Jones & Ors v The Secretary of State for Energy And Climate Change & Anor [2012] EWHC 2936 (QB)
[2012] EWHC 2936 (QB)Case No HQ09X03547
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of JusticeDate Strand, London, WC2A 2LL Date: 23/10/2012
Before
THE HONOURABLE MRS JUSTICE SWIFT DBE
Between
JEFFREY JONES AND OTHERSClaimant
AND CLIMATE CHANGE- and -COAL PRODUCTS LIMITED Defendant Second Defendant
Mr David Allan QC and Mr Ivan Bowley (instructed by Hugh James Solicitors) for Mr Ronald Walker QC and Mr Robert O’Leary (instructed by Nabarro LLP) for theClaimantsDefendantsHearing Hearing dates: 17-31 October 2011; 7 November – 2 December 2011; 19-21 December 2011Judgment
INTENTIONALLY
[1]Ernest Noel Carhart was born on 16 October 1926. He died on 29 June 2005 aged 78 years.
The claim
[2]The claim is brought by Mr Carhart’s widow, Audrey Lilian Carhart (the claimant), on behalf of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and on her own behalf, as his dependant, pursuant to the Fatal Accidents Act 1976. It is alleged that, as a result of the dust and fume containing PAHs to which he was exposed during his employment at the Phurnacite Plant, Mr Carhart developed lung cancer which caused his death. There are also claims in respect of COPD and CB alleged to have been caused by exposure to dust at the Phurnacite Plant.
The defendants’ case
[3]The defendants admit that they were in breach of their duty towards Mr Carhart until 1981, after which he was issued with and began to wear a Racal airstream helmet when carrying out his work.[4]The defendants accept that Mr Carhart developed lung cancer which was the underlying cause of his death. However, they contend that the claimant cannot prove to the required standard that Mr Carhart’s lung cancer was caused by his occupational exposure to PAHs. The defendants accept also that Mr Carhart probably suffered from a minor degree of COPD which is likely to have been caused by a combination of occupational exposure to dust and fume at the Phurnacite Plant. They do not accept that he developed CB.
Damages
[5]Although the defence of limitation pursuant to both the Limitation Act 1939 and the Limitation Act 1980 was pleaded in the Individual Defence in Mr Carhart’s claim, in the event the defendants did not pursue their arguments on limitation in his case.
Damages
[6]Damages in Mr Carhart’s case have been agreed, subject to the issues of breach of duty, causation and apportionment. Damages for pain, suffering and loss of amenity have been agreed in the sum of £67,500 and special damages in the sum of £43,699.77. The total damages are therefore £111,199.77, exclusive of interest.
The witnesses
[7]Insofar as Mr Carhart’s claim for non-malignant respiratory disease is concerned, the defendants contend that, in the event that Mr Carhart establishes that he is entitled to damages for COPD and/or CB, those damages should be subject to apportionment to exclude the effects of any exposure to dust which may have occurred before nationalisation of the Phurnacite Plant in 1947. It is agreed that there should be apportionment to exclude from compensation that part of his COPD and CB, if proved, which can properly be attributed to his smoking. The defendants also contend that there should be apportionment to reflect any exposure to dust and fume which would inevitably have occurred without breach of duty on the defendants’ part (i.e. the ‘irreducible minimum’). Employment history Period of employment
Employment history
[8]Mr Carhart was employed at the Phurnacite Plant continuously from February 1948 until 21 December 1985 when he took early retirement: a total of just less than 38 years. Before that, he had worked at the Phurnacite Plant for a few months in 1943/1944 prior to completing his National Service. It is not contended that he had any exposure to PAHs, dust and/or fume other than at the Phurnacite Plant.
The witnesses
[9]In April 2001 Mr Carhart made a witness statement for the purposes of a claim in the BCRDL. That claim was denied because he had not worked underground. In his witness statement, he set out some brief information about his employment history and working conditions. After Mr Carhart’s death, the claimant made a witness statement in March 2011 for the purposes of this claim, but she was able to say little about her late husband’s work. Evidence about Mr Carhart’s working conditions was derived mainly from two of his former colleagues, Mr Pugh and Mr Brian Jones.
The witnesses
[10]Mr Pugh was employed at the Phurnacite Plant between 1946 and 1985, save for five years between 1955 and 1960, when he was performing National Service. He worked mainly on batteries 1 and 5, with some overtime in the briquetting plants. He was a process foreman from 1970 until 1985. He knew Mr Carhart well. He made a witness statement in February 2011; unfortunately, by the time of the trial, he was unfit to give oral evidence. Mr Brian Jones was employed by the defendants from 1971 until after the cessation of Phurnacite production at the Plant in 1990. He was a shift superintendent between 1971 and 1984. Thereafter he worked in various management capacities. He made a lengthy witness statement for the purpose of these proceedings (mainly in connection with the claim of Mr Robson); he also gave oral evidence. He worked closely with Mr Carhart between 1971 and 1977 and it is clear from his evidence that he regarded Mr Carhart as a highly conscientious and experienced employee. Also relevant to Mr Carhart’s claim was the evidence of Mr Richards, another of the lead claimants, who was a process foreman for some time. He provided a detailed witness statement and gave oral evidence.
Summary of evidence
[11]Briefly summarised, the evidence of Mr Carhart’s post-1947 working history at the Phurnacite Plant was as follows: 1948-1950
Summary of evidence
[12]The records show that Mr Carhart re-commenced work at the Phurnacite Plant on 9 February 1948. The evidence about Mr Carhart’s employment from that time until 1953 is somewhat uncertain. In his witness statement, he described working initially for about 18 months as a yard labourer. He related how he had to work in the pitch bay, clearing up the pitch pits and using power tools to break up solid pitch residues. He described spending four or five days at a time cleaning out naphthalene residue from storage tanks. Mr Pugh recalled Mr Carhart cleaning out tar tanks, although this may have been a little later in his career. It is clear from a document completed by Mr Carhart in 1971 that he also worked as a crane assistant at some time between 1948 and 1950.
Summary of evidence
[13]I accept that, during his time as a yard labourer, it is probable that Mr Carhart spent about 25% of his time working in the pitch bay and other areas with a significant exposure to dust containing pitch. For the remaining 75% of his time, he worked in the open areas of the Phurnacite Plant. 1950-1953[14]Although Mr Carhart did not mention the fact in his witness statement, it appears that, after his time as a yard labourer, he went on to work as a general labourer (or ‘spare man’) in briquetting plant 1. In an internal application form for the post of superintendent which he completed in 1971 Carhart1/67 , Mr Carhart stated that, between 1948 and 1953, he had worked in the briquetting plant (that would be briquetting plant 1) on the coal tipplers and as a back end man and a press man. It seems to me highly likely that the information given by him in 1971 was more accurate than the different accounts of his work history contained in other documents which came into existence later. I have assumed that he worked in briquetting plant 1 from 1 July 1950 until 30 June 1953. 1953-1962
May 1957 – January 1966
[15]In the same internal application form, Mr Carhart stated that he had moved to the carbonisation plant in 1953. That would fit in with Mr Pugh’s evidence that Mr Carhart was already working on battery 1 before he (Mr Pugh) left the Phurnacite Plant to do National Service in 1955. Mr Pugh’s recollection was that he (i.e. Mr Pugh) was working on the ramps at some point before he left the Phurnacite Plant whilst Mr Carhart was a quenching car attendant. From that time on, Mr Carhart worked in various capacities on the batteries, including as a charging car operator, a gas man, a quenching car attendant and in the screen house.
January 1966 – 1981
[16]I find that it is probable that Mr Carhart spent about a year working as a quenching car attendant and that, thereafter, his time was divided between the oven floor (50%), the quenching car floor (25%) and the screen house (25%). 1962-1977[17]From 1962 onwards, Mr Carhart’s working history is reasonably clearly documented. Between 16 October 1962 and 1977, he worked as a process foreman with responsibility for batteries 1 and 2. (During the period from 1968 to 1973, when battery 2 was being rebuilt, he was also responsible for at least part of battery 3). Between 1970 and 1977, Mr Carhart and Mr Pugh were both performing the same job although they worked on different shifts. From 1966 to 1981, Mr Richards was a process foreman, also on batteries 1, 2 and 3. From 1966 until 1977, Mr Richards and Mr Carhart were doing the same job, again on different shifts.
Respiratory protective equipment
[18]Mr Pugh, Mr Brian Jones and Mr Richards all gave different assessments of the average time during a shift that a process foreman would spend working in the various areas of the batteries. They were able to give average times only since every day’s work was different and the process foreman’s programme would depend entirely on what problems arose during his shift and in what area the problems occurred. However, it was common ground between the witnesses that most problems occurred on the oven floor, as a result of which a process foreman would spend more time there than in the other working areas. On occasion, he might spend virtually a whole shift dealing with problems on the oven floor whilst, at other times, he might be required to spend a significant amount of time dealing with issues which arose elsewhere in the carbonisation plant.
Protective measures
[19]Mr Pugh’s evidence was that, on average, a process foreman would spend 80% of his time on the oven floor and 10% of his time on the quenching car floor, with the remaining 10% divided between the ramps and the screen house. Mr Brian Jones estimated that Mr Carhart would have spent up to 70% of his time on the oven floor and 20% on the quenching car floor, with the remaining 10% of his time split between the ramps, the screen house and the by-products plant. Neither Mr Pugh nor Mr Brian Jones made any mention of time spent on administration. Mr Richards estimated that, over an eight-hour shift, he spent an average of three to four hours on the oven floor, 30-45 minutes on the quenching car floor and in the screen house, 10-15 minutes on the shuttle car floor and 15 minutes on the ramps. The remaining hour would be spent doing administrative tasks in the foreman’s office/canteen. In oral evidence, Mr Richards suggested that he would sometimes spend as long as one and a half hours in the office/canteen at lunchtime, eating his meal and completing his paperwork.
The effects of exposure
[20]I cannot accept the evidence of Mr Pugh and Mr Jones that, when Mr Carhart was a process foreman, he would have spent his entire working time on the batteries. It may be that, in giving their estimates of the percentage of time spent in the various working areas, they were referring only to the time actually spent performing active duties and were leaving the administrative part of the process foreman’s job out of account. Be that as it may, I find that, as Mr Richards’ evidence made clear, a proportion of Mr Carhart’s usual eight-hour shift (and of any overtime he worked) must have been spent on administrative work of various kinds. No two process foremen will have organised their working day in precisely the same way and I find that Mr Carhart probably did not devote as much time to administrative duties as did Mr Richards. Nevertheless, I am satisfied that he must have spent an average of at least one and a half hours of his shift (i.e. about 20%) away from the working areas of the batteries, doing administrative work in the foreman’s office/canteen, conferring with colleagues and walking between the two batteries or between the batteries and the office/canteen. Of the remaining 80% of his time, I find that 65% was spent on the oven floor, 10% on the quenching car floor and 5% split between the screen house, the ramps and the shuttle car floor. 1977-1985
Exposure levels
[21]Mr Carhart was promoted to chief heater foreman in 1977. I have assumed that this occurred on 1 March 1977. He continued to work in that capacity until his retirement on 21 December 1985. Mr Pugh’s evidence was that, as chief heater foreman, Mr Carhart would have spent all his time working on the oven floor. Mr Brian Jones said that he would have spent 60% of his time on the oven floor and 40% on the quenching car floor. Neither of those witnesses suggested that Mr Carhart would have spent any time carrying out administrative duties. Mr Richards did not given any evidence relevant to Mr Carhart’s work as a chief heater foreman.
Respiratory protective equipment
[22]I find that, when he was working as a chief heater foreman responsible for all the batteries, Mr Carhart would have spent more time walking between the batteries and doing administrative work. As a consequence, he would have spent about two hours (i.e. 25% of his shift) away from the working areas. Of the remaining 75%, I find that that 50% was spent on the oven floor and 25% on the quenching car floor.
Overtime
[23]The Table below summarises my findings in relation to Mr Carhart’s working history at the Phurnacite Plant. 949. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION 9 Feb 1948 -30 Jun 1950 Yard labourer 75% in open areas; 25% pitch bay or areas with similar exposure 1 Jul 1950 -30 Jun 1953 Labourer/ spare man, briquetting plant 1 I Jul 1953 -30 Jun 1954 Quenching car attendant, battery 1 I Jul 1954 -15 Oct 1962 Process operative, battery 1 50% oven floor; 25% quenching car floor; 25% screens 16 Oct 1962 -29 Feb 1977 Process/oven foreman on batteries 1 and 2 65% on oven floor; 10% on quenching car floor & 5% split between the screen house, ramp floor & shuttle floor 20% in foreman’s office/canteen and open areas 1 Mar 1977 -21 Dec 1985 Chief heater foreman responsible for all batteries 50% on oven floor; 25% on quenching car floor 25% in foreman’s office/canteen and open areas. One year on strike in this period
Exposure levels
[24]I have already concluded at Section 4 of my generic judgment that both a process foreman and a chief heater foreman would have had 75% of the exposure level of a process operative.
Respiratory protective equipment
[25]The evidence of Mr Pugh, Mr Brian Jones and Mr Richards was that, although Racal airstream helmets were issued to process operatives working on the oven tops in the early 1980s, they were not issued to process foremen. However, the evidence of Mr Carhart himself was that he wore a helmet with an air supply and visor (which, from the description, must have been a Racal airstream helmet) when working as a process foreman and chief heater foreman on the oven tops. I accept his evidence on this point although I find (and the defendants appear to accept) that he did not start to wear the helmet until somewhat later than he believed, i.e. until about 1981. I have concluded in Section 5 of my generic judgment that, even after the Racal airstream helmets were provided, the defendants continued to be in breach of duty in respect of work on the oven tops although, since Mr Carhart wore a Racal airstream helmet, he would have been exposed to only about 10% of the fumes to which he would have been exposed when he was not wearing RPE.
Overtime
[26]No overtime records were available in Mr Carhart’s case. In accordance with the conclusions I reached at Section 4 of my generic judgment, the average overtime levels, as calculated by Professor Syred, should be used when considering Mr Carhart’s exposure to dust for the purpose of assessing what proportion of his non-malignant respiratory disease was attributable to occupational exposure to dust and fume. Overtime should be disregarded when assessing his exposure levels to PAHs for the reasons set out in Section 4.
Exposure levels
[27]All three experts used the personal sampling results set out in Table 6.4 Syred1/131 as the basis for calculating the extent of Mr Carhart’s exposure to dust, BSM and BaP. Their assessments of his exposure levels are set out in the Table below: 954. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg y m ) Syred 685 324 88 1123 Stear 243 n/a 30 372 Jones 516.1 79.3 (145.91) 46.6 469.3
Overtime
[28]For the purposes of Mr Carhart’s claim for lung cancer, the most significant figure is that for his exposure to BaP.
Exposure levels
[29]The significant disparities between the experts’ assessments were to a large extent explained by their differing assumptions about Mr Carhart’s pattern of work during his time as a process foreman and chief heater foreman and the extent of his exposure to dust and fume during that time when compared with the exposure of process operatives working in the same areas. In addition, Mr Stear assumed much lower levels of exposure on the batteries before 1975 than after that date. This inevitably brought his estimate of Mr Carhart’s exposure levels well below those of the other two experts. Assessment of overall exposure levels
Bladder cancer
[30]I have already indicated that, in general, I accept Professor Jones’ approach to the assessment of exposure levels. Therefore, once I had reached some provisional conclusions about my findings of fact in Mr Carhart’s case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings that I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.
The effects of exposure to pitch
[31]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimates of Mr Carhart’s exposure between 1948 and 1985 are, for total dust 553.7 mgym-3, for BSM 56.5 mgym-3 and for BaP 604.6 μgym-3. Those figures take into account the fact that, from 1981 until his employment ended in 1985, Mr Carhart would have used a Racal airstream helmet when working on the oven tops. They make no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment.
The medical issues
[32]Professor Jones’ figures include a relatively small amount of exposure to dust, BSM and BaP during the periods when Mr Carhart was employed in the open areas of the Phurnacite Plant or the offices/canteen. I have found that the defendants were not in breach of duty during those periods. However, since that small amount of exposure will not affect the outcome of the case, I have not re-calculated Professor Jones’ figures to exclude it. I have excluded the dust exposure for those periods when calculating Mr Carhart’s occupational exposure units for the purpose of determining what proportion of his COPD was caused by his occupational exposure to dust.
Assessment of overall exposure levels
[33]Professor Jones estimated Mr Carhart’s lung cancer causation probability, on the basis of a multiplicative interaction between smoking and occupational exposure, at 69.1% for BaP. His estimate of excess relative risk for BaP was 2.24.
Previous sun exposure
[34]I accept Professor Jones’ figures as the best available estimates of Mr Carhart’s exposure levels during the period for which the defendants operated the Phurnacite Plant. However, for the reasons set out in Section 3 of my generic judgment. I consider that, overall, the estimates will tend to under-estimate rather than over-estimate his exposure to BSM and BaP. The medical issues
History of skin lesions
[35]The medical evidence in Mr Carhart’s case came from Dr Rudd and Dr Falk. Smoking
Lung cancer
[36]Dr Rudd’s estimate of Mr Carhart’s smoking history, based on references in his medical notes, is that he was light smoker (i.e. less than 15 cigarettes a day) for 66 years. On the evidence, Dr Rudd’s estimate appears fair and reasonable and I accept it.
The medical issues
[37]Dr Rudd and Dr Falk agreed that Mr Carhart’s smoking history substantially increased his risk of developing lung cancer and of consequent death. Dr Rudd estimated his baseline risk of lung cancer as a result of smoking at 12%. Dr Falk assessed the risk as slightly higher, namely at 15%. Lung cancer
Smoking
[38]The immediate cause of Mr Carhart’s death was peritonitis due to a perforated duodenal ulcer. However, Dr Rudd and Dr Falk agreed that the peritonitis was attributable to his underlying condition of lung cancer. Mr Carhart suffered respiratory symptoms due to his cancer from early 2004 although he had been experiencing weight loss for some months before that. Dr Rudd’s evidence, which I accept, was that, in the absence of lung cancer, Mr Carhart’s life expectancy would have been 3.8 years at the time of his death.
The medical evidence
[39]I discussed the causation of lung cancer at Section 8 of my generic judgment. I am satisfied that the agreed exposure to BaP for the ‘doubling of risk’ (270 μym-3) is soundly based and that the exposure levels assessed by Professor Jones are reasonably accurate, albeit probably an under-estimate of Mr Carhart’s actual exposure. Since Professor Jones has calculated that Mr Carhart’s exposure to BaP amounted to 604.6 μym-3. I find that the claimant has established that Mr Carhart’s risk of developing lung cancer was significantly more than doubled and that she has thereby succeeded in establishing the causation of his lung cancer. Chronic obstructive pulmonary disease
Previous sun exposure
[40]Problems” for six or seven years prior to April 2001, i.e. since about 1994. He described how he had shortness of breath on exercise. The parties agreed that these symptoms were attributable to mild COPD. Dr Rudd estimated Mr Carhart’s disability as a result of COPD at about 5% from 1994.
Lung cancer
[41]I have concluded at Section 11 of my generic judgment that Dr Rudd’s ‘broad brush’ approach to quantifying the contribution made to a claimant’s COPD by exposure to dust at the Phurnacite Plant is the appropriate method to adopt in the circumstances of this litigation. I have accepted Dr Rudd’s evidence that a year’s work on the oven floor was equivalent to a year’s average smoking and, using that correlation as a basis, I have calculated Mr Carhart’s total occupational exposure units at 22.3. My calculation is at Appendix B to this individual judgment.
Bladder cancer
[42]The apportionment as between smoking and occupational exposure is as follows: Light smoking for 66 years 33 units Exposure to dust at the Phurnacite Plan Total exposure units 22.3 units Occupational exposure responsible for 22.3 ÷ (22.3 + 33) = 40% of causation
History of respiratory problems
[43]I therefore find that 40% of Mr Carhart’s respiratory disability of 5% (or a disability of 2%) was attributable to his occupational exposure to dust at the Phurnacite Plant between 1948 and 1985. His exposure to dust during his previous short period of employment at the Phurnacite Plant may have made some contribution to his condition. However I am satisfied that the contribution would have been so minor as not to be material and I make no deduction in respect of it. Chronic bronchitis
Date of knowledge
[44]In her witness statement, the claimant said that, whilst working at the Phurnacite Plant, Mr Carhart developed a productive cough which persisted to the time of his death. The claims questionnaire signed by Mr Carhart in September 2000 stated that he had suffered from a productive cough whilst still at work (although his answer also suggested that he had been working underground which was never the case). I note, however, that Mr Carhart himself described in the witness statement made in support of his BCRDL claim how he had consulted his GP in 2000 complaining of a persistent cough. He suggested that his chest problems had started in the mid to late 1990s. He made no mention of a more long standing problem.[45]Mr Carhart’s GP records contain no handwritten or computerised records dating from before 1987, i.e. they commence after he ceased work at the Phurnacite Plant. As a result, it is not possible to see whether there were any occasions whilst he was working at the Phurnacite Plant when he attended his GP complaining of symptoms suggestive of CB. Certainly, there is nothing in the later medical records that would suggest that he had suffered from a regular productive cough during his employment there. In the circumstances, I am not persuaded on a balance of probabilities that Mr Carhart suffered from CB at the time of, or by reason of, his employment at the Phurnacite Plant. Conclusion
Limitation
[46]The claimant’s claim therefore succeeds in respect of Mr Carhart’s lung cancer and COPD, but fails in relation to CB. Damages in his case have been agreed at £119,310.75, inclusive of interest. APPENDIX A Ernest Noel Carhart974. Occupancy matrix From To Job factor Fractional occupancy Canteen / offices Average external Pitch bay Briquetting Oven and shuttle floors Quench, ramp and screens Annual hours 09/02/194830/06/1950 1 0 0.75 0.25 0 0 0 2407 01/07/195030/06/1953 1 0 0 0 1 0 0 2407 01/07/195331/12/1953 1 0 0 0 0 0 1 2407 01/01/195430/06/1954 1 0 0 0 0 0 1 2407 01/07/195415/10/1962 1 0 0 0 0 0.5 0.5 2407 16/10/196231/12/1974 0.75 0.2 0 0 0 0.6667 0.1333 2407 01/01/197528/02/1977 0.75 0.2 0 0 0 0.6667 0.1333 2407 01/03/197731/12/1980 0.75 0.25 0 0 0 0.5 0.25 2407 01/01/198128/02/1984 0.75 0.25 0 0 0 0.5 0.25 2407 01/03/198521/12/1985 0.75 0.25 0 0 0 0.5 0.25 2407 Ernest Noel Carhart975. Exposure estimates From To Job Plant Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 09/02/48 30/06/50 Yard labourer Pitch bay 1.13 4.46 1.25 28.05 0.00 1.13 09/02/48 30/06/50 Yard labourer Plant external average 1.07 6.35 0.84 8.42 0.00 1.07 01/07/50 30/06/53 Labourer / spare man, briquetting Briquetting 13.29 79.76 5.70 38.97 0.00 13.29 01/07/53 31/12/53 Quench operator, battery 1 Quench, ramp and screens 0.46 2.86 0.30 2.76 0.50 0.00 01/01/54 30/06/54 Quench operator, battery 1 Quench, ramp and screens 0.45 2.81 0.30 2.71 0.49 0.00 01/07/54 15/10/62 Process operative, battery 1 Oven and shuttle floors 20.48 127.08 13.26 145.08 4.15 0.00 01/07/54 15/10/62 Process operative, battery 1 Quench, ramp and screens 3.78 23.63 2.49 22.80 4.15 0.00 16/10/62 31/12/74 Oven foreman, batteries 1 and 2 Canteen / offices 0.13 0.68 0.10 10.50 0.00 0.13 01/01/75 28/02/77 Oven foreman, batteries 1 and 2 Canteen / offices 0.02 0.08 0.02 0.17 0.00 0.02 16/10/62 31/12/74 Oven foreman, batteries 1 and 2 Oven and shuttle floors 32.02 198.74 20.75 224.84 6.10 0.00 01/01/75 28/02/77 Oven foreman, batteries 1 and 2 Oven and shuttle floors 5.66 34.67 3.67 39.79 1.08 0.00 16/10/62 31/12/74 Oven foreman, batteries 1 and 2 Quench, ramp and screens 1.48 9.28 0.98 8.95 1.22 0.00 01/01/75 28/02/77 Oven foreman, batteries 1 and 2 Quench, ramp and screens 0.26 1.54 0.17 1.58 0.22 0.00 01/03/77 31/12/80 Heater foreman Canteen / offices 0.05 0.18 0.04 0.38 0.00 0.05 01/01/81 28/02/84 Heater foreman Canteen / offices 0.04 0.15 0.03 0.32 0.00 0.04 01/03/85 21/12/85 Heater foreman Canteen / offices 0.01 0.04 0.01 0.08 0.00 0.01 01/03/77 31/12/80 Heater foreman Oven and shuttle floors 7.53 46.16 4.89 52.98 1.44 0.00 01/01/81 28/02/84 Heater foreman Oven and shuttle floors 0.62 3.80 0.40 4.36 1.18 0.00 01/03/85 21/12/85 Heater foreman Oven and shuttle floors 0.16 0.97 0.10 1.12 0.30 0.00 01/03/77 31/12/80 Heater foreman Quench, ramp and screens 0.87 5.13 0.58 5.27 0.72 0.00 01/01/81 28/02/84 Heater foreman Quench, ramp and screens 0.71 4.22 0.47 4.34 0.59 0.00 01/03/85 21/12/85 Heater foreman Quench, ramp and screens 0.18 1.08 0.12 1.11 0.15 0.00 Ernest Noel Carhart976. Notes on exposure estimates From To Job Plant Comments 09/02/48 09/02/48 30/06/50 30/06/50 Yard labourer Yard labourer Pitch bay Plant external average Exposure levels as per exposure matrix 01/07/50 30/06/53 Labourer / spare man, briquetting Briquetting Exposure levels as per exposure matrix 01/07/53 01/01/54 31/12/53 30/06/54 Quench operator, battery 1 Quench operator, battery 1 Quench, ramp and screens Quench, ramp and screens Exposure levels as per exposure matrix 01/07/54 01/07/54 15/10/62 15/10/62 Process operative, battery 1 Process operative, battery 1 Oven and shuttle floors Quench, ramp and screens Exposure levels as per exposure matrix 16/10/62 01/01/75 31/12/74 28/02/77 Oven foreman, batteries 1 and 2 Oven foreman, batteries 1 and 2 Canteen / offices Canteen / offices Exposure levels as per exposure matrix 16/10/62 31/12/74 Oven foreman, batteries 1 and 2 Oven and shuttle floors 01/01/75 16/10/62 28/02/77 31/12/74 Oven foreman, batteries 1 and 2 Oven foreman, batteries 1 and 2 Oven and shuttle floors Quench, ramp and screens Factor of 0.75 applied to exposures attributed to the plant 01/01/75 28/02/77 Oven foreman, batteries 1 and 2 Quench, ramp and screens 01/03/77 31/12/80 Heater foreman Canteen / offices 01/01/81 28/02/84 Heater foreman Canteen / offices Exposure levels as per exposure matrix 01/03/85 21/12/85 Heater foreman Canteen / offices 01/03/77 31/12/80 Heater foreman Oven and shuttle floors Factor of 0.75 applied to exposures attributed to the plant. 01/01/81 01/03/85 28/02/84 21/12/85 Heater foreman Heater foreman Oven and shuttle floors Oven and shuttle floors Factor of 0.1 for RPE use post 1/1/81. Absence for 1 year due to strike. 01/03/77 31/12/80 Heater foreman Quench, ramp and screens Factor of 0.75 applied to exposures attributed to the plant. No 01/01/81 01/03/85 28/02/84 21/12/85 Heater foreman Heater foreman Quench, ramp and screens Quench, ramp and screens adjustment for respiratory protection. Absence for 1 year due to strike. The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment Ernest Noel Carhart Estimates of FEV 1 loss and lung cancer causation probability977. Summary exposure estimates Period Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven y Resp excl ovens mg y m-3 Pre 1/1/1954 16.0 93.4 8.1 78.2 0.5 15.5 Post 1/1954 74.5 460.3 48.4 526.4 21.8 0.3 Total 90.4 553.7 56.5 604.6 22.3 15.7 Estimates of FEV 1 loss (ml) FEV 1 loss ml Due to dust 22 Due to time in ovens 223 Total 245 Estimates of excess relative risk Multiplicative ERR Submultiplicative ERR BSM BaP BSM BaP Pre 1.1.54 exposures 0.27 0.29 0.16 0.22 Post 1.1.1954 exposures 1.60 1.95 0.97 1.47 Total 1.87 2.24 1.13 1.69 ‘Multiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is wholly multiplicative; ‘submultiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is intermediate between multiplicative and additive (page 39 of my generic report refers).978. Estimates of lung cancer causation probability Multiplicative CP Submultiplicative CP BSM BaP BSM BaP All exposures 65.1% 69.1% 53.0% 62.9% Exposures post 1.1.1954 55.8% 60.2% 45.4% 54.7% 235979. THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY 236 The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment APPENDIX B980. CARHART PERIOD AREA % TIME SPENT EXPOSURE UNIT DEDUCTION FOR NON-PROCESS JOB RPE NO. OF EXPOSURE UNITS 9/2/48-30/6/50 (2.39 years) Pitch bay 25% 0.75 N/A N/A 0.45 1/7/50-30/6/53 (3 years) Briquetting plant 100% 0.90 N/A N/A 2.70 1/7/53-30/6/54 (1 year) Quenching car floor 100% 0.75 N/A N/A 0.75 1/7/54-15/10/62 (8.33 years) Oven floor 50% 1.00 N/A N/A 4.17 Quenching car floor and screens 50% 0.75 N/A N/A 3.12 16/10/6229/2/77 (14.37 years) Oven and shuttle floors 67% 1.00 75% N/A 7.22 Quenching car floor, ramps and screens 13% 0.75 75% N/A 1.05 1/3/77-31/12/80 (3.84 years) Oven floor 50% 1.00 75% N/A 1.44 Quenching car floor 25% 0.75 75% N/A 0.72 1/1/81-21/12/85 (3.97 years, excluding strike) Oven floor 50% 1.00 75% 10% 0.15 Quenching car floor 25% 0.75 75% N/A 0.56 Total exposure units 22.33 237 The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY981. 238
RAYMOND DAVIES
[1]Raymond Davies was born on 23 December 1936. He died on 30 January 2000 aged 63 years.
