Maggs v Anstey [2007] EWHC 515 (QB)

[2007] EWHC 515 (QB)Case No HQ05X02399
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 March 2007
Before
MR JUSTICE RODERICK EVANS
Between
MAUREEN ELIZABETH MAGGSClaimantALFRED JONATHAN ANSTEYDefendantFormerly trading as AJ AnsteyDefendant
Mr Allan Gore QC and Mr Richard Viney (instructed by Humphreys & Co Solicitors) for ClaimantMr Charles Feeny (instructed by Eldridge & Co Solicitors) for DefendantHearing Hearing dates: 5 th and 6 th February 2007
Judgment
[1]Roland Henley Maggs died on 21st October 2005 aged 69 years. The cause of his death was mesothelioma which, it is claimed, was caused by exposure to asbestos dust while he was employed by the defendant. In August 2005 Mr Maggs commenced these proceedings to seek damages for personal injury and consequential loss and after his death his widow, Maureen Elizabeth Maggs, continued the proceedings on her own behalf and on behalf of the estate of her late husband. Liability is in issue between the parties but, subject to liability, damages are agreed in the sum of £230,000.

The background

[2]In 1947 the defendant Alfred Jonathan Anstey, who is now in his late 80s and not fit enough to attend court to give evidence, set up a general haulage company and traded as AJ Anstey. The company was based in Winterborne in Bristol and the majority of its customers were based in that area. The defendant’s son, Michael Anstey, joined the company in 1963 initially as a driver’s mate. He became a driver when he was 17, a partner in 1974 and took control of the company in 1986 on the defendant’s retirement.[3]The company had regular customers. One was a company called Ashton Containers who were based in Bristol. For this company the defendant hauled collapsed corrugated cardboard boxes and delivered them to destinations all over the UK. Another regular, if less frequent customer, was Golden Valley Company which was based at Wick and Yate. For Golden Valley the defendant hauled powder paint from Golden Valley’s premises to their customers all over the country. This paint was packed in large paper bags, the size of cement bags. On occasions, the defendant would also collect bags of ochre for Golden Valley from Avonmouth docks and transport it to Golden Valley’s premises. The ochre was either red or yellow and was transported in Hessian sacks, each full sack weighing 2 - 2½ cwt. Drivers engaged in hauling the ochre were required to undertake some manual handling of the sacks of ochre. The ochre produced a great deal of dust and the drivers who were involved with it were often covered in dust which was the colour of the ochre which they were transporting. Some lorries were not used to transport the ochre in order to keep them free of this dust.[4]In addition to working for his own customers the defendant would also haul for other haulage contractors and also obtain loads from clearing houses.[5]Mr Maggs commenced employment as a driver with the defendant on 4th April 1966 and remained in his employ until 22nd July 1972. He was a good worker; hardworking to the point of being something of a workaholic. He would work long hours and undertake long journeys. Normally he transported cardboard for Ashton Containers. On 1st May 1970 the defendant purchased his first articulated lorry. It was an AEC Mercury lorry; it had two axles on the cab unit and one on the trailer. It could carry 16 tonnes. It was Mr Maggs who would drive this lorry.[6]The defendant took possession of a further articulated lorry a year later on 1st May 1971. This was an AEC Mandator; the trailer which came with this tractor unit had two axles and could carry 22 tonnes. When this lorry joined the defendant’s fleet Mr Maggs became its regular driver. Each driver employed by the defendant had a vehicle which he usually drove although circumstances sometimes arose when a driver would drive a vehicle other than his usual vehicle. As far as the articulated lorries were concerned the trailers were interchangeable so that the Mercury could pull the 2 axle trailer and the Mandator the single axle trailer.

