Garner v Salford City Council & Anor [2013] EWHC 1573 (QB)

[2013] EWHC 1573 (QB)Case No HQ12X02171
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 13 June 2013
Before
MR JUSTICE KEITH
Between
Penelope GarnerClaimant(1) Salford City CouncilDefendants(2) P McGuiness and Company LimitedDefendant
Mr David Allan QC (instructed by John Pickering & Partners) for ClaimantMr John Williams (instructed by Forbes) for First DefendantMr Charles Feeny (instructed by Plexus Law) for Second DefendantHearing Hearing dates: 13-15 February and 14 March 2013
Judgment

Introduction

[1]“Mesothelioma is a hideous disease that is inevitably fatal. In most cases, indeed possibly in all cases, it is caused by the inhalation of asbestos fibres. Unusual features of the disease led the House of Lords to create a special rule governing the attribution of causation to those responsible for exposing victims to asbestos dust. This was advanced for the first time in Fairchild v Glenhaven Funeral Services Ltd. [2003] 1 AC 32 and developed in Barker v Corus UK Ltd. [2006] 2 AC 572. Parliament then intervened by section 3 of the Compensation Act 2006 further to vary this rule. The rule in its current form can be stated as follows: when a victim contracts mesothelioma each person who has, in breach of duty, been responsible for exposing the victim to a significant quantity of asbestos dust and thus creating a ‘material increase in risk’ of the victim contracting the disease will be held to be jointly and severally liable for causing the disease.” These were the opening words of the speech of Lord Phillips in Sienkiewicz v Greif (UK) Ltd. [2011] 2 AC 229 at [1], in which the Supreme Court considered two appeals involving cases in which the defendant was the sole known cause of exposure to asbestos dust. In each case, the extent of the exposure was very small, but in each case the Supreme Court dismissed the appeal from the previous finding that the defendant was liable for causing the disease. The present case is not quite the same as those cases since the claimant’s exposure to asbestos dust by the defendants was at the most very fleeting, if at all, and unlike one of those cases her exposure to it was not in the course of her work.[2]The claimant is Penny Garner. She is now 45 years old. She first began to feel discomfort in the early part of 2010, but it was not until the beginning of May 2011 that she was diagnosed as suffering from mesothelioma. There is no dispute about the accuracy of the diagnosis. She was asked by the doctors who were treating her when she might have been exposed to asbestos, and it was her brother Tony who reminded her about the demolition of the swimming baths next to their school. She now recalls the demolition generating an enormous amount of dust, to which she and other children would have been exposed when they played in the school playground. Since she cannot recall any other time in her life when she might have been exposed to asbestos, her case is that that dust must have contained asbestos, and that was when she must have inhaled asbestos fibres which were to cause her mesothelioma decades later. She brings this case against Salford City Council (“the Council”) who were the owners of the swimming baths and commissioned their demolition, and P McGuiness and Co Ltd, the demolition contractors who carried out the demolition (“the company”).[3]A few general observations first. As Mr John Williams for the Council rightly said, fact-finding in mesothelioma claims in which the claimant’s exposure to asbestos dust is low presents its particular challenges. The court’s sympathy naturally lies with victims of mesothelioma, and the wish to find a defendant liable is understandable. That makes it all the more important for the court to approach the case within the framework of familiar principles relating to the burden and standard of proof and the drawing of inferences. There may be some cases in which factual conclusions on particular issues simply cannot be made. As Lord Mance said in Sienkiewicz at [193]:
“There are cases where, as a matter of justice and policy, a court should say that the evidence adduced (whatever its type) is too weak to prove anything to an appropriate standard, so that the claim should fail.”
[4]These problems are particularly acute in the present case for three reasons. The first relates to the nature of Miss Garner’s alleged exposure to asbestos dust in the playground. Hers is not a case of primary exposure, which occurs when people are exposed to asbestos dust by coming into direct contact with materials containing asbestos. Nor is it even a case of secondary exposure, which occurs when people are exposed to asbestos dust only by coming into contact with people who come into direct contact with materials containing asbestos. If Miss Garner was exposed to asbestos dust when she played in the playground, hers was a case of bystander exposure. Secondly, the case is concerned with works of demolition which would have generated dust in any event. Exposure to dust from those works does not necessarily mean that the dust which Miss Garner was exposed to contained asbestos fibres. Thirdly, the witnesses were recalling events which occurred almost 35 years ago, and these events were neither particularly memorable nor exceptional, unlike, for example, a traumatic accident.[5]Having said that, the consultant physician instructed on behalf of Miss Garner, Dr R M Rudd, who contributed the section on asbestos-related disease to a textbook on respiratory medicine, has said that “[t]here is, on average, a long latent interval between first exposure to asbestos and the onset of clinical manifestations of mesothelioma, more than 30 years in most [cases] …” That means that the timing of the development of Miss Garner’s symptoms was entirely consistent with her having been exposed to asbestos when she claims she was. Moreover, it was acknowledged by Dr Martin Muers, the consultant respiratory physician instructed on behalf of the Council, that if there is evidence of previous asbestos exposure, often and usually many years beforehand, it will be appropriate to attribute the mesothelioma to that exposure.

