Willmore v Knowsley Metropolitan Borough Council [2009] EWHC 1831 (QB)

[2009] EWHC 1831 (QB)Case No 8LV90020
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Date 24/07/2009
Liverpool District Registry
Liverpool Civil Justice Centre
Before
THE HON. MR JUSTICE NICOL
Between
Dianne WillmoreClaimantKnowsley Metropolitan Borough CouncilDefendant
David Allan Q.C. instructed by John Pickering and Partners LLP for ClaimantCharles Feeny of Counsel instructed by Berrymans Lace Mawer for DefendantHearing Hearing dates: 8 th and 9 th July 2009
Judgment
[1]This is the trial of a claim for damages by Mrs Willmore for negligent exposure to asbestos fibres while she was a pupil at her secondary school in Huyton between 1972 and 1979. That school was originally called Page Moss Comprehensive School. It later changed its name to Bowring Comprehensive. I shall refer to it as ‘Bowring’. It was the responsibility of the defendant, Knowsley Metropolitan Borough Council, or their predecessors. The Claimant did not develop symptoms until 2006 when she began to experience breathlessness. In March 2007 she was diagnosed as suffering from malignant mesothelioma of the pleura. The disease in her case is inoperable. Although she did initially respond positively to chemotherapy, her condition has since declined. The disease is terminal and in April 2009 her life expectancy was estimated to be less than 6 months.[2]If the Defendant is liable, damages have been agreed at £240,000 gross, that is before allowance is made for reimbursement of certain statutory benefits. Liability, however, is disputed. It is this issue which I now have to resolve.[3]The medical evidence in this case comes from Dr R. M. Rudd, a consultant physician and well-known expert on asbestos related diseases. He confirmed the diagnosis of the Claimant. He says that mesothelioma is a rare tumour in people who have not been exposed to asbestos, occurring with an annual incidence of around one in a million of the population. There was no real dispute on the part of the Defendant that it was more likely than not that the Claimant’s mesothelioma was caused by asbestos fibre.[4]In Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 the House of Lords held that it was not necessary for a Claimant, who sought to recover damages for negligent exposure to asbestos, to show that, but for the exposure for which the defendant was responsible, she or he would not have contracted mesothelioma. It was sufficient if the defendant’s exposure materially contributed to the risk of contracting the disease. There are a number of features of mesothelioma which led the House to this conclusion. Firstly, it can be triggered by very small quantities of asbestos dust. As Dr Rudd put it, in his report of 23rd January 2008 for the present Claimant, ‘Mesothelioma can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk.’ Second, the risk of contracting the disease increases with each exposure. Third, the very long interval between exposure and onset of symptoms means that potential causes are likely to have occurred at a very distant time. Finally, there is no way presently known to medical science of distinguishing the source of the particular asbestos which acted as the trigger for the disease.[5]Because of Fairchild it is not necessary for the Claimant to show that asbestos from Bowring was responsible for her disease to the exclusion of other possible sources. Shortly after her diagnosis, she made a claim for payment under the Pneumoconiosis etc (Workers Compensation) Act 1979. She listed her previous employment and, with the assistance of an advisor, identified one of the shops where she had worked between 1978 and 1981 as a place where she had been exposed to asbestos. She received a substantial payment of compensation as a result. She may or may not have been correct about this shop being a source of asbestos. It would not matter either way as far as her present claim is concerned if, while at Bowring, she was also exposed to asbestos in a way that materially increased the risk of her contracting the disease.[6]The fact that meosthelioma can be triggered by very small quantities of asbestos dust does have the consequence that it may in principle have been caused by asbestos encountered in the general environment or from some other unknown cause. Mr Feeny, on behalf of the Defendant, referred to research by Julian Peto and others, ‘Occupational, Domestic and Environmental Mesothelioma risks in Britain. A Case Controlled Study, published in March 2009 to show that in a high proportion of cases, it had not been possible to identify a particular source of asbestos exposure. Thus, even if the Claimant’s mesothelioma was probably caused by asbestos, this could have been encountered in the general environment or from some other unknown source.[7]There is a further limitation which I must take account of in determining the issue of causation. The well known legal principle - de minimis non curat lex roughly translates as ‘the law does not concern itself with trifling matters’. As Maurice Kay LJ saidin Rolls Royce Industrial Power (India) Ltd v Cox [2007] EWCA Civ 1189 at [21], ‘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.’