The claim
[2]The claim is brought by Mr Davies’ daughter, Ms Janice King (the claimant), on behalf of his estate under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934. It is alleged that, as a result of the dust and fume containing PAHs to which he was exposed during his employment at the Phurnacite Plant, Mr Davies developed lung cancer which caused his death.
The defendants’ case
[3]The defendants admit that they were in breach of duty towards Mr Davies until 1980/1. After that time, respiratory protection in the form of a 3M mask became available for his use and they say that there was no breach of duty on their part - from that time. The defendants accept that Mr Davies developed and died from lung cancer. However, they contend that the claimant cannot prove to the required standard that Mr Davies’ lung cancer was caused by his occupational exposure to PAHs.[4]The defendants contend also that Mr Davies’ claim is statute-barred under the provisions of the 1980 Act.
Damages
[5]Damages in Mr Davies’ case have been agreed, subject to the issues of breach of duty, causation and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £35,000 and special damages in the sum of £1,772.42. The total damages are therefore £36,772.42, exclusive of interest. Employment history Period of employment
Employment history
[6]Mr Davies was employed at the Phurnacite Plant continuously from 1959 until the end of 1986, when he was made redundant: a period of about 27 years. It is not contended that he had any exposure to PAHs other than at the Phurnacite Plant. The witnesses
Employment history
[7]There is no evidence from Mr Davies himself. His widow, Mrs Phyllis Davies, who died in 2007, made a witness statement in 2005 but she was able to say little about Mr Davies’ working conditions. The claimant also made a witness statement and gave oral evidence. However, the main sources of evidence about Mr Davies’ employment history and working conditions were Mr Hodges and the late Mr Turner.
Employment history
[8]Mr Turner was employed at the Phurnacite Plant between 1956 and 1985. As a plate layer in the mid-1960s, he was responsible for instructing Mr Davies in some aspects of his work. From 1975, Mr Turner was a maintenance foreman. He was appointed chief maintenance foreman in about 1982. He was responsible for supervising members of the painting gang, including Mr Davies. Mr Turner made a detailed witness statement in March 2011, but died before the start of the trial. As might be expected of such a senior employee, Mr Turner’s witness statement demonstrated an excellent knowledge of the workings of the Phurnacite Plant and the conditions there. I consider that his evidence about Mr Davies’ employment was generally reliable. Mr Hodges worked at the Phurnacite Plant between about 1972 until 1990. For the first eight years or so, he was employed on the batteries. From 1980 to 1987 he worked as a painter in the same gang as Mr Davies. They would frequently, although not always, work on the same job. Mr Hodges gave oral evidence. The fact that he worked alongside Mr Davies for seven years meant that he had a particularly good understanding of Mr Davies’ daily working conditions.
Summary of evidence
[9]Briefly summarised, the evidence of Mr Davies’s working history at the Phurnacite Plant was as follows: 1959-1964
The witnesses
[10]The evidence about Mr Davies’ employment during this period is not entirely clear. He began work as a general labourer or ‘spare man’. In her witness statement, Mrs Davies’ said that his first job was on the ovens. However, the defendants’ records show that Mr Davies was trained as a back end man and a pug man. If that is right, Mr Davies must have undergone training in one of the briquetting plants. Mr Hodges’ evidence was that it was unlikely that Mr Davies would initially have worked as a spare man on the batteries, only to transfer later to the briquetting plants. Mr Turner said the same. I therefore consider it probable that Mrs Davies’ recollection was faulty and that Mr Davies spent the first five years of his employment working in one of the briquetting plants. His job changed in the mid-1960s, I have assumed that this occurred in 1965. 1965-31 December 1986
Summary of evidence
[11]During this period (save for a time when he was absent from work through illness and a further year when he was on strike), Mr Davies worked as one of a gang of four painters. In the defendants’ documents, he is consistently described as having been a “rough brush painter”. Mrs Davies also described him as a “rough brush painter” in her witness statement, although she may merely have adopted the term which she had been told appeared in the defendants’ documents. Both Mr Hodges and Mr Turner were adamant that Mr Davies was not a rough brush painter. Rough brush painters were in effect labourers who did a little unskilled painting. Mr Hodges and Mr Turner said that Mr Davies was a member of the “painting gang”, who carried out skilled painting work, together with the necessary preparatory work, and undertook no labouring duties. I am satisfied that, whatever his title might have been, Mr Davies carried out the duties described by Mr Hodges and Mr Turner.
January 1960 – December 1965
[12]The painters would carry out various regular tasks on the batteries. On each battery there were girders, situated about 10-12 feet above the oven floor and just below the shuttle car floor. Some of the girders bore painted signs, identifying the weight that could be safely lifted using the girders. Due to the amount of dust, grit and fume on the oven floor, the girders corroded so rapidly that the signs had to be re-painted monthly. The painters would use ladders to gain access to the girders. Each girder would be covered with a thick layer (Mr Hodges estimated two inches) of dust which the painters would have to remove before cleaning the girder with a wire brush and re-painting the sign.
January 1966 – December 1990
[13]Two sets of metal handrails ran the length of each battery on the oven floor and there was a third set on the shuttle car floor. There were also metal handrails running down the flights of steps in the batteries. These metal handrails corroded rapidly and required re-painting regularly. Mr Turner’s evidence, which I accept, was that it would take three or four months to complete the process of cleaning, preparing and painting the handrails on the oven floors of all the batteries. That would still leave the handrails in other parts of the batteries to be done. I accept Mr Turner’s evidence that all the handrails on each of the batteries were re-painted every two years. However, I find that it is probable that certain handrails, which were subject to particularly bad corrosion, would be re-painted more frequently. That would account for Mr Hodges’ evidence that they were re-painted every six to eight months. Insofar as Mr Hodges’ oral evidence suggested that the task of painting handrails took far less time than he had suggested in his witness statement, I am satisfied that this must have been based on a misunderstanding, possibly between a “battery” (or block) of ovens and a battery building. It is quite clear from the photographs that the task of painting the handrails would have taken a considerable amount of time.[14]The painters would also re-paint the large washers and nuts securing the tie rods at each end of the batteries. They would also use compressed air tools to remove dust and rust from the quenching cars, a task which would take a month at a time. They would paint the levers used to change the points on the rail tracks on the shuttle car, oven and quenching car floors.
January 1961 – December 1980
[15]Whilst the painters were working on the oven floor of the batteries, the processes of charging, discharging and (when necessary) poking clustered ovoids out of the ovens would continue as usual and the painters would be exposed to dust and fume from those processes. They would also be exposed to dust and fume in the atmosphere from all the other sources I identified in Section 2 of my generic judgment. They would not work in the immediate vicinity of an oven that was being discharged and would stand at the end of the battery to avoid the steam produced when the quenching of ovoids was going on. They would also try to avoid working next to an oven that was being charged. However, all these processes were going on continually on the oven floor and it would have been completely impracticable for the painters to arrange their work so as to avoid exposure to dust and fume. I accept Mr Hodges’ evidence that, at times, they would be working only a few feet from men who were poking the ovens. In windy conditions, dust and fume would have been blown about and they may have inhaled dust and fume even if they were working some distance away from their source. I note that Mr Hodges had previously worked on the oven floor of a battery. His evidence was that a painter’s exposure on the oven floor was not as intense as that of a process operative working on the ovens. In cross-examination, he agreed with Mr Walker that a painter’s exposure would be “a small fraction” of the exposure of the process operatives carrying out work in the Phurnacite Plant; however, he went on to say that, when working in the briquetting plants, a painter’s exposure would have been the same as that of the process operatives working there.[16]I have already referred to the evidence about Mr Davies’ exposure to dust and fume when working on the oven floor. Whilst working on the shuttle car floor, he would have been exposed to dust emitted at the transfer points of the raw ovoid conveyors and from the charging of the raw ovoid bunkers. I find that, on the shuttle car floor, his exposure would have been much closer to that of the process operatives employed there than when he was working on the oven floor. However, I take account of the fact that he would not have been charging the raw ovoid bunkers himself and that part of the work of painting handrails at shuttle car floor level was performed in the open air.[17]On the quenching car floor, Mr Davies would have had exposure to dust which had accumulated in the quenching cars and on the cabin occupied by the quenching car operators. The use of compressed air tools would have caused the dust to fly up and would have increased his exposure. However, he did not have to poke the ovens or work in close proximity to ovens that were discharging.[18]In the briquetting plants, the painters had to paint various kinds of metalwork, including girders. All the metalwork was covered by an accumulation of dust which had to be removed before the metalwork could be painted. This would be done by brushing the dust off the metalwork and shovelling it away. The painters also had to paint metal cages, trays and other metalwork situated under the conveyors. These tasks, which could take days to complete, involved working in confined areas where a great deal of fine dust had accumulated. That dust had to be removed before painting could begin. Mr Hodges described how, when he had been working in the briquetting plants, his overalls would be black and he would resemble a miner who had worked a shift underground. On occasion, the painters would have to work inside the ESPs, which Mr Hodges described as particularly dusty and unpleasant. As a painter, Mr Davies would also have spent some time working in exhauster houses 1 and 2, the screen houses and also, probably, the trommel houses. Although his exposure in some of those areas would probably not have been as heavy as in the briquetting buildings, I consider that it would be fair to treat it as such since, when working inside the ESPs or in confined areas under conveyors, his exposure is likely to have been significantly greater than that generally encountered by process operatives working in the briquetting plants. His exposure in the exhauster and boiler houses would have been less severe.[19]The work of a painter was one of those peripatetic jobs in respect of which there was an issue between the experts about how the worker’s exposure to dust and fume would have compared with those of the process operatives working in the same areas. I discussed this topic at Section 4 of my generic judgment.
Protective measures
[20]In his calculations of exposure levels, Professor Syred assumed that, wherever Mr Davies worked, he would have been exposed to the same levels of dust and fume as the process operatives carrying out their duties in that area. Thus he assumed that, when working on the oven floor of the batteries, Mr Davies would have had the same levels of exposure as the men responsible for charging and poking the ovens. Professor Jones initially adopted the same approach but, for the reasons I explained at Section 4, he later revised his calculations to assume that Mr Davies would have experienced 30% of the exposure levels of the process operatives working around him. Professor Jones made no distinction between Mr Davies’ work on the batteries and in the briquetting plants, but applied the 30% to all the places where he had worked. He did however concede that, if I were to accept that Mr Davies sometimes worked only a few feet from where ovens were being poked, his exposure levels on the oven floor might well have been more than 30% of the levels experienced by the men regularly employed on the ovens.
Respiratory protective equipment
[21]In his calculations, Mr Stear assumed that Mr Davies’ exposure was only 5% of that of the process operatives who regularly worked in the areas where he was employed from time to time. He calculated Mr Davies’ exposure by taking 5% of the average exposure levels for all areas of the Phurnacite Plant, using the date from Table 6.4. He assumed that, for the remainder of his time, Mr Davies was exposed only to ‘background’ exposure levels for the Phurnacite Plant, as calculated in Professor Jones’ modelling dispersion exercise.
Overtime
[22]Having considered all the evidence, I find that Mr Davies spent approximately 20% of his working time painting areas such as the canteen, showers, offices and workshops. Of the remaining 80% of his time, I find that he would have spent 30% on the batteries, and 50% in the briquetting plants. Of the 30% of his time on the batteries, I find that Mr Davies would have spent 18% on the oven floor, 9% on the shuttle car floor and 3% on the quenching car floor.
Exposure levels
[23]Of the 50% of his time spent working in the briquetting plants, I consider it probable that Mr Davies would have spent 40% of his time in the briquetting buildings, press house 5, the ESPs or in other areas with similar exposure levels. The remaining 10% of his time would have been divided as to 5% in the exhauster houses and 5% in the boiler houses.
Overtime
[24]I am satisfied that it is not appropriate to assume that the relationship between a painter’s levels of exposure to dust and fume and the levels of exposure experienced by process operatives employed in the areas where the painter was from time to time required to work would have been the same wherever he was carrying out his painting duties. I consider that the relationship would have varied, depending on whether the painter was working on the batteries or in the briquetting plants.
Assessment of overall exposure levels
[25]Doing the best I can, I estimate that, whilst working on the batteries, Mr Davies would have been exposed to 50% of the levels of dust and fume which would have been encountered by the process operatives working there. During his time in the briquetting plants, I accept Mr Hodges’ evidence that Mr Davies would have had similar levels of exposure to the process operatives who worked there. I have described how there were considerable amounts of dust throughout the buildings in the briquetting plants. Although, as a painter, he would not have been working on or in the close vicinity of moving machinery, his own work would inevitably have involved a good deal of disturbance of dust. It was no doubt for that reason that Mr Turner described the job of a painter as “one of the worst roles at the plant”.
As a spare man
[26]The Table below summarises my findings in relation to Mr Davies’ working history at the Phurnacite Plant. 1008. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION 1959 (1 year) Spare man, briquetting plant 100 % briquetting plants 1960-1964 (4 years) Back end man; pug man, briquetting plant 100% briquetting plants 1965 (1 year) Painter 18% on oven floor; 9% on shuttle floor; 3% on quenching car floor. 40% in briquetting buildings or similar; 5% in exhauster houses and 5% in boiler houses. 10% canteens/offices; 10% workshops. 1 Jan 1966- 19Mar 1969 Absent from work 20 Mar 1969- 31 Dec 1986 Painter 18% on oven floor; 9% on shuttle floor & 3% on quenching car floor. 40% in briquetting buildings or similar; 5% in exhauster houses and 5% in boiler houses. 10% canteens/offices; 10% workshops. One year on strike during this period.
Respiratory protective equipment
[27]The evidence of Mr Hodges and Mr Turner, which I accept, was, although Racal airstream helmets were issued to process operatives working on the ovens in the early 1980s, they were not issued to painters working on the oven floors or elsewhere in the Phurnacite Plant. The 3M masks would have been available from about 1980 but the evidence is that neither Mr Davies nor his colleagues wore such a mask and their use was not enforced by management. Consequently, I have taken no account of the wearing of RPE in Mr Davies’ case. Overtime
As a sampler
[28]Although the evidence was that Mr Davies worked a good deal of overtime and some of his overtime records have survived, I do not consider that overtime should be taken into account when assessing his exposure levels to PAHs for the reasons set out at Section 4 of my generic judgment. Exposure levels
Assessment of overall exposure levels
[29]All three experts used the personal sampling results set out in Table 6.4 Syred1/131 as the basis for calculating the extent of Mr Davies’ exposure to dust, BSM and BaP. Their assessments of his exposure levels are set out in the Table below: 1012. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg y m ) Syred 1567 178 111 1080 Stear 184 n/a 18 164 Jones 292.4 44.7 (82.2) 23.9 198.1
The medical issues
[30]For the purposes of Mr Davies’ claim for lung cancer, the most significant figure is that for his exposure to BaP.
The medical issues
[31]The significant disparities between the experts’ assessments are to a large extent explained by their differing assumptions about Mr Davies’ pattern of work during his employment as a painter and about the extent of his exposure to dust and fume during that time when compared with that of a process operative. In addition, Professor Syred assumed that, for 15% of his time as a painter, Mr Davies was performing cleaning duties with very high exposure levels comparable to those measured by static samplers in February 1979. I have included the element of cleaning duties within my assessment of the relative exposure levels of Mr Davies, as a painter, and of the process operatives employed in the areas where he worked from time to time. It is this factor that has led me to conclude that his exposure in the briquetting plants is likely to have been similar to that of a process operative employed there.
Type of skin
[32]There were other more minor differences in the approaches adopted by the experts upon which I do not need to elaborate. Assessment of overall exposure levels
Smoking
[33]I have already indicated that, in general, I accept Professor Jones’ approach to the assessment of exposure levels. Therefore, once I had reached some provisional conclusions about my findings of fact in Mr Davies’ case, I invited Professor Jones to rework his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings that I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which are not relevant to the causation of lung cancer and which in any event, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.
Smoking
[34]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimates of Mr Davies’ exposure during his employment at the Phurnacite Plant are for total dust 352.8 mgym-3, for BSM 36 mgym-3 and for BaP 293.9 μgym-3. Those figures make no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment. Having regard to my finding that no breach of duty has been established in respect of exposure to dust in the offices/canteen, I have excluded BaP exposure during the periods for which Mr Davies was working in those locations. That produces a figure for total BaP exposure of 290.5 μgym-3.[35]Professor Jones estimated Mr Davies’ lung cancer causation probability, on the basis of a multiplicative interaction between smoking and occupational exposure, at 52.1% for BaP. His estimate of excess relative risk was 1.09. I have calculated Mr Davies’ revised excess relative risk, in the light of the reduction in BaP exposure I have made, at 1.07. I have re-calculated the causation probability at just below 52% on the basis of a multiplicative interaction between smoking and occupational exposure.
Discussion and conclusions
[36]I accept Professor Jones’ figures as the best available estimates of Mr Davies’ exposure levels during his employment at the Phurnacite Plant. However, for the reasons set out in Section 3 of my generic judgment, I consider that, overall, the estimates will tend to under-estimate, rather than over-estimate, his exposure to BSM and BaP. The medical issues[37]The medical evidence in Mr Davies’ case came from Dr Rudd and Dr Falk. Smoking
The history of respiratory problems
[38]References contained in Mr Davies’ medical records suggest that he smoked between 6 and 20 cigarettes a day for most of his life. In her witness statement Mrs Davies stated that he smoked an average of 10 hand-rolled cigarettes daily. The claimant’s evidence was that he smoked 10-15 cigarettes a day. However, she said that he had periods – sometimes long periods – when he stopped smoking altogether.[39]Dr Rudd has assessed Mr Davies as a light smoker (i.e. less than 15 cigarettes a day) from the age of 18 years until shortly before his death, a period of about 46 years. In doing so, he has assumed that periods of heavier smoking were mitigated by periods when Mr Davies gave up smoking altogether or smoked only a small number of cigarettes a day. That seems to me a reasonable approach and I accept it.
The medical issues
[40]Dr Rudd and Dr Falk agreed that Mr Davies’ smoking history substantially increased the risk that he would develop lung cancer. Dr Rudd estimated his baseline risk of lung cancer as a result of smoking at 12%. Dr Falk reached a similar conclusion. Lung cancer
Conclusion
[41]The medical experts agree that Mr Davies developed lung cancer which caused his death. He first developed symptoms in early January 2000. He died about three weeks later, shortly after his lung cancer had been diagnosed. Dr Rudd’s evidence, which I accept, was that his predicted life expectancy at the time of his death (taking into account the effects of his smoking) was 15.7 years.[42]I discussed the causation of lung cancer at Section 8 of my generic judgment. I am satisfied that the agreed exposure level to BaP for the ‘doubling of risk’ (270 μgym-3) is soundly based and that the exposure levels assessed by Professor Jones are reasonably accurate albeit probably an under-estimate of Mr Davies’ actual exposure. Since Professor Jones has calculated that Mr Davies’ exposure to BaP amounted to 290 μgym-3, I find that the claimant has established that Mr Davies’ risk of developing lung cancer was more than doubled, albeit by a fairly modest margin. I have considered whether, given the size of that margin, I can be satisfied that the claimant has indeed succeeded in establishing the causation of Mr Davies’ lung cancer on a balance of probabilities. I have come to the conclusion that I can. In reaching that conclusion, I take into the account all the evidence I have heard about Mr Davies’ work and the conditions in the briquetting plants and the batteries where he was employed. As I have said, I consider that the exposure levels on which I have based my findings probably represent an under-estimate of his actual exposure. Limitation[43]I refer to Section 12 of this judgment, in which I discussed and made findings in relation to the generic issues relating to limitation. I shall now deal with the facts and issues relating specifically to Mr Davies’ case, before setting out my conclusions. Date of knowledge[44]Section 11(5) of the 1980 Act provides for the situation where (as here) the person injured (the deceased) dies within three years from the date when the cause of action accrued or from the date when he/she acquired the requisite knowledge, whichever is the later. In that situation, the primary limitation period governing a claim by the deceased’s estate is three years from the date of the deceased’s death or from the date when the deceased’s personal representative (i.e. the executor/executrix of the deceased’s will or the administrator/administratrix of his intestate estate) acquired knowledge for the purposes of the 1980 Act.[45]Mr Davies died on 30 January 2000. His cause of action arose only a short time before that date. By early 2005, Mrs Davies had contacted solicitors with a view to making a claim in respect of her late husband’s death. On 18 August 2005, she signed a witness statement in support of a claim. In it she said that she had not thought that Mr Davies’ illness and death could be related to his work until other people had begun to suggest to her that it might be so. She stated that, during his employment at the Phurnacite Plant, Mr Davies had been exposed to “many toxic substances”. However, she was unable to provide any details of his exposure. In the early part of 2005, Mrs Davies completed a questionnaire which was then forwarded to Hugh James to enable them to consider making a claim on her behalf. It seems probable therefore that she first instructed Hugh James at or about the beginning of January 2005. I infer that she did so shortly after it had been suggested to her that Mr Davies’ death might have been caused by his work.[46]Mr Davies did not leave a will. His estate was small. The house in which he and Mrs Davies lived was jointly owned and the couple’s bank account was in their joint names. Other savings accounts were in Mrs Davies’ sole name. Mrs Davies had no need to obtain a grant of letters of administration for her husband’s estate. The claimant (who, since the death of her brother at a young age, had been the couple’s only child) was able to deal with Mr Davies’ affairs on her mother’s behalf. A witness statement from Mr Wiljo Salen, partner of Hugh James, has confirmed the results of the investigations made by him which revealed that Mrs Davies was never the personal representative of Mr Davies.
Discussion and conclusions in relation to chronic bronchitis
[47]The claimant was granted letters of administration for Mr Davies’ estate on 17 October 2007. That being the case, the defendants accepted that, for the purposes of section 11(5) of the 1980 Act, it is the claimant’s date of knowledge that is relevant, rather than that of Mrs Davies. They contended that the claimant would have had the relevant knowledge shortly after her father’s death or, alternatively, in early 2005, when her mother contacted solicitors.[48]The claimant gave oral evidence about limitation and other matters. I did not find her an impressive witness. The claimant’s evidence was that her mother did not tell her that she was contemplating consulting solicitors or, once she had done so, that she had taken that step. The claimant said that she had been surprised, when she was told about it, that her mother had taken such a step on her own without consulting her. She thought that her mother may not have told her because she (i.e. the claimant) was ill at the time.
Conclusion
[49]The claimant said that it was not until Mrs Davies became ill in late 2006 that she told the claimant that she was making a claim in respect of Mr Davies’ illness and death. In the claimant’s witness statement, however, she said that, before that time, Mrs Davies had mentioned to her that “she was putting in” to see whether Mr Davies’ lung cancer and death had been caused by his exposure to substances at work. In oral evidence, the claimant said that she could not remember when Mrs Davies had given her this information. She did not think it had been long before the conversation in 2006 after Mrs Davies had become ill.[50]The claimant was adamant that, before her mother mentioned the matter to her, she had not considered the possibility that her father’s illness and death might have been caused by his work at the Phurnacite Plant. Despite the fact that she has lived in Mountain Ash all her life, she claimed to be unaware of the concerns about the risks to the health of local residents and employees caused by the activities at the Phurnacite Plant. She said that she did not remember the issue being discussed amongst members of her family or members of the local community. Nor was she aware of any items about the Phurnacite Plant that appeared in national and local newspapers or on local television and radio programmes. She said that she had never heard of any concerns about possible cancer risks for persons working at the Plant.
Chronic bronchitis
[51]I cannot accept the claimant’s evidence that she was ignorant of the concerns about the possible health risks associated with the Phurnacite Plant – in particular about the possible risks to people who had worked there – until as late as 2006. It is quite clear from the evidence I have seen and heard that these matters were widely discussed amongst the local community and were the subject of a great deal of publicity. The Phurnacite Plant had been a major employer in the area for more than four decades and the possibility that workers there might have been exposed to harmful substances must have been a source of interest and concern to the whole community. The claimant mentioned in her witness statement that a large number of Mr Davies’ former work colleagues had died before her father and that attending their funerals made her father “quite depressed”. I am satisfied that the claimant would have been aware of the concerns that the deaths (or some of them) had been caused by the working conditions at the Phurnacite Plant. It is just not credible that she would have been oblivious to the fears and concerns of the community in which she lived. However, I do accept that, at the time of her father’s death and for some time thereafter, it probably did not occur either to the claimant or to her mother that Mr Davies’ illness and death had been caused by his work. Her brother had died of cancer as a child, a fact which caused Mrs Davies to observe in her witness statement that there was a family history of cancer.[52]I do not accept that there was a significant interval between the time when Mrs Davies first began to consider whether to consult solicitors with a view to making a claim and the time she told the claimant that she had done so or was going to do so. The claimant and Mrs Davies were in regular (if not daily) contact and, after Mr Davies’ death, Mrs Davies was reliant on her daughter to drive her whenever she needed to travel any significant distance. I consider that the overwhelming probability is that the claimant had discussed with her mother the possibility of making a claim in respect of her father’s death before the decision was taken to consult solicitors and that, when her mother instructed solicitors to investigate the matter, the claimant was well aware that that had been done. It is possible, if the claimant was particularly unwell at the time when her mother was considering whether or not to consult solicitors, that Mrs Davies did not bother her with the matter then. However, if that had happened, I have no doubt that Mrs Davies would have told the claimant what she had done within a short time thereafter. The commencement of a claim would have been a major step for Mrs Davies to take and I regard it as inconceivable that she would not have informed the claimant of it as soon as possible. After that, I would have expected the matter to be discussed from time to time, at least when some new development (e.g. the receipt of a draft witness statement) occurred.[53]Mr Davies’ illness, diagnosis and death were very sudden and I accept that his widow and daughter may well have initially blamed his cancer on a family history of the disease. I consider it probable that neither the claimant nor Mrs Davies suspected that Mr Davies’ illness and death might have been attributable to his work at the Phurnacite Plant until a short time before Mrs Davies contacted Hugh James and filled in the questionnaire, i.e. in early 2005. If Mrs Davies had been aware that Mr Davies’ employment might have caused his death, I can see no reason why she would not have acted sooner. Thus, the primary limitation period would have expired at about the beginning of 2008. In the event, proceedings were not commenced until March 2010, when the claim was entered on the Phurnacite GLO Register and the claim is therefore prima facie statute-barred. Section 33 discretion
Section 33 of the 1980 Act
[54]I must therefore consider whether it would be equitable to disapply the primary limitation period in Mr Davies’ case. Apart from the generic grounds of prejudice to which I have referred in Section 12, the defendants rely on specific features of Mr Davies’ case in support of their contention that it would not be equitable to disapply the primary limitation period.
Chronic bronchitis
[55]I must consider first the length of, and reasons for, the delay in Mr Davies’ case. The period of delay before the commencement of proceedings was, in the context of this litigation, relatively short. The defendants contend that there was no good reason for the delay and that it has had a particularly serious effect since Mr Davies’ employment at the Phurnacite Plant started over 50 years ago and it is more than 25 years since it ended.
Limitation
[56]Mr Davies and his family became aware of his illness only in early 2000. I have found that the claimant and her mother did not suspect that his illness might have been caused by his exposure to dust and fume at work until early 2005. The claimant’s mother approached Hugh James in January 2005; the claim was one of a large number received by Hugh James in the first half of 2005. In the event, proceedings were not commenced until March 2010, when the claim was entered on the GLO Register. I set out in Section 12 of my generic judgment the steps that Hugh James took to progress the Phurnacite claims from 2005 onwards and the difficulties that they faced in investigating the claims and obtaining funding. I do not find that any of the period of delay between the date when the claimant acquired the relevant knowledge and the date of the commencement of proceedings arose as a result of fault on the part of the claimant or her solicitors.