Mr Maggs’s illness

[7]In the early spring of 2004 Mr Maggs first experienced symptoms of breathlessness. Over the coming months his condition deteriorated. On 22nd July 2004 he was admitted to Frenchay hospital suffering from chest pains. A history was taken from him and the doctor in trying to establish a cause for Mr Maggs’s symptoms must have asked him whether he had been exposed to asbestos during his working life as the clinical notes record “no occupational exposure”.[8]On 28th August 2004 Mr Maggs was readmitted to Frenchay hospital where he remained as an inpatient for some 5 weeks. Again a clinical history was taken. The notes, no doubt recording what Mr Maggs told the doctor, read “no history of occupational asbestos exposure”. Further clinical notes dated 6th September 2004 also record Mr Maggs as saying that he “never worked with asbestos”.[9]On 24th September 2004 a diagnosis of “likely” mesothelioma was made and Mr Maggs was informed. He was asked again about possible exposure to asbestos and told of the potential link between asbestos and mesothelioma. On this occasion the notes record Mr Maggs giving an account of an incident of exposure to asbestos. The notes read:
“One definite asbestos exposure. Loaded lorry with sacks of asbestos at Avonmouth. Drove to Watford. Unloaded. No other episode.”

The evidence of Mr Maggs

[10]Mr Maggs made two witness statements (dated 12th March 2005 and 10th September 2005) and also gave evidence on commission on 6th October 2005, a little over a fortnight before he died. That evidence was recorded on DVD and the DVD was played as evidence during the case. There is some variation in detail in the account of Mr Maggs’s exposure to asbestos given in the statements and that given on commission with more detail being added by Mr Maggs when he was cross-examined. However, the account which he gives can be summarised as follows. It was a Friday before a bank holiday which Mr Maggs firmly believed was an August bank holiday either in the late 1960s or early 1970s. Work was slack and Mr Maggs had no load for the Tuesday following the bank holiday. Mr Maggs asked whether his employers could obtain for him a load in the Bristol area. Mr Maggs was later told that he should pick up a load from Avonmouth and take it to Watford. In an early account Mr Maggs could not recall whether it was the defendant or his late wife Rose, who also worked in the business, who gave him this information but during his evidence on commission he said that it was Mr Anstey the defendant. Mr Maggs’s recollection was that this load was obtained from a clearing house – probably Western Freights Limited. This, according to Mr Maggs’s recollection was the first time that he had driven to Avonmouth docks for the defendant to pick up a load and that the lorry he was driving was an articulated lorry which he believed was the smaller lorry because the dockers wanted to put 20 tonnes on the trailer and Mr Maggs told them that he could carry only 15 tonnes because he had a single axle trailer. Mr Maggs conceded that he could have been driving the Mandator cab with the single axle trailer behind. Mr Maggs could not remember the shed at the docks where the load was picked up but he did recall that he was at the top end of the docks near the oil terminal. When he arrived he saw 10 to 15 lorries there all picking up the same kind of load from hundreds of bags which were on the dockside. The bags were being lifted on pallets onto the quayside by crane and then lifted by crane and/or forklift truck onto the back of Mr Maggs’s lorry. Mr Maggs watched the loading and then secured the load with a sheet. It was a hot day and the bags were made of a woven material; they gave off a grey dust into the atmosphere. So much dust was released that he had to clean the windows of his lorry before leaving the docks. The loading took about 4 hours and neither the dockers nor Mr Maggs were given any kind of protective clothing.