A few basic facts

[6]The swimming baths. The Seedley Baths were built in about 1910. They were in Derby Road, Salford, on the corner where Derby Road met White Street. The minutes of the meeting of the Council’s Recreation Committee of 28 September 1978 show that the City Technical Services Officer had recently inspected the baths. He had ascertained that “further deterioration of the substructure had taken place”, and “because of potential danger to the public”, he had advised that the baths should be closed immediately. The minutes went on to record that they had been closed since 28 August 1978. It looks as if it had previously been decided that the baths should be demolished because the minutes record the acceptance of the company’s tender for their demolition.[7]The demolition. It is not possible to say when the demolition of the baths commenced. The Council does not have any documents relating to the contract, and the company has not been able to find any documents either, except for a reference to it in one of its ledgers with the date 19 October 1978 next to the words “Seedley Baths”. The entry referred to a “D & C contract” (which probably meant demolition and clearance) and to “Salford Mr Lowndes” (which presumably related to the person within the Council who gave them the contract). Someone appears to have added a later date, 16 June 1979. The earlier date may therefore have been when the company first went on site, and the later date may have been when their work was finally paid for.[8]The school. The Seedley Infants’ and Junior School was next to the swimming baths. Miss Garner first went to the infants’ school in 1972. She then attended the junior school leaving there in the summer of 1979. The demolition of the baths therefore took place during her last year at the school. The school was only demolished in 2011. It occupied the whole of the block between White Street and Liverpool Street. It had two playgrounds, one next to Liverpool Street, and one next to White Street. It was the playground by White Street which was next to the swimming baths, and that was the playground which Miss Garner played in once she had gone to the junior school.[9]The contractors. P McGuiness & Co Ltd is a family business. It was started by Pat McGuiness in 1946. By 1978 it was being run by his son, who is also called Pat McGuiness. He gave evidence before me. He retired from the business in 2000, but the business is still in the family. He is plainly proud of the business. His evidence, which I have no reason to doubt, was that the company was one of the main demolition contractors in the north west in the 1970s, and still is to this day. The bulk of its work came from the public sector, and local authorities are still its biggest clients.

The generation of dust in the demolition

[10]The two critical issues of fact to which much of the evidence in the case was directed was whether the demolition of the baths generated dust which children playing in the playground by White Street were exposed to, and whether that dust contained asbestos. I deal with the first of those issues here. Mr McGuiness has no recollection of the demolition of the baths himself, and all he can go on is how the company would have gone about demolishing a building of this kind. His evidence was that they would not have used a tup equivalent to a demolition ball on this sort of building, particularly as it was on a main road and in a residential area. Instead, the external masonry and roofing would have been removed by men working on scaffolding platforms using hand tools. The supporting brickwork would have been removed in the same way to the level of the top floor, and the supporting walls would have been removed, again in the same way, floor by floor until they reached ground level. Mr McGuiness’ evidence was that all the time water would have been used to prevent dust being generated.[11]It was a little difficult to tell from Mr McGuiness’ evidence what the extent of that was. At one stage, he spoke of the building being “drenched” with water. Another time, he talked of the dust being “dampened down” which is at the other end of the spectrum. He also talked of the building being “doused” with water. What he did say was that you would always use a hosepipe, and you would only use a spray instead for areas where hosepipes could not reach. But however much water you used or however little, Mr McGuiness said that these precautions were being taken even in 1978 and 1979. You would not allow the dust to stay where it was so that it could be carried off by the wind.[12]Mr McGuiness’ evidence was supplemented by that of Jimmy Hindle and Terry Loftus. They both still work for the company, and I have borne that in mind when considering their evidence. I do not doubt that they were telling me the truth as they remembered it, but one must not lose sight of where they were coming from. Mr Hindle’s job at the time related to the maintenance and repair of the company’s equipment. He would visit a site if there was something wrong with the equipment and he would sort the problem out. So although he remembers the demolition of the baths, he was not himself involved in their demolition, and his evidence did not deal with how the baths themselves were demolished. Like Mr McGuiness, all he could go on was what the practice at the time was. His evidence was that if the building was more than one storey, it would be demolished one level at a time, and the building would be sprayed with water to prevent the liberation of dust. The company had water hydrants, and they would be connected to the water mains. Not only did the people who were doing the demolition want to avoid breathing in the dust themselves, but you would not want the area contaminated by dust, especially a residential area where, for example, people would still hang their washing out to dry on washing lines. That was important because the company did a lot of work for local authorities, and the company did not want complaints being made to the local authorities from disgruntled residents.[13]Mr Loftus said much the same thing. He has only a vague memory of the demolition of the baths, and he could not say whether he worked on their demolition himself. But like Mr McGuiness and Mr Hindle, he says that dust (which he described as “the big enemy” when a building is demolished) was effectively eliminated by the spraying of water both before and during the process. He could not recall the company ever receiving any complaints about dust (or about noise for that matter because the company used mufflers on its equipment). Indeed, he said that health and safety were always at the forefront of the company’s mind. That was something which Mr McGuiness would tell you from the day you started. The McGuinesses, Mr Loftus said, were perfectionists. Their attitude was:
“You either do the job properly or you don’t do it at all.”