Date of knowledge
[57]I have already discussed the generic issues relating to the cogency of the evidence. In Mr Davies’ case, the defendants rely on the fact that there is no witness evidence from management staff that directly bears on his employment between the start of his employment in 1959 and 1975, when Mr Turner began work as a maintenance foreman and assumed responsibility for supervising Mr Davies and the other painters. Mr Hodges’ evidence covered only the period from 1980 until the end of Mr Davies’ employment in 1987.[58]The precise sequence of jobs that Mr Davies carried out during the first five years of his employment at the Phurnacite Plant is not clear. I have found (in the defendants’ favour) that he did not work on the batteries during that period. The defendants’ records suggest that it is probable that Mr Davies worked in one of the briquetting plants for the first five years of his employment at the Phurnacite Plant. Since Professor Jones (whose approach I have accepted) has used a single exposure level for all process operatives who worked in briquetting plants 1 and 2 prior to 1974, the fact that Mr Davies’ precise movements within the briquetting plant cannot be ascertained makes no difference to his calculation. Accordingly, I find that no specific prejudice arises there.[59]From 1975 onwards, there was very detailed evidence from Mr Turner and Mr Hodges about the work of a member of the painting gang. It is true that their evidence did not extend back to Mr Davies’ earlier years as a painter. However, there is no reason to believe that the work of a painter underwent any material change over the years. Certainly, no significant change was reported during the 12-year period from 1975 until 1987. It seems unlikely that there would have been any significant alteration in the working conditions during the preceding 14 years – apart, possibly, from the nature of the products used, with which I am not concerned. Mr Davies’ exposure to dust and fume would have been dependent on the working conditions in the various areas where he worked. There is plenty of evidence about those conditions covering the whole period of Mr Davies’ employment.[60]The defendants said that they had been unable to trace any management witnesses with first hand knowledge of Mr Davies’ work. Moreover, Mr Turner had died before the trial so that they were denied the opportunity of cross-examining him. They pointed to the importance of the lack of evidence in a case where causation relies on the ‘doubling of risk’. They referred also to the fact that some of Mr Davies’ medical records are unavailable making it difficult to determine his smoking history.
Conclusion
[61]There is no reason to believe that, even if proceedings had been commenced within the primary limitation period – or, indeed, at any time after Mr Davies died, management witnesses would have been traced or a complete set of Mr Davies’ medical records would have been available. It seems likely that the evidence would have been confined to that which was in fact before the court.[62]Even if Hugh James had commenced proceedings in Mr Davies’ case immediately they were instructed, it is unlikely that the trial of the lead cases would have started earlier than in fact it did. Mr Turner died on 19 June 2011, very shortly before the trial started. Even if matters had proceeded more rapidly and he had still been alive at the time of the trial, it is highly improbable that evidence given by Mr Turner in cross-examination would have changed materially the overall effect of the evidence about Mr Davies’ working conditions. The description of Mr Davies’ working conditions set out in Mr Turner’s witness statement was very similar to that given by Mr Hodges. The major points of disagreement between them related to the division of Mr Davies’ time as between the batteries and the briquetting plants and as to the extent of the painters’ exposure when working on the batteries when compared with that of the process operatives working there. On both those matters, my findings coincide more closely with the evidence of Mr Hodges’ (who gave oral evidence) than with that of Mr Turner (who did not). Thus, I do not consider that the defendants were significantly prejudiced by Mr Turner’s unavailability.[63]As to the gaps in the medical records, some evidence was available from Mrs Davies and from the claimant about Mr Davies’ smoking history. That evidence was broadly similar to that contained in the available medical records and allowed Dr Rudd to reach what appears to me a reasonable and fair conclusion about the likely level of Mr Davies’ smoking, in addition to a diagnosis in his case.[64]It follows that I do not consider that the defendants have established any significant additional prejudice in Mr Davies’ case over and above that previously identified at Section 12 of this judgment. In the circumstances, I consider that it would be equitable to disapply the limitation period. Conclusion[65]The claimant’s claim succeeds and there will be an award of damages agreed in the sum of £39,175.89, inclusive of interest. APPENDIX A Raymond Davies 1049. Occupancy matrix From To Job factor Fractional occupancy Canteen / offices Boiler house Workshops Exhauster house 1 Exhauster house 2 Briquetting Oven and shuttle floors Quench, ramp and screens Annual hours 01/01/195931/12/1959 1 0 0 0 0 0 1 0 0 1900 01/01/196031/12/1964 1 0 0 0 0 0 1 0 0 1900 01/01/196531/12/1965 10.1 0.05 0.1 0.025 0.025 0.4 0 0 1900 01/01/196531/12/1965 0.5 0 0 0 0 0 0 0.27 0.03 1900 20/03/196931/12/1974 1 0.1 0.05 0.1 0.025 0.025 0.4 0 0 1900 01/01/197529/02/1984 1 0.1 0.05 0.1 0.025 0.025 0.4 0 0 1900 01/03/198531/12/1986 1 0.1 0.05 0.1 0.025 0.025 0.4 0 0 1900 20/03/196931/12/1974 0.5 0 0 0 0 0 0 0.27 0.03 1900 01/01/197529/02/1984 0.5 0 0 0 0 0 0 0.27 0.03 1900 01/03/198531/12/1986 0.5 0 0 0 0 0 0 0.27 0.03 1900 Raymond Davies 1050. Exposure estimates From To Job Plant Respirable dust dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 01/01/59 31/12/59 Spare man, briquetting Briquetting 3.49 20.93 1.89 12.96 0.00 3.49 01/01/60 31/12/64 Back end / pug man Briquetting 17.50 104.99 9.50 64.99 0.00 17.50 01/01/65 31/12/65 Painter Boilerhouse 0.01 0.05 0.01 0.06 0.00 0.01 01/01/65 31/12/65 Painter Briquetting 1.40 8.37 0.76 5.18 0.00 1.40 01/01/65 31/12/65 Painter Canteen / offices 0.000.02 0.00 0.43 0.00 0.00 01/01/65 31/12/65 Painter Exhauster house 1 0.01 0.06 0.01 0.10 0.00 0.01 01/01/65 31/12/65 Painter Exhauster house 2 0.02 0.12 0.02 0.25 0.00 0.02 01/01/65 31/12/65 Painter Workshops 0.05 0.25 0.05 0.54 0.00 0.05 01/01/65 31/12/65 Painter Oven and shuttle floors 0.62 3.86 0.51 5.45 0.13 0.00 01/01/65 31/12/65 Painter Quench, ramp and screens 0.02 0.13 0.02 0.16 0.01 0.00 20/03/69 31/12/74 Painter Boilerhouse0.03 0.29 0.03 0.35 0.00 0.03 01/01/75 29/02/84 Painter Boilerhouse0.04 0.19 0.04 3.94 0.00 0.04 01/03/85 31/12/86 Painter Boilerhouse 0.01 0.04 0.01 0.79 0.00 0.01 20/03/69 31/12/74 Painter Briquetting 8.10 48.57 4.39 30.07 0.00 8.10 01/01/75 29/02/84 Painter Briquetting 12.83 76.95 6.96 47.64 0.00 12.83 01/03/85 31/12/86 Painter Briquetting 2.57 15.41 1.39 9.54 0.00 2.57 20/03/69 31/12/74 Painter Canteen / offices 0.02 0.13 0.02 2.49 0.00 0.02 01/01/75 29/02/84 Painter Canteen / offices 0.04 0.14 0.04 0.37 0.00 0.04 01/03/85 31/12/86 Painter Canteen / offices 0.01 0.03 0.01 0.07 0.00 0.01 20/03/69 31/12/74 Painter Exhauster house 1 0.06 0.35 0.06 0.58 0.00 0.06 01/01/75 29/02/84 Painter Exhauster house 1 0.08 0.40 0.08 0.78 0.00 0.08 01/03/85 31/12/86 Painter Exhauster house 1 0.02 0.08 0.02 0.16 0.00 0.02 From To Job Plant Respirable dust dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 20/03/69 31/12/74 Painter Exhauster house 2 0.14 0.69 0.14 1.45 0.00 0.14 01/01/75 29/02/84 Painter Exhauster house 2 0.20 0.98 0.20 2.02 0.00 0.20 01/03/85 31/12/86 Painter Exhauster house 2 0.04 0.20 0.04 0.40 0.00 0.04 20/03/69 31/12/74 Painter Workshops 0.31 1.45 0.31 3.12 0.00 0.31 01/01/75 29/02/84 Painter Workshops 0.46 2.20 0.46 4.58 0.00 0.46 01/03/85 31/12/86 Painter Workshops 0.09 0.44 0.09 0.92 0.00 0.09 20/03/69 31/12/74 Painter Oven and shuttle floors 3.61 22.40 2.97 31.61 0.78 0.00 01/01/75 29/02/84 Painter Oven and shuttle floors 5.69 34.13 4.70 50.09 1.24 0.00 01/03/85 31/12/86 Painter Oven and shuttle floors 1.14 6.83 0.94 10.03 0.25 0.00 20/03/69 31/12/74 Painter Quench, ramp and screens 0.12 0.78 0.10 0.95 0.09 0.00 01/01/75 29/02/84 Painter Quench, ramp and screens 0.20 1.09 0.16 1.51 0.14 0.00 01/03/85 31/12/86 Painter Quench, ramp and screens 0.04 0.22 0.03 0.30 0.03 0.00 Raymond Davies 1051. Notes on exposure estimates From To Job Plant Notes 01/01/59 31/12/59 Spare man, briquetting Briquetting Exposure levels as per exposure matrix 01/01/60 31/12/64 Back end / pug man Briquetting Exposure levels as per exposure matrix 01/01/65 31/12/65 Painter Boilerhouse 01/01/65 01/01/65 01/01/65 31/12/65 31/12/65 31/12/65 Painter Painter Painter Briquetting Canteen / offices Exhauster house 1 Exposure levels as per exposure matrix 01/01/65 31/12/65 Painter Exhauster house 2 01/01/65 31/12/65 Painter Workshops From To Job Plant Notes 01/01/65 01/01/65 31/12/65 31/12/65 Painter Painter Oven and shuttle floors Quench, ramp and screens Factor of0.5 applied to exposures attributable to plant 20/03/69 31/12/74 Painter Boilerhouse 01/01/75 01/03/85 20/03/69 01/01/75 01/03/85 20/03/69 29/02/84 31/12/86 31/12/74 29/02/84 31/12/86 31/12/74 Painter Painter Painter Painter Painter Painter Boilerhouse Boilerhouse Briquetting Briquetting Briquetting Canteen / offices Exposure levels as per exposure matrix. Breaks in employment January 66 to March 69 (absence) and March 1984 to February 1985 (strike). No reduction for RPE in briquetting post 1980. 01/01/75 29/02/84 Painter Canteen / offices 01/03/85 31/12/86 Painter Canteen / offices 20/03/69 31/12/74 Painter Exhauster house 1 01/01/75 29/02/84 Painter Exhauster house 1 From To Job Plant Notes 01/03/85 31/12/86 Painter Exhauster house 1 20/03/69 31/12/74 Painter Exhauster house 2 01/01/75 29/02/84 Painter Exhauster house 2 01/03/85 31/12/86 Painter Exhauster house 2 20/03/69 31/12/74 Painter Workshops 01/01/75 29/02/84 Painter Workshops 01/03/85 31/12/86 Painter Workshops 20/03/69 31/12/74 Painter Oven and shuttle floors 01/01/75 01/03/85 20/03/69 01/01/75 29/02/84 31/12/86 31/12/74 29/02/84 Painter Painter Painter Painter Oven and shuttle floors Oven and shuttle floors Quench, ramp and screens Quench, ramp and screens Factor of 0.5 applied to exposures attributable to plant. Breaks in employment January 66 to March 69 (absence) and March 1984 to February 1985 (strike) No reduction for RPE post 1980 or 1981. 01/03/85 31/12/86 Painter Quench, ramp and screens Raymond Davies Estimates of lung cancer causation probability 1052. Summary exposure estimates Period Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven y Resp excl ovens mg y m-3 Total 59.0 352.8 36.0 293.9 2.7 47.5 1053. Estimates of excess relative risk Multiplicative ERR Submultiplicative ERR BSM BaP BSM BaP All exposures 1.19 1.09 0.72 0.82 ‘Multiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is wholly multiplicative; ‘submultiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is intermediate between multiplicative and additive (page 39 of my generic report refers). 1054. Estimates of lung cancer causation probability Multiplicative CP Submultiplicative CP BSM BaP BSM BaP All exposures 54.3% 52.1% 41.9% 45.1% ‘Multiplicative CP’ and ‘submultiplicative CP’ refer to estimates of causation probability based respectively on assumption of a fully multiplicative, or intermediate between multiplicative and additive, interaction between smoking and exposure; ‘BSM’ and ‘BaP’, as above, refer respectively to use of benzene soluble matter or benzo[α]pyrene as markers of risk. ‘All exposures’ refers to estimates of the causation probability attributable to Mr Davies’ exposure during his entire period of employment at the Phurnacite plant. JOHN GRIFFITHS
DAVID MIDDLE
[1]John Griffiths was born on 16 July 1924. He died on 9 June 2001 aged 76 years.
The claim
[2]The claim is brought by Mr Griffiths’ widow, Mrs Beryl Griffiths (the claimant) on behalf of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and on her own behalf, as his dependant, pursuant to the Fatal Accidents Act 1976. It is alleged that, as a result of exposure to dust and fume containing PAHs during his employment at the Phurnacite Plant, Mr Griffiths developed lung cancer which caused his death. There is also a claim for CB, allegedly exacerbated by exposure to dust at the Phurnacite Plant.
The defendants’ case
[3]In their closing submissions the defendants conceded that they were in breach of their duty to Mr Griffiths. They did so without limit, i.e. including the period for which he worked as a coal sampler.[4]The defendants accept that Mr Griffiths developed lung cancer which caused his death. However, they contend that the claimant cannot prove to the required standard that Mr Griffiths’ lung cancer was caused by his occupational exposure to PAHs. The defendants do not admit that Mr Griffiths developed CB. They contend that, if he did, his CB was caused by his smoking, rather than by exposure to dust at the Phurnacite Plant.
Damages
[5]The defendants contend that the claim is statute-barred under the provisions of the 1980 Act.
Damages
[6]Damages in Mr Griffiths’ case have been agreed, subject to the issues of causation, apportionment and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £62,500 and special damages in the sum of £21,775.20. The total damages are therefore £84,275.20, exclusive of interest.
Employment history
[7]Insofar as Mr Griffiths’ claim for non-malignant respiratory disease is concerned, it is agreed that there should be apportionment to exclude from compensation that part of his CB, if proved, which can properly be attributed to his smoking habit. The defendants also contend that there should be apportionment to reflect any exposure to dust which would inevitably have occurred without breach of duty on the defendants’ part (i.e. the ‘irreducible minimum’). Employment history Before
The Phurnacite Plant
[8]Between 1938/9 and 1949, Mr Griffiths was employed as a coal miner, working underground. During that period, he was exposed to large quantities of coal dust. From 1949 until 1970, he was employed as an aircraft maintenance fitter, although he had significant periods of time off work during this period as a result of illness. There is no suggestion that he was exposed to dust or fume during that period of employment.
Employment at the Phurnacite Plant
[9]Mr Griffiths was employed at the Phurnacite Plant from 15 March 1970 until 24 August 1985. On 27 September 1983, he sustained injuries to his right forearm and ankle in a fall at work. He did not return to work (apart from a period of about five weeks in early 1984) after that time. He worked at the Phurnacite Plant for a total of about 13½ years.
The witnesses
[10]There is no evidence from Mr Griffiths himself. The claimant made a witness statement in March 2011. However, by the time she came to give oral evidence, it was clear that her recollection of matters had faded to the point that it was virtually nonexistent. I do not consider that any reliance can be placed on her oral evidence. The claimant’s witness statement contained a considerable amount of detail and appeared to have been made at a time when her memory of events was much clearer. Nevertheless, it is necessary for me to consider to what extent the statement can be relied upon.
June-December 1959
[11]In March 2003, a claims questionnaire (CQ) was submitted in support of the claimant’s claim in the BCRDL. The CQ was completed in manuscript. It is clear from its appearance that at least two different people had played a part in writing the answers. In answer to a question in the CQ as to whether Mr Griffiths had ever smoked, a tick had been inserted to indicate that he had never done so. That was untrue. In oral evidence, Mrs Griffiths denied that she had completed the CQ and said that she did not know who had done so. However, she signed the CQ and it is probable that the information contained in the CQ came at least partly from her. I consider that it is highly unlikely that, at the time she signed the document, she was unaware of the false information that was contained in it. This causes me to approach the evidence contained within her witness statement with a considerable degree of caution as to its reliability.
April 1954 – May 1957
[12]Mr Alan Saunders gave evidence about Mr Griffiths’ work at the Phurnacite Plant. Mr Saunders began work there in February 1970, a few weeks before Mr Griffiths started. Initially, Mr Saunders was employed as a general labourer or spare man (henceforth referred to as a ‘spare man’) in briquetting plant 2. Within a short time, he was allocated the job of dryer’s assistant. On 5 June 1972, he began work as a sampler. He was appointed senior sampler in the mid-1970s. He left the Phurnacite Plant in September 1988. In connection with Mr Griffiths’ work as a shift fitter, I have also taken into account the evidence in the case of Mr David Jones. Summary of evidence
January 1956 – December 1960
[13]Briefly summarised, the evidence of Mr Griffiths’ working history at the Phurnacite Plant was as follows: 15 March 1970 – February 1975[14]On 15 March 1970, Mr Griffiths started work as a spare man in briquetting plant 2. Mr Saunders, who had carried out the same job immediately before Mr Griffiths started, described how the spare man would be assigned various tasks in the briquetting building, the press hall and on the shuttle car floor of the batteries. These tasks would include cleaning up spillages of coal and pitch, and clearing blockages on the presses, conveyors and other machinery.[15]At some stage during this period, Mr Griffiths was transferred to work as a shift fitter. I accept Mr Saunders’ evidence that the usual pattern was that, when a skilled man was taken on at the Phurnacite Plant, he would spend a few weeks working as a spare man after which he would be deployed on the work in which he was skilled. I therefore find that, given his previous experience as a fitter, Mr Griffiths is likely to have been transferred to work as a shift fitter no later than about three months after his arrival at the Phurnacite Plant. I have therefore assumed that, from 1 July 1970, Mr Griffiths worked as a fitter.[16]Mr Saunders’ evidence was that he got to know Mr Griffiths whilst the latter was working as a fitter. He said that they would meet when their shifts coincided and they would discuss their work. He described how Mr Griffiths had told him that he would have to clear conveyors that were blocked and that he would become covered with fine coal and pitch dust. He would often be working in confined spaces and at speed. He would work all over the Phurnacite Plant, although Mr Saunders got the impression that most breakdowns occurred in the briquetting plants. In particular, Mr Griffiths would carry out repairs to machinery in the dryer houses, in the pitch bays and on the presses and the pugs. He would often be called upon to repair the raw ovoid conveyors on the shuttle car floor.[17]Professor Syred assumed that Mr Jones spent 75% of his time as a shift fitter working in the briquetting plants and the other 25% of his time working all over the plant. Professor Jones’ estimate was that he spent 40% of his time in the briquetting plants, 25% on the batteries, 10% in the pitch bay, and the remaining 25% of his time in the workshops.[18]Having considered Mr Saunders’ evidence, it seems to me probable that Mr Griffiths spent most of his time as a shift fitter working in the briquetting plants. I note the contents of a Memorandum prepared by the NCB in 1991 for the purposes of Mr Griffiths’ claim for noise-induced hearing loss (NIHL). The Memorandum explained that there had been a tendency in the past for some fitters to become specialised in working on briquetting plant equipment and therefore to spend more time there than elsewhere at the Phurnacite Plant. It seems to me likely that Mr Griffiths fell into that category. I consider that the appropriate division of time would be 60% in the briquetting plants, 10% on the batteries, 5% in the pitch bay and 25% in the workshops or areas with similar exposure levels. 1975 – 1985[19]In 1975, Mr Griffiths became a member of the sampling team. The defendants’ documents show that Mr Griffiths had been trained in both coal sampling and plant sampling. Mr Saunders’ evidence was that Mr Griffiths was mainly employed on coal sampling, although he would undertake plant sampling when working overtime or covering for the absence of other members of the sampling team. Although Mr Griffiths might also have done some Phurnacite and effluent sampling, Mr Saunders could not confirm this and I have ignored any possible exposure from these activities. I have described the work of a coal sampler and a plant sampler at Section 2 of my generic judgment. That description is based on the evidence of Mr Saunders. He would see Mr Griffiths every day when Mr Griffiths visited the main sample room to collect his equipment. On the occasions when Mr Griffiths was engaged in plant sampling, he would prepare his samples in the main sample room and Mr Saunders would see him then.
Respiratory protection
[20]Mr Saunders’ evidence was that, when working as a coal sampler, Mr Griffiths would have spent about six hours of each eight-hour shift in the coal sample room, with the rest of the time being spent at the coal blending site or the coal tippler area and walking between various locations. He said that, when working as a plant sampler, Mr Griffiths would have spent an average of four hours of an eight-hour shift in the main sample room, about three hours in the briquetting plants (where he would have been exposed to the dust in the atmosphere there) and about an hour walking between the various locations.[21]I find that, during his time as a sampler, Mr Griffiths spent 90% of his time working on coal sampling and 10% of his time employed on plant sampling. Of the 90% spent on coal sampling, I find that 65% (including breaks) was spent in the coal sample rooms (mainly the coal blending site sample room), 20% at the coal blending site or tippler area and 5% walking between his various places of work. Of the 10% of his time spent as a plant sampler, I find that he spent 5% (including breaks) in the main sample room, 4% working in the briquetting plants and 1% walking between various locations. The Table below summarises my findings in relation to Mr Griffiths’ working history at the Phurnacite Plant. 1076. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION Mar 1970-30 June 1970 Labourer/spare man, briquetting plant 2 1 July 1970-1 Feb 1975 Shift fitter 60% briquetting plants; 10% batteries; 5% pitch bay; 25% in the workshops or areas with similar exposure levels. 2 Feb 1975-27 Sept 1983 and 22 Jan 1984-26 Feb 1984 Sampler 90% as a coal sampler, of which 65% in the coal sampling rooms, 20% at the coal blending site or tippler area and 5% walking between locations. 10% as a plant sampler, of which 5% in the main sample room, 4% in the briquetting plants and 1% walking between locations. Respiratory protective equipment
Overtime
[22]The evidence of Mr Saunders, which I accept, was that coal samplers did not wear any form of RPE. He suggested in his witness statement that, whilst other workers at the Phurnacite Plant wore the gauze Martindale masks, such masks would not have been available for the use of men working in the coal sample rooms. In fact, it is clear that, had he wished to use a Martindale mask, Mr Griffiths could have obtained one. In oral evidence, Mr Saunders conceded that it was possible that Mr Griffiths may have worn a Martindale mask at times when working in the coal sample rooms. However, such a mask would not have afforded him protection against anything but nuisance dust and the defendants do not contend that any deduction in the exposure levels calculated for Mr Griffiths should be made in respect of RPE.
Overtime
[23]The evidence is that Mr Griffiths worked overtime on his rest days and at other times also. His work records show that, during the 12 weeks preceding his accident in 1983, his overtime hours amounted to almost 50% of his basic weekly hours. There is no reason to believe that those records do not reflect the position throughout his employment at the Phurnacite Plant. However, I do not consider that overtime should be taken into account when assessing Mr Griffiths’ exposure levels to PAHs for the reasons set out at Section 4 of my generic judgment. His overtime working would be relevant to his claim for CB. Exposure levels[24]When calculating the extent of Mr Griffiths’ exposure to dust, BSM and BaP, Professor Syred and Mr Stear used the personal sampling results set out in Table 6.4 Syred 1/131 . As I have explained in Section 4 of my generic judgment, Professor Jones used a rather different method of assessment in respect of Mr Griffiths’ time as a sampler. The experts’ assessments of his exposure levels are set out in the Table below: 1080. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg y m ) Syred 359 143 29 232 Stear 86 n/a 9 76 Jones 231.7 35.7 (65.7) 10.2 92.2
Exposure levels
[25]For the purposes of Mr Griffiths’ claim for lung cancer, the most significant figure is that for his exposure to BaP. As a spare man
Assessment of overall exposure levels
[26]When calculating Mr Griffiths’ exposure levels during his time as a spare man, Professor Syred used the average level for all areas of the Plant, including the pitch bay. For the same period, Mr Stear assumed that he was exposed to levels equivalent to 75% of the average levels encountered by process operatives working in the briquetting plants. Professor Jones used the average exposure levels for the briquetting plants. I am satisfied that Professor Jones’ approach is correct since, as a spare man, Mr Griffiths would have been required to undertake some of the dustiest jobs in the briquetting plants.
As a shift fitter
[27]When calculating Mr Griffiths’ exposure levels during his time as a shift fitter, Professor Syred assumed that he had the same exposure as a process operative working in the same areas. Mr Stear considered that a fitter would have had 75% of the exposure of a process operative working in the same area. Professor Jones disagreed with Mr Stear. He took the same view as Professor Syred. He accepted that the plant and machinery on which fitters worked would not be operating so would not be actually producing dust at the time the fitters’ work was being carried out. In that respect, the fitters’ exposure would be less than that of a process operative. However, a fitter would receive additional exposure as a result of disturbing accumulated dust when opening up machinery or cleaning dust from surfaces on which he needed to work. Professor Jones considered that it was reasonable to assume that, whilst in a working area, a fitter’s exposure would on balance be the same as that of a process operative. I accept Professor Jones’ evidence on this point. As a sampler
The medical issues
[28]I have discussed the experts’ differing approaches to the assessment of the exposure levels of a coal sampler such as Mr Griffiths at Section 3 of my generic judgment. I have concluded that Professor Jones’ approach of equating the work of a coal sampler with that of a man employed in a coal preparation plant provides the best basis for assessment, although I share his view that the resulting total dust exposure level of 10 mgm-3 for a man working in the coal blending site sample room may well be an overestimate. I have accepted the view of both Professor Jones and Mr Stear that, during the time he was working in the coal sample rooms, Mr Griffiths would have had no significant exposure to BSM or BaP. Assessment of overall exposure levels
Smoking
[29]I have already indicated that, in general, I accept Professor Jones’ approach to the assessment of exposure levels. Therefore, once I had reached some provisional conclusions about my findings of fact in Mr Griffiths’ case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which are not relevant to the causation of lung cancer and which in any event, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.
As a pumpsman
[30]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimates of Mr Griffiths’ exposure during his employment at the Phurnacite Plant are, for total dust 207.8 mgym-3, for BSM 9.3 mgym-3 and for BaP 77.8 μgym-3. Those figures make no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment. I accept Professor Jones’ figures as the best available estimates of Mr Griffiths’ exposure levels during the period of his employment at the Phurnacite Plant although, as I have mentioned, I consider that they are likely, if anything, to over-estimate that exposure. The figure for total dust includes a small amount of dust exposure whilst Mr Griffiths was in the open areas of the Phurnacite Plant. Since that exposure will not affect the outcome of the case, I have not re-calculated Professor Jones’ figures to exclude it.
As a process foreman
[31]Professor Jones estimated Mr Griffiths’ lung cancer causation probability on the basis of a multiplicative interaction between smoking and occupational exposure, at 22.4% for BaP. His estimate of excess relative risk was 0.29 for BaP. The medical issues
The effects of exposure
[32]The medical evidence in Mr Griffiths’ case came from Dr Rudd and Dr Falk. Smoking
Conclusion
[33]References contained in Mr Griffiths’ medical records suggest that he smoked between 20 and 30 cigarettes a day until May 1986 when, after suffering a myocardial infarction, he heeded medical advice and stopped smoking. In her witness statement, Mrs Griffiths said that he had smoked since leaving school until he gave up in about 1986. In oral evidence she suggested that, before he stopped smoking in 1986, he had been smoking only about 10 cigarettes day but it was plain that she had no clear recollection about this.[34]Dr Rudd has assessed Mr Griffiths as a heavy smoker (i.e. more than 25 cigarettes a day) for 44 years. That seems to me fair and reasonable on the available evidence and I accept his assessment.[35]Dr Rudd and Dr Falk agreed that Mr Griffiths’ smoking history substantially increased the risk that he would develop lung cancer. Dr Rudd estimated his baseline risk of lung cancer as a result of smoking at 15%. Lung cancer
Assessment of overall exposure levels
[36]There is no dispute that Mr Griffiths had a small cell carcinoma of the lung which caused his death. He developed respiratory symptoms in August/September 2000. Lung cancer was diagnosed in December 2000, when he was admitted to hospital. He underwent radiotherapy in January 2001 which afforded him some relief. However, his condition deteriorated and he was re-admitted to hospital in May 2001. He died the following month. Dr Rudd’s evidence, which I accept, was that, at the time of his death, Mr Griffiths’ life expectancy was 3.9 years.[37]I have discussed the causation of lung cancer at Section 8 of my generic judgment. I am satisfied that the agreed exposure level to BaP for the ‘doubling of risk’ is soundly based. The claimant has failed by a significant margin to establish that Mr Griffiths’ risk of developing lung cancer was more than doubled and she has therefore failed to establish that his lung cancer was caused by his occupational exposure at the Phurnacite Plant. The history of respiratory problems[38]There is also a claim for an exacerbation of CB allegedly caused by Mr Griffiths’ exposure to dust during his period of employment at the Phurnacite Plant. Before turning to the evidence relating to this claim, it is necessary to consider Mr Griffiths’ history of respiratory illness, as revealed by his medical records.[39]On 6 August 1948, when Mr Griffiths was working as an underground miner, a note in his medical records stated that he had had pneumonia three months previously, as a result of which he was temporarily unfit for underground work. On 29 December 1948, a chest x-ray was reported to show signs of coal workers pneumoconiosis (CWP), but no secondary infective changes. Mr Griffiths ceased work as a miner in 1949. From that time until 1970, he worked as an aircraft fitter.[40]Mr Griffiths’ history of CWP was referred to again in a note made by his GP in November 1951. The next note relating to respiratory illness was made in June 1956 when he attended his GP with bronchial catarrh and was signed off work for a week. There were several attendances for “colds” in 1956 and 1957. In February 1957, there was another attendance with bronchial catarrh. In January 1958, a note in his GP records referred to “bronchitis”. On that occasion, he was complaining of pain in the left side on his chest made worse by deep breathing and was off work for a week.