[11]On that Friday Mr Maggs said that he drove the load back to the defendant’s depot in Winterborne where it was kept under cover over the bank holiday weekend. Early on the Tuesday morning he said he took the load to an address in Tolpits Lane (Mr Maggs recalled it as Tolpoint Lane) in Watford where he arrived by 6.30am. For deliveries in London, Mr Maggs used an A to Z on which he marked the addresses to which he was going but on this occasion the A to Z did not cover the area to which he had to deliver in Watford and he recalled he had to ask for directions on the way. He believed the word “asbestos” appeared in the name of the factory in Watford to which he made the delivery or on the sign outside the factory and that the recipient of the load was the Universal Asbestos Manufacturing Company Limited. There were sheets of asbestos stacked in the factory.[12]There were other lorries delivering similar loads to this factory in Watford. In his first statement Mr Maggs said that there were 6 to 8 other lorries which were delivering bags to the factory and in his second statement he says that he recalled when driving through the gate into the factory that there were between 10 and 15 lorries down there. He does not say whether all 10 to 15 lorries were delivering. One of the lorries which was delivering to the factory belonged to another Bristol haulage firm named Kelins. This lorry had been loaded at the docks at the same time as Mr Maggs’s lorry. Mr Maggs said that he informed the impression that the factory was suffering some problems because a security guard said that the factory was closed for intake of goods and that there were maintenance men coming in. The drivers were told to unload their own lorries or wait till the next day to offload. The lorry drivers helped each other to unload and when his lorry was unloaded Mr Maggs said that he moved the bags which weighed about 1 - 1¼ cwt each to the side of the lorry so that another driver could take the bags and stack them on pallets. This offloading again took about 4 hours. It was a hot day and Mr Maggs said he took his shirt off when he was working. The process was dusty and clouds of dust hung in the atmosphere which he must have breathed in. No protective clothing was worn. Mr Maggs said that he commented to one of the men at the factory about the dust and asked what the product was. He was told that it was the raw material for asbestos. Prior to arriving at the factory Mr Maggs said he did not really know what it was that he was carrying.[13]There is evidence which is capable of supporting Mr Maggs’s case. Firstly, there is evidence during the period of Mr Maggs’s employment with the defendant that asbestos was being imported in Hessian bags via Avonmouth docks and that handling those bags was a dusty process. Secondly, a company called The Universal Asbestos Manufacturing Company Limited was connected with a factory at an address in Tolpits Lane in Watford between 1967 and 1977. The history of the trading name of the company appears in various documents before me. The Universal Asbestos Manufacturing Company Limited was incorporated in 1937. In March 1967 Plumefern Limited (then called The Universal Asbestos Manufacturing Company Limited) was acquired by Cape Plc. On 1st July 1968 The Universal Asbestos Manufacturing Company Limited changed its name to Cape Universal Building Products Limited. On the same day Plumefern Limited agreed to transfer its business and assets to its parent company, Cape Plc, on terms that pending completion Plumefern Limited would carry on the business as before, in fact, as agent for Cape Plc. This transfer was never completed. Plumefern went into liquidation in 1977. It is, therefore, a reasonable inference that a company trading as The Universal Asbestos Manufacturing Company Limited traded from and manufactured asbestos products at the Tolpits Lane in Watford during the period when Mr Maggs was employed by the Defendant.[14]Thirdly there is the evidence of Dr Rudd, a consultant physician who states that mesothelioma is a rare tumour in persons who have not been exposed to asbestos. Although occasional spontaneous cases unrelated to exposure to asbestos do occur, when there is a history of past asbestos exposure the balance of probabilities strongly favours that exposure having been responsible for a mesothelioma which occurs subsequently. A low level of exposure to asbestos can cause mesothelioma and the kind of exposure described by Mr Maggs involving high airborne dust levels, although brief, probably materially increased the risk that he would develop mesothelioma.