They had the reputation of being the No. 1 to keep. That was why they were in such demand. Having said that, it is instructive to note that Mr Loftus spoke of the hosing down being done by “one of the younger lads”, and Mr Loftus said that he could recall spending many hours as a young apprentice doing that.[14]On the other hand, there was a fair amount of evidence that the demolition of the baths did generate dust which went into the playground by White Street. The evidence came from Miss Garner herself, her brother Tony, Emma Metcalfe and Mark Plaister who were also at the school, and Phyllis Hurst who lived in Derby Road. I have had to treat their evidence with some caution as well, because they were doing their best to recollect things which happened almost 35 years ago, and because it is likely that they were not asked to remember these things until recently. I have also had to bear in mind that the wish might have become father to the thought. Having said that, their evidence was as follows:(i) Miss Garner. In her witness statement, Miss Garner said that “[d]uring the demolition there was an enormous amount of dust which inevitably spread into the playground where we played”. When she came to give evidence, she added that she was aware of it every day while the demolition was going on unless it rained, and that she remembered the dust on the ground.(ii) Tony Garner. Mr Garner had left the school in the summer of 1977, but he said he was in the area most days, playing football in the playground after school was over. In his witness statement, he said that he vividly remembered the baths being demolished, and the dust from the demolition spread among the surrounding streets as well as into the playground. He described it as blowing all over the place, and there was no way of avoiding it.(iii) Emma Metcalfe. Mrs Metcalfe is a few years younger than Miss Garner, but like Miss Garner she was at the school when the baths were demolished. She used to see dust from the demolition in the playground next to White Street. It got into her eyes several times even though she wore glasses. She said that the dust came from the demolition “when the building was coming down”.(iv) Mark Plaister. Mr Plaister was in the same class as Miss Garner at the school, and he got in touch with her solicitors when he read about the case in the Manchester Evening News. He remembers dust coming over into the playground.(v) Phyllis Hurst. Mrs Hurst was not well enough to come to court, but her witness statement said that her house in Derby Road was across the road from the baths. She was therefore the other side of the baths from the school, but she could recall dust from the demolition on the paths and coming through her windows. She said that clouds of dust were given off during the demolition. She had to vacuum each day when she got home from work, and she recalls insisting on her children taking their shoes off before they came in because the road was so dirty.[15]There was also a fair amount of evidence that water was not being used by the contractors to prevent the spread of dust. Tony Garner said that nothing was done to suppress the dust and nobody was hosing the areas down while the demolition was going on. Mr Plaister, Mrs Metcalfe and Mrs Hurst all said that they did not remember any attempt to suppress the dust with water while the baths were being demolished. Certainly Mrs Metcalfe does not recall seeing any pools of water when she was in the building after the demolition had begun. Paul Quinn (who was on holiday at the time of the hearing but who had been in the same class as Tony Garner) said much the same thing in his witness statement.[16]Having said all that, there was a fair amount of evidence about there being a lot of dust in the area. The whole area was being redeveloped, and Miss Garner recalls houses in the street where she lived being demolished. The fact that her clothes were dusty was “a fact of life” in the area, she said. Her brother Tony’s evidence was that they did not really think anything of the dust coming from the demolition of the baths because there was so much dust from all the demolition in the area. Duncan Trott (who was Miss Garner’s cousin) said that the “whole place”, by which he meant the whole area rather than the school, was dusty, and the dust from the demolition and redevelopment locally was something they “just took as a matter of fact”. And Lynda Gilligan (who was in the same class as Miss Garner) said that if there was dust in the playground, it was no different from the dust in the area caused by the demolition of other old buildings. On the other hand, Mrs Metcalfe’s evidence was that she did not recall the playground being dusty when the demolition of the baths was not going on.