Discussion and conclusions on skin cancer
[41]It is not clear whether the GP records for the 1960s are complete. So far as I have been able to ascertain, those that have survived do not contain any reference to respiratory problems. It is evident that, during the 1960s, Mr Griffiths had long absences from work due to psychiatric disorders.[42]The entries in the GP records covering the period from 1970 (when Mr Griffiths started work at the Phurnacite Plant) until 1982 are somewhat haphazard and it is impossible to know whether they are complete either. From 1982, the records are more orderly and very full and I am reasonably confident that they provide a complete picture of Mr Griffiths’ attendances on his GP up to 1985 (when his employment at the Phurnacite Plant formally ceased; in effect of course he had ceased working there in September 1983) and beyond.[43]In July 1970 (a few months after Mr Griffiths started work at the Phurnacite Plant), he was complaining of a cough and stabbing pains in his chest and was referred for a chest x-ray. He told a consultant physician that he had “a little cough but no sputum”. A right post-pneumonic effusion was diagnosed, with nodulation of the lung fields due to early CWP. The effusion cleared within a few weeks and, during his followup appointments at hospital, he made no complaints of long standing CB. There are no other surviving records relating to respiratory problems for the period up to 1982 or for the remaining period of his employment at the Phurnacite Plant.[44]The next entry in the medical records relating to respiratory problems was dated 20 July 1987, about four years after Mr Griffiths had effectively ceased working at the Phurnacite Plant. Mr Griffiths was complaining of a cold and a productive cough. In September 1989, he was complaining of shortness of breath on exertion. Five days later, he was coughing up blood and dark brown sputum. He continued to complain of severe respiratory symptoms. In January 1992, he was complaining of shortness of breath on exertion for the past six weeks and phlegm in his throat. A chest x-ray was reported to show pleural thickening and calcification, probably due to previous tuberculosis, although the possibility of asbestos-related disease was raised. In May 1992, he was complaining of a cough with thick sputum and was referred to Dr Brian Davies, a consultant respiratory physician. A letter written by Dr Davies to Mr Griffiths’ GP on 4 June 1992 made no mention of any history of CB, referring only to a six-month history of significant breathlessness. Lung function tests showed evidence of a restrictive respiratory condition. Mr Griffiths was obese and he was advised to lose weight. By August 1992, pulmonary fibrosis had been diagnosed and steroid therapy was being considered.[45]In January 1993, Mr Griffiths was complaining of increased coughing and phlegm. In August 1993, he was admitted to hospital for a trial of high dose steroid therapy. His breathlessness had worsened over the previous year and a chest x-ray showed a “ground glass” increase in density with bilateral pleural thickening. He derived little benefit from the steroid therapy which was discontinued after a few weeks. He was discharged from any further follow-up in October 1993. In November 1994, Mr Griffiths was diagnosed with a squamous cell carcinoma of the larynx which was successfully treated with radical radiotherapy.[46]In April 1996, Mr Griffiths attended before a Medical Board in connection with a claim he had made for industrial injuries benefit for asbestos-related disease. The Medical Board concluded that he had asbestosis and made an award of benefit. A GP note made in 1999 suggested that he had been assessed (possibly re-assessed) as having a 65% disability, 40% due to CWP and 25% to asbestosis.
Respiratory symptoms
[47]In June 1997, Mr Griffiths’ GP noted that he had shortness of breath at times. In December 1997, “COPD” was noted. In August 1998, he was said to remain short of breath. In December 2008, he was noted to be “always SOB [short of breath]”. In January 1999, he had a chest infection. On a date between January 1999 and June 1999 (the entry is not clear), he complained to his GP of shortness of breath and wheezing. A bronchodilator was prescribed, together with steroid therapy. There were further attendances on his GP in 1999 and early 2000 with shortness of breath. In March and July 2000, he was again noted to have “COPD”. His respiratory problems worsened from August 2000. In retrospect, it is probable that the deterioration at that time and thereafter was caused by his lung cancer. He died in June 2001.[48]The post-mortem examination showed no sign of the pulmonary fibrosis or asbestosis that had been diagnosed in life. However, histological examination of the lungs was reported to reveal the presence of slight to moderate emphysema. No asbestos fibres were detected, making it unlikely that asbestos exposure had played any part in the development of Mr Griffiths’ lung cancer.[49]At the Medical Assessment Process conducted in 2005 for the purposes of the BCRDL claim, the respiratory specialist concluded, inter alia, that Mr Griffiths had suffered from mild COPD which, together with lung cancer, asbestosis and obesity, had caused a total respiratory disability of 90% prior to his death.[50]Dr Rudd disagreed with those findings. His evidence, which I accept, was that Mr Griffiths had not suffered from pulmonary fibrosis, asbestosis or any symptoms relating to COPD. The lung function tests which he had undergone in 1992 had showed no sign of COPD. Any emphysema that had been present at post-mortem was, he said, of insufficient extent to cause symptoms. He attributed Mr Griffiths’ longstanding breathlessness to multiple causes unconnected with his work at the Phurnacite Plant. He considered that the x-ray appearances that had been attributed to fibrosis/asbestosis had resulted from a previous tubercular infection which (not unusually) had gone undetected. Chronic bronchitis
Chronic obstructive pulmonary disease
[51]The claimant’s case is that Mr Griffiths initially developed CB whilst working as a miner and that his condition worsened markedly whilst he was employed at the Phurnacite Plant as a result of his exposure to dust there. Dr Rudd’s view was that the evidence contained in the claimant’s witness statement and/or in the CQ submitted for the purposes of the BCRDL claim, if accepted, was sufficient to establish that exposure to dust at the Phurnacite Plant caused an exacerbation of pre-existing CB in Mr Griffiths’ case. However, he acknowledged that the outcome must depend on my assessment of the reliability of the claimant’s evidence and of the material contained in the CQ.[52]At trial, the defendants did not seek to undermine the claimant’s evidence to any significant extent. Indeed, at times in his cross-examination of the claimant, Mr Walker appeared to be accepting that Mr Griffiths had suffered worsening symptoms whilst working at the Phurnacite Plant. This was possibly for tactical reasons related to the defendants’ case on limitation. Be that as it may, however, it seems to me that I must examine the evidence for myself and reach my own conclusion as to whether the claimant’s assertions can properly be relied upon. As I have said, the claimant’s oral evidence was plainly unreliable. I must therefore consider the evidence contained in the claimant’s witness statement and in the CQ completed for the purposes of the BCRDL claim.[53]The CQ signed by the claimant in January 2003 stated that Mr Griffiths had coughed up phlegm from his chest when he was employed underground as a miner. It stated that he did so every day and was still coughing up phlegm at the date of his death. I have already observed that the CQ contained a significant untruth, namely that Mr Griffiths had never smoked. I have found that it is highly unlikely that, when she signed the CQ, the claimant was unaware of that untruth. I take the view that I cannot rely on the contents of the CQ without some further supporting evidence.[54]In her witness statement for the purpose of these proceedings, the claimant said that, by the time Mr Griffiths ceased to be an underground miner, he had “a bit of a cough” and would produce “black spit” on occasions, although his chest was not “particularly bad” at that time. She made no mention of his episode of pneumonia in 1948 or of the diagnosis of CWP that was made later that same year. These are surprising omissions. I would have expected her to remember that her husband had been diagnosed with CWP at such a relatively young age. The claimant said that Mr Griffiths had had no chest problems during his time as an aircraft fitter, although, in the 1950s, she began to notice that he became short of breath sooner than she did. She said that, when he started work at the Phurnacite Plant in 1970, he still had “an occasional cough” and his chest “sounded a bit wheezy”, but these problems did not affect his daily life.[55]The claimant said that, over the years when Mr Griffiths worked at the Phurnacite Plant, his chest problems worsened. At first this happened gradually. However, in the early 1980s, his chest appeared to get much worse. He had more regular bouts of coughing, when he would cough up black phlegm. His breathing became much more laboured and he appeared to have difficulty catching his breath. The claimant said that, because of these problems, Mr Griffiths’ work as a shift fitter became too strenuous for him and he took a job as a sampler instead. She said that, by the time he left the Phurnacite Plant, Mr Griffiths’ chest was “noticeably worse” than it had been before he started work there. He had a persistent tickly cough and was finding it increasingly difficult to breathe. He had an obvious wheeze and became short of breath easily. His cough and phlegm worsened and became particularly bad during the 1990s.[56]The account of events given by the claimant is not borne out by the contents of Mr Griffiths’ medical records and is inconsistent with his employment history. The medical records contain only one isolated reference to “bronchitis” during Mr Griffiths’ employment as an aircraft fitter. There are no references in his GP records to attendances in connection with chest problems between 1970 (when he was referred to a consultant with what appeared to be an episode of pneumonia) and July 1987, i.e. about four years after ceasing work at the Phurnacite Plant (when he was complaining of a cough and sputum).[57]It is possible, as I have said, that some of the records are missing. However, there are a number of entries from the early 1970s, including the period from late 1974 to February 1975, when Mr Griffiths transferred to work as a sampler. These entries disclose no respiratory problems. In particular, there are no references to Mr Griffiths suffering from a productive cough. Mr Griffiths was a frequent attender at his GP surgery with a variety of minor – as well as major – ailments. I would have expected that, if he had had a chronic problem with a cough and sputum, it would have been evident from his medical records. Moreover, Mr Griffiths’ move to work as a sampler occurred in 1975. It could not therefore have been caused by deterioration in his respiratory symptoms that, according to the claimant’s account, occurred in the 1980s. These discrepancies, together with other features of the claimant’s evidence relating to the limitation issues, and the contents of the CQ, cause me to conclude that the claimant cannot be regarded as a reliable witness.[58]There is no doubt that Mr Griffiths suffered a variety of serious respiratory symptoms over the years. Those symptoms culminated in his lung cancer and consequent death. It seems probable that, in the 1990s and thereafter, he did suffer from CB, probably related to his smoking. What is far less clear is that he suffered from CB during the course of his employment underground and/or at the Phurnacite Plant. There was a series of complaints about colds and catarrh and one complaint of “bronchitis” during the period from 1956 to 1958. However, that was at a time when Mr Griffiths was working as an aircraft fitter and therefore had no significant exposure to dust or fume.[59]That type of complaint did not appear in the medical records again until a time well after Mr Griffiths had left the Phurnacite Plant. The complaint of a cough and stabbing pains in his chest in July 1970 was clearly the result of an acute episode. It is significant in my view that, at that time, Mr Griffiths said that he was not producing sputum. It is significant also that he does not appear to have suggested to any of the doctors who treated him during the late 1980s or 1990s that he had a history of a persistent productive cough extending back over decades.[60]It would not be surprising if the claimant had difficulty in recalling the precise history of events. Nor would it be surprising if, with hindsight, she attributed all her husband’s various respiratory symptoms, whenever they occurred, to his work as an underground miner and/or at the Phurnacite Plant. I accept that, during Mr Griffiths’ time as a miner (and possibly also on occasion when he was working at the Phurnacite Plant), he would have coughed up black sputum as she described after a particularly dusty day at work. However, looking at the evidence as a whole, I cannot be satisfied on a balance of probabilities that, at the time when he was working at the Phurnacite Plant, Mr Griffiths suffered from CB, as defined by the Medical Research Council, or from an exacerbation of CB. Conclusion[61]In the circumstances, the claimant’s case in respect of both lung cancer and CB must fail. It is not therefore necessary for me to consider the issue of limitation. APPENDIX A John Griffiths 1118. Occupancy matrix From To Job factor Fractional occupancy Avg external Coal yard / tipplers Coal sampling Workshops Pitch bay Briquetting Oven and shuttle floors Quench, ramp and screens Annual hours 15/03/197030/06/1970 1 0 0 0 0 0 1 0 0 2725 01/07/197031/12/1974 1 0 0 0 0.25 0.05 0.6 0.05 0.05 2725 01/01/197501/02/1975 1 0 0 0 0.25 0.05 0.6 0.05 0.05 2725 02/02/197527/09/1983 1 0.06 0.2 0.7 0 0 0.04 0 0 2725 22/01/198426/02/1984 1 0.06 0.2 0.7 0 0 0.04 0 0 2725 John Griffiths 1119. Exposure estimates From To Job Plant Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 15/03/70 30/06/70 Labourer/spare man, briquetting Briquetting 1.47 8.82 0.56 3.81 0.00 1.47 01/07/70 31/12/74 Shift fitter Briquetting 13.56 81.34 5.13 35.11 0.00 13.56 01/01/75 01/02/75 Shift fitter Briquetting 0.26 1.53 0.10 0.66 0.00 0.26 01/07/70 31/12/74 Shift fitter Oven and shuttle floors 1.26 7.81 0.72 7.88 0.23 0.00 01/01/75 01/02/75 Shift fitter Oven and shuttle floors 0.02 0.150.01 0.15 0.00 0.00 01/07/70 31/12/74 Shift fitter Pitch bay 0.48 1.90 0.47 10.58 0.00 0.48 01/01/75 01/02/75 Shift fitter Pitch bay 0.01 0.04 0.01 0.20 0.00 0.01 01/07/70 31/12/74 Shift fitter Quench, ramp and screens 0.23 1.45 0.14 1.24 0.23 0.00 01/01/75 01/02/75 Shift fitter Quench, ramp and screens 0.004 0.03 0.000.02 0.00 0.00 01/07/70 31/12/74 Shift fitter Workshops 0.87 4.03 0.61 6.08 0.00 0.87 01/01/75 01/02/75 Shift fitter Workshops 0.02 0.07 0.01 0.11 0.00 0.02 02/02/75 27/09/83 Sampler Briquetting 1.74 10.42 0.66 4.50 0.00 1.74 22/01/84 26/02/84 Sampler Briquetting 0.02 0.12 0.01 0.05 0.00 0.02 02/02/75 27/09/83 Sampler Coal sampling room 13.02 86.83 0.54 3.63 0.00 13.02 22/01/84 26/02/84 Sampler Coal sampling room 0.14 0.96 0.01 0.04 0.00 0.14 02/02/75 27/09/83 Sampler Coal stockyard / tipplers 0.22 0.74 0.16 1.56 0.00 0.22 22/01/84 26/02/84 Sampler Coal stockyard / tipplers 0.002 0.01 0.002 0.02 0.00 0.002 02/02/75 27/09/83 Sampler Plant external average 0.31 1.56 0.22 2.18 0.00 0.31 22/01/84 26/02/84 Sampler Plant external average0.003 0.02 0.002 0.02 0.00 0.003 John Griffiths 1120. Notes on exposure estimates From To Job Plant Notes 15/03/70 30/06/70 Labourer/spare man, briquetting Briquetting Exposure levels as per exposure matrix 01/07/70 31/12/74 Shift fitter Briquetting 01/01/75 01/07/70 01/01/75 01/07/70 01/01/75 01/02/75 31/12/74 01/02/75 31/12/74 01/02/75 Shift fitter Shift fitter Shift fitter Shift fitter Shift fitter Briquetting Oven and shuttle floors Oven and shuttle floors Pitch bay Pitch bay Exposure levels as per exposure matrix 01/07/70 31/12/74 Shift fitter Quench, ramp and screens 01/01/75 01/02/75 Shift fitter Quench, ramp and screens 01/07/70 31/12/74 Shift fitter Workshops 01/01/75 01/02/75 Shift fitter Workshops 02/02/75 27/09/83 Sampler Briquetting 22/01/84 02/02/75 22/01/84 02/02/75 26/02/84 27/09/83 26/02/84 27/09/83 Sampler Sampler Sampler Sampler Briquetting Coal sampling room Coal sampling room Coal stockyard / tipplers Exposure levels as per exposure matrix 22/01/84 26/02/84 Sampler Coal stockyard / tipplers 02/02/75 27/09/83 Sampler Plant external average 22/01/84 26/02/84 Sampler Plant external average John Griffiths Estimates of FEV 1 loss and lung cancer causation probability 1121. Summary exposure estimates Period Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven y Resp excl ovens mg y m-3 Total 33.6 207.8 9.3 77.8 0.5 32.1 1122. Estimates of FEV 1 loss (ml) FEV 1 loss Ml Due to dust 45 Due to time in ovens 5 Total 50 1123. Estimates of excess relative risk Multiplicative ERR Submultiplicative ERR BSM BaP BSM BaP All exposures 0.31 0.29 0.19 0.22 ‘Multiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is wholly multiplicative; ‘submultiplicative ERR’ is excess relative risk calculated on the assumption that the interaction between smoking and exposure is intermediate between multiplicative and additive (page 39 of my generic report refers). 1124. Estimates of lung cancer causation probability Multiplicative CP Submultiplicative CP BSM BaP BSM BaP All exposures 23.6% 22.4% 15.8% 17.9% ‘Multiplicative CP’ and ‘submultiplicative CP’ refer to estimates of causation probability based respectively on assumption of a fully multiplicative, or intermediate between multiplicative and additive, interaction between smoking and exposure; ‘BSM’ and ‘BaP’, as above, refer respectively to use of benzene soluble matter or benzo[α]pyrene as markers of risk. RONALD LYNDHURST JENKINS
FREDERICK JOHN RICHARDS
[1]Ronald Jenkins was born on 3 January 1929 and died on 25 September 2005, aged 76 years.
The claim
[2]The claim is brought by Mr Jenkins’ widow, Mrs Rita Jenkins (the claimant) on behalf of his estate under the Law Reform (Miscellaneous Provisions) Act 1934 and on her own behalf, as Mr Jenkins’ dependant, pursuant to the Fatal Accidents Act 1976. It is alleged that, as a result of the dust and fume containing PAHs to which he was exposed during his employment at the Phurnacite Plant, Mr Jenkins developed bladder cancer.
The defendants’ case
[3]In their written closing submissions, the defendants admitted that they were in breach of duty towards Mr Jenkins only for a short period of his employment with them. They did not admit breach of duty during the nine years or so for which he was employed as a pumpsman in exhauster house 1. In his oral submissions, however, Mr Walker indicated that the defendants admitted breach of duty in relation to each of the lead claimants and he did not make any submissions on breach of duty when addressing me in connection with Mr Jenkins’ case. I assume that the defendants’ change of stance resulted from the evidence of Professor Jones, whose ‘background’ exposure levels for the exhauster houses revealed levels of BSM well in excess of the ACGIH TLV of 0.2 mgm-3. In any event, I have found, in Section 5 of my generic judgment that the defendants were in breach of duty to men working in exhauster house 1.[4]The defendants accept that Mr Jenkins developed bladder cancer. They also accept that, despite the fact that the immediate cause of his death was renal failure, his bladder cancer was the indirect cause of his death. However, they contend that the claimant cannot prove to the required standard either that bladder cancer is a disease caused by exposure of the kind to which Mr Jenkins would have been subject at the Phurnacite Plant or, if it is, that Mr Jenkins’ bladder cancer was caused by that exposure.[5]Although the defence of limitation pursuant to the Limitation Act 1980 was pleaded in the Individual Defence in Mr Jenkins’ claim, in the event the defendants did not pursue their arguments on limitation in his case.
Damages
[6]Damages in Mr Jenkins’ case have been agreed, subject to the issues of causation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £57,500 and special damages in the sum of £56,015.83. The total damages are therefore £113,515.83, exclusive of interest. Employment history Period of employment
Employment history
[7]Mr Jenkins was employed at the Phurnacite Plant continuously from 21 May 1978 until 29 January 1989, a period of about 10½ years. It is not contended that he had any exposure to PAHs other than at the Phurnacite Plant.
The witnesses
[8]Mr Jenkins signed a witness statement for the purpose of these proceedings in August 2005, the month before his death. The claimant made a witness statement in March 2011 and gave oral evidence. The other witnesses in Mr Jenkins’ case were Mr Silvanus, Mr Lanyon and one of the other lead claimants, Mr Richards. A number of other witnesses described conditions on the batteries, where Mr Jenkins worked during the early part of his time at the Phurnacite Plant.
Summary of evidence
[9]Mr Silvanus was employed at the Phurnacite Plant between 1972 and 1986. In 1978, when Mr Jenkins started work there, Mr Silvanus was working as a charging car operator and quenching car attendant. He often worked with Mr Jenkins on the batteries. In 1979, Mr Silvanus began to work as a pumpsman in exhauster house 1. When Mr Jenkins began his training there, Mr Silvanus helped to teach him the job of pumpsman. Mr Silvanus signed a witness statement in November 2010, but he died before the trial started.
Summary of evidence
[10]Mr Lanyon worked at the Phurnacite Plant between 1968 and 1980. He had known Mr Jenkins before the two of them started to work there. He was a pumpsman in exhauster house 1 from about 1974 until January 1984. He also assisted in training Mr Jenkins in the role of a pumpsman. For a time, Mr Jenkins, Mr Silvanus and Mr Lanyon were all employed in the same job as pumpsmen in exhauster house 1, each working on a different shift. Mr Lanyon gave oral evidence. Although he was plainly somewhat infirm, he was a good witness. He had an excellent memory of the duties of a pumpsman and did his best to answer the questions asked of him fairly and accurately.
Summary of evidence
[11]Mr Richards was employed as a pumpsman and exhausterman in exhauster house 1 between 1957 and 1966. He worked as a process foreman between 1966 and 1981, during which time he visited the exhauster houses on a regular basis. He knew Mr Jenkins slightly as a result of those visits. Summary of evidence
January 1954 – December 1955
[12]Briefly summarised, the evidence about Mr Jenkins’ working history at the Phurnacite Plant was as follows. 21 May 1978 – 13 October 1979[13]During this period, Mr Jenkins worked as a general labourer (or ‘spare man’) on the batteries. In his witness statement he described how, at various times, he carried out the duties of a charging car operator and a quenching car attendant. Whilst working in those capacities, he was responsible for charging, poking and discharging the ovens. Whilst working as a quenching car attendant, he sustained steam burns to his face when discharging an oven. He also worked on the ramps and in the screen house. Mr Jenkins also spent some shifts in the pitch bay, breaking up solid pitch using pneumatic tools.[14]Mr Silvanus, who worked with Mr Jenkins on the batteries, estimated that Mr Jenkins would have spent 45% of his time carrying out the duties of a charging car operator, 45% of his time working as a quenching car attendant and the remaining 10% of his time divided between the ramps, the screen house and the pitch bay. I accept that estimate, save that I consider it probable that Mr Jenkins spent rather less time in the pitch bay than Mr Silvanus suggested. I have assumed that 2% of his time was spent there, 4% on the ramps and 4% in the screen house. 14 October 1979 – 29 January 1989[15]The defendants’ documents state that Mr Jenkins started work as a pumpsman on 2 March 1980. However, there is clear evidence that he underwent training as a pumpsman and exhausterman between 14 October 1979 and 30 January 1980. I have therefore assumed that he ceased work as a spare man (and began to have the exposure levels of a pumpsman) on 13 October 1979, although he probably continued to be paid as a spare man (rather than as a pumpsman) until the beginning of March 1980.[16]During this period, Mr Jenkins worked mainly as a pumpsman in exhauster house 1, carrying out the work of an exhausterman as and when he was required to do so. I have described the working conditions in exhauster house 1, together with the duties of a pumpsman, at Section 2 of my generic judgment. It is possible also that, during this period, Mr Jenkins was involved in cleaning out the various tanks on the tank farm. However, the evidence about this is sparse and I am not satisfied on the balance of probabilities that he did so.[17]The Table below summarises my findings in relation to Mr Jenkins’ working history at the Phurnacite Plant. 1142. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION 21 May 1978 -13 Oct 1979 Labourer/spare man, batteries 45% as charging car attendant; 45% as quenching car attendant; 4% in screen house; 4% on ramps; 2% in pitch bay 14 Oct 1979 -29 Jan 1989 Pumpsman, exhauster house 1 One year spent on strike during this period Respiratory protective equipment[18]The training document for pumpsmen Jenkins1/111 , completed at the conclusion of Mr Jenkins’ training in early 1980, listed the protective clothing to be worn by pumpsmen. This clothing did not include any RPE. Mr Silvanus’ evidence was that the pumpsmen were not provided with any form of RPE. Mr Lanyon said that they would wear the gauze Martindale masks on occasion when they were carrying out work which produced particularly intense fumes. He said that, on average, he would wear a Martindale mask for about one hour each day. However, the masks were of little use since they were designed to protect against nuisance dust rather than fumes. Mr Lanyon had also worn a Racal airstream helmet when working as a pumpsman. This was at a time when the helmets were on trial at the Phurnacite Plant. They were not issued to pumpsmen as a general rule. Mr Lanyon said that he had never heard of the 3M mask. I am satisfied on the evidence that Mr Jenkins was never issued with or used appropriate RPE and indeed the defendants do not contend that any deduction in the exposure levels calculated for Mr Jenkins should be made in respect of RPE. Overtime[19]The evidence of the claimant, Mr Lanyon and Mr Silvanus was that Mr Jenkins regularly worked overtime. Some overtime records for Mr Jenkins have survived. They show that, during a 12-week period in 1986, his overtime hours amounted to about 23% of his basic weekly hours. However, I do not consider that overtime should be taken into account when assessing Mr Jenkins’ exposure levels to PAHs for the reasons set out at Section 4 of my generic judgment. The effects of exposure[20]The claimant described how her husband’s skin would be yellow when he returned home from work. Although he was provided with overalls which were laundered at the Phurnacite Plant, he would bring them home to be washed again. The claimant said that they were stained and smelled of tar. She would boil and soak them but could never get them entirely clean. This evidence accords entirely with the evidence given by the witnesses who had formerly worked as pumpsmen. The evidence, which I accept, confirms that, in the course of his work, Mr Jenkins was exposed to significant quantities of tar and other substances containing pitch. Exposure levels[21]All three experts used the personal sampling results set out in Table 6.4 Syred1/131 as the basis for calculating the extent of Mr Jenkins’ exposure to dust, BSM and BaP. The experts’ assessments were as follows: 1147. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg y m ) Syred 76 6.5 23 490 Stear 33 n/a 6.2 84 Jones 74.5 13.7(25.2) 10.9 111.8
Overtime
[22]For the purposes of Mr Jenkins’ claim for bladder cancer, the relevant figures are those for his exposure to BSM and BaP.
The expert evidence
[23]The differences in the experts’ estimate of Mr Jenkins’ exposure levels during his time as a spare man were mainly caused by their varying estimates of the time spent by him working in the various areas of the batteries and the pitch bay.[24]I have described at Section 3 of my generic judgment how the experts arrived at their differing assessments of Mr Jenkins’ exposure levels during his time as a pumpsman. I concluded that, subject to certain matters, Professor Jones’ approach to the calculation of his exposure levels was reasonable and appropriate and I accept it. Assessment of overall exposure levels[25]Once I had reached some provisional conclusions about my findings of fact in Mr Jenkins’ case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which are not relevant to the causation of bladder cancer and which in any event, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.[26]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimates of Mr Jenkins’ exposure during his employment at the Phurnacite Plant are, for BSM 5.3 mgym-3 and for BaP 55.6 μgym-3. Those figures make no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment.
As a member of the Capital Gang
[27]I accept Professor Jones’ figures as the best available estimates of Mr Jenkins’ exposure levels during the period of his employment at the Phurnacite Plant. However, I am satisfied that, because they take no account of the effects of the sweeping and steam cleaning activities carried out in exhauster house 1, Professor Jones’ figures underestimate by an unquantifiable amount Mr Jenkins’ exposure to BSM and BaP.
The medical issues
[28]The medical evidence in Mr Jenkins’ case came from Mr Pettersson and Mr Bishop.