[8]Quite what would constitute de minimis in this context was the subject of some discussion at the trial. Mr Allan QC, on behalf of the Claimant, accepted that if there had been but a single occasion when the Claimant had been in the vicinity of asbestos dust in the school, that would not be enough. However, he contended that not very much more would be needed. He draws attention to the unchallenged evidence of Dr Rudd who said in his report of 16th June 2009, ‘It will be a matter for the Court to determine on the basis of the evidence presented by witnesses and consultant engineers from which source or sources Mrs Willmore sustained significant asbestos exposure where ‘significant’ is defined in accordance with the definition adopted in relation to mesothelioma causation by the Industrial Injuries Advisory Council in their 1996 report (Cm 3467):
‘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.’ Mr Feeny contended that to be more than de minimis it would be necessary for the Claimant to show that she was with some degree of regularity in a situation where she was likely to be in contact with asbestos fibres in the school. I will need to return to this topic.[9]Apart from causation, the Claimant must also establish that the Defendant was negligent. There is no doubt that the Defendant owed the Claimant a duty of care while she was a pupil at Bowring. In deciding whether the Defendant’s acts or omissions were in breach of that duty, I must have regard to the available state of knowledge about the danger of asbestos in the relevant period of 1972-1979.[10]Since at least the 1930s the connection between working with asbestos and asbestosis has been known. However, the broader danger from asbestos, even for those who were not themselves working with the product, was not really highlighted until a study by Newhouse and Thompson in 1965. This was followed by the important Annual Report of H.M. Chief Inspector of Factories on Industrial Health in 1966 (HMSO Cmnd 3359). This referred to the three types of asbestos: crocidolite (sometimes called blue asbestos), amosite (or brown asbestos) and chrysotile (or white asbestos). The report said at p. 60 ‘At present, crocidolite seems to be especially associated with the occurrence of mesothelioma, but no one can say that other forms of asbestos may not be implicated. Only epidemiological studies extending over many years can provide the answers. While such studies are proceedings, the only safe course is to eliminate the escape of asbestos dust into the air.’[11]Accordingly, Mr Allan submitted that there would be negligence if the defendant had exposed the Claimant to asbestos fibres when there were reasonably practicable alternatives which would not have involved such exposure.[12]I can now return to the facts. Mrs Willmore made the transition from primary to secondary schools in September 1972. She was nearly 12. Bowring was one of the very first comprehensive schools in the country. It was a newly built school and the construction had not been completed in that September. For the first few months, therefore, she was taught at a neighbouring school. It seems that she began at Bowring itself in about November 1972. Because this was a new school, there was not a full complement of pupils. Mrs Willmore was in the first year (what would now be known as Year 7). She was part of the Junior School.[13]Bowring was arranged in four blocks on each side of a square or quadrangle. Each block was two stories. The Junior Block was on the South side and flanked Western Avenue. The block on the Western side of the square was known as the Administration Block. Along the side of the Administration block which faced into the square there was a staff room. A long corridor ran between the staff room and the rest of the block. Half way along this corridor, another corridor ran at right angles towards a Sports Hall. These two corridors are sometimes known as the ‘T’ shaped corridor. This block also had a basement where the boiler was housed. The Claimant gave evidence that sports equipment was also kept in the boiler room. On the North and East sides of the square was an ‘L’ shaped building. This contained a library, language laboratories and other rooms.[14]The Upper floor of the Junior Block, at least originally, extended up into the pitch of the roof. The roof was lined with a novel building material which had the appearance of compressed straw. According to several witnesses, it would occasionally drop bits of grit and dust on those who were below. It is not suggested that there was any asbestos in this material. Although there were some dividers between the rooms on this floor, it had something of an open plan character to it. There was evidence at some stage that this was altered to provide more substantial divisions between the rooms and to allow for the introduction of corridors so that a person did not have to go through one room to get to another. I will return to further evidence from the Claimant’s witnesses that a suspended ceiling was created on this floor of the Junior Block.[15]Although the Claimant was part of the Junior School when she began, it was not said that she was confined to the Junior Block. From time to time there would be a need for her to go to various other parts of the school.