[17]There is one other thing which needs to be mentioned here. There was a fair amount of evidence that after the closure of the baths and even after the commencement of the demolition, you could get into the baths. Photographs of the baths before their demolition show a perimeter fence around it consisting of iron railings, but Mr McGuiness accepted that it was likely that there had been one or two panels of fencing missing, and there is quite a bit of anecdotal evidence that people got into the building – both children who wanted to play there and people looking for things to salvage. Mr McGuiness said that there would have been hoarding around the building and he was not prepared to accept that children got into the building. He acknowledged, though, that a determined adult could have got into the building, and there was too much evidence about children playing in the building even after the demolition had started for Mr McGuiness to have been correct. That evidence came from Tony Garner, Mr Trott, Mr Quinn, Mr Plaister and Mrs Metcalfe. Having said that, I am reluctant to say that any lack of security on the company’s part is an indicator of, say, a slapdash attitude when it came to the actual demolition of the building.[18]Bringing all the strands of the evidence together, the likelihood is that some dust from the demolition of the baths drifted into the playground next to White Street. The need for the building to be constantly hosed down was less when the demolition was being done by men using hand tools rather than a demolition ball. I do not doubt that some hosing down was going on if one of the younger lads was around to do it, but there would also have been times when they were not, and it is likely that some dust was dispersed then. Having said that, this was a neighbourhood where dust was a fact of life at the time, and the probability is that at least some of the dust which drifted into the playground came from elsewhere.

Asbestos fibres in the dust

[19]The critical question therefore is whether such dust as drifted into the playground by White Street and which came from the demolition of the baths contained asbestos fibres. The expert witnesses agreed that if there was any asbestos in the building in which the baths were housed, the most likely location was the boiler house since that was where any insulation which might have contained asbestos might have been used. Indeed, no other possible location within the building has been suggested, and I have to proceed on the basis that the boiler house was the only location for any asbestos in the building. This raises a number of questions. Were the boilers and any associated pipework in the boiler house lagged? Did that lagging contain asbestos? And were asbestos fibres released into the atmosphere when the lagging was removed?[20]Were the boilers and the pipework lagged? There is no evidence about the nature of the heating system used in the baths, or about the configuration of the boilers or the pipework in the boiler house. What is known, though, is that the boiler house was next to the wall which along with a passage separated it from the playground next to White Street. One of the photographs from the time shows the entrance to the boiler house through two large doors on White Street. It also shows the tall chimney from the boiler house. Mr Trott’s evidence was that there were two other doors into the boiler house from the side of the playground. People remembered seeing the boilers exposed during the demolition of the baths and pushed up against the wall next to the playground. Miss Garner recalls that, as well as her brother Tony. He did not see them being moved to where they ended up by the wall, one leaning on the other, but one day they were not there, and the next day they were. There was pipework stacked up near them. He said that there were two boilers, and he used to climb on them both with his friends. He even got inside them. He did that both while they were still in the boiler house, and after they had been moved next to the wall. They were not by the wall for very long, he said, but they were not dismantled there. They were taken away in one piece on a low-loader. Mr Trott also saw the boilers there, but he thought that they were there for quite a time. He put it at 5-6 months. He could not recall whether there was any pipework there.[21]When it comes to lagging, Tony Garner recalls the pipework being lagged, but not the boilers themselves. The lagging was in pretty poor condition with large pieces of it missing, and he should know, he says, because he climbed all over it. He thought that the pipework still had the lagging after it had been stacked up near the boilers by the wall, though importantly he agreed that this could have been pipework from the pool which would never have had any lagging on it. He did not mention any lagging in his first witness statement which he made on 29 January 2012, but he did in his second of 20 December 2012. That is a little surprising at first blush since the question whether the pipework was lagged is at the heart of the case. Mr Garner’s explanation for not mentioning it in his first statement was that he was not asked about it. I note that the particulars of claim are dated 28 May 2012, so it may be that the significance of the lagging was not appreciated when Mr Garner made his first statement. As for Mr Trott, he could not recall whether the boilers were lagged, and since he could not recall seeing the pipework there, it follows that he could not help on whether any of that was lagged. But Mr Quinn recalls seeing pipes “around” the boiler house which were lagged with what looked to him like plaster of Paris. It is unclear whether he was referring to pipes which he had seen in the boiler house, or after they had been removed from the boiler house and were on the ground by the wall where the boilers had been moved to. What is clear is that no-one claims to have seen lagging on the boilers.