Smoking
[29]It is clear from the medical records that Mr Jenkins was at one time a heavy smoker but that he had given up the habit many years before his death. I find that he probably stopped in 1968. That would accord roughly with his assertion to a doctor in 1989 that he had smoked for 20 years. He was a heavy smoker, smoking as many as 60 cigarettes a day for at least part of that time. The medical experts agreed that smoking increases the risk of developing bladder cancer. However, they disagreed about whether, and if so to what extent, a man like Mr Jenkins, who had given up smoking many years previously, would still have been at an increased risk of developing bladder cancer as a result of his smoking history. I discussed their evidence and set out my conclusions at Section 9 of my generic judgment. Bladder cancer[30]In February 2005, Mr Jenkins suffered episodes of haematoma, which were initially attributed to kidney infections. By June 2005, he was anaemic. An ultrasound scan performed in July 2008 revealed the presence of a bladder tumour. This was confirmed on cytoscopy and the tumour was re-sected. A CT scan did not show any obvious spread of the cancer. His condition deteriorated and in September 2005, he was admitted to hospital very unwell. He was in severe renal failure and had acute urinary retention. He died three days later.[31]At Section 9 of my generic judgment, I discussed the evidence relating to the causation of bladder cancer. I concluded that, although the epidemiology suggests that it is possible that the fumes emitted during the carbonisation process at the Phurnacite Plant may have contained significant quantities of one or more substances capable of giving rise to an increased risk of bladder cancer, the epidemiological evidence, taken on its own, falls short of establishing that fact on a balance of probabilities.
As a yard foreman
[32]I also found that, even if my view on the strength of the epidemiological evidence were different, I would be unable to quantify the increase in risk and would therefore be unable to reach any conclusion as to the likelihood that Mr Jenkins’ exposure to PAHs at the Phurnacite Plant – rather than his smoking or some unknown and wholly unrelated cause – had caused his bladder cancer. I therefore concluded that the claimants had not succeeded in establishing causation in the bladder cancer cases. Conclusion
History of skin lesions
[33]In the circumstances, the claimant’s claim must fail. The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment APPENDIX A Ronald Jenkins 1160. Occupancy matrix From To Job factor Fractional occupancy Exhauster house 1 Pitch bay Oven and shuttle floors Quench, ramp and screens Annual hours 21/05/197813/10/1979 1 0 0.02 0.45 0.53 1900 14/10/197929/02/1984 1 1 0 0 0 1900 01/03/198529/01/1989 1 1 0 0 0 1900 1161. Exposure estimates and notes From To Job Plant BSM mg y m-3 BaP µg y m-3 Notes 21/05/78 13/10/79 Labourer / spare man, batteries Oven and shuttle floors 2.01 21.99 21/05/78 13/10/79 Labourer / spare man, batteries Pitch bay 0.06 1.31 Exposure levels as per exposure matrix 21/05/78 13/10/79 Labourer / spare man, batteries Quench, ramp and screens 0.44 4.07 14/10/79 01/03/85 29/02/84 29/01/89 Pumpsman, exhauster 1 Pumpsman, exhauster 1 Exhauster house 1 Exhauster house 1 1.49 1.33 14.88 13.31 Exposure levels as per exposure matrix. Break in employment March 1984 to February 1985 due to strike. 1162. Summary exposure estimates Period BSM mg y m-3 BaP µg y m-3 Total 5.3 55.6 279 DAVID SAMUEL JONES
MICHAEL DOUGLAS ROBSON
[1]David Jones was born on 28 June 1932. He is now aged 80 years.
The claim
[2]Mr Jones alleges that the three episodes of skin cancer which he has suffered in the past were caused by exposure to dust and fume containing PAHs during his employment at the Phurnacite Plant.
The defendants’ case
[3]The defendants admit that they were in breach of their duty towards Mr Jones. They accepted that Mr Jones has suffered from skin cancer in the form of three basal cell carcinomas (BCCs). However, they contend that Mr Jones cannot prove to the required standard that BCC is a condition caused by exposure of the kind to which he would have been subject at the Phurnacite Plant. If it is, they contend that he cannot prove to the required standard that the BCCs from which he suffered were caused by that exposure.[4]The defendants’ case is that a more likely cause of Mr Jones’ BCCs was previous sun exposure. The defendants also suggested that Mr Jones may have had some exposure to carcinogens (in particular the constituents of mineral oils) when working for other employers before and after his time at the Phurnacite Plant.[5]The defendants further contend that Mr Jones’ claim is statute-barred under the provisions of the 1980 Act.
Damages
[6]Damages in Mr Jones’ case have been agreed, subject to the issues of causation and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £6,500 and special damages in the sum of £114.17. The total damages are therefore £6,614.17, exclusive of interest. Employment history At the Phurnacite Plant[7]Mr Jones was employed at the Phurnacite Plant continuously between 1962 and 1969, a period of about 7 years.
Before and after the Phurnacite Plant
[8]Before he started work at the Phurnacite Plant in 1962, Mr Jones spent about 14 years in other employment. He served for about ten years as a stoker/mechanic or stoker/fireman with the Royal Navy and subsequently in the Merchant Navy. In addition, he worked as an engine cleaner with the Great Western Railway, as a machine operator with Helliwells Tube Products and as a fitter at an opencast mine.
The witnesses
[9]After his employment at the Phurnacite Plant ceased in 1969, Mr Jones worked for a further 30 years or so for various employers, mainly as a fitter. The witnesses[10]Mr Jones made a lengthy witness statement and gave oral evidence. It was clear from his witness statement that, despite the time that had elapsed, he retained a reasonably good recollection of the processes carried out at the Phurnacite Plant. In other respects, however, he was not an impressive witness. His evidence about the date when he gave up smoking was wholly inconsistent with the medical records and I did not accept it. It led me to doubt the reliability of other aspects of his evidence, in particular that relating to his past sun exposure. However, his account of his working conditions was generally consistent with the evidence of other witnesses and I accept his evidence on that topic. Other witnesses gave evidence about working conditions on the batteries and (to a limited extent) as a shift fitter. Summary of evidence
January 1952 – December 1953
[11]Briefly summarised, the evidence about Mr Jones’ working history at the Phurnacite Plant was as follows. 1962-1964[12]The defendants have no employment records for Mr Jones. As a result, it is impossible to say with accuracy when he started and finished at the Phurnacite Plant and on which dates he moved from job to job. Before working at the Phurnacite Plant, he had been employed as a skilled fitter. At the time he started work at the Phurnacite Plant, there were no fitting jobs available. He therefore spent between one and two years working on the oven floor of battery 5. During his time there, he was engaged mainly as a charging car operator and was responsible for charging the ovens, opening the oven lids at the conclusion of the carbonisation process and poking the ovens when necessary.[13]During this period, I find that Mr Jones spent virtually the whole of his time engaged on work on the oven floor. The evidence was that he spent only a small amount of overtime working elsewhere. 1964-1968[14]Between about 1964 and 1968, Mr Jones was employed as a shift fitter. He was deployed wherever repairs to moving machinery were required. He estimated that he spent about half of his time in the briquetting buildings where many of the mechanical problems occurred. He carried out repair and maintenance work on the disintegrators and the pugs. He often had to work inside the pugs and would be covered in dust containing pitch. He would also carry out repairs to the presses and would come into contact with pitch there. In addition, he would carry out repairs to conveyors and elevators covered in pitch and pitch dust. The elevators in the pitch handling areas broke down very frequently and Mr Jones would have to break up and remove the build-up of pitch that had caused the breakdown.[15]Mr Jones also described working at the sub-ground floor level of the briquetting plants. The sub-ground floor housed the drive belts for the elevators and other machinery in the briquetting plants. Huge quantities of dust accumulated in this area, having fallen from the floors above. The dust would be disturbed by Mr Jones as he moved around and started up the drive belts. On occasion he also had to work inside the ESPs. Mr Jones would also work on the oven floor, removing and cleaning the nozzles of the oil sprayers, repairing pipes and assisting in the replacing of elephants.[16]Mr Jones estimated that he spent an average of about 10% of each shift working in the workshops. Taking into account the other evidence about the activities of shift fitters, I consider that 10% is probably an under-estimate. I have assumed that he was employed in the workshops for 20% of his time. As to the remainder of his time, I consider that a split of 70% of his time at average exposure levels for the briquetting plants and 10% of his time at average exposure levels for the pitch bay would be reasonable. 1968-1969[17]For about the last year of his employment at the Phurnacite Plant, Mr Jones worked as a day fitter. He worked as a part of a gang of fitters, carrying out mainly routine maintenance work in the briquetting plants. His exposure to pitch dust was much the same as before.[18]I find that, during this period, Mr Jones would have spent less time (about 10%) in the workshops, with the remainder split as to 80% at average exposure levels for the briquetting plants and 10% at average exposure levels for the pitch bay.[19]The Table below summarises my findings in relation to Mr Jones’ working history at the Phurnacite Plant: 1182. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION 1 Jan 1962 -31 Dec 1963 Charging car operator 100% of time on oven floor 1 Jan 1964 -31 Dec 1968 Shift fitter 70% briquetting plants; 20% workshops; 10% pitch bay or equivalent exposure 1 Jan-31 Dec 1969 Day fitter 80% briquetting plants; 10% workshops; 10% pitch bay or equivalent exposure Protective measures[20]When working on the oven floor, Mr Jones wore overalls provided by the defendants, together with gloves to protect him from the heat. When poking the ovens, he wore asbestos pads over his gloves. However, the overalls did not cover his neck and it was possible for dust to get inside the top of them. There was a gap between the top of his gloves and the sleeves of his overalls which left his forearms exposed. Mr Jones said that he was unable to wear gloves when working as a fitter since the gloves available at the Phurnacite Plant were unsuitable for the intricate work which he had to carry out. It was not contended by the defendants that suitable gloves were provided for this work or that Mr Jones should have worn them.[21]Barrier cream was available in the changing and shower rooms and in the fitters’ workshops. Mr Jones would usually apply barrier cream at the beginning of each shift. However, it would wear off in the course of the day and it was often not possible to reapply the cream until after his shower at the end of the shift. Overtime[22]There are no overtime records available for Mr Jones. His evidence was that, when working on the oven floor, he would usually work on one of his rest days. In general, he would carry out his normal job on the ovens on his rest day, but sometimes he would assist the riggers or work on the quenching car floor. He said that he did not do much overtime other than on his rest day. When he was working as a fitter, he did not often work overtime, although he would sometimes do so on one of his rest days. Were it appropriate to take his overtime hours into account, I consider that they should be assessed at half the average overtime hours as calculated by Professor Syred. Exposure levels
Respiratory protective equipment
[23]Mr Stear did not carry out any assessment of Mr Jones’ exposure levels to dust and fume. His view was that it was unnecessary to do so since the only form of exposure relevant to Mr Jones’ case was dermal exposure which cannot be quantified. Professor Syred and Professor Jones carried out initial assessments of Mr Jones’ exposure to dust, BSM and BaP. They did so because they considered that their assessments might give some guide to the extent of Mr Jones’ dermal exposure. They used the personal sampling results set out in Table 6.4 Syred1/131 as the basis for calculating the extent of Mr Jones’ exposure to dust, BSM and BaP. Their assessments were as follows: 1187. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3)(x 1.84) BSM (mg y m-3) BaP -3 (μg y m ) Syred 1350 105 66 626 Jones 173.9 27.1 (39.9) 15.1 150.3[24]For the purposes of Mr Jones’ claim for skin cancer, the relevant figures are those for his exposure to BSM and BaP.[25]It will be appreciated that there were considerable differences between the assessments made by the two experts. Professor Syred assumed that, for 30% of Mr Jones’ time, whilst he was carrying out work on the disintegrators, the pugs, the presses and in the pitch handling area, his exposure levels would have been equivalent to the very high exposure levels measured in February 1979 Syred 3/18 by static samplers during cleaning operations in briquetting plant 2. This assumption resulted in very high estimates of total dust, BSM and BaP. Whilst I accept that it is quite possible that Mr Jones was exposed to very high levels of pitch dust at times during his employment as a fitter, I share Professor Jones’ view that it is not realistic to assume that he encountered these levels for as much as 30% of his working time. Professor Syred also assumed that Mr Jones spent the whole of his time working on machinery in various parts of the Phurnacite Plant whereas it is clear from the evidence that he spent part of his working time in the fitters’ workshops where exposure levels were lower than in the briquetting plants or on the batteries.[26]Mr Jones’ evidence was that, throughout his time as a fitter, he would often be exposed to even more dust than process operatives working in the briquetting plant and elsewhere at the Phurnacite Plant. He said that fitters often had to work in inaccessible places where accumulations of dust would have gathered over a long period of time. Even though the equipment he was repairing would not have been operating whilst he was working on it, other plant and machinery in the vicinity would have been working normally and he would have been exposed to dust and/or fume from those sources.[27]As I have said, Mr Stear did not make an assessment of Mr Jones’ exposure levels. However, in his Supplemental Report, he indicated (in connection with the case of Mr Robson) that he estimated that a shift fitter would have had 75% of the exposure of a process operative working in the same area. Professor Jones disagreed. He accepted that the plant and machinery on which fitters worked would not be operating. In that respect, their exposure would be less than that of a process operative carrying out his normal work. However, a fitter would receive additional exposure as a result of disturbing accumulated dust when opening up machinery or cleaning dust from the surfaces on which he needed to work. Professor Jones considered that it was reasonable to assume that, whilst in a working area, a fitter’s exposure would on balance be the same as that of a process operative. I accept Professor Jones’ evidence on this matter. Indeed, I consider that Professor Jones’ figures are a better guide to the level of dust, BSM and BaP inhaled by Mr Jones during his employment at the Phurnacite Plant than the assessment performed by Professor Syred.[28]Once I had reached some provisional conclusions about my findings of fact in the other lead cases, I invited Professor Jones to re-work his calculations in those cases on the basis of my provisional conclusions. I did not ask Professor Jones to re-work his calculations in Mr Jones’ case. That is because it was clear that the significant type of exposure in his case was dermal and such exposure cannot be quantified by reference to Table 6.4 Syred1/131 .[29]In his Individual Report on Mr Jones, Professor Jones pointed out that he would have had some degree of exposure to mineral oils during his periods of employment other than at the Phurnacite Plant. He said that dermal exposure to the older formulations of such oils, which were relatively unrefined, are recognised to give rise to an increased risk of skin cancer. The medical issues[30]The medical evidence in Mr Jones’ case came from Dr August and Dr Falk. The effects of exposure to pitch[31]Mr Jones described how, during the working day, his face, neck, hand and forearms would be exposed to dust and fume. His overalls would become heavily contaminated with dust. At the end of each shift, his skin would be an unnaturally dark colour. The colour would be washed off when he showered. When he went outside in the sun, he experienced phototoxicity, as a result of which his skin would redden and tingle as though he had sunburn. It is clear from this description that he had a significant exposure to pitch. Mr Jones’ medical records do not suggest that he ever suffered from pitch warts and he does not recall doing so. Type of skin
History of respiratory illness
[32]Mr Jones has a Type II fair skin which reddens and burns easily in the sun. He is described by Dr August as having moderate photo-ageing of the face. It is accepted that these features put him at risk of developing BCC as a result of sun exposure. History of skin lesions
Type of skin
[33]In December 1989, Mr Jones developed a rodent ulcer on his face which was histologically confirmed as a BCC and required removal. He had further BCCs in 2009 (on his upper back) and in 2011 (also on his upper back) which were excised. Between 2009 and 2011, he had nine actinic keratoses (also known as ‘solar keratoses), most of them on his face but some on his back. Previous sun exposure[34]In oral evidence, Mr Jones was questioned at some length about his previous exposure to the sun, in particular when he was in the Royal Navy between 1949 and 1957 and the Merchant Navy from 1959 to 1961. Mr Jones’ evidence was that, whilst in the Royal Navy, he was stationed in the Mediterranean for two years. When in the Merchant Navy, he travelled to India and the Belgian Congo. During that time, he had little exposure to the sun as his working time was spent below deck. When he went ashore, he would wear his uniform. He did not feel comfortable in the sun and knew from experiences in childhood that his skin burned easily. When relaxing on deck, he would ensure that he sat in the shade and, when he knew that he was going to be exposed to sunlight, he would cover up his body as far as possible. He did not actively sunbathe and, in particular, would not have exposed his back or trunk to the sun for any significant period of time.[35]Mr Jones accepted that, over the years, he and his wife had on occasion chosen to take their holidays in hot countries. He said that this was his wife’s choice. Whilst they were abroad, they did not sunbathe, but travelled around sightseeing. He said that he had always been careful to use high protection sun block whilst he was out of doors, especially when pursuing his hobby of gardening. Discussion and conclusions[36]I find that Mr Jones sought to minimise his past exposure to the sun. I note that, in 2009, a consultant dermatologist who was at the time treating him for actinic keratoses, observed in a letter: “He has had a lot of UV [ultraviolet] exposure in the past as he was posted with the Armed Forces abroad”.[37]Whilst it is possible that the consultant made an unwarranted assumption about Mr Jones’ previous sun exposure, I consider it far more likely that Mr Jones volunteered the information when discussing the possible cause of his keratoses. I accept that, because of his skin type, he may not at any time have been an avid sunbather. But I consider that, as a young seaman, there would have been occasions when his back, trunk and face were exposed to full and very hot sun .[38]At Section 10 of my generic judgment, I indicated that I was unable to conclude on a balance of probabilities that BCC can be caused by exposure to pitch or tar related products. I accepted that such a relationship is plausible and that it is quite possible that it exists. However, possibility – even strong possibility – is not sufficient for these purposes.[39]Even if I had decided the issue of generic causation differently, however, I would not have been able to accept Dr August’s view that Mr Jones’ exposure to pitch played a major and dominant part in the causation of his BCCs. His skin type made him particularly vulnerable to developing BCCs as a result of sun exposure. His time at sea took him to very hot countries where, as I have found, there would have been occasions when his back, trunk and face would have been exposed to full sun. Dr August himself expressed the view that one of Mr Jones’ previous BCCs had probably been caused by exposure to sunlight and that he might develop one or more BCCs in the future, also as a result of exposure to UVR. I note also that Mr Jones has in the past developed a number of actinic keratoses which are generally attributed to UVR exposure.[40]In the circumstances, I would have been driven to the conclusion that it was far more probable that Mr Jones’ BCCs were attributable to exposure to UVR than to the effects of exposure to pitch at the Phurnacite Plant. Conclusion
Causation
[41]Mr Jones’ claim must therefore fail. In those circumstances, there is no need for me to go on to consider issues of limitation in his case. DAVID MIDDLE[1]David Middle was born on 27 June 1938 and is now 74 years old.
The claim
[2]Mr Middle claims damages for skin cancer which he alleges was caused by exposure to dust and fume containing PAHs during his employment at the Phurnacite Plant. There is also a claim for CB allegedly caused by exposure to dust at the Phurnacite Plant.
The defendants’ case
[3]The defendants admit that they were in breach of their duty towards Mr Middle throughout his period of employment at the Phurnacite Plant. They accept that Mr Middle has suffered from skin cancer in the form of multiple basal cell carcinomas (BCCs). However, they contend that Mr Middle cannot prove to the required standard that BCC is a condition caused by exposure of the kind to which he would have been subject at the Phurnacite Plant. If it is, they contend that he cannot prove to the required standard that the BCCs from which he suffered were caused by that exposure. The defendants’ case is that a more likely cause of Mr Middle’s BCCs was previous sun exposure. The defendants do not accept that Mr Middle developed CB as a result of exposure to dust at the Phurnacite Plant.[4]The defendants further contend that Mr Middle’s claim is statute-barred under the provisions of the 1980 Act. Damages[5]Damages in Mr Middle’s case have been agreed, subject to the issues of causation, apportionment and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £26,500 and special damages in the sum of £3,000. The total damages are therefore £29,500, exclusive of interest.
Damages
[6]Insofar as Mr Middle’s claim for non-malignant respiratory disease is concerned, the defendants contend that there should be apportionment to reflect any exposure to dust which would inevitably have occurred without breach of duty on the defendants’ part (i.e. the ‘irreducible minimum’). Employment history Period of employment[7]Mr Middle was employed at the Phurnacite Plant continuously between 21 June 1969 and 19 January 1991, a period of just over 21½ years. It is not contended that he had any significant exposure to PAHs and/or dust other than at the Phurnacite Plant. He had occasional dermal and inhalation exposure to creosote when employed by the Forestry Commission between 1953 and 1957.
The witnesses
[8]Mr Middle made a lengthy witness statement and gave oral evidence. Both his written and oral evidence demonstrated an excellent knowledge and memory of the processes carried on at the Phurnacite Plant and the working conditions there. He was highly critical about the latter. His evidence was broadly consistent with that of the other witnesses and I accept it. Mr Middle’s wife, Nancy May Middle, also provided a witness statement and gave oral evidence about Mr Middle’s state of health over the years. Other witnesses gave evidence about conditions on the batteries and in the briquetting plant and about the work of rigger/platers. Summary of evidence[9]Briefly summarised, the evidence about Mr Middle’s working history at the Phurnacite Plant was as follows.[10]The dates on which Mr Middle started and finished work at the Phurnacite Plant are well-documented. However, the dates when he transferred from one job to another are not recorded. It has been necessary to make some assumptions about those dates, based on his evidence. June-December 1959[11]For about six months from June 1959, Mr Middle worked as a spare man on the batteries. During this time he was employed mainly as a charging car operator, with the occasional shift as a quenching car attendant. He also worked on occasion in the pitch bay, breaking up solid pitch and shovelling it into the pitch bays. When he undertook such work, pitch would be deposited on his hair, moustache, face, hands and arms and it would get inside his clothes. January 1960 – December 1965[12]At the end of 1959/beginning of 1960 (I have assumed 1 January 1960), Mr Middle took up a permanent position as a charging car operator on battery 5. I have previously given an account of the conditions on the oven floors of the batteries. Mr Middle described how the fumes from the ovens would contain particles of dust and how that dust, together with the dust on the oven tops, would be blown around and would cover his face. He would often get particles of dust in his eyes, which would have to be removed. When he first worked on the oven floor, he would wear his own clothes, usually a pair of old jeans and a shirt. At some time during this period, overalls were provided by the defendants. Even then, dust would go down the top of his overalls and would come into contact with the skin of his upper body. January 1966 – December 1990[13]Mr Middle’s evidence was that he accepted a job as a labourer with the maintenance team in 1965. I have assumed that he started this work at the beginning of January 1966. For the first three years or so, he was a rigger’s labourer. Thereafter, he became a rigger, a job that later became known as a rigger/plater. When large structures (e.g. electrical motors, girders, pipes and press rolls) had to be removed or replaced, the riggers were responsible for slinging them and lifting them into the required position, before fixing them. The riggers would also lift into position and fix metal plates of all sizes which had been manufactured at the Phurnacite Plant by specialist platers. Plates were used in structures such as conveyors, elevators, scrapers, chutes, bunkers, pugs and dryers. They frequently became corroded or damaged and required replacement. The riggers often worked with fitters on the repair and maintenance of plant and equipment. The rigger’s labourers assisted the riggers and worked in essentially the same conditions as them.[14]Mr Middle described how, when working on repairs and maintenance in the briquetting plants, the environment would be very dusty. The equipment on which he was working would be covered with fine dust containing pitch. The pitch would often solidify and cause blockages and breakdowns. There would be accumulations of dust containing pitch inside the elevators and conveyors and in the pits beneath. Sometimes the equipment would have been cleaned before the riggers arrived. However, often when they were called to deal with a breakdown, no prior cleaning had been done. Often, when dust had accumulated inside or underneath an elevator or conveyor, it would not be possible to reach the dust without dismantling part of the structure. In those circumstances, the riggers would have to clean up the dust before starting work.[15]On occasion, Mr Middle would have to work inside the pugs, on top of the furnaces and inside the dryers, where there was a great deal of dust, including pitch dust. Mr Middle would also have to carry out work on the pitch crusher and pitch elevators which were situated at the sub-ground floor level of the briquetting plants. These jobs involved chipping off solid pitch which was stuck to the equipment. The whole area was contaminated with pitch dust and Mr Middle would get the dust on the exposed areas of his skin, in his hair and inside his overalls. He would carry out similar work on other elevators which were contaminated with coal dust or with a mixture of coal and pitch dust. The pits under some of the elevators were 15 feet deep. Often they would contain so much dust that, before entering a pit, Mr Middle would use a stick to ascertain the depth of the dust contained in it.[16]Mr Middle estimated, and I accept, that, for his first six years or so as a rigger, he would spend about 50% of his time working in the briquetting plants. He would also work on the batteries, replacing equipment (e.g. elephants, boxes, gas mains and pipes) on the oven floor. I find that the remaining 50% of his time was divided between the oven floor (15%), the quenching car floor (10%) and the workshops and other areas with a similar level of exposure (25%).[17]For the last six years of his employment at the Phurnacite Plant, Mr Middle was employed exclusively in briquetting plant 2.[18]The Table below summarises my findings in relation to Mr Middle’s working history at the Phurnacite Plant. 1224. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION Jun-Dec 1959 Spare man 90% oven floor; 5% quenching car floor; 5% pitch bay Jan 1960-Dec 1965 Charging car operator, battery 5 100% oven floor Jan 1966-Feb 1984 Rigger’s labourer, then rigger/plater 50% briquetting plants; 15% oven floor; 10% quenching car floor; 25% workshops or areas of similar exposure Mar 1984-Feb 1985 On strike Mar 1985-Dec 1990 Rigger/plater, briquetting plant 2 75% briquetting plant; 25% workshops or areas of similar exposure Protective measures[19]When working as a charging car operator, Mr Middle wore gloves. However, the gloves available in the Phurnacite Plant were not suitable for the intricate work which he had to carry out as a rigger’s labourer or rigger and he was therefore unable to wear them when so employed. Mr Middle applied barrier cream to areas of exposed skin at the start of each shift. However, the dust would stick to the cream and, as the shift progressed and he became hot, the cream would wear off. There was usually no opportunity during the working day to wash and re-apply the barrier cream. He wore overalls from the time they first became available but they did not prevent dust from coming into contact with the skin of his upper body. Respiratory protection[20]In the early years of his employment, Mr Middle used Martindale and paper masks when carrying out the dustiest jobs. However, the masks afforded little protection against fine dust and fume. From about 1980, 3M masks were available and Mr Middle used them whenever he could. If he was performing a heavy job, he had difficulty breathing when wearing a mask and the masks also became uncomfortable in hot and/or confined spaces, as a result of which he was sometimes unable to use them. His evidence was that, from 1981, the wearing of Racal airstream helmets became compulsory when carrying out maintenance work on the oven floor and, from that time, Mr Middle would wear one when carrying out that type of work.[21]I accept that, from 1981, Mr Middle wore a Racal airstream helmet at all times when he was working on the oven tops. I also find that, from 1980 and for about 50% of his time whilst working in the briquetting plants, he was able to wear a 3M mask. Overtime[22]The evidence is that Mr Middle worked overtime on his rest days and did other overtime in addition. His work records show that his overtime hours amounted to about one third of his basic weekly hours. There is no reason to believe that those records do not reflect the position throughout his employment at the Phurnacite Plant. His overtime working would be relevant to the assessment of his exposure levels to dust for the purposes of his claim for CB.