Evidence of asbestos in Bowring from the Defendant’s documents

[16]There appears to have been no contemporary survey of the use of asbestos in Bowring during the time that the Claimant was a pupil there. As her claim was originally formulated, it made no reference to Bowring at all. The Claimant was only alerted to the possibility that there may have been asbestos in Bowring by an article in the Liverpool Echo of 14th February 2008. This in turn drew on a document which the Defendant had prepared in June 2004 and which had summarised the condition of the Defendant’s schools. For Bowring (and five other schools) it was said ‘Asbestos is prevalent throughout the building’.[17]A wide ranging survey was conducted in 2008 by BES Consulting. This was a ‘type 2 survey’ i.e. it did not disturb any of the fabric so it is possible that there was other asbestos that had not been detected. To some extent, the survey incorporated data from one or more earlier surveys although their date or dates could not be established. I was invited to infer that any asbestos identified by this survey would have been present during the Claimant’s time (since asbestos would not have been used in building materials from the 1980s onwards). The BES Survey would not show all of the asbestos that was present during her time because some might have been removed during the intervening years. Of particular relevance to the present claim was the identification of asbestos in the following locations: insulating board panels to the ceiling of what had become a community room and the reprographics room but which had both been part of the staff room in the Administrative Block. Insulating board panels with asbestos were also found in the PE staff room, adjacent to the corridor that ran to the Sports Hall. Insulating Board panels with asbestos were also found in the male and female toilets in what had been the Junior Block. In the boiler house there was insulating board debris on the top of the boilers and the floor. Additionally, the boiler house contained Insulating board panels to RSJs, rope and gaskets all of which were found to contain asbestos.[18]On 25th March 2002 Asbestos Analysis Services Ltd reported to the Defendant that four samples submitted to them from Bowring had all contained amosite or brown asbestos. These samples had come from the panels on the joists of the boiler room, the staff kitchen ceiling, a ceiling panel from the corridor outside the caretaker’s office (this was part of the corridor which had also run parallel to the staff room in the Administration Block) and a ceiling panel under an external walkway. A handwritten annotation indicates that the panel in the corridor was removed in 2004, but no other documentation was produced relating to this removal.[19]In September 2005 quotations were obtained for the removal of ceiling tiles to boys and girls’ toilets in the drama block, in the reprographic rooms and from two linked bridges. All were said to contain asbestos. Another quotation was given in January 2006 for the removal of asbestos ceiling planks from the first floor staff kitchen, The ceiling tiles do not seem to have been removed from the toilets in the drama block in 2005 because there is a further reference to plans for this job in May 2008. The detailed method statement provided by the contractor for this job describes the ceiling as ‘AIB [i.e. Asbestos insulation board] ‘lift-out’ ceiling tiles and metal grid system’.[20]There is an interdepartmental memorandum from the Chief Executive and Town Clerk of 6th July 1976 which shows an awareness of the dangers of asbestos fibres (although the Claimant would say that its precautions did not go far enough).[21]Of greater importance is another interdepartmental memo dated 11th January 1982 from an officer of the Defendant on the subject of ‘Asbestos in Schools.’ The relevant parts of this document said:
‘As you are aware there have been several occasions recently where work with asbestos materials has given the Safety Section cause for concern. One area for concern involved the cutting of Asbestos ceiling tiles adopting a method that, in the opinion of the Safety Section, was considered to be unsatisfactory. In order to clarify the position and give guidance to Headteachers, attached is a copy of ‘Safe Working Procedures’ that must be adopted by the Contractors, when working in school premises… Many of the schools throughout the Authority have Asbestolux ceiling tiles installed within the premises, however, the tiles present no hazard to health whilst they remain in situ or are disturbed to a minor degree. …. With regard to work of a minor nature, you will note that most asbestos board tiles are secured with screws to enable easy removal, it is however recommended that the area be taken out of use and the workmen concerned wear personal protection in the form of a suitable respirator. … Procedure to be adopted when working with asbestos board …. Generally speaking work of this nature should, as far as reasonably practicable, be carried out when pupils are not attending school i.e. weekends and holidays.’

Procedure to be adopted when working with asbestos board

[22]Mr Allan asks me to infer that this document would only have been necessary if the practices and procedures which it prescribes were not commonly adopted when asbestos was handled in the Defendant’s schools prior to this time. Specifically, the cutting of ceiling tiles had been a cause of concern for the Safety Section.