[22]I should here refer to the expert evidence. I had the benefit of the views of two experts, both of whom are acknowledged experts in the field of occupational hygiene. Mr William Finch was instructed by Miss Garner’s legal team. His early years were with the Factory Inspectorate, but for the last 40 years or so he has been a consultant in occupational health and safety. Miss Tracey Boyle was instructed by the Council. She has worked in occupational hygiene in both the public and private sectors, including a spell with the Health and Safety Executive. She has 23 years’ experience in the profession, and is currently a consultant in occupational hygiene. Both Mr Finch and Miss Boyle think that the boilers would have been lagged, the only difference between them being that Miss Boyle thought it unlikely that the lagging would have been removed and updated at some time, whereas Mr Finch thought that it would have been at some time.[23]On this evidence, the strong likelihood is that there was at least some lagging. Indeed, in para. 6 of the company’s amended defence, it is admitted that the boilers and associated pipework “would have been lagged”. In the course of the opening of Mr David Allan QC for Miss Garner, Mr Charles Feeny for the company told me that the company did not dispute that the pipework would have been lagged, but that did not apply to the boilers. In the circumstances, I really have no doubt that there was lagging on the pipework, though as Mr McGuiness said that lagging had been removed from the pipework before the pipework itself was removed from the boiler house. On the other hand, despite the evidence of Mr Finch and Miss Boyle, it is unlikely that there was any lagging on the boilers themselves. After all, no-one claims to have seen any lagging on them, and Mr McGuiness’ evidence was that cast-iron boilers (which he assumed these were) were very often not insulated.[24]Did the lagging contain asbestos? Asbestos is a strong material and resistant to high temperatures. These properties made it ideal for a wide range of applications including thermal insulation. It comes in three forms: chrysotile, amosite and crocidolite, usually known as white, brown and blue asbestos respectively. Blue and brown asbestos pose a greater risk than white asbestos, but all three have been associated with causing mesothelioma. The risk of mesothelioma associated with exposure to asbestos was not appreciated before the 1960s, and until those days, as Mr Finch said, you tended to use what you had. Major undertakings like ICI or the Central Electricity Generating Board were hardly using asbestos from the 1960s, but it took a little longer for other industries to catch up. Asbestos-free lagging was used from time to time, but Mr Finch said – and Miss Boyle did not suggest otherwise – that lagging containing asbestos was very common. So whether the lagging used at the baths was the original lagging, or whether it had been removed and updated at some time before the end of the 1960s, it was likely to have contained some asbestos. Both Mr Finch and Miss Boyle agreed on that. Mr Finch said as much in both his report and his evidence. Miss Boyle’s report was less clear. At one point, she wrote that it was “likely that any lagging to the boilers and pipework may (sic) have contained asbestos”. Later on, she wrote that it was “possible that the lagging would have contained asbestos at that time”. But she cleared up the ambiguity when she gave evidence, and said that it was likely that the lagging had contained asbestos.[25]But how likely was that? Miss Boyle said that lagging with asbestos was more prevalent than lagging without it, and she put the figures at 60:40. That led to an interesting debate about the use of statistics of that kind. In Hotson v East Berkshire Area Health Authority [1987] 1 AC 750, Lord Mackay referred to the dissenting judgment of Brachtenbach J in Herskovits v Group Health Co-operative of Puget Sound (1983) 664 P.2d 474, a decision of the Supreme Court of Washington, in these terms at p.789A-D:
“He warned against the danger of using statistics as a basis on which to prove proximate cause and indicated that it was necessary at the minimum to produce evidence connecting the statistics to the facts of the case. He gave an interesting illustration of a town in which there were only two cab companies, one with three blue cabs and the other with one yellow cab. If a person was knocked down by a cab whose colour had not been observed it would be wrong to suggest that there was a 75 per cent. chance that the victim was run down by a blue cab and that accordingly it was more probable than not that the cab that ran him down was blue and therefore that the company running the blue cabs would be responsible for negligence in the running down. He pointed out that before any inference that it was a blue cab would be appropriate further facts would be required as, for example, that a blue cab had been seen in the immediate vicinity at the time of the accident or that a blue cab had been found with a large dent in the very part of the cab which had struck the victim.”