Evidence for the defence

[15]AJ Anstey was a small haulage firm which did not carry hazardous or dangerous products and neither the defendant nor his son Michael has any recollection of the business carrying asbestos. During the course of these proceedings Mr Michael Anstey found old diaries for the years 1966, 1967, 1970, 1971, 1972 in which one of his parents would enter work related matters and rate books covering the period of Mr Maggs employment with the defendant in which Mrs Anstey would enter details of the rates charged for work undertaken by the business.[16]In 1966 there are entries relating to deliveries of ochre for Golden Valley to Cape Building Products in Uxbridge. Cape Building Products was a company related to The Universal Asbestos Manufacturing Company Limited of Watford but there is no record in any of the books of a delivery to The Universal Asbestos Manufacturing Company Limited or any related company at Watford. Work for Golden Valley ceased in about 1968 and there is no record that Mr Maggs ever did any of the Golden Valley work.[17]Prior to the early 1980s when the defendants lost the Ashton Container work there would have been very few occasions when the haulage business was short of work. However, there is significant entry for Friday 7th July 1967. It reads:
“Work slack at AC – Rolly [Mr Maggs] loaded copper at Avonmouth docks for Silver Roadways – delivered to Worcester on Monday.”
[18]This is the only entry which records Mr Maggs going to Avonmouth docks. It was to pick up an unusual load (copper ingots), it was for a clearing agency and occurred on a Friday when business was slack. Meteorological evidence shows the temperature that day reached 19º centigrade.[19]Contrary to the recollection of both Mr Anstey Jr and Mr Anstey Sr, one of the rate books records the company as carrying a load of 10 tonnes of asbestos from Watford to Gloucester on 6th November 1969. This load would, in all probability, have comprised finished products not raw asbestos. Although Mr Michael Anstey has no recollection of the business doing work for Western Freight the name of Western Freight is recorded in the 1972 diary and he concedes that it is possible that the business did some work for that agency.[20]Reliance is placed on the diaries and rate books to show not only that there is no record of Mr Maggs collecting and delivering raw asbestos as he alleges but also to show that on bank holiday weekends, especially August bank holiday weekends, the entries indicate that Mr Maggs was not engaged in the pick up and delivery which he claims to recall. For example, the diary for 1970 records Mr Maggs as being on a fortnight’s holiday from 22nd August to 4th September – a period which covered August bank holiday. Mr Maggs, however, in his evidence on commission said that he never took two weeks holiday and would not take bank holidays off as, being a professional driver, he would be so fed up of driving that he would not drive on roads crowded by bank holidaymakers or go to resorts which were full.[21]The 1971 diary shows that the defendant and his wife were on holiday in Belgium during the week before August bank holiday and that they returned to Bristol on the evening of Saturday 28th August. The entry for Friday 27th August does not record what work Mr Maggs did that day; on Saturday 28th August he is recorded as working on maintenance and on Sunday 29th as working for “Transhipping etc”. Mr Maggs had Monday bank holiday off and on Tuesday 31st August he is recorded as “Loading at ACL (Ashton Containers Limited) for Evercreech and Wells and reloading at ACL”. Mr Michael Anstey considered it was possible that Mr Maggs could have delivered to Watford early in the morning of Tuesday 31st August and done the work entered in the diary in the afternoon but thought it unlikely that he would have been able to do so as he would probably have been over his permitted driving hours.[22]Although the diaries and rates books were initially put forward as providing a complete record of the work carried out by the defendant Mr Michael Anstey agreed that there were entries which he did not understand, others which were incomplete in that they did not show the nature of the load carried or the person for whom the work was done and other entries which simply did not record the work done (for example 26th – 30th May 1972, Whitsun bank holiday). He agreed that there was a rates book missing for the relevant period and that he could not say from his own knowledge that the books were accurate or complete.

The competing submissions

[23]Mr Gore, on behalf of the claimant, submits, correctly in my judgment, that he does not have to prove the precise dates on which Mr Maggs was exposed to asbestos dust. What he has to prove is that the exposure occurred during Mr Maggs’s employment with the defendant and to that end it is enough if he shows on the balance of probabilities that the opportunity existed during his employment for the exposure to have occurred as described. The defendant’s diaries and rate books do not exclude that opportunity and the issue upon which I have to focus is whether the account given by Mr Maggs is basically accurate.[24]Mr Feeny accepts that in order for the claim to succeed it is not necessary to prove the precise dates upon which exposure occurred. However, he submits, that I should not jettison essential elements of Mr Maggs’s account such as his recollection that the load of asbestos was carried by him either side of an August bank holiday weekend and that it was carried on an articulated lorry. The diaries exclude the August bank holiday weekends in 1970 and 1971 and to find that Mr Maggs could have carried this load over an Easter or Whitsun bank holiday weekend would be to start on a slippery slope. Mr Maggs, he suggests, was correct in stating that he had been to Avonmouth docks to collect a load on only one occasion. That was the occasion in July 1967 when he picked up the load of copper ingots. Many of the details of this load fit his present recollection (work was slack, it was a hot day, an unusual load, for an agency). It is not suggested that Mr Maggs was exposed to asbestos in any other employment which he undertook or that he is knowingly giving a false account. However, Mr Maggs’s recollection has wrongly confused the load of July 1967 and his initial responses to the doctors who took his history that he was not exposed to asbestos were correct. This mesothelioma, as is acknowledged to be medically possible, arose without exposure to asbestos.