The expert evidence
[23]The three technical experts initially carried out assessments of Mr Middle’s exposure levels to dust, BSM and BaP. The total dust levels are relevant to his claim for CB. The BSM and BaP levels relate to inhalation of those substances, whereas the type of exposure relevant for the purposes of skin cancer is dermal exposure, which cannot be quantified. However, the experts’ assessments of the BSM and BaP exposure levels give some guide to the extent of his contact with PAHs. I therefore set out the assessments of the three experts in the Table below: TABLE 2 1230. - Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m 3) BaP - (μg years m 3) Syred 584 279 69 699 Stear 192 27 312 Jones 396.8 61.6 (113.34) 35.5 329.3[24]The disparities between the experts’ assessments were in part caused by their different approaches to Mr Middle’s employment as a rigger’s labourer and rigger. Professor Syred assumed that, throughout that employment, Mr Middle had the same exposure to dust as a process operative working in the same area. By contrast, Mr Stear estimated that Mr Middle would have had only about 25% of the exposure of a process operative. In his original Report, he had suggested that his exposure would have been between 50% and 100% of that of a process operative but, having read the transcript of Mr Middle’s oral evidence, he revised his view. It was not clear why he did so.[25]In his original report in Mr Middle’s case, Professor Jones assumed that, during his time as a rigger’s labourer and rigger in the briquetting plants and batteries, Mr Middle would have been exposed to the same levels of dust and fume as a process operative. In the calculations set out in his Second Supplemental Report, however, Professor Jones revised that assumption. Instead, he assumed that Mr Middle would have had 50% of the exposure of a process operative working in the same areas.[26]Having considered the evidence as a whole, I have concluded that, whilst working in the briquetting plants as a rigger’s labourer and rigger, Mr Middle would have had significantly more than 50% of the exposure levels to dust experienced by process operatives employed there. He would have been exposed to the general levels of dust in the briquetting plants at all times when working there and, in addition, it is clear from his evidence that he frequently had to work in areas (such as those at sub-ground level) where large quantities of dust had accumulated. In those circumstances, he would have been exposed to greater quantities of dust than the process operatives working on the floors above.[27]I find that, taken overall, when working in the briquetting plants, Mr Middle was exposed to 80% of the dust levels encountered by process operatives working there. When working in the batteries, I accept Professor Jones’ estimate of 50%. Whilst in the workshops or other parts of the plant with ‘background’ exposure he would have had 100% of the relevant levels.[28]I have already indicated that, in general, I accept Professor Jones’ approach to the assessment of exposure levels. Therefore, once I had reached some provisional conclusions about my findings of fact in Mr Middle’s case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. I confined my request in Mr Middle’s case to the levels of total dust, although Professor Jones also provided his calculations of respirable dust. The re-working was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked Professor Jones to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings that I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which are not relevant to the causation of skin cancer or CB and which in any event, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.[29]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. His estimate of Mr Middle’s exposure to total dust during his employment at the Phurnacite Plant is 489.9 mgym-3. That figure makes no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment.[30]I accept Professor Jones’ figure as the best available estimate of Mr Middle’s exposure level to dust during his employment at the Phurnacite Plant. The medical issues[31]The medical evidence in Mr Middle’s case came from Dr August and Dr Falk in relation to his skin cancer and from Dr Rudd in relation to CB. The effects of exposure[32]Mr Middle described how, after prolonged contact with pitch or with dust containing pitch, his skin would turn yellow. His neck would be very red and sore after working in the pitch bay. Mrs Middle gave evidence about the difficulties of washing her husband’s work clothes. Even after overalls were provided, the clothes he wore underneath them would still get very dirty. The bedclothes (especially the pillow slips) would become stained yellow with pitch. When he went outside in the sun, he experienced phototoxicity and his skin would burn as though he had sunburn. As a result of contact with the pitch dust, he developed comedones (blackheads) all over his body, especially on his legs. These cleared when he left the Phurnacite Plant. It is clear from the evidence that he had significant exposure to pitch. Type of skin[33]Mr Middle has a Type III skin, i.e. a skin that will tan readily in the sun, perhaps burning a little before a tan develops. He was described by Dr August as showing little photo-ageing of the face. Smoking[34]Mr Middle has been a lifelong non-smoker. History of skin lesions[35]In early 1979, Mr Middle developed a lump on his upper lip. He reported it to the medical officer at the Phurnacite Plant, who referred him to his GP. He was then referred to hospital where the lump was removed under local anaesthetic. He required three or four stitches in the wound. Mr Middle was told that the lump had been a pitch wart. He made a claim for industrial injuries benefit and, having been examined by a Medical Board, received a ‘one-off’ payment of about £50. He was aware of the procedure for making a claim because other Phurnacite employees he knew had made similar claims in the past. Mr Middle said that he knew that the wart had been caused by exposure to pitch at work. He knew also that it was important for a pitch wart to be removed because it could become cancerous. He believed that, once the wart had been removed, it was the end of the matter. He had no further problems for over five years.[36]In October 1985, Mr Middle developed a lump on his left eyelid, which grew quickly. He sought medical advice and was referred to the ophthalmic department of the local hospital. He underwent surgery to remove the lump which was probably another pitch wart although no histological examination appears to have been carried out. On this occasion, Mr Middle had 17 stitches in the wound and required about a fortnight off work after the surgery. A histology report revealed that no cancer cells had been seen. Again, he claimed industrial injuries benefit and was awarded the sum of £175. Once again, he believed that, the pitch wart having been removed, all was well. It seems (although Mr Middle did not remember the incident) that he had a further wart on his eyelid in April 1987 which was removed by cauterisation.[37]Mr Middle recalled that, before he left the Phurnacite Plant, he had a red lesion on his forehead that would bleed if he scratched or knocked it. It did not resemble a pitch wart and he did not seek medical advice about it for some time. When he did so in 1994, he was advised to have it removed. Histology revealed that the lesion was a BCC. After removal of the lesion, Mr Middle continued to experience problems with the wound breaking down and bleeding.[38]In March 1995 a solar keratosis was removed from under Mr Middle’s right eye by cryotherapy. In 1996 he had a recurrence of the BCC on his forehead which was excised in June 1996. In February 1997, he underwent micrographic surgery on his forehead.[39]Since 2005, Mr Middle has had a number of BCCs which have required removal. In 2006, he had BCCs removed from his forehead and his nose. In 2007, he had BCCs excised from his forehead and the left side of his nose. In 2008, BCCs on his forehead and the right side of this nose required removal. In 2010, he was noted to have BCCs on his right upper chest and upper back. In 2008, further solar keratoses were found on the right side of his forehead, the rim of his left ear and behind his right ear. Previous sun exposure[40]Mr Middle had worked outdoors during the period of four years or so for which he was employed by the Forestry Commission in the 1950s. His chief hobbies have always been outdoor pursuits, such as fishing and gardening. The defendants contended that his BCCs were in all probability caused by exposure to UVR. There is no evidence that he has visited hot countries or been a keen sunbather. Discussion and conclusions on skin cancer[41]At Section 10 of my generic judgment, I indicated that I was unable to conclude on a balance of probabilities that BCC can be caused or materially contributed to by exposure to pitch or tar related products. I accepted that such a relationship is plausible and that it is quite possible that it exists. However, possibility – even strong possibility - is not sufficient for these purposes.[42]Mr Middle’s skin type was not such as to make him especially vulnerable to developing BCCs as a result of sun exposure. His facial skin shows little sign of photoageing. He had not had exposure to very hot sun as I found had been the case with Mr David Jones. Mr Middle had a history of pitch warts and comedones. The distribution of his BCCs – in the facial area and on his upper body – would be consistent with his exposure to pitch dust as described by him. I note that he has been diagnosed with a number of solar keratoses which implies that there has been some sun damage. Nevertheless, if I had decided the issue of generic causation differently, I would have accepted, on a balance of probabilities, that Mr Middle’s BCCs had been caused by his exposure to pitch and dust containing pitch at the Phurnacite Plant. History of respiratory problems[43]Mr Middle’s evidence was that, whilst he was working at the Phurnacite Plant, he had frequent bouts of coughing, during which he brought up phlegm. Those bouts would be worse at night and would disturb his sleep. He told Dr Rudd that, when working at the Phurnacite Plant, he coughed up sputum numerous times daily for months at a time. He said that he continues to cough up phlegm three or four times a day and during the night. His symptoms are worse in winter. At one point in his oral evidence, he said that his symptoms of coughing and bringing up phlegm had started when he was aged about 48 years, i.e. in about 1986, four to five years before he left the Phurnacite Plant. Later, he spoke about occasions whilst working at the Phurnacite Plant when he would cough up “lots of black phlegm and dust” or, after working in “yellow gas”, he would bring up “a lump of tar”.[44]There is no reference in Mr Middle’s medical records to symptoms of CB during the period of his employment at the Phurnacite Plant. In 1997 (several years after he had left the Phurnacite Plant), a note in his GP records referred to a cough and a “wheezy chest”. “Bronchitis” was diagnosed and a course of Amoxicillin prescribed. In June 2003, an entry in his hospital records noted that he had had a cough with green phlegm for a long time but it was getting worse. Later hospital records refer to him having a “productive cough”.[45]Dr Rudd concluded that, if the evidence of Mr Middle and his wife were accepted, he had developed CB during his employment at the Phurnacite Plant. Since Mr Middle is a lifelong non-smoker, Dr Rudd considered that the most likely cause of his CB was his occupational exposure to dust. His evidence was that, since Mr Middle’s symptoms of cough and sputum production have continued for so long after his employment at the Phurnacite Plant ceased, it is probable that the symptoms will continue indefinitely. However, Dr Rudd said that he found it difficult to explain Mr Middle’s continuing copious sputum production on the basis of CB.[46]The lung function tests carried out at the time of Dr Rudd’s examination of Mr Middle showed no evidence of COPD. Indeed, Dr Rudd does not consider that Mr Middle has any disabling chronic respiratory disease. The breathlessness from which he suffers is attributable to his longstanding obesity, together with impairment of cardiac function secondary to ischemic heart disease and hypertension, with left ventricular hypertrophy. Dr Rudd did not consider that Mr Middle is at risk of developing COPD in the future. However, he considered that he was at risk of developing lung cancer. Discussion and conclusions in relation to chronic bronchitis
Date of knowledge
[47]The issue of whether Mr Middle had CB at the time he worked at the Phurnacite Plant is dependent entirely on his evidence and that of his wife. I find it very surprising that, throughout the whole of his time at the Phurnacite Plant – a period of over 30 years – he appears never to have complained to his GP of symptoms that, if his evidence is accurate, were very severe and were affecting his sleep. Mr Middle was a reasonably frequent attender at his GP’s surgery and, if he had been experiencing the symptoms of which he now complains, I would have expected him to have sought medical advice. In oral evidence, Mr Middle suggested, first, that his symptoms of cough and sputum had started late in his employment at the Phurnacite Plant. He then described what appeared to be intermittent incidents when he had coughed up black phlegm or bits of tar. These incidents may have been very unpleasant but, unless they happened on a regular basis, they would not fulfil the criteria for CB. Furthermore, the fact that Dr Rudd has difficulty in reconciling Mr Middle’s current complaints of copious sputum production with a diagnosis of CB suggests that there may be an element of exaggeration in Mr Middle’s evidence.[48]I cannot be satisfied on a balance of probabilities that Mr Middle suffered symptoms of CB whilst he was working at the Phurnacite Plant or that he currently has CB resulting from his occupational exposure there. In reaching that conclusion, I do not overlook the note in the hospital records made in June 2003, stating that Mr Middle had suffered from a cough and sputum for a long time. By 2003, he had been away from dust and fume at the Phurnacite Plant for more than 13 years. The phrase “a long time” could mean a number of months or a number of years. It does not necessarily mean that Mr Middle had been suffering from the symptoms for more than 13 years. Mr Middle reported that the symptoms were “getting worse”. If they were as bad as he claims when he was at the Phurnacite Plant, and were caused by his exposure to dust there, it is difficult to see how they could have deteriorated 12 years afterwards. Conclusion[49]In the circumstances, Mr Middle’s claims for both skin cancer and CB must fail. There is therefore no need for me to go on to consider issues of limitation in his case. APPENDIX A David Middle 1257. Occupancy matrix From To Job factor Fractional occupancy Workshops Pitch bay Briquetting Oven and shuttle floors Quench, ramp and screens Annual hours 01/06/195931/12/1959 1 0 0.05 0 0.9 0.05 2379 01/01/196031/12/1965 1 0 0 0 1 0 2379 01/01/196631/12/1974 0.5 0.25 0 0 0.15 0.1 2379 01/01/197531/12/1979 0.5 0.25 0 0 0.15 0.1 2379 01/01/198031/12/1980 0.5 0.25 0 0 0.15 0.1 2379 01/01/198129/02/1984 0.5 0.25 0 0 0.15 0.1 2379 01/01/196631/12/1974 0.8 0 0 0.5 0 0 2379 01/01/197531/12/1979 0.8 0 0 0.5 0 0 2379 01/01/198031/12/1980 0.8 0 0 0.5 0 0 2379 01/01/198129/02/1984 0.8 0 0 0.5 0 0 2379 01/03/198531/12/1990 0.8 0.25 0 0.75 0 0 2379 1258. David Middle Exposure estimates From To Job Plant Resp dust mg y m-3 Tot dust mg y m-3 Oven years Resp excl ovens mg y m-3 01/06/59 31/12/59 Spare man Pitch bay 0.05 0.22 0.00 0.05 01/06/59 31/12/59 Spare man Quench, ramp and screens 0.03 0.16 0.03 0.00 01/06/59 31/12/59 Spare man Oven and shuttle floors 2.56 15.90 0.52 0.00 01/01/60 31/12/65 Charge car operator Oven and shuttle floors 29.29 181.76 6.00 0.00 01/01/66 31/12/74 Rigger's labourer then rigger-plater Briquetting 16.33 101.38 0.00 16.33 01/01/75 31/12/79 Rigger's labourer then rigger-plater Briquetting 8.95 54.24 0.00 8.95 01/01/80 31/12/80 Rigger's labourer then rigger-plater Briquetting 0.89 5.42 0.00 0.89 01/01/81 29/02/84 Rigger's labourer then rigger-plater Briquetting 2.83 17.15 0.00 2.83 01/01/66 31/12/74 Rigger's labourer then rigger-plater Oven and shuttle floors 3.90 24.25 0.67 0.00 01/01/75 31/12/79 Rigger's labourer then rigger-plater Oven and shuttle floors 2.16 12.95 0.37 0.00 01/01/80 31/12/80 Rigger's labourer then rigger-plater Oven and shuttle floors 0.22 1.30 0.07 0.00 01/01/81 29/02/84 Rigger's labourer then rigger-plater Oven and shuttle floors 0.14 0.82 0.24 0.00 01/01/66 31/12/74 Rigger's labourer then rigger-plater Quench, ramp and screens 0.81 5.07 0.45 0.00 01/01/75 31/12/79 Rigger's labourer then rigger-plater Quench, ramp and screens 0.44 2.47 0.25 0.00 01/01/80 31/12/80 Rigger's labourer then rigger-plater Quench, ramp and screens 0.04 0.25 0.05 0.00 01/01/81 29/02/84 Rigger's labourer then rigger-plater Quench, ramp and screens 0.14 0.78 0.16 0.00 01/01/66 31/12/74 Rigger's labourer then rigger-plater Workshops 1.52 7.04 0.00 1.52 01/01/75 31/12/79 Rigger's labourer then rigger-plater Workshops 0.78 3.75 0.00 0.78 01/01/80 31/12/80 Rigger's labourer then rigger-plater Workshops 0.16 0.75 0.00 0.16 01/01/81 29/02/84 Rigger's labourer then rigger-plater Workshops 0.49 2.37 0.00 0.49 01/03/85 31/12/90 Rigger-plater Briquetting 7.83 47.50 0.00 7.83 01/03/85 31/12/90 Rigger-plater Workshops 0.91 4.38 0.00 0.91 David Middle 1259. Notes on exposure estimates From To Job Plant Notes 01/06/59 31/12/59 Spare man Pitch bay 01/06/59 31/12/59 Spare man Quench, ramp and screens Exposure levels as per exposure matrix 01/06/59 31/12/59 Spare man Oven and shuttle floors 01/01/60 31/12/65 Charge car operator Oven and shuttle floors Exposure levels as per exposure matrix 01/01/66 01/01/75 31/12/74 31/12/79 Rigger's labourer then rigger-plater Rigger's labourer then rigger-plater Briquetting Briquetting Factor of 0.8 applied to exposures attributed to the plant 01/01/80 31/12/80 Rigger's labourer then rigger-plater Briquetting Factor of 0.8 applied to exposures attributed to the plant; 01/01/81 29/02/84 Rigger's labourer then rigger-plater Briquetting factor of 0.5 applied for respiratory protection 01/01/66 01/01/75 31/12/74 31/12/79 Rigger's labourer then rigger-plater Rigger's labourer then rigger-plater Oven and shuttle floors Oven and shuttle floors Factor of 0.5 applied to exposures attributed to the plant 01/01/80 31/12/80 Rigger's labourer then rigger-plater Oven and shuttle floors Factor of 0.5 applied to exposures attributed to the plant; factor of 0.5 applied for respiratory protection 01/01/81 29/02/84 Rigger's labourer then rigger-plater Oven and shuttle floors Factor of 0.5 applied to exposures attributed to the plant; factor of 0.1 applied for respiratory protection 01/01/66 01/01/75 31/12/74 31/12/79 Rigger's labourer then rigger-plater Rigger's labourer then rigger-plater Quench, ramp and screens Quench, ramp and screens Factor of 0.5 applied to exposures attributed to the plant 01/01/80 31/12/80 Rigger's labourer then rigger-plater Quench, ramp and screens Factor of 0.5 applied to exposures attributed to the plant; 01/01/81 29/02/84 Rigger's labourer then rigger-plater Quench, ramp and screens factor of 0.5 applied for respiratory protection 01/01/66 31/12/74 Rigger's labourer then rigger-plater Workshops 01/01/75 01/01/80 31/12/79 31/12/80 Rigger's labourer then rigger-plater Rigger's labourer then rigger-plater Workshops Workshops Exposure levels as per exposure matrix. 01/01/81 29/02/84 Rigger's labourer then rigger-plater Workshops 01/03/85 31/12/90 Rigger-plater Briquetting Factor of 0.8 applied to exposures attributed to the plant; factor of 0.5 applied for respiratory protection 01/03/85 31/12/90 Rigger-plater Workshops Exposure levels as per exposure matrix David Middle Estimate of FEV 1 loss 1260. Summary exposure estimates Resp dust mg y m-3 Tot dust mg y m-3 Oven years Resp excl ovens mg y m-3 80.5 489.9 8.8 40.8 FREDERICK JOHN RICHARDS[1]Frederick Richards was born on 30 December 1932 and is now aged 79 years.
The claim
[2]Mr Richards alleges that the bladder cancers from which he suffered in 2000 and 2002 were caused by exposure to dust and fume containing PAHs during his employment at the Phurnacite Plant. There are also claims for COPD and CB, allegedly caused by exposure to dust at the Phurnacite Plant.
The defendants’ case
[3]The defendants admit they were in breach of duty towards Mr Richards for the period from 1966 until 1981 when he was working as process foreman. They do not admit that they were in breach of duty during the period after 1981 when he was working as a yard foreman. I assume that this is because, at that time, he was working mainly in the open areas of the Phurnacite Plant.[4]The defendants accept that Mr Richards developed two small bladder cancers. However, they contend that he cannot prove to the required standard either that bladder cancer is a disease caused by exposure of the kind to which he would have been subject at the Phurnacite Plant or, if it is, that his bladder cancer was caused by that exposure. The defendants accept that Mr Richards has mild COPD and CB, caused partly by his smoking and partly by his occupational exposure at the Phurnacite Plant.[5]The defendants contend that Mr Richards’ claim is statute-barred under the provisions of the 1980 Act. Damages[6]Damages in Mr Richards’ case have been agreed, subject to the issues of breach of duty, causation, apportionment and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £25,000 and special damages in the sum of £827.24. The total damages are therefore £25,827.24, exclusive of interest. The claim for provisional damages is no longer pursued.[7]Insofar as Mr Richards’ claim for non-malignant respiratory disease is concerned, it is agreed that there should be apportionment to exclude from compensation that part of his COPD and CB which can properly be attributed to his smoking habit. The defendants also contend that there should be apportionment to reflect any exposure to dust which would inevitably have occurred without breach of duty on the defendants’ part (i.e. the ‘irreducible minimum’). Employment history Period of employment
Employment history
[8]Mr Richards was employed at the Phurnacite Plant continuously between 11 April 1954 and 21 December 1985, a period of 31½ years. It is not contended that he had any significant exposure to PAHs, dust or fume other than at the Phurnacite Plant. The witnesses[9]Mr Richards made a lengthy witness statement and gave oral evidence. Overall, he displayed a good knowledge of the processes and working conditions at the Phurnacite Plant. However, he had some lapses of memory, most notably about the fact that he had made a claim for vibration white finger (VWF) in 2000. That claim was later withdrawn and he appeared genuinely to have forgotten ever having made it. He was also confused about the claim he had made for noise-induced hearing loss (NIHL). I am satisfied also that, on occasion, Mr Richards somewhat exaggerated his account of the working conditions at the Phurnacite Plant. In his witness statement, for example, he claimed that men working on the oven tops were usually “up to their ankles in dust”. In his oral evidence, he accepted that he had exaggerated the amount of dust that was present. I have therefore approached Mr Richards’ evidence with a degree of caution.[10]There was also evidence from Mr Lanyon and Mr Silvanus about the working conditions of pumpsmen. I have referred to this evidence in my judgment in Mr Jenkins’ case and at Section 2 of my generic judgment. Mr Russell Pugh (who gave a witness statement in the case of Mr Carhart) was a process foreman on the same batteries as Mr Richards between 1970 and 1985. Mr Brian Jones (a witness in the case of Mt Robson) was a shift superintendent between 1971 and 1984 and was familiar with the processes carried on at the batteries. Summary of evidence[11]Briefly summarised, the evidence about Mr Richards’ working history at the Phurnacite Plant was as follows. April 1954 – May 1957[12]From 11 April 1954 until 19 May 1957, Mr Richards was a member of the Capital Gang, and was employed on maintenance work at a number of NCB premises, including the Phurnacite Plant.[13]Mr Richards said that, while working as part of the Capital Gang, he spent about 75% of his time at the Phurnacite Plant. At the Phurnacite Plant, he worked for about two years on the construction of roads and plant, mainly driving a dumper truck. In addition, he spent a period of about six weeks breaking up solid pitch in the pitch bay, using picks and sledgehammers. He also assisted with cleaning out the tar tanks outside exhauster house 1. This involved climbing into the tanks, cutting up the tar residue with shovels and throwing it outside the tanks. A steam lance would be used to remove any remaining tar deposits and to clean the men’s shovels. It was a thoroughly dirty and unpleasant job with a lot of exposure to tar fumes.[14]I find that, during this period, Mr Richards spent the equivalent of about eight weeks (i.e. about 5% of his time) working in the pitch bay and about 109 weeks (i.e. about 70% of his time) working outside at the Phurnacite Plant where he would be subject to ‘background’ exposure. The remainder of his time was spent at sites other than the Phurnacite Plant. May 1957 – January 1966[15]From 20 May 1957 until 29 January 1966, Mr Richards worked mainly as a pumpsman in exhauster house 1, carrying out the work of an exhausterman as and when he was required to do so. I have described the working conditions in exhauster house 1, together with the duties of a pumpsman, at Section 2 of my generic judgment. January 1966 – 1981[16]From 30 January 1966 until December 1981, Mr Richards was employed as a process foreman. He was responsible for batteries 1 and 2 and also (for some time at least) for all or part of battery 3.[17]Mr Richards’ evidence was that during an eight-hour shift, he would on average spend 30-45 minutes working on the screens, three to four hours on the oven floor, 10-15 minutes on the shuttle floor, 45 minutes on the quenching car floor, 15 minutes on the ramps and about one and a half hours in the foreman’s office/canteen, writing reports and doing administrative work. Having considered that evidence, together with the evidence of Mr Pugh and Mr Brian Jones, I find that, on average, Mr Richards would have spent about 25% of his shift away from the working areas of the batteries, doing administrative tasks in the office/canteen, conferring with colleagues and walking between batteries or between the batteries and the office/canteen. Of the remaining 75% of his time, I find that 60% was spent on the oven floor, 10% on the quenching car floor and 5% split between the screens, the ramps and the shuttle car floor. 1982 – December 1985[18]I have assumed that Mr Richards’ transfer to the job of yard foreman took place on 22 December 1981. He performed that job until he left the Phurnacite Plant on 21 December 1985.[19]As a yard foreman, Mr Richards worked day shifts only. He was in charge of supervising 60-70 labourers, known as ‘yard labourers’, who would work all over the Phurnacite Plant, cleaning up spillages of dust, breeze and tar deposits. They would carry out tasks such as cleaning under the conveyor belts and under the ramps, clearing around the tanks on the tank farm, clearing frozen coal from wagons, and cleaning out the tar tanks. Mr Richards would spend his shift walking around the Phurnacite Plant, ensuring that the work was being done properly and assisting when necessary. He estimated that he would spend about an hour of each shift in the area of the conveyor belts situated below the batteries. He would also spend about half an hour of each shift in the briquetting plants.[20]Mr Richards accepted that, during his time as a yard foreman, his exposure to dust and fume was much less than at the time when he was working on the batteries as a process foreman.[21]I find that, during this period, Mr Richards, spent approximately 1½ hours (i.e. about 20%) of each shift on administrative work in the foreman’s office/canteen. Of the remaining 80% of his time, I have concluded that 65% was spent supervising the yard labourers in the open areas of the Phurnacite Plant, whilst 15% was spent in dusty areas such as the briquetting plants and in confined areas around conveyor belts.[22]The Table below summarises my findings in relation to Mr Richards’ working history at the Phurnacite Plant. 1283. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION 11 Apr 1954 –19 May 1957 Member of Capital Gang 75% at Phurnacite Plant of which equivalent of 8 weeks (i.e. 5%) in pitch bay and remainder (i.e. 70%) on outside construction work 20 May 195 –29 Jan 1966 Pumpsman, exhauster house 1 100% exhauster house 1 30 Jan 1966 –21 Dec 1981 Process foreman, batteries 1, 2 & 3 60% on oven floor; 10% on quenching car floor and 5% split between screens, ramps and shuttle car floor. 25% in foreman’s office/canteen or walking between locations 22 Dec 1982 –21 Dec 1985 Yard foreman 65% all over the plant outside; 15% in dusty areas such as the briquetting plants; 20% in foreman’s office/canteen. One year on strike during this period. Respiratory protective equipment
Exposure levels
[23]The evidence of Mr Richards, Mr Pugh and Mr Brian Jones was that, although Racal airstream helmets were issued to process operatives working on the ovens in the early 1980s, they were not issued to process foreman. The evidence of Mr Carhart, also a process foreman, was that he wore a Racal airstream helmet when they became available. Mr Richards never wore any kind of RPE and his employment in the batteries ceased at about the time the Racal helmets were introduced. 3M masks would have been available to him after about 1980 but their use was not enforced by management for yard foremen. The defendants did not contend that any deductions in the exposure levels calculated for Mr Richards should be made in respect of RPE. Overtime[24]There are no figures available for overtime worked by Mr Richards. However, it is clear from the evidence that, for much of his time at the Phurnacite Plant, he worked a considerable amount of overtime. Indeed, his evidence was that he declined the opportunity of promotion to shift supervisor (at a higher salary than that of a process foreman) on the ground that, since overtime would not be available, he would lose financially if he were promoted. I do not consider that overtime should be taken into account when assessing Mr Richards’ exposure levels to PAHs for the reasons set out at Section 4 of my generic judgment. I am however satisfied that it is appropriate to take overtime into account when assessing his dust exposure for the purposes of his claims for COPD and CB. Exposure levels[25]All three experts used the personal sampling results set out in Table 6.4 Syred1/131 as the basis for calculating the extent of Mr Richards’ exposure to dust, BSM and BaP. The experts’ assessments were as follows: 1287. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg years m ) Syred 372 109 69 1147 Stear 103 18 222 Jones 203.9 32.3 (59.4) 21.9 242.5[26]For the purposes of Mr Richards’ claim for bladder cancer, the most significant figures are those for his exposure to BSM and BaP. As a member of the Capital Gang[27]For the period when Mr Richards was employed as a member of the Capital Gang, Professor Syred used the average exposure levels for men working on the ramps. Professor Jones assumed that, for a tenth of the time he spent at the Phurnacite Plant when working in the Capital Gang, Mr Richards had equal periods of exposure at the average levels for the briquetting plant, the oven and shuttle floors and the quenching car and ramp floors. To that he added eight weeks’ exposure equivalent to that of a pitchman. He later revised his calculations to include ‘background’ exposure for the remaining 10% of Mr Richards’ time.[28]Mr Stear’s initial approach was to calculate Mr Richards’ exposure levels for this period on the basis that he spent eight weeks exposed to levels of dust and PAHs equivalent to those encountered by men working in the pitch bay. For the rest of the time, Mr Stear assumed low levels of exposure which would not have contributed greatly to Mr Richards’ overall exposure. Mr Stear later revised his calculations to allow six weeks’ exposure at levels encountered in the pitch bay, together with four weeks’ exposure in the tar tanks. For this latter period, he used figures for the levels of dust, BSM and BaP encountered by men working on the cleaning of pits in the briquetting plants, discounted by 30% to reflect the fact that Mr Richards would not have been working in a tar tank throughout the whole of a shift. For the remainder of Mr Richards’ time as a member of the Capital Gang, Mr Stear adopted the ‘background’ exposure levels taken from Professor Jones’ modelling dispersion exercise.[29]I consider that Professor Jones’ approach is generally appropriate. I am satisfied that the eight weeks’ exposure equivalent to a pitch man that he has included satisfactorily covers Mr Richards’ exposure in the tar tanks as well as the pitch bays. For the remainder of the period, however, I conclude that Mr Richards’ was working in the open air. There is no evidence that he was involved in significant amounts of work in the briquetting plants or batteries. As a pumpsman[30]I have described at Section 3 of my generic judgment how the experts arrived at their assessments for Mr Richards’ exposure levels during his time as a pumpsman. As a process foreman[31]I have already concluded that, whilst carrying out his duties in the working areas of the batteries, a process foreman would have experienced about 75% of the exposure levels of process operatives working in the same areas. I am satisfied that the exposure levels for the various working areas calculated by Professor Jones are reasonable and appropriate. As a yard foreman[32]For this period, Professor Syred sought to divide up Mr Richards’ time between the briquetting plants, the batteries (including an estimated 22% of his time spent on the shuttle car and oven floors), the general plant areas and in the office/canteen. This division (in particular the estimate of time spent on the shuttle car and oven floors) does not accord with the evidence, which was that the yard foreman was responsible for activities at ground level.[33]In his original Report, Professor Jones observed that Mr Richards’ work during this period was split between administrative duties performed in the office and work out of doors in a supervisory, rather than ‘hands on’, capacity. He concluded that Mr Richards’ work during this period was unlikely to have added significantly to his exposure. When making his initial calculations, he did not include any exposure at all during this period. In his Second Supplemental Report, Professor Jones revised his calculations of Mr Richards’ exposure levels as a yard foreman to include ‘background’ exposure taken from his modelling dispersion exercise. He applied a deduction of 50% to reflect Mr Richards’ supervisory role. He assumed that Mr Richards spent the whole shift outside.[34]Mr Stear had originally assumed that, during his time as a yard foreman, Mr Richards had 10% of the average exposure of process operatives working in all areas of the briquetting plant and the batteries. Subsequently, he revised his figures to include the figure for ‘background’ exposure taken from Professor Jones’ modelling dispersion exercise. A curious feature of Mr Stear’s evidence was that his calculations suggested that Mr Richards’ exposure levels as a yard foreman between 1981 and 1985 were virtually identical to those he would have experienced as a process foreman between 1966 and 1981. Such a result conflicted with Mr Richards’ evidence and was inconsistent with all the other evidence I have read or heard. Mr Stear did not accept that it was a surprising or unlikely result. I do not agree.[35]At Section 5 of my generic judgment, I concluded that the claimants had not established breach of duty in relation to exposure in the open areas of the Phurnacite Plant or the offices/canteen. I therefore accept that, for 85% of his time as a yard foreman, Mr Richards would have had no tortious exposure. However, I have concluded that, during the 15% of his time spent supervising the yard labourers in the briquetting plants and other dusty areas, the defendants would have been in breach of duty and Mr Richards would have had, as a yard foreman, 75% of the exposure of a process operative working in the same areas. Assessment of overall exposure levels[36]Once I had reached some provisional conclusions about my findings of fact in Mr Richards’ case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save in connection with his calculations in respect of respirable dust (which are not relevant to the causation of bladder cancer and which in any event, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.[37]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimates of Mr Richards’ exposure during his employment at the Phurnacite Plant are, for total dust 292.2 mgym-3, for BSM 32.3 mgym-3 and for BaP 355.1 μgym-3. Those figures make no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment. The figures include a relatively small amount of exposure to dust, BSM and BaP whilst Mr Richards was in the open areas of the Phurnacite Plant or the offices/canteen. I have found that the defendants were not in breach of duty during those periods. Since that exposure will not affect the outcome of the case, I have not re-calculated Professor Jones’ figures to exclude it. However, I have excluded that dust exposure when calculating Mr Richards’ exposure units.[38]It should be noted also that, since I provided information about my provisional findings to Professor Jones, I have reconsidered my approach to Mr Richards’ work during his time as a yard foreman to include 15% of his time spent at the average exposure levels for the briquetting plants. That change would result in a modest increase to his overall exposure levels. I have not re-calculated Professor Jones’ figures to reflect this. I have, however, taken this additional exposure into account when calculating Mr Richards’ occupational exposure units.[39]I accept Professor Jones’ figures as the best available estimates of Mr Richards’ exposure levels during the period of his employment at the Phurnacite Plant. However, I am satisfied that, because they take no account of the effect of the sweeping and steam cleaning activities carried out in exhauster house 1, they underestimate by an unquantifiable amount Mr Richards’ exposure to dust, BSM and BaP. The medical issues[40]The medical evidence in Mr Richards’ case in respect of bladder cancer came from Mr Pettersson and Mr Bishop and, in respect of the respiratory conditions, from Dr Rudd.[41]Mr Richards’ evidence was that he stopped smoking in 1960, when he was about 28 years old. Documents in his medical records, dating from 2004 and 2007, suggest that he stopped in 1962. I shall assume that the latter date is correct and that he has not smoked for 50 years. Over a period of about 18 years, he smoked between 5 and 30 cigarettes a day. The medical experts agreed that smoking increases the risk of developing bladder cancer. However, they disagreed about whether, and if so to what extent, a man like Mr Richards, who had given up smoking many years previously, would still have been at an increased risk of developing bladder cancer as a result of his smoking history. I discussed their evidence and set out my conclusions at Section 9 of my generic judgment Bladder cancer[42]In March 2000, Mr Richards began to suffer from haematoma and pain which he attributed to ulcers from which he had previously suffered. His symptoms persisted and, in September 2000, he was referred to hospital where he underwent a sigmoidoscopy. That revealed the presence of a polyp in the sigmoid colon. At the same time, it was discovered that his right kidney was not working properly. He underwent surgery to remove the polyp, during which it was noted that he almost certainly had an obstruction of the urethra caused by cancer of the bladder wall.[43]Shortly after the sigmoidoscopy, Mr Richards underwent resection of his bladder cancer. Thereafter, he was followed up at hospital where he underwent regular checks by means of flexible cystoscopy. In April 2002, he had a further bladder carcinoma removed. The medical experts agreed about the diagnosis in Mr Richards’ case, although they did not take the same view about the extent to which he remains at risk of a recurrence of bladder cancer.[44]Mr Richards said that he was not told about the diagnosis of cancer in 2000. He understood that he had a serious problem but he believed that it was concerned with his non-functioning kidney. He said that he was concerned that his problem might be connected to his work in the exhauster house. He did not raise the matter with his doctors. Mr Richards’ evidence was that, even after surgery, he was still unaware that he was being treated for cancer. Mr Richards said that, after his second tumour was removed, he remained unaware that he had suffered from bladder cancer. It was not until September 2007, after he had undergone surgery for carcinoma of the colon, that he was informed by the surgeon who had performed the surgery that he had previously had bladder cancer.[45]At Section 9 of my generic judgment, I discussed the evidence relating to the causation of bladder cancer. I concluded that, although the epidemiology suggests that it is possible that the fumes emitted during the carbonisation process at the Phurnacite Plant may have contained significant quantities of one or more substances capable of giving rise to an increased risk of bladder cancer, the epidemiological evidence, taken on its own, falls short of establishing that fact on a balance of probabilities.[46]I also found that, even if my view on the strength of the epidemiological evidence were different, I would be unable to quantify the increase in risk and I would therefore be unable to reach any conclusion as to the likelihood that Mr Richards’ exposure to PAHs at the Phurnacite Plant – rather than his smoking or some unknown and wholly unrelated cause – had caused his bladder cancer. I therefore concluded that the claimants had not succeeded in establishing causation in the bladder cancer cases. Respiratory symptoms[47]Mr Richards’ evidence was that, whilst he was still smoking, he became short of breath and had a cough. After he gave up smoking, his chest problems persisted. A GP note made in April 1970 recorded a chest problem and a cold, together with the fact that Mr Richards was working at the Phurnacite Plant. Benylin was prescribed. In May 1970 it was noted that he was suffering from bronchitis and he was signed off work for two weeks. More Benylin was prescribed in June 1970.[48]It is not clear whether Mr Richards’ GP notes between the early 1970s and the early 1980s are complete. Those that are available are often difficult to decipher. However, no reference to respiratory problems is evident until the mid-1980s. Mr Richards said that it was then that he started to have significant symptoms. On 3 October 1986, Mr Richards was complaining of a cough and cold. Again he was said to have “bronchitis”. Mr Richards said that, at about that time, he realised that he had real problems with his chest as he was coughing up phlegm every morning. There were further entries in his GP records relating to respiratory symptoms in September 1989 and October 1990.[49]On 21 November 1990, Mr Richards’ GP noted that he had a history of shortness of breath. He had a cough and had been “chesty” for over a month. He was referred for a chest x-ray. No results of that x-ray are available.[50]Further entries in the GP’s records relating to respiratory symptoms were recorded in June 1991, February 1995, December 1995 and June 2003. Between 2006 and 2010, Mr Richards underwent a series of x-rays and CT scans which showed some mild pleural thickening. An x-ray report dated 25 April 2008 referred to the presence of “COAD” (another term for COPD). Mr Richards’ evidence was that his symptoms have gradually worsened and he has shortness of breath on exertion and a productive cough.