Mr Feeny contended that the same applies here. The fact that lagging with asbestos was more prevalent than lagging without it did not make it more likely that the lagging in the boiler house contained asbestos.[26]You should not take this argument too far. Likelihood and prevalence are different concepts. Brachtenbach J’s example was considered by Lord Phillips in Sienkiewicz. He described it at [96] as simply showing that “… it was not possible to postulate that the risk of being knocked down by a negligent driver of a taxi-cab was proportional to the number of taxi-cabs in the town. Much more significant would have been the care taken by the rival taxi firms in employing competent drivers, and the past accident record of the firms in question.” In this case, it is not just the prevalence of lagging with asbestos when compared with lagging without asbestos which is important. Both Mr Finch and Miss Boyle relied on their experience to express a view on the likelihood of this lagging containing asbestos. It was if their experience was based only on the prevalence of lagging containing asbestos that it may have been appropriate to put their experience to one side, but that was never explored in the evidence.[27]But there is another point here. The risks associated with asbestos had become sufficiently recognised by the late 1960s for the Asbestos Regulations 1969 to provide in reg. 6(2) that before any process involving crocidolite (including the removal from any surface of lagging consisting of or containing crocidolite) was undertaken, not less than 28 days’ notice of the process had to be given to the Factory Inspectorate. That applied only to processes undertaken in factories, and I was not addressed on whether a site on which a building was being demolished was a factory for the purpose of the Regulations. But what is important was the guidance given to the construction industry at the time, and that included demolition contractors, by the Asbestos Sub-Committee set up by the Joint Advisory Committee of Safety and Health in the Construction Industries. One aspect of the Committee’s report in the early part on 1973 was described by the Chief Inspector of Factories in his annual report for 1972 as follows:
“Emphasis has been given to demolition work and in particular demolition of large-scale works and public utilities. Previous insulation work often means that large tonnages of asbestos can be present and crocidolite (blue asbestos) has not infrequently been employed. The importance of carrying out a comprehensive programme of analysis of the lagging before considering demolition, so as to establish whether or not crocidolite is present, cannot be over-emphasised in view of the additional personal protection which may be required.”
The company accepts that it did not commission an analysis of the lagging before removing it, and it is argued that it is not open to the company now to contend that there is no proof that the lagging contained asbestos, when the absence of proof is due to its failure to follow that guidance.[28]I do not agree. It was open to the company to assume that the lagging contained asbestos rather than go to the expense of carrying out an analysis of the lagging to determine whether it contained asbestos and what sort of asbestos it was. That is what Mr McGuiness says the company would have done, and I have no reason to disbelieve him. He said that the company only began to take samples for testing when a new British Standard came in – BS 6187 – in the 1980s. Before then, it treated lagging of the kind used to insulate pipework as if it contained asbestos of any kind. But the fact that the company would have proceeded on that assumption then does not mean that it cannot take the point now that it has not been proved that this lagging contained crocidolite, or any other form of asbestos for that matter. The case is unlike Keefe v The Isle of Man Steam Packet Co Ltd [2010] EWCA 683 (Civ), in which the Court of Appeal held that the defendant could not assert that it had not been proved that the noise levels on its boats were excessive when in breach of duty it had failed to measure those levels. There was no duty on the company in 1978 to check the lagging for asbestos, only guidance, and it was sufficient compliance with that guidance for the company to proceed on the assumption that it contained crocidolite. Not that any of that matters, though, in the light of my finding, based on the evidence of Mr Finch and Miss Boyle, which was itself based on their experience, that the lagging was likely to have contained asbestos.[29]Who removed the lagging? There was a fair amount of evidence that people got into the building after the baths had been closed looking for things to salvage. Although Mr Hindle thought otherwise, I do not think that there was any real chance of the lagging itself having been removed as it had no resale value. If some of the pipework had been removed, it may be that whoever removed it would have taken it with the lagging still on, intending to strip it off later. But the evidence suggests that there was pipework still on the site during the demolition, and although it may be that some of the pipework would have been small enough for it to be taken away by opportunistic people without transport, I regard that as unlikely, as it sounds as if the pipework was fixed pipework which could only be removed by professionals. So the very strong probability is that the lagging was removed from the pipework by the company’s workmen in the course of the demolition. Paragraph 6 of the company’s amended defence admits that that is what “would have” happened.