The Claimant’s case on exposure in summary

[23]The Defendant emphasises and the Claimant accepts that the mere presence of asbestos in building materials in the school is not sufficient for her case. The hazard arises from asbestos dust or particles. The Claimant or her witnesses allege that she was exposed to such dangers in various ways while she was at the school:a. Work on the ceiling tiles in the T shaped corridor while the Claimant and other pupils were in the school and passing through that same corridor.b. The completion of the original construction works at the school in the first few months. This may include (a) but it is convenient to examine it separately.c. The installation of a suspended ceiling in the Junior block.d. The disturbance of ceiling tiles by pupils’ misbehaviour.e. Ceiling tiles in the girls’ toilets.

Oral evidence: general comments

[24]I heard evidence from the Claimant, Lynn Welsh (who started at Bowring in 1972 in the year ahead of the Claimant) and Hazel Jones who had been in the same class as the Claimant. On the Defendant’s behalf, I heard from Frederick Edmondson (who had been a Maths teacher at Bowring from September 1974 until his retirement in 2008), Joan Duck who was Senior Mistress and then Deputy Head of Bowring from September 1972 until summer 1992 and Trevor Sergeant who was successively Year Tutor, Head of Lower School and then Senior Pastoral Tutor at Bowring from 1975 – 1999.[25]All of the witnesses shared the predicament of trying to recall events and situations that had taken place between 30 and 38 years previously. This was inevitably taxing and, as Mr Feeny put it, memory can easily play tricks on the power to recall.

