] 1 AC 32, the House of Lords found that, in a mesothelioma case such as the present one, where there has been exposure at different times with different employers, proof that a defendant's wrongdoing has materially increased the risk of contracting the disease is sufficient to satisfy the causal requirements for liability. In this connection, the claimant relies on the unchallenged evidence of Dr Christopher Hardy, consultant in general and respiratory medicine, who, having considered the available evidence at length, concluded that the deceased's exposure to asbestos with both Cotterells and GFR made a material contribution to the development of his mesothelioma.
61. Mr Cowan concedes that, if I were to find that the deceased's exposure to asbestos during his employment with Cotterells was far greater than his exposure while working for GFR, then his exposure with the latter may be regarded as de minimis and as not meeting the Fairchild requirements for establishing causation. He contends, however, that that is not the case since the exposure with the two employers was similar and, even if the exposure with Cotterells was greater, this was not to the extent as to render the exposure with GFR de minimis.
62. Mr Evans suggests that Dr Hardy's opinion is based on a false premise, namely that the deceased was regularly engaged in stripping asbestos lagging from around pipes and boilers. He submits that, in reality, any exposure to asbestos dust was of such a limited extent as to make no material contribution to the risk of developing mesothelioma and that I should so find.
63. I am satisfied to the required standard that the deceased's asbestos exposure, which I have summarised at paragraph 55, was sufficient substantially to contribute to his risk of developing mesothelioma. That exposure was not trivial or occasional; it was significant and it occurred over a period of years. It cannot in my view properly be described as de minimis and was, as I have found, comparable to his earlier exposure with Cotterells. Thus the causal requirements referred to in Fairchild are fulfilled.

Order

64. There will therefore be judgment for the claimant in the sum of £118,610, inclusive of interest.