[30]How was the lagging removed? This is the most important factual issue in the case. Was the lagging stripped while it was dry so that it produced a powdery dust containing asbestos fibres? Or was it hosed down first? And if it was hosed down, was it sprayed so that the water did not really penetrate it, and parts of it still had to be hacked off? Or was it soaked so that it fell to the ground as sludge or slurry, which could be shovelled into bags and carried away? The witness statements of Mr McGuiness, Mr Hindle and Mr Loftus did not deal specifically with how lagging was removed in those days, and their evidence on the topic only came out in their oral evidence. But again that is not surprising. Their witness statements are dated either 24 or 26 November 2012, and the lagging had not been referred to in the witness statements filed on behalf of Miss Garner until Tony Garner’s second witness statement which is dated 20 December 2012. The significance of how the lagging had been removed was not appreciated until then.[31]The British Standards Code of Practice relating to demolition which was in force in 1978 was CP 94. It was issued in 1971, and again with amendments in 1973. The appendix to it listed the relevant Acts and Regulations which governed demolition at the time, and the list included the Asbestos Regulations 1969. But that was the only reference to asbestos in the Code of Practice, apart from asbestos being mentioned in para. 3.2.3 as one of the things “which may be encountered, which may prejudice the health of persons using the site” (the others being lead paint, dust and fumes), for which “special precautions should be taken regarding protective clothing, goggles and the use of suitable respirators”. So there was no guidance in the Code of Practice about how to handle materials containing asbestos in general, or how to remove lagging which contained asbestos in particular.[32]The first guidance about that was in 1976 when the Asbestosis Research Council produced a guide entitled “Stripping and Fitting of Asbestos-containing Thermal Insulation Materials”. The relevant section for present purposes is section 4 headed “Stripping Thermal Insulation”, the first few paragraphs of which read:
“4.1 This operation can give rise to very high dust levels, but these are capable of considerable reduction by pre-wetting and soaking. 4.2 It is likely that each job will require its own technique, e.g. non-absorbent surfaces will have to be punctured to permit water to be introduced into the insulation; this operation may be by a hollow probe drilled along its length to allow water to escape into the insulation, such probes in parallel being coupled to a suitable water supply. 4.3 Alternatively, a fine low pressure water spray may be used in such a way that dust does not arise from the impingement of the water on the surface. 4.4 Insulation should be removed by sawing or cutting away. The insulation should not be allowed to fall but should be placed into suitable plastic bags for removal from site and disposal by burying. 4.5 The slurry should not be permitted to dry out but be removed from all resting places while still wet.”
Similar guidance about thoroughly soaking or spraying thermal insulation materials with water both before and during the stripping operation was said by the Advisory Committee on Asbestos in 1979 to have been given by the British Scrap Federation.[33]The upshot of all this is that by 1978 it was known that dry stripping would have been an inappropriate technique. That was the evidence of Mr Finch and Miss Boyle, and it is plainly right. The company accepts it as well, which was why Mr McGuiness was at pains to say that the lagging of the pipework would have been soaked before it was removed. Indeed, the lagging would have been removed from the pipework before the pipework was removed from where it was. The process, Mr McGuiness said, would have depended on whether the lagging had been painted or sealed. If it had been painted, the paint was likely to have cracked. The paintwork would have been decrepit, and easy to penetrate. If the lagging had been sealed, you would have to cut the polythene off before it was soaked. Either way, you would have had an apprentice or youngster hosing it down. He would be doing that all day with a hosepipe jet from the water mains. You would have the doors of the boiler house closed while that was being done because you would not want a draught during the process. You would remove it the same day because you would not want it to dry out again overnight.[34]Although the guidance from the Asbestosis Research Council said that the insulation should not be allowed to fall, Mr McGuiness’ evidence was that that was what would happen. The lagging got so wet that it almost fell off the pipework. It would then be shovelled up and bagged. The bags would be sealed and taken outside, loaded onto a special container, and then taken to a landfill site with the appropriate licence. What you would never do, he said, was just to hack the lagging off. He said that he had seen dry hacking on the floor at other sites, but not the company’s. He went on to say that he had never heard of dry hacking at all, but I rather assumed that he was talking about what his company did.[35]I confess to having been troubled by Mr McGuiness’ evidence on this topic. I do not doubt that he was recalling things as he remembered them, but he will forgive me for saying that he is getting on a bit now, and I could not really tell whether he was recalling what the company’s practice was at the end of the 1970s, or what its practice was in the 1980s after the introduction of the new British Standard, and particularly after 1984 when asbestos licensing came in. From then on, the company had a specialist asbestos unit, and I could not exclude the possibility that Mr McGuiness was describing things as they were then. Moreover, as Mr Feeny was prepared, I think, to acknowledge, Mr McGuiness was at times over-emphatic in his evidence. For example, while he was talking about the precautions taken to prevent dust escaping, it was a little over the top for him to say:
“The air is cleaner in there than when you walk down the street.”