Work on Ceiling tiles in the T shaped corridor

[26]In her second witness statement, the Claimant said ‘I remember by the Sports Hall, tradesmen routing wires through the ceiling, they stood on step ladders to do it. We bantered with them, we knew them well enough to do this. We weren’t told not to talk to or approach them. Routing of cables went on right across the school. They had to take the ceiling tiles down to do this.’ In her oral evidence she said that she remembered the ceiling tiles being stacked in the corridor while the workmen were on the ladders and working in the ceiling void.[27]Memory had played tricks with certain other matters that the Claimant thought she could recall. Her claim against the Defendant was originally based on allegations of exposure to asbestos from playing with rubble and debris left over from some demolition work for which the Defendant had been responsible. The Claimant had alleged that these materials included asbestos, but the Defendant was able to establish that this had not been so and these allegations were withdrawn. In her evidence in chief she had also said that the completion of works on the school had been hurried because Harold Wilson (then Prime Minister and the local MP) was coming formally to open the school, but contemporary documentation showed that this did not take place until November 1974, some 2 years after the Claimant and her fellow pupils had moved in to Bowring.[28]Lynn Welsh also recalled seeing workmen working on the suspended ceilings, wires hanging down where the ceiling tiles had been removed (which were then stacked in the corridor) and workmen on ladders.[29]Of the Defendant’s witnesses, the only one who was present in the first two years of the school’s existence was Ms Duck. She said that she never encountered workmen on the way to her office. However, I note that her office was located on the first floor, not the ground floor where the T shaped corridor was. It is fair to say that Ms Duck did not remember workmen having been in the corridor next to the staff room (which is part of the T corridor). She did not recall seeing any tiles piled in the Administrative block. She said ‘we had a tidy and safe school.’[30]Although I cannot be certain, I think that it is more likely than not that there was a period when workmen had removed the tiles in this corridor in order to work on the wiring or piping behind them. It is also more likely than not that the tiles would then have been stacked temporarily in the corridor. I appreciate what Mr Feeny had to say about matters where the Claimant had been shown to be unreliable. However, when it came to her oral evidence, I thought that she was careful in what she said. She conceded when she could not be sure. She did not try to exaggerate or give answers which would have improved her case. I take into account her mistake as to the nature of the building debris which she had played with as a young child: she thought it had included asbestos when it had not. But that does not mean that I should dismiss her evidence of the workmen on the ladders in this corridor. Of course it is the case that even an honest witness can make mistakes, particularly over that length of time. But her account in this respect fits with the general impression that the school had not been fully completed even when everyone moved in after a few months delay. Much of the remaining work had to be done on the ‘L’ shaped block, but it would not be surprising if some tasks in other parts of the school still had to be completed. There is no dispute that the ceiling above this corridor was formed by removable tiles (although it is unclear whether the tiles had been screwed down). The advantage of that arrangement is that they can, with relative ease, be taken down to allow work to be done on the utilities above them. There is also some support for the Claimant’s account in this respect from Ms Welsh. However, I did not feel that I could place the same reliance on her evidence. I stress that I am not saying that I thought she was deliberately trying to mislead. She was not. But her manner of giving evidence, the changes in tack, the sudden elaborations of detail, the occasions when her evidence could be demonstrated to be inaccurate all meant that her evidence did not instil confidence in its accuracy. It was of some value when (as in this instance) it was consistent with other evidence. Where Ms. Welsh’s evidence stood alone, I did not feel that I could rely on it.[31]The Claimant could only remember one occasion when she passed the workmen, but she said that she thought they were there for some time. In her second witness statement she said ‘We bantered with them, we knew them well enough to do this.’ For the memory to have stayed with her after this long period of time it is likely that she must have encountered them more than once. The Claimant said that she used that corridor frequently. She would have passed that way to get to the Sports Hall (and she was fond of sport). The staff room was also there. I think that I can infer that the workmen must have been present for some days for their presence to have been remembered by the Claimant and Ms Welsh, but whether it was more than a week, the evidence does not allow me to conclude.[32]On all the evidence, I conclude that it was more likely than not that all of the ceiling tiles in the T shaped corridor included amosite or brown asbestos. As I have noted, in 2002 a ceiling panel from outside the caretaker’s office (and which would therefore have been from part of this corridor) was analysed and found to have contained amosite. Mr Feeny submitted that this evidence showed that only one panel contained amosite. As a matter of direct evidence that is true, but I infer that it is more likely than not that this panel was representative of the other panels in the ceiling of this corridor. Mr Feeny was not able to suggest why a single panel outside the caretaker’s office should have been made of a different material than the rest of the corridor. Mr Feeny himself emphasised that in the 1960s and 1970s asbestos was commonly used in building materials. Furthermore, in 2002 asbestos was also found in the ceiling tiles of 6 rooms which used to be part of the staff room and which was adjacent to part of the T shaped corridor. This is further support for my conclusion that these types of tiles were in widespread use in this part of the school. The BES survey showed that, even in 2008, there were many remaining examples of places in the school where asbestos had been used. The 1982 interdepartmental memo which I have quoted above said that many of the schools throughout the authority had Asbestolux ceiling tiles. A letter from Cape Boards to the Defendant’s safety officer and dated 26th January 1983 said that Asbestolux was a type of asbestos insulating board. It contained 16-18% of amosite by weight.[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 11th 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.[34]For all of these reasons I conclude that the Claimant was exposed to asbestos dust in the course of the work on these ceiling tiles. I cannot, though, say that this lasted any more than intermittently over the course of a few days.

The completion of construction of the school in 1972/3

[35]Ms Jones and Ms Welsh recalled teams of workmen sorting out teething problems in the school in the period after the children first moved in. In her oral evidence the Claimant also said that work was still being done when they moved in to the school.[36]I have dealt already with the specific work that was done on the T shaped corridor. I do not think that I can conclude that any other work of a ‘snagging’ type caused an additional exposure to the Claimant of asbestos dust. Ms Welsh gave evidence that she specifically recalled workmen cutting ceiling tiles while the children were in the school. But I have already explained that I did not feel confident that I could rely on her evidence when it stood alone. Otherwise, the evidence of what was being done in this period was too general for me to draw any conclusions that might assist the Claimant. The T corridor ceiling apart, there was no evidence that this snagging work involved asbestos materials, or, if it did, that it had caused the Claimant to be exposed to asbestos dust.