Chronic obstructive pulmonary disease
[51]The defendants accept that Mr Richards has mild COPD and that, in 2011, his respiratory disability was 10%. The parties agreed that his loss of respiratory function has been caused by a combination of his smoking and his exposure to dust at the Phurnacite Plant.[52]I have concluded at Section 11 of my generic judgment that Dr Rudd’s ‘broad brush’ approach to quantifying the contribution made to a claimant’s COPD by exposure to dust at the Phurnacite Plant is the appropriate method to adopt in the circumstances of this litigation. I have accepted Dr Rudd’s evidence that a year’s work on the oven floor was equivalent to a year’s average smoking and, using that correlation as a basis, I have calculated Mr Richards’ total occupational exposure units. My calculation is at Appendix B to this individual judgment.[53]The apportionment as between smoking and occupational exposure is as follows: Smoking for 18 years (mixture of light, heavy and average smoking as apportioned by Dr Rudd) 17 units Exposure to dust at the Phurnacite Plant Total exposure units 10.62 units Occupational exposure responsible for 10.62 ÷ (10.62 + 17) = 38% of causation[54]I therefore find that 38% of Mr Richards’ respiratory disability of 10% (or a disability of 3.8%) is attributable to his occupational exposure to dust and fume at the Phurnacite Plant. It is to be noted that Mr Richards’ exercise tolerance has been limited by pain and angina in the past so his disability is unlikely to have had a great deal of effect on his activities. Chronic bronchitis[55]The defendants agree that Mr Richards currently has CB. They also agree that the issue of whether or not Mr Richards was suffering from CB during the period of his employment at the Phurnacite Plant depends on whether I accept his evidence. That evidence derives support from Mr Richards’ medical records. I am satisfied that he had symptoms of CB during his employment with the defendants. I find that his CB was attributable in part to his smoking and in part to occupational exposure to dust in the same proportions as his COPD. Limitation[56]I refer to Section 12 of my generic judgment, in which I discussed the generic issues relating to limitation. I shall now deal with the facts and issues relating specifically to Mr Richards’ case. Date of knowledge[57]It is accepted on Mr Richards’ behalf that his date of knowledge for the purposes of the 1980 Act arose more than three years before the commencement of proceedings in his case. The issue of precisely when it arose (and therefore the exact length of delay that occurred before the commencement of proceedings) is, however, relevant to his application under section 33 of the 1980 Act. The defendants contend that Mr Richards acquired the necessary knowledge for the purposes of the 1980 Act during the 1970s when his respiratory symptoms started. Alternatively, they contend that he acquired knowledge in October 1986, when bronchitis was diagnosed.[58]I have already set out Mr Richards’ relevant medical history, as disclosed by his medical records.[59]Mr Richards acknowledged that, in the 1970s, whilst working at the Phurnacite Plant, he suffered from respiratory symptoms which he believed were caused by a combination of his previous smoking and the dust and fume to which he was exposed at the Phurnacite Plant. He said that he did not think of making a claim at that time. It would not have occurred to him that he could do so. Nor did he seek any advice from his Union. Even in the 1980s, when his symptoms became worse, he did not consider making a claim.[60]Mr Richards made a claim against the defendants for NIHL in 1996. He said that he had consulted his Union solicitors in response to an advertisement in a newspaper. Other people he knew were making similar claims. Conditions in the exhauster house had been very noisy and he was suffering from constant buzzing in his ears. Mr Richards remembered making the claim but believed that he had claimed for tinnitus alone, not hearing loss. However, the documents show that he received damages of £4,000 for both hearing loss and tinnitus.[61]In 2000, Mr Richards instructed a firm of solicitors, Browell Smith, to make a claim for VWF on his behalf. The claim was registered in the BCC VWF Scheme. No claims questionnaire or other evidence was lodged at that stage. Mr Richards did not undergo a medical examination. In 2001, the claim was rejected. Browell Smith indicated their intention to contest the rejection. In the event, however, no evidence was obtained and Mr Richards instructed his solicitors to withdraw the claim. In oral evidence, when the documents relating to this claim were shown to him for the first time, he denied having instructed solicitors to make the claim. Indeed he suggested that someone else must have done so. It is now clear from the additional documents that have been obtained that he had initiated the claim. He confirmed that he had in fact never suffered any symptoms of VWF.[62]Mr Richards accepted that, although he had not been aware in 2000 that he had been treated for bladder cancer, he had known that he had a serious problem and he had believed that it might have been caused by his working conditions at the Phurnacite Plant. He said that he had been aware that an Action Group had been formed with a view to obtaining compensation for former employees of the Phurnacite Plant. He did not think that it was open to him to become involved with the Action Group because he had been a foreman and belonged to a different Union from the men who were organising the Action Group. In about November 2009, he met a colleague who told him that former employees were making claims for cancer and respiratory disease. He referred Mr Richards to an article in the local newspaper, which identified Hugh James as the firm of solicitors involved in bringing the claims. Mr Richards contacted Hugh James and his name was entered onto the Phurnacite GLO Register on 15 March 2010. He said that, at that time, he was told that he could make claim in respect of his respiratory disease as well as his bladder cancer and he did so. By that time, his chest had got worse and he was having difficulty walking any distance.[63]I find that Mr Richards had the necessary knowledge about his symptoms of chronic bronchitis for the purposes of the 1980 Act no later than October 1986 when a diagnosis of bronchitis was made. It must have been clear to him by that time that his symptoms were likely to be lasting. However, it must be borne in mind that the symptoms referable to his respiratory disease have never been severe; even now, more than 25 years later, he is assessed as having only a 10% disability due to his COPD. In 2000, he became aware he had a more serious problem that might also be linked to his work at the Phurnacite Plant.[64]The primary limitation period in Mr Richards’ case would have expired in October 1989. Proceedings in Mr Richards’ case were commenced (by registration on the Phurnacite GLO Register) on 15 March 2010, over 20 years after the expiration of the primary limitation period. Section 33[65]Apart from their generic grounds of prejudice, the defendants rely on specific features of Mr Richards’ case in support of their contention that it would not be equitable to disapply the primary limitation period.[66]I must consider first the length of, and reasons for, the delay in Mr Richards’ case. The defendants contend that the delay in commencing proceedings was very lengthy and that there was no good reason for it. Mr Richards’ full-time employment at the Phurnacite Plant began 55 years ago and it is more than 26 years since it ended.[67]The defendants pointed out that Mr Richards had made claims for NIHL in 1996 and for VWF in 2000. Not only did that demonstrate that he was able and willing, if he chose, to institute a claim against his former employers, but it had also afforded him an opportunity to seek the advice of the solicitors dealing with his claims about the possibility of claiming for his respiratory disease. However, the process of making claims within the NIHL and VWF schemes was very straightforward. The schemes were well advertised and Mr Richards would no doubt have heard that some of his former colleagues were making claims under them. He may well have been encouraged to make a claim by former colleagues. He must have received that sort of encouragement with regard to his VWF claim since he was not suffering from the condition. I consider it unlikely, in the course of either of his claims, that he would have had a face to face meeting with a solicitor. Even if he did, it would not necessarily have occurred to him that he should seek advice about his respiratory disease.[68]If, in the mid-late 1990s, Mr Richards became aware of the claims being made for respiratory disease by miners and former miners in the BCRDL, he may well have concluded that, since the BCRDL claims related to underground work only, they had no relevance to his position.[69]There is no doubt that the delay here was lengthy. Mr Richards’ evidence is that it had not occurred to him that he could make a claim for his respiratory symptoms. When he developed further symptoms, he still did not think that he could make a claim. He did not become aware until 2009 that a claim was possible. It was only when a friend told him about the GLO being co-ordinated by Hugh James that he took action. He then sought advice promptly and his claim was registered in the GLO shortly afterwards.[70]I accept the claimant’s evidence that, until 2009, he was unaware that he could make a claim for his respiratory symptoms. The claims he made for NIHL and VWF do not affect my view since those claims were made in the context of existing organised schemes in which claimants were required to participate to a minimal extent. The fact that Mr Richards participated in those schemes does not mean that he was aware that it might be open to him to bring a claim at common law. His respiratory symptoms were mild and, even if he had known that a claim might be possible, he might have decided that it was not worth exploring the possibility. However when, in 2000, he developed a more serious problem that he believed might be attributable to his work, one would have expected him, if he knew that a claim was possible, at least to seek the advice of his Union. The fact that he did not do so strongly suggests that he was unaware that it would or might be open to him to make a claim. Thus, the delay, although lengthy, cannot in my view be considered to be in any way culpable.[71]I have already discussed the generic issues relating to the cogency of the evidence. In Mr Richards’ case, I had the benefit of Mr Richards’ own evidence, together with two witnesses (Mr Lanyon and Mr Silvanus) with detailed and personal knowledge of the work of a pumpsman and two witnesses (Mr Pugh and Mr Brian Jones), both of whom were very familiar with the duties of a process foreman. As a result, I am satisfied that I have a reasonably accurate picture of Mr Richards’ working conditions throughout his time at the Phurnacite Plant.[72]I have not overlooked the fact that, if Mr Richards had acted promptly and had consulted solicitors soon after he had acquired knowledge in October 1986, the Phurnacite Plant would still have been open and it would have been possible for the Plant to have been inspected by experts and for exposure levels (in particular levels of respirable dust and exposure levels in the exhauster house) to have been measured. If he had delayed taking action until near the end of the primary limitation period it might have been too late for that to be done before production ceased. I have considered carefully whether that factor, in conjunction with the fact that other witnesses and additional documentation might also have been available then, has adversely affected the cogency of the evidence available to the defendants or their ability to defend themselves in the action.[73]Given all the evidence I have heard about the conditions at the Phurnacite Plant – and, in particular, about conditions on the batteries where Mr Richards mainly worked – I do not consider that the additional evidence is likely materially to have assisted the defendants in their defence of the action for respiratory disease for the reasons set out in Section 12 of my generic judgment. In the event, I have not based my findings in relation to the apportionment of Mr Richards’ non-malignant respiratory disease on measurements of respirable dust. When assessing the extent of Mr Richards’ respiratory disability that is attributable to occupational exposure, I have chosen to adopt the ‘broad brush’ approach advocated by Dr Rudd, an approach with which Professor Jones agreed in principle, at least with regard to exposure on the oven floor. Moreover, even if further measurements of respirable dust had been taken in the late 1980s, there would still have been the problem of estimating Mr Richards’ exposure levels to respirable dust over the previous 30 years of his employment. It is highly likely that the ‘broad brush’ approach would still have been the best way of assessing his exposure for the purposes of COPD.[74]In all the circumstances, I have concluded, on balance, that the defendants’ ability to defend the claim has not been compromised as a result of the delay and that it is fair and just to permit the action to proceed.
Conclusions
[75]Mr Richards’ claim therefore succeeds in respect of COPD and CB, but fails in relation to his bladder cancer. The agreed award of damages in his case is £4,500, inclusive of interest. APPENDIX A Frederick Richards 1338. Occupancy Matrix From To Job factor Canteen / offices Average external Exhauster house 1 Pitch bay Oven and shuttle floors Quench, ramp and screens Annual hours 11/04/195419/05/1957 1 0 0.7 0 0.05 0 0 2407 20/05/195729/01/1966 1 0 0 1 0 0 0 2407 30/01/196631/12/1974 0.75 0.25 0 0 0 0.617 0.133 2407 01/01/197531/12/1979 0.75 0.25 0 0 0 0.617 0.133 2407 01/01/198021/12/1981 0.75 0.25 0 0 0 0.617 0.133 2407 22/12/198128/02/1984 1 0.2 0.8 0 0 0 0 2407 01/03/198521/12/1985 1 0.2 0.8 0 0 0 0 2407 Frederick Richards 1339. Exposure estimates From To Job Plant Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 11/04/54 19/05/57 Capital gang Pitch bay 0.29 1.16 0.33 7.30 0.00 0.29 11/04/54 19/05/57 Capital gang Plant external average 1.29 7.71 1.02 10.21 0.00 1.29 20/05/57 29/01/66 Pumpsman, exhauster house 1 Exhauster house 1 4.41 26.44 3.48 34.78 0.00 4.41 30/01/66 31/12/74 Oven foreman, batteries 1, 2 and 3 Canteen / offices 0.12 0.62 0.10 9.59 0.00 0.12 01/01/75 31/12/79 Oven foreman, batteries 1, 2 and 3 Canteen / offices 0.06 0.24 0.05 0.50 0.00 0.06 01/01/80 21/12/81 Oven foreman, batteries 1, 2 and 3 Canteen / offices 0.02 0.09 0.02 0.20 0.00 0.02 30/01/66 31/12/74 Oven foreman, batteries 1, 2 and 3 Oven and shuttle floors 21.63 134.28 14.02 151.92 4.12 0.00 01/01/75 31/12/79 Oven foreman, batteries 1, 2 and 3 Oven and shuttle floors 12.10 74.17 7.86 85.12 2.31 0.00 01/01/80 21/12/81 Oven foreman, batteries 1, 2 and 3 Oven and shuttle floors 4.77 29.26 3.10 33.58 0.91 0.00 30/01/66 31/12/74 Oven foreman, batteries 1, 2 and 3 Quench, ramp and screens 1.08 6.76 0.71 6.52 0.89 0.00 01/01/75 31/12/79 Oven foreman, batteries 1, 2 and 3 Quench, ramp and screens 0.60 3.56 0.40 3.65 0.50 0.00 01/01/80 21/12/81 Oven foreman, batteries 1, 2 and 3 Quench, ramp and screens 0.24 1.40 0.16 1.44 0.20 0.00 22/12/81 28/02/84 Yard foreman Canteen / offices 0.02 0.08 0.02 0.17 0.00 0.02 01/03/85 21/12/85 Yard foreman Canteen / offices 0.01 0.03 0.01 0.06 0.00 0.01 22/12/81 28/02/84 Yard foreman Plant external average 0.93 4.65 0.73 7.34 0.00 0.93 01/03/85 21/12/85 Yard foreman Plant external average 0.34 1.72 0.27 2.71 0.00 0.34 Frederick Richards 1340. Notes on exposure estimates From To Job Plant Notes 11/04/54 11/04/54 19/05/57 19/05/57 Capital gang Capital gang Pitch bay Plant external average Exposure levels as per exposure matrix 20/05/57 29/01/66 Pumpsman, exhauster house 1 Exhauster house 1 Exposure levels as per exposure matrix 30/01/66 31/12/74 Oven foreman, batteries 1, 2 and 3 Canteen / offices 01/01/75 31/12/79 Oven foreman, batteries 1, 2 and 3 Canteen / offices Exposure levels as per exposure matrix 01/01/80 21/12/81 Oven foreman, batteries 1, 2 and 3 Canteen / offices 30/01/66 31/12/74 Oven foreman, batteries 1, 2 and 3 Oven and shuttle floors 01/01/75 01/01/80 30/01/66 31/12/79 21/12/81 31/12/74 Oven foreman, batteries 1, 2 and 3 Oven foreman, batteries 1, 2 and 3 Oven foreman, batteries 1, 2 and 3 Oven and shuttle floors Oven and shuttle floors Quench, ramp and screens Factor of 0.75 applied to exposure levels, but no further reduction for respiratory protection. 01/01/75 31/12/79 Oven foreman, batteries 1, 2 and 3 Quench, ramp and screens 01/01/80 21/12/81 Oven foreman, batteries 1, 2 and 3 Quench, ramp and screens 22/12/81 28/02/84 Yard foreman Canteen / offices 01/03/85 22/12/81 21/12/85 28/02/84 Yard foreman Yard foreman Canteen / offices Plant external average Exposure levels as per exposure matrix. 12 month break in employment from March 1984 due to strike. 01/03/85 21/12/85 Yard foreman Plant external average Frederick Richards Estimates of FEV 1 loss 1341. Summary exposure estimates Resp dust mg y m-3 Tot dust mg y m-3 BSM mg y m-3 BaP µg y m-3 Oven years Resp excl ovens mg y m-3 47.9 292.2 32.3 355.1 8.9 7.5 1342. Estimates of FEV 1 loss (ml) FEV 1 loss ml Due to dust 11 Due to time in ovens 89 Total 100 APPENDIX B 1343. RICHARDS PERIOD AREA % TIME SPENT EXPOSURE UNIT DEDUCTION FOR NONPROCESS JOB NO. OF EXPOSURE UNITS 11/4/54- 19/5/57 (3.1 years) Pitch bay 5% 0.75 N/A 0.12 20/5/57- 29/1/66 (8.7 years) Exhauster house 100% 0.25 N/A 2.18 30/1/6621/12/81 (14.9 years) Oven floor 62% 1.00 75% 6.93 Quenching car floor, screens and ramps 13% 0.75 75% 1.09 22/12/81- 21/12/85 (3 years taking into account strike) Briquetting plant 15% 0.90 75% 0.30 Total exposure units 10.62 MICHAEL DOUGLAS ROBSON[1]Michael Douglas Robson was born on 30 December 1916. He died on 9 January 2000 aged 83 years.
The claim
[2]The claim is brought by Mr Robson’s son and executor, Mr Colin Robson (the claimant) on behalf of Mr Robson’s estate under the provisions of the Law Reform (Miscellaneous Provisions) Act 1934. It is alleged that, as a result of his exposure to dust in the course of his employment at the Phurnacite Plant, coupled with his smoking habit, Mr Robson developed COPD which caused his death, together with CB.
The defendants’ case
[3]The defendants admit that they were in breach of duty towards Mr Robson throughout the period of his employment. They admit also that he developed COPD and CB and that his COPD probably caused his death. Dr Rudd and Professor Jones agreed that in broad terms a cumulative exposure respirable coal dust level of 200 mg y m-3 would be sufficient to double the risk of a disabling loss of lung function. The defendants contend that Mr Robson’s exposure to dust fell well below that threshold and was therefore unlikely to have been caused by his occupational exposure at the Phurnacite Plant. They argued that the likely cause of his COPD and CB was his smoking habit.[4]The defendants contend that Mr Robson’s claim is statute-barred under the provisions of the 1980 Act. Damages[5]Damages in Mr Robson’s case have been agreed, subject to the issues of causation, apportionment and limitation. Damages for pain, suffering and loss of amenity have been agreed in the sum of £62,381 and special damages in the sum of £5,996.70. The total damages are therefore £68,377.70, exclusive of interest.[6]It is agreed that there should be apportionment to exclude from compensation that part of Mr Robson’s COPD and CB which can properly be attributed to his smoking habit. The defendants also contend that there should be apportionment to reflect any exposure to dust and fume which would inevitably have occurred without breach of duty on the defendants’ part (i.e. the ‘irreducible minimum’). Employment history[7]Mr Robson worked for various employers between 1931 and 1952. He then moved to the Phurnacite Plant. The defendants have been unable to trace any employment records for him. However, a detailed work history (presumably compiled by him) was included in a solicitors’ letter claiming damages on his behalf for noise-induced hearing loss (NIHL) against the British Coal Corporation in March 1992. That work history stated that he worked at the Phurnacite Plant continuously between 1952 and 1980, a period of about 28 years. It is not suggested that he had any significant exposure to dust or fume other than at the Phurnacite Plant.