My findings

[25]Both Mr Maggs and Mr Michael Anstey were honest and straightforward witnesses who within the limits of their recollections, and in the case of Mr Anstey within the limits of his knowledge of the defendant’s business at the time when Mr Maggs was employed by the defendant, did their best to give accurate and helpful evidence. In assessing their evidence I bear in mind the circumstances in which they, and in particular Mr Maggs, came to have to give the evidence they did and the fact that they were recalling events which occurred approximately 35 years ago. I found Mr Maggs’ account of how he collected the load at Avonmouth docks and delivered it some days later to an address in Tolpits Lane, Watford where he helped unload it convincing. His description of the dusty nature of the load, his accuracy in recalling the delivery address at Watford and the fact that it was off the A to Z, his recollection of the name of the company and his explanation at how he came to know of the nature of the load are all details which add credence to his account. It is not, however, surprising that Mr Maggs’s recollection is not entirely accurate. For example, it may be that he was wrong in recalling that it was the defendant or the defendant’s late wife who informed him of the availability of the load at Avonmouth and in error in stating that that was the only time he collected a load from Avonmouth docks. However, inaccuracies of this nature do not undermine the fundamental accuracy of his recollection. I am satisfied that there is no confusion in Mr Maggs’ mind between the load of asbestos which I find he carried and the load of copper ingots which the documents indicate he collected from Avonmouth docks in 1967.[26]I further accept that Mr Maggs’s recollection was accurate when he said he picked up the load in an articulated lorry. This would date the load as after 1st May 1970. I am satisfied that the diaries and rates books which are before me cannot be regarded as a complete and wholly accurate account of the defendant’s work and they do not exclude the possibility that this load was collected and delivered either side of a bank holiday weekend. I accept that Mr Maggs dealt with this load either side of a bank holiday weekend. Furthermore, I am persuaded by his evidence that he never took two consecutive weeks holiday and that he and his wife would “never go anywhere over a bank holiday” for the reasons he gave during his evidence on commission and which I have mentioned above. Insofar as the 1970 diary indicates the contrary in relation to August bank holiday that year, I find that the entry is not accurate. In relation to August bank holiday Tuesday 1971 I reject Mr Anstey’s suggestion that Mr Maggs would have been unlikely to have delivered at Watford before undertaking the work listed for him in the diary as he would have been likely to have exceeded his permitted driving hours. No detail of what the permitted driving hours were in August or September 1971 have been put before me but in any event the days timetable, including a delivery at Watford, would have required significant periods of non-driving time, for example, off-loading at Watford. Mr Maggs was the kind of worker who would have undertaken long journeys and long working days and on the basis of the driving times given to me in evidence, I am satisfied that Mr Maggs could have done all this work on that Tuesday following the August bank holiday 1971.[27]Furthermore, were it necessary to consider bank holidays other than August bank holidays I am satisfied that there were other bank holidays between 1st May 1970 and 22nd July 1972 (for example Whitsun 1972) when Mr Maggs could have carried this load.[28]I find that the circumstances in which Mr Maggs first came to recall that he carried this load of asbestos add to, rather than detract from, his credibility. Given the nature of his employments and the loads he regularly carried, his initial denials of exposure to asbestos are understandable. It was only when a diagnosis of mesothelioma was advanced that, as he said in his evidence on commission, he “had to really start thinking”. It was then that he remembered this load and described it to the doctors well before lawyers became involved and proceedings were commenced.

Liability

[29]I therefore find that Mr Maggs was exposed to asbestos while employed by the defendant on a bank holiday after 1st May 1970. The first bank holiday after 1st May 1970 was the weekend of Friday 22nd to Tuesday 26th May. By this time the Asbestos Regulations 1969 which came into force on 14th May 1970 would have applied to the defendant’s business and it is common ground between the parties that if exposure to asbestos occurred after 14th May 1970 while the claimant was in the employment of the defendant liability attaches to defendant.

Conclusion

[30]There will be judgment for the claimant in the agreed sum of £230,000.