The installation of a suspended ceiling in the Junior Block

[37]In her second statement the Claimant said that she recalled the builders returning to put false ceilings in. These consisted of aluminium frames and large grey white tiles. She said that this false ceiling was to go beneath the original ceiling which looked like compressed straw. Lynn Welsh’s statement also spoke of the installation of a false ceiling. She added that this work took place while the children were in the school. She said that the suspended ceilings were installed in the standard way, that is with a metal grid above which the ceiling tiles rested. However, in her oral evidence she said that it was possible that the work had been done in stages in the children’s absence (so in the holidays or at weekends). Hazel Jones recalls the compacted straw ceilings. She says that they used to give off a great deal of dust. She says that a suspended ceiling was constructed underneath them. They consisted of removable tiles.[38]The Defendants’ witnesses agree that works were carried out on the Upper floor of the Junior block to partition and better sound proof the rooms on that level. However, they do not support the Claimant’s witnesses’ evidence that a suspended ceiling was constructed. Ms Duck said that the Upper level of the Junior Block had the compressed straw ceiling and that never changed. Mr Edmondson said in his witness statement that he did not recall any work being performed to install a suspended ceiling in the school. He still recalled the straw-like appearance of the ceiling on the upper level. That had been the type of ceiling in the Upper level of the Junior Block throughout his time at the school. There had been light panels in the pitched roof, but these had leaked and they had been replaced with board. It is true that Mr Edmondson only arrived at Bowring in September 1974, but if the suspended ceilings had been installed before he had arrived, he would have seen them and not the compressed straw panels. It is not likely that a suspended ceiling would have been both installed and taken down in the first two years of the school’s existence. Had that been the case, I would have expected Ms Duck, at least, to recall it. Mr Sargeant did not recall any major construction or building work while he was at the school.[39]Mr Sean Cunningham of Waterman Energy Environment and Design inspected the school on behalf of the Defendant on 2nd July 2009. He provided an Advice Note of 6th July 2009. He observed and photographed the ceiling to one of the class rooms on the upper level of the Junior Block. For the most part, it did have panels of compacted straw-like material. Part of the ceiling was covered by a thin pliable board material, possibly hardboard, but of a non-asbestos nature. Mr Edmondson was shown Mr Cunningham’s photograph and confirmed that this was the type of board which had been used when the roof lights had begun to leak. Mr Cunningham said that there was no suspended ceiling currently in place. His inspection was, of course, many years after the Claimant had left Bowring, but Mr Cunningham added ‘There was no sign of a suspended ceiling having once been in situ.’[40]Mr Allan referred to a memorandum from a Peter McKenzieabout the Bowring School. The memo was written in 1999. It said, ‘Ceiling tiles, used widely in the school, are unattractive and deposit a dust in a number of rooms.’ However, I thought that M Feeny’s response was persuasive. Mr McKenzie did not specify the type of the tiles. It is known from the evidence of many of the witnesses that the compressed straw panels did give off grit and dust. It is likely, or at least as likely, that Mr McKenzie was referring to these.[41]Taken all together the evidence does not allow me to conclude that a suspended ceiling was constructed in the Upper level of the Junior Block. It follows that the Claimant could not have been exposed to asbestos from this source.

Disturbance of ceiling tiles through pupils’ misbehaviour

[42]The Claimant’s second and third witness statements described how some of the boys in the school would seize the blazers, coats or briefcases of others whom they wished to victimise. They would push up the loose ceiling tiles and conceal these items in the ceiling void. The tiles would get broken or damaged. Hazel Jones remembered the same form of bullying, as did Lynn Welsh.[43]I accept that behaviour of this type took place. It is difficult to say with what kind of frequency. The Claimant did not suggest that it happened everyday, but, again, it was a common enough occurrence for it to have lodged in the minds of the Claimant and her witnesses. It was also a source of anxiety for those who feared that they would be the target of such bullying. Ms Jones mentioned this. That would not be likely if this particular form of misbehaviour was an isolated occurrence. If, as I find, it did happen there must have been a high degree of likelihood that the tiles would have been chipped or otherwise damaged by it. Unsurprisingly, the Claimant and her witnesses could not say whether these particular tiles contained asbestos. However, since removeable tiles in the T shaped corridor did contain asbestos and since Asbestolux tiles were widely used in the Defendant’s schools (according to the 1982 memo) I infer that it is more likely than not that they did.[44]Accordingly, I find that this misbehaviour was another source of the Claimant’s exposure to asbestos dust while at Bowring.