The witnesses
[8]There is no evidence from Mr Robson himself. The claimant made a witness statement in March 2011 and gave oral evidence about his father’s respiratory problems, the nature and extent of his disability, his smoking history and matters relating to limitation. The evidence about Mr Robson’s working conditions came primarily from Mr Glanville Harris and Mr Brian Jones although they were only able to talk about conditions after 1971. Mr Harris was employed at the Phurnacite Plant between 1971 and 1982, first as deputy works chemist, then as a shift superintendent and finally as ovens assistant manager. He went on to hold the positions of deputy manager, then manager, of the Cwm Coke Works and subsequently held a senior post at CPL’s Head Office. When Mr Harris joined the Phurnacite Plant, Mr Robson was a shift superintendent. Mr Harris got to know him slightly then. Between 1974 and 1975, the two men carried out the job of shift superintendent on different shifts. Mr Brian Jones worked as a shift superintendent with Mr Robson from 1974 until 1980. Having performed the job of shift superintendent themselves, both Mr Harris and Mr Brian Jones were in an excellent position to describe Mr Robson’s working conditions.[9]There is no direct evidence about Mr Robson’s employment between 1952 and 1971. It appears from the work history to which I have already referred that he worked in one of the briquetting plants as a labourer/spare man, a shift fitter and a foreman. I have heard a good deal of evidence about conditions in the briquetting plants and about the roles of a shift fitter and of a foreman. Mr Robson was described by another witness, Mr Lanyon, as a very “hands on” foreman. Summary of evidence[10]Briefly summarised, the evidence about Mr Robson’s working history at the Phurnacite Plant, as detailed in his solicitors’ letter of March 1992, was as follows. January 1952 – December 1953[11]In the letter of March 1992, written in support of his claim for NIHL, the potential sources of noise during his time as a spare man were identified as the boilers and the “drives”. I infer from that that he spent this period working in one of the briquetting plants, where the boilers were situated. The “drives” could refer to the drive belts for the conveyors and other machinery in the briquetting plants. Alternatively, it could be a reference to “dryers”. In either event, I find that Mr Robson was working in one of the briquetting plants during this period. A reasonable division of time would be 50% in the boiler house and 50% in the briquetting building. January 1954 – December 1955[12]The work history states that, from 1954 to 1956, Mr Robson was a shift fitter and was exposed to noise from “dry core” (presumably dry coal) elevators and scrapers. The dry coal elevators were situated in the briquetting plants and there were also scrapers there. I consider it reasonable to assume that, during this period, Mr Robson spent 25% of his time in the fitter’s workshop and other areas with a similar amount of ‘background’ exposure and the remainder of his time in the briquetting plants. For the reasons I have already referred to in my judgment in the case of Mr David Jones, I consider that, whilst in the briquetting plants, a fitter would on average be exposed to similar levels of dust as a process operative working in the same area. January 1956 – December 1960[13]During this period, Mr Robson worked as a shift foreman. It is clear from the work history that he was employed in one of the briquetting plants at this time. I did not hear any direct evidence about the duties of a shift foreman working in a briquetting plant but assume that he would have fulfilled a similar role to that of a process foreman on the batteries. I have found that, when in the working areas, a process foreman would have had 75% of the exposure levels of a process operative working in the same areas. I adopt the same percentage for a shift foreman.[14]As to the division of time, I consider it appropriate to assume that, like Mr Richards, Mr Robson would have spent about 25% of his shift away from the working areas of the briquetting plant, carrying out administrative work in the foreman’s office/canteen or in his own office in the briquetting plant, conferring with colleagues and walking between the various parts of the briquetting plant and between the briquetting plant and the foreman’s office/canteen. I find that he would have spent the remainder of his time in the working areas of the briquetting plant. January 1961 – December 1980[15]The work history states that Mr Robson was appointed to the position of shift superintendent in 1961. For the first ten years of his time in this role, he would have been in charge of both the briquetting plants and the batteries. The evidence of both Mr Brian Jones and Mr Harris was that, despite Mr Robson’s responsibility for the batteries, most of his time would have been spent in the briquetting plants. It was there that most of the mechanical problems occurred. As from 1971, Mr Robson was responsible only for the briquetting plants, including the shuttle floors of the batteries. He would continue to visit the oven floors of the batteries on occasion in order to liaise with the shift superintendent there and would visit more often when the shift superintendent was absent for any reason. However, his time there would have been limited.[16]I have described the job of a shift superintendent at Section 4 of my generic judgment. It involved significant amounts of administrative work and regular discussions with colleagues. I am satisfied that these activities would have occupied an average of about 20% of each shift. In addition, some part of every shift would have been spent walking between the various locations. Given the distances involved, I am satisfied that this cannot have been less than 10% of each shift. During the remainder of the time, he would have been in the working areas of the briquetting plants or the batteries.[17]During the ten years for which he was covering the batteries as well as the briquetting plants, I consider it reasonable to assume that, of the 70% of his time remaining, Mr Robson would have spent 50% in the working areas of the briquetting plants and 10% on the oven floors of the batteries, 5% on the shuttle car floors of the batteries and 5% on the quenching car floor/ramps.[18]For the final nine years of his employment at the Phurnacite Plant, Mr Robson would have spent less time on the batteries. I consider it probable that, of the 70% of his time remaining after administrative work and travelling between locations, he would have spent 65% in the briquetting plants and 5% on the shuttle car floor and oven floors of the batteries.[19]I have found that, whilst in the working areas, a shift superintendent would have had 60% of the exposure levels of a process operative employed in the same areas.[20]The Table below summarises my findings in relation to Mr Robson’s working history at the Phurnacite Plant. 1364. TABLE 1 PERIOD JOB TITLE OTHER INFORMATION Jan 1952- Dec 1953 Labourer/spare man, briquetting plant 50% boiler house; 50% briquetting building Jan 1954- Dec 1955 Shift fitter 75% briquetting plant; 25% workshops or similar areas Jan 1956- Dec 1960 Shift foreman, briquetting plant 75% briquetting plant; 25% in foreman’s office/canteen or similar areas Jan 1961- Dec 1970 Shift superintendent , briquetting plant and batteries 50% briquetting plant; 10% oven floors of batteries; 5% shuttle floors; 5% quenching car floors/ramps; 20% foreman’s office/canteen; 10% walking between locations Jan 1971- Dec 1979 Shift superintendent, briquetting plant 65% briquetting plant; 5% divided between oven floors and shuttle floors of batteries; 20% foreman’s office/canteen; 10% walking between locations Respiratory protective equipment[21]No suitable RPE was provided for use of employees at the Phurnacite Plant during Mr Robson’s time there. Overtime[22]There is no evidence about the extent to which Mr Robson worked overtime during the first nine years of his employment at the Phurnacite Plant. However, it is reasonable to assume that he worked an average amount, as calculated by Professor Syred. The evidence was that paid overtime was not available to shift superintendents. Thus, from January 1961 onwards, it should be assumed that Mr Robson did not work any overtime. Exposure levels[23]The experts’ assessments of Mr Robson’s exposure levels are set out in the Table below: 1368. TABLE 2 Expert Total Dust (mg y m.3) Respirable Dust (mg y m-3) (x 1.84) BSM (mg y m-3) BaP -3 (μg years m ) Syred 724 312 69 565 Stear 178 19 159 Jones 379.9 55.5(102.12) 27.8 251.2[24]The significant disparities between the experts’ assessments are attributable to a number of factors. The first and most important of these is the difference of view about the dust levels to which Mr Robson would have been exposed when working as a shift fitter, shift foreman and shift superintendent, when compared with the dust levels to which a process operative working in the same areas would have been exposed.[25]The experts also made different assumptions about the division of Mr Robson’s time during his various periods of employment, especially when working as a shift superintendent. Assessment of overall exposure levels[26]I have already indicated that, in general, I accept Professor Jones’ approach to the assessment of exposure levels. Therefore, once I had reached some provisional conclusions about my findings of fact in Mr Robson’s case, I invited Professor Jones to re-work his calculations on the basis of those provisional conclusions. This was not an exercise that I could have performed myself and it was undertaken by Professor Jones with the consent of the parties. I asked him to provide more detail of his workings than he had given previously in the event that it was necessary for me to make any adjustments to his calculations consequent upon any further findings that I might make. Both parties have had the opportunity to comment on the additional material from Professor Jones and have done so. Save for his calculations in respect of respirable dust (which, having regard to my conclusions at Sections 4 and 11 of my generic judgment, I do not adopt), no criticism of his methodology was raised over and above that which has been discussed in my generic judgment.[27]Professor Jones’ re-worked calculations are attached to this individual judgment at Appendix A. Briefly summarised, his estimate of Mr Robson’s total dust exposure during his employment at the Phurnacite Plant is 365.3mgym-3. This figure includes a small amount of dust exposure during periods when Mr Robson was in the open areas of the Phurnacite Plant or the offices/canteen. I have found that the defendants were not in breach of duty during those periods. However, since that exposure will not affect the outcome of the case, I have not re-calculated Professor Jones’ figures to exclude it. I have excluded that dust exposure when calculating Mr Robson’s occupational exposure units. The figure makes no deduction for any ‘irreducible minimum’ for the reasons I have discussed in Section 5 of my generic judgment. The medical issues[28]The medical evidence in Mr Robson’s case comes from Dr Rudd. Whilst not a medical expert, Professor Jones has provided evidence about the epidemiological work on the causation of damage to lung function.
Smoking
[29]There are entries in Mr Robson’s medical records which indicate that he was smoking in 1976 but had stopped by July 1983. He had undergone surgery for a hernia in late 1982 and was reported to be concerned about his chest symptoms when he saw a consultant in March 1983. In the claims questionnaire (CQ) completed for the purposes of his BCRDL claim, the claimant stated that his father had stopped smoking in approximately 1980. Until that time, he had been smoking 20 cigarettes a day. In evidence, he said that so far as he was aware his father had given up smoking “quite a few years before he died”. In 1996, when Mr Robson changed GPs, he was noted on the new GP’s records to be a non-smoker. A note in April 1997 recorded that he had given up smoking about 12 years previously, at the time of his hernia repair. All this evidence would point to the conclusion that Mr Robson had ceased smoking in 1983 at about the age of 67 years.
Assessment of overall exposure levels
[30]However, Dr Rudd referred to a measurement of Mr Robson’s carboxyhaemaglobin level taken in June 1997 which he said made it “highly likely” that Mr Robson was a smoker at that time. The measurement constituted objective evidence and was therefore likely to be reliable. Moreover, Dr Rudd did not consider that the undoubted deterioration of Mr Robson’s respiratory disability in the 1980s and 1990s was consistent with the cessation of his occupational exposure to dust in 1980 and of his smoking habit in 1983. He considered that the deterioration could only be explained by the fact that Mr Robson had continued smoking well beyond 1983. He therefore concluded that Mr Robson had smoked until 1997, i.e. for a total period of 63 years. Dr Rudd’s evidence on that point was accepted by both parties and I too accept it.[31]Dr Rudd had seen no evidence relating to the number of cigarettes smoked by Mr Robson. He therefore assumed that his consumption was average, i.e. 15-25 cigarettes a day. That would accord with the information given by the claimant on the CQ. History of respiratory illness[32]There are comparatively few medical records in Mr Robson’s case and this has caused Dr Rudd some difficulty in formulating his conclusions.[33]Mr Robson’s GP records are incomplete. There are no notes for the period between 1960 and 1973 or between 1976 and 1982. There are other, shorter, gaps of time also. The claimant’s evidence was that his father’s respiratory symptoms began in the late 1960s. He developed a productive cough and wheeze. The claimant moved away from his parents’ home in 1969 and remembered that his father’s symptoms had started before then. He described his father having fits of coughing during which he would bring up phlegm. These episodes became more frequent and lengthy as time went on. They disturbed his sleep. He also developed a wheeze in his chest.[34]In May 1975, Mr Robson’s GP notes recorded a complaint of progressively worsening exertional breathlessness for several months. In April 1976, he was admitted to hospital with chest pain. A chest infection was diagnosed and treated. He reported having a productive cough in the mornings and breathlessness when climbing hills or stairs. At the time the GP’s note was made, Mr Robson was still working at the Phurnacite Plant.
The medical issues
[35]The claimant’s evidence was that, during the 1970s, his father’s symptoms worsened. They were more severe in cold weather. By the time he left the Phurnacite Plant in 1980, he was finding it hard to carry out his duties. After his retirement, his condition deteriorated and he required assistance with some everyday tasks. For about ten years from 1982, he and his wife used to spend three months in Cyprus each winter, which improved his condition. That arrangement ceased when Mr Robson suffered a bad attack of breathlessness at the airport. He did not go abroad again.
Smoking
[36]In October 1982, a consultant who was treating Mr Robson for a hernia described him as having “bad emphysema”. In March 1983, Mr Robson told the consultant that he was experiencing increased problems relating to CB. In April 1989, he attended his GP reporting exertional breathlessness for the previous three to four weeks. Throughout the early and mid-1990s, he was complaining of breathlessness which his GP attributed to COPD. In 1997, his GP noted that he was cyanosed and referred him to the chest clinic at the local hospital. Emphysema was diagnosed, together with COPD. He was to be assessed for oxygen therapy and to have nebulised bronchodilator therapy.[37]In June 1997, Mr Robson underwent lung function tests which showed evidence of COPD with emphysema. His FEV 1 was 1.3 litres. He was considered suitable for long term oxygen therapy. There were further attendances at the chest clinic when his symptoms of productive cough, breathlessness and cyanosis were again noted. In January 1999, he was unable to lie flat for examination and was using oxygen continuously at night. In April 1999, he was cyanosed and had obvious signs of airways obstruction. There are no further records relating to his respiratory symptoms up to the time of his death in January 2000.
Lung cancer
[38]The claimant said that, during the last five years before his father’s death, his difficulties in breathing dominated his life. He had difficulty moving from room to room and eventually it came to the point when he required oxygen therapy at all times. The medical evidence[39]The primary cause of death was certified as an acute exacerbation of chronic obstructive airways disease (COAD), another term for COPD. Emphysema was named as a secondary cause, with ischemic heart disease as a co-existing condition. The medical records that are available do not contain any reference to ischemic heart disease. There is no dispute that COPD caused Mr Robson’s death. Dr Rudd considered that, the pathological basis of Mr Richards’ COPD was predominately emphysema. He noted that the medical records confirmed the presence of CB during the time when Mr Robson was employed at the Phurnacite Plant.[40]Dr Rudd concluded that, as early as April 1976, Mr Robson had a respiratory disability due to COPD which Dr Rudd estimated at 20%. He considered that the disability would have been 30%-40% by the mid 1980s and that it would have increased to 60% by 1997. It would probably have increased to about 70%-80% by 1999. He estimated that, at the time of his death, Mr Robson would (but for his respiratory condition) have had a life expectancy of 2.4 years. I accept that evidence. Causation[41]There is no doubt that Mr Robson was exposed to large quantities of dust. Since he was employed for much of his time in the briquetting plants, it is probable that a good deal of the dust to which he was exposed was respirable. However as I explained in Sections 4 and 11 of my generic judgment, I do not consider that it is possible on the available data to reach a reliable conclusion about the percentage of respirable dust present in the various areas of the Phurnacite Plant. It is not possible to say whether, if his exposure levels to respirable dust were known, he would have satisfied the ‘doubling of risk’ test.[42]However, I do not consider that, in the circumstances of Mr Robson’s case, it is necessary for him to do so. COPD is a dose related condition and it is well known that both occupational exposure to dust and exposure to cigarette smoke can have the effect of causing the condition and/or of acting cumulatively to make it more severe. Mr Robson had a significant level of occupational exposure to dust whilst he was working at the Phurnacite Plant and he developed symptoms of COPD and CB during his period of employment there. The evidence of the only medical witness to give evidence in Mr Robson’s case was that his occupational exposure made a material contribution to the development of both conditions. I have no hesitation in accepting that evidence.[43]Mr Robson’s injury will fall to be apportioned as between the effects of his occupational exposure and of his smoking. I have accepted Dr Rudd’s evidence that a year’s work on the oven floor was equivalent to a year’s average smoking and, using that correlation as a basis, I have calculated Mr Robson’s total occupational exposure units. My calculation is at Appendix B to this individual judgment.
Chronic bronchitis
[44]The apportionment as between smoking and occupational exposure is as follows: Average smoking for 62 years 62 units Exposure to dust at the Phurnacite Plant 12.43 units Occupational exposure responsible for 12.43 ÷ (62 + 12.43) =17% of causation[45]I therefore find that 17% of Mr Robson’s final respiratory disability of 70% (or a disability of 12%) was attributable to his occupational exposure to dust at the Phurnacite Plant. I find that his CB was attributable in part to his smoking and in part to occupational exposure to dust in the same proportions as his COPD. Limitation
Conclusion
[46]I refer to Section 12 of my generic judgment, in which I discussed the generic issues relating to limitation. I shall now deal with the facts and issues relating specifically to Mr Robson’s case. Date of knowledge[47]It is accepted on Mr Robson’s behalf that his date of knowledge for the purposes of the 1980 Act arose more than three years before the commencement of proceedings. The issue of precisely when it arose (and therefore the exact length of delay that occurred before the commencement of proceedings) is, however, relevant to the claimant’s application under section 33 of the 1980 Act.[48]I have already set out Mr Robson’s relevant medical history, as disclosed by his medical records.[49]The claimant’s evidence is that, from the late 1960s, when he first developed respiratory symptoms, Mr Robson recognised that they might be caused by exposure to dust at the Phurnacite Plant. The claimant said that his father was a proud, stoical individual who was good at his job and was not a person who would complain about his working conditions. He accepted his respiratory symptoms as “part and parcel” of his job. He did not believe that his father had considered making a claim at that stage. He assumed from the fact that his father had not made a claim that he did not know it was possible to do so. Even when Mr Robson’s respiratory condition deteriorated, he never mentioned the possibility of making a claim.[50]Mr Robson made a claim for NIHL in 1992, through solicitors acting for his Union. His claim was settled for £1,500 in 1993. The claimant said that he was unaware of the fact that his father had made such a claim. His father had not mentioned it to him. He could not say whether his father had sought or received any legal advice about the possibility of bringing a claim in respect of his respiratory condition. He said that his father might have been aware of the publicity surrounding the claims by underground workers in what became known as the BCRDL. If so, he had not mentioned it to the claimant. The claimant accepted that, in the 1980s and 1990s, there was local and national publicity about possible health risks to employees and former employees at the Phurnacite Plant. However, the matter had not been discussed between him and his father.[51]The claimant said that, after his father’s death, he saw some publicity about the BCRDL which identified COPD as one of the conditions for which a claim could be made. He responded to an advertisement placed by Hugh James who registered his claim in the BCRDL in January 2003. Proceedings are deemed to have been commenced on that date. The claimant completed a CQ in September in 2003. In the event, his claim was rejected on the ground that Mr Robson had not worked underground. At a later stage, the claimant was advised that he may be able to make a claim within the Phurnacite litigation.[52]The defendants contended that Mr Robson acquired the necessary knowledge for the purposes of the 1980 Act in about 1969 when his respiratory symptoms started. On behalf of the claimant, it was conceded that he had acquired the relevant knowledge by early October 1982, when emphysema was diagnosed.[53]It seems to me that it may not have been clear to Mr Robson, at the time his symptoms first appeared, that his condition would be lasting and that it was therefore ‘significant’. I am satisfied, however, that, by mid-1975, when his symptoms of cough and sputum were persisting and, in addition, he had been suffering from progressive exertional breathlessness for several months, he had the relevant knowledge. By that time, he was finding his work more difficult and, according to his son, he believed that his condition was, in part at least, caused by exposure to dust at work. The primary limitation period in his case would have expired in mid-1978. Proceedings in respect of his exposure were commenced about 25 years after that time. Section 33 of the 1980 Act
Section 33 discretion
[54]Apart from their generic grounds of prejudice, the defendants rely on specific features of Mr Robson’s case in support of their contention that it would not be equitable to disapply the primary limitation period.[55]I must consider first the length of, and reasons for, the delay in Mr Robson’s case. The defendants contend that the delay in commencing proceedings was very lengthy and that there was no good reason for it. Mr Robson’s employment at the Phurnacite Plant began almost 60 years ago and it is more than 30 years since it ended.[56]The defendants pointed out that Mr Robson had made a claim for NIHL in 1992. Not only did that demonstrate that he was able and willing, if he chose, to institute a claim against his former employers, but it had also afforded him an opportunity to seek the advice of the solicitors dealing with his NIHL claim about the possibility of claiming for his respiratory disease. However, the process of making a claim within the NIHL scheme was very straightforward. The scheme was well advertised and Mr Robson would no doubt have heard that some of his former colleagues were making claims under it. He may well have been encouraged to make a claim by his Union or former colleagues. I consider it unlikely that, in the course of his NIHL, he would have had a face to face meeting with a solicitor. Even if he did, it would not necessarily have occurred to him that he should seek advice about a condition other than deafness.[57]It seems probable that, in the mid-late 1990s, Mr Robson would have become aware of the claims being made for respiratory disease by miners and former miners in the BCRDL. However, the BCRDL claims related to underground work only and, thus, Mr Robson may well have concluded (correctly) that they had no relevance to his position.[58]There is no doubt that the delay here was very lengthy. Since Mr Robson is dead, we cannot be sure why he did not make a claim. His respiratory disease was causing him significant disability by the early 1980s and it may have been one of the factors which caused him to retire in 1980. If he had been aware that a claim was or might be possible, one would have expected him at least to seek the advice of his Union about the matter at that stage. The fact that Mr Robson made a claim for his relatively minor noise-induced deafness and did not make a claim for his respiratory disease strongly suggests that he was unaware that it would or might be open to him do so. Certainly, it does not seem that he discussed the possibility with his family. The claimant did not become aware until 2003 that a claim was possible. By that time of course his father was dead. The claimant himself took prompt action to seek advice and his claim was registered within the BCRDL shortly afterwards.[59]I consider it probable that the claimant’s assumption is right and that Mr Robson was unaware that he could make a claim. The claim he made for NIHL does not affect my view since that claim was made in the context of an existing organised scheme in which claimants were required to participate to a minimal extent. The fact that Mr Robson participated in that scheme does not mean that he was aware that it might be open to him to bring a claim at common law. The delay, although lengthy, cannot in my view be considered to be culpable.[60]I have already discussed the generic issues relating to the cogency of the evidence. In Mr Robson’s case, no training records are available. That might have presented very real difficulties in ascertaining his work history at the Phurnacite Plant. However, there is the work history set out in March 1992 letter, which makes it reasonably clear where Mr Robson would have been working in his early years at the Plant. Although there were no witnesses with direct knowledge about Mr Robson’s work between 1952 and 1971, I have receieved a considerable amount of evidence about conditions in the briquetting plants during that period.[61]I also had the benefit of two witnesses of management level (Mr Harris and Mr Brian Jones), both of whom had personal and detailed knowledge of Mr Robson and of the work of a shift superintendent, the role he occupied from 1961 until his retirement in 1980. Both Mr Harris and Mr Brian Jones gave oral evidence and the defendants’ counsel was able to cross-examine them. As a result, I am satisfied that I have a reasonably accurate picture of Mr Robson’s working conditions throughout his time at the Phurnacite Plant.[62]As I have already mentioned, the medical records in Mr Robson’s case are somewhat sparse. Nevertheless, it has been possible for Dr Rudd to reach a clear diagnosis, with which Dr Moore-Gillon agreed. As to Mr Robson’s smoking history, I have accepted Dr Rudd’s view, which is favourable to the defendants.[63]I have not overlooked the fact that, if Mr Robson had acted promptly and had consulted solicitors in the 1970s or 1980s, the Phurnacite Plant would still have been open and it would have been possible for the Plant to have been inspected by experts and for exposure levels (in particular levels of respirable dust) to have been measured. I have considered carefully whether that factor, in conjunction with the fact that other witnesses and additional documentation might also have been available then, has adversely affected the cogency of the evidence available to the defendants or their ability to defend themselves in the action.[64]Given all the evidence I have heard about the conditions at the Phurnacite Plant – and, in particular, about conditions in the briquetting plants where Mr Robson mainly worked – I do not consider that the additional evidence is likely materially to have assisted the defendants in their defence of the action for the reasons set out in Section 12 of my generic judgment. In the event, I have not based my findings in relation to causation upon measurements of respirable dust. Instead, I have chosen to adopt the ‘broad brush’ approach advocated by Dr Rudd, an approach with which Professor Jones agreed in principle, at least with regard to exposure on the oven floor. Even if further measurements of respirable dust had been taken in the 1970s or 1980s, there would still have been the problem of estimating Mr Robson’s exposure levels to respirable dust over the previous 20 or 30 years of his employment. It is highly likely that the ‘broad brush’ approach would still have been the best way of assessing his exposure for the purposes of COPD.
Conclusion
Section 33
[65]In all the circumstances, I have concluded, on balance, that the defendants’ ability to defend the claim has not been compromised as a result of the delay and that it is fair and just to permit the action to proceed.
Conclusions
[66]Mr Robson’s claims for COPD and CB therefore succeed. The agreed award of damages in his case is £13,233.43, inclusive of interest. APPENDIX A Michael Douglas Robson 1412. Occupancy matrix From To Job factor Fractional occupancy Canteen / offices Average external Boiler house Workshops Briquetting Oven and shuttle floors Quench, ramp and screens Annual hours 01/01/195231/12/1953 1 0 0 0.5 0 0.5 0 0 2407 01/01/195431/12/1955 1 0 0 0 0.25 0.75 0 0 2407 01/01/195631/12/1960 0.75 0.25 0 0 0 0.75 0 0 2407 01/01/196131/12/1970 0.75 0.20.1 0 0 0.5 0.15 0.05 1900 01/01/197131/12/1974 0.60.2 0.1 0 0 0.65 0.05 0 1900 01/01/197531/12/1979 0.6 0.2 0.1 0 0 0.65 0.05 0 1900 Michael Douglas Robson 1413. Exposure estimates From To Job Plant Resp dust mg y m-3 Tot dust mg y m-3 Oven years Resp excl ovens mg y m-3 01/01/52 31/12/53 Labourer/spare man, briquetting Boilerhouse 0.15 1.27 0.12 1.20 01/01/52 31/12/53 Labourer/spare man, briquetting Briquetting 4.43 26.59 1.90 12.99 01/01/54 31/12/55 Shift fitter Briquetting 6.64 39.82 2.84 19.46 01/01/54 31/12/55 Shift fitter Workshops 0.34 1.58 0.27 2.69 01/01/56 31/12/60 Shift foreman, briquetting Briquetting 13.06 81.94 5.81 41.24 01/01/56 31/12/60 Shift foreman, briquetting Canteen / offices 0.07 0.35 0.05 5.37 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Briquetting 13.74 86.21 7.75 54.98 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Canteen / offices 0.09 0.44 0.09 8.60 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Oven and shuttle floors 4.66 28.90 3.82 41.42 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Plant external average 0.47 2.80 0.47 4.70 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Quench, ramp and screens 0.36 2.25 0.30 2.75 01/01/71 31/12/74 Shift superintendent, Briquetting Briquetting 5.98 38.97 3.48 25.46 01/01/75 31/12/79 Shift superintendent, Briquetting Briquetting 7.21 44.43 4.09 29.23 01/01/71 31/12/74 Shift superintendent, Briquetting Canteen / offices0.03 0.18 0.03 3.44 01/01/75 31/12/79 Shift superintendent, Briquetting Canteen / offices0.04 0.15 0.04 0.40 01/01/71 31/12/74 Shift superintendent, Briquetting Oven and shuttle floors 0.53 3.26 0.43 4.64 01/01/75 31/12/79 Shift superintendent, Briquetting Oven and shuttle floors 0.65 3.97 0.54 5.80 01/01/71 31/12/74 Shift superintendent, Briquetting Plant external average 0.19 1.12 0.19 1.88 01/01/75 31/12/79 Shift superintendent, Briquetting Plant external average 0.21 1.05 0.21 2.10 Michael Douglas Robson 1414. Notes on exposure estimates From To Job Plant Notes 01/01/52 01/01/52 31/12/53 31/12/53 Labourer/spare man, briquetting Labourer/spare man, briquetting Boilerhouse Briquetting Exposure levels as per exposure matrix 01/01/54 01/01/54 31/12/55 31/12/55 Shift fitter Shift fitter Briquetting Workshops Exposure levels as per exposure matrix 01/01/56 31/12/60 Shift foreman, briquetting Briquetting Factor of 0.75 applied to exposure levels attributed to plant 01/01/56 31/12/60 Shift foreman, briquetting Canteen / offices Exposure levels as per exposure matrix 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Briquetting Factor of 0.75 applied to exposure levels attributed to plant 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Canteen / offices Exposure levels as per exposure matrix 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Oven and shuttle floors Factor of 0.75 applied to exposure levels attributed to plant 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Plant external average Exposure levels as per exposure matrix 01/01/61 31/12/70 Shift superintendent, Briquetting and batteries Quench, ramp and screens Factor of 0.75 applied to exposure levels attributed to plant 01/01/71 31/12/74 Shift superintendent, Briquetting Briquetting Factor of 0.6 applied to exposure levels attributed 01/01/75 31/12/79 Shift superintendent, Briquetting Briquetting to plant 01/01/71 01/01/75 31/12/74 31/12/79 Shift superintendent, Briquetting Shift superintendent, Briquetting Canteen / offices Canteen / offices Exposure levels as per exposure matrix 01/01/71 31/12/74 Shift superintendent, Briquetting Oven and shuttle floors Factor of 0.6 applied to exposure levels attributed 01/01/75 31/12/79 Shift superintendent, Briquetting Oven and shuttle floors to plant 01/01/71 01/01/75 31/12/74 31/12/79 Shift superintendent, Briquetting Shift superintendent, Briquetting Plant external average Plant external average Exposure levels as per exposure matrix The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment Michael Douglas Robson Estimate of FEV 1 loss 1415. Summary exposure estimates Resp dust mg y m-3 Tot dust mg y m-3 Oven years Resp excl ovens mg y m-3 58.9 365.3 1.8 52.7 1416. Estimates of FEV 1 loss (ml) FEV 1 loss ml Due to dust 74 Due to time in ovens 18 Total 92 332 The Honourable Mrs Justice Swift: Phurnacite Workers Group Litigation Approved Judgment 1417. APPENDIX B ROBSON PERIOD AREA % TIME SPENT EXPOSURE UNIT DEDUCTION FOR NONPROCESS JOB NO. OF EXPOSURE UNITS 1952-53 (2 years) Briquetting plant 50% 0.90 N/A 0.90 Boiler House 50% 0.25 N/A 0.25 1954-55 (2 years) Briquetting plant 75% 0.90 N/A 1.35 Workshops 25% 0.25 N/A 0.14 1955-60 (5 years) Briquetting plant 75% 0.90 75% 2.53 1961-70 (10 years) Briquetting plant 50% 0.90 60% 2.70 Oven and shuttle floors 15% 1.00 60% 0.90 Quench, ramp and screens 50% 0.75 60% 0.23 1971-79 (9 years) Briquetting plant 65% 0.90 60% 3.16 Ovens and shuttle floors 5% 1.00 60% 0.27 Total exposure units 12.43 333