Ceiling Tiles in the Girls’ Toilets

[45]In her second witness statement the Claimant said, ‘A lot of the bullying [in the school] took place in the toilets. There would be smoking in the toilets and vandalism of the toilets frequently. The toilets, sinks, walls and ceilings were damaged or defaced, some of the toilet blocks had fires set in them too. Once I was made to admit by one of the bullying pupils that I had set fire in the toilet block even though I hadn’t[46]In her oral evidence she said that when ceiling tiles were taken down from the roof to be replaced, they would be placed in the girls’ toilets. She didn’t know where they were from. Some of the tiles were broken. They were left there for a couple of weeks.[47]Lynn Welsh’s statement said, ‘The toilets were vandalised and were a good place for bullies. Pupils smoked in there too. I remember seeing missing tiles in the ceiling where they had been removed.[48]There is good evidence that at least some of the girls’ toilets in school had asbestos products in the ceilings. On 22nd September 2005 a specialist company called Modern Hygiene 1992 quoted a price for the removal and disposal of ‘ceiling tiles’ from the Girls and Boys WCs in the Drama Block. This, apparently, used to be the Junior Block. Another company, Bagnall (UK) Ltd provided further quotations for the same work in September 2005 and February 2006. In May 2008 Modern Hygiene 1992 provided a Method Statement for this work which it described as ‘Removal of AIB Ceiling Tiles and Grid System’.[49]The BES survey which was undertaken in January 2008 found that the male and female toilets on the ground floor of what had been the Junior Block were locked and access was not possible. The survey reported, however, that an earlier investigation (referred to as Task 254827, but undated) had found Amosite and traces of Chrysotile in insulating board panels in these toilets. Photographs of these ceilings seem to show long rectangular shaped boards rather than square ceiling panels of the kind that could be seen in Mr Cunningham’s photographs of the T shaped corridor. I am not sure that there is any conflict between these pieces of evidence. The photographs in the BES survey are not very clear. It is possible that the boards in them rested on a metal grid. To the extent that there is a conflict, I prefer the evidence of the Method Statement which in both its title and text refers to ceiling tiles being supported by a grid system. In any event, the evidence is clear that the ceiling (whatever precise form it took) included asbestos.[50]The descriptions of the Claimant and Ms Welsh as to the bullying and vandalism that took place regularly in the toilets are all too likely to have been correct. That was likely in a school of this kind. But I also note that on 30th June 1975 the Borough Architect wrote to the Chief Executive about (among other things) repeated vandalism of the senior lower toilets.[51]Damage to the ceilings causing the release of asbestos fibres could easily have occurred. The Claimant would, of course, have had to make many visits to the girls’ toilets.[52]I also accept the Claimant’s evidence that there was a time when ceiling tiles had been stacked in the girls’ toilets for a couple of weeks and that some of these tiles were broken. It was an odd place to store such materials, but its very oddity is a reason why it may have stuck in the Claimant’s memory. I cannot be certain that these tiles contained asbestos but the frequent use of Asbestolux ceiling tiles in the Defendant’s schools at this time means that it is more likely than not that they did.[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.

Asbestos elsewhere in Bowring

[54]The BES Survey and other evidence indicated that there was or had been asbestos elsewhere in the school. They provide support for the Claimant’s contention that asbestos was widely used in building materials in the construction of Bowring. But that contention was not really disputed. Mr Feeny emphasised that this on its own would not demonstrate exposure to the risk of asbestos fibres. I find that the other specific sites where asbestos was detected do not help the Claimant further. That is either because she was unlikely to have gone into those rooms (e.g. the staff kitchen) or because there was no evidence that asbestos had been disturbed at the relevant time. Mr Allan accepted that the School’s boiler house came into the latter category. The Claimant did go there from time to time because sports equipment was stored there. While the BES survey found debris from the asbestos insulating board on the floor of the boiler room, Mr Allan accepted that there was no evidence of such disturbance in the period when the Claimant had been at the school. Similarly, the 2002 analysis had found amosite in a ceiling panel under the external walkway, but there was no evidence that this had been disturbed so as to generate asbestos fibres into the air at any material time. De Minimis?[55]To summarise, I have found that the Claimant was exposed to a risk 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.[56]Were these matters which materially increased the Claimant’s risk of contracting mesothelioma or are they to be regarded as

De Minimis?

[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.

Negligence

[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.

Conclusion

[63]In conclusion, I find that the Claimant has succeeded. I award her the agreed gross sum of £240,000. I should be grateful for submissions as to the precise terms of the order which I should make.

Cited in 1 later judgment