If his evidence had stood alone, I would have had a problem in accepting it.[36]But his evidence did not stand alone. There was Mr Hindle and Mr Loftus as well. Mr Hindle did not add much. He just said that he had never removed any lagging himself, but he had seen it done several times on sites where he had been working. He had never seen any dry stripping. He had only seen lagging stripped when it had been soaked. That was the company’s policy when it came to stripping lagging, whether there was asbestos in it or not. It was always to be regarded as hazardous. Mr Loftus, though, was another matter entirely. He is a forthright man, down to earth, and I read him as a man of principle. He had declined to join the company’s specialist asbestos unit when it was established in 1984, and so he never removed any insulation after that. But he did remove insulation during the 1970s and the first few years of the 1980s. His account of the process was the same as that of Mr McGuiness. He had never stripped lagging when it was dry, and he had never seen anyone else doing that. “You’d be covered with dust if you did”, he said. “You’d be cutting your own throat.” He did not concern himself with whether it contained asbestos. To him, it was just lagging, and he regarded all lagging as hazardous. He said, with some feeling, that he never allowed dust “to happen”. He just would not allow it to enter the atmosphere.[37]An important part of Mr Loftus’ evidence was his claim never to have worn a mask in his life. Goggles when burning steel, but never a mask, not even when he was removing lagging. This was contrary to the guidance given by the Asbestosis Research Council that respirators of a type approved by the Factory Inspectorate had to be issued on a personal basis if work was to be done in asbestos-containing atmospheres. That led to it being suggested to Mr Loftus that his unwillingness to wear a mask showed that he had not the slightest awareness of the dangers involved, and that if he had no sense of the hazardous nature of the work, the company likewise had no appreciation of it. That would, of course, have been so if Mr Loftus had engaged in dry lagging, but the fact that he never wore a mask even when removing lagging strongly suggests to me the very opposite, namely that he always dispersed the dust by removing the lagging when it was wet. If he had removed it when it was dry, whether by hacking it off or cutting through it, he would have been aware of the dust it generated, and he would either have begun to use a mask, or look for other ways to avoid generating dust, the most obvious of which was to hose the lagging down. That is consistent with Mr Loftus’ evidence that no complaints were received about dust, only from the Water Board about the excessive use of water.[38]In the light of all this evidence, I am sure that the lagging on the pipework was removed while it was still in the boiler house, and that the process of removing it lasted perhaps a day or two, certainly no more than a few days. The probability is that water was used to prevent the liberation of dust when the lagging was removed, and that it was hosed down and not just sprayed before being removed. The effect of that was that the chance of dust containing asbestos fibres being released into the atmosphere was minimal. It will be necessary to return to this finding again when I come to consider in what other circumstances Miss Garner may have been exposed to asbestos fibres in the atmosphere, but I do not think that there is any inconsistency between this finding and my finding in para. 18 above that some dust from the demolition drifted into the playground. It would not have been surprising for the company to have treated lagging differently from, say, brickwork and masonry.

The escape of asbestos fibres into the playground

[39]The finding in para. 38 above that the chance of dust containing asbestos fibres being released into the atmosphere was minimal is effectively the end of the case. If I had found otherwise, a number of further questions would have had to be considered. Would such dust as contained asbestos fibres have escaped from the boiler house? Would it have drifted into the playground? And if it would have done, over what period of time and in what concentration? Since there was evidence on the last issue, and I was addressed on the others, I ought to set out what my findings would have been.[40]Would the dust have escaped from the boiler house?If the lagging had been removed without being soaked or sprayed beforehand, it is very likely that significant quantities of dust containing asbestos fibres would have been generated in the process. That would have made the atmosphere very dusty, and it is very likely that attempts would have been made to dissipate it. The obvious way to do that would have been to open doors and windows. The photographs show some windows quite high up in the part of the boiler house close to the chimney, but there was no evidence about whether they were capable of being opened. However, there was the pair of large doors to the boiler house which opened onto White Street, and Mr Trott’s evidence about the two other doors on the side of the boiler house by the playground. I think it likely that they would have been opened while the lagging was being removed if it was being removed without being soaked or sprayed beforehand, and dust containing asbestos fibres would have escaped from the boiler house through them.[41]Would the dust have drifted into the playground? There are many imponderables here. The weather would have had to be dry, and the wind would have had to be in the right direction. I do not think that the process to remove the lagging would have taken very long, but if the lagging had been removed without being soaked or sprayed beforehand, there would have been quite a number of asbestos fibres to dissipate. That could have taken quite a time. As Mr Finch said, they can get into all sorts of nooks and crannies. This is an area where speculation is easy, and the drawing of inferences questionable, but on balance I think it likely that some asbestos fibres would have drifted into the playground. That does not necessarily mean that Miss Garner would have been exposed to them. It would have to have happened during term time and not during the school holidays or half-term. It would have to have happened when Miss Garner was at school and not off sick. And it would have to have happened on days when she went into the playground. But if she had been exposed to dust containing some asbestos fibres, the question is how much. That is what I turn to now.[42]What would the concentration of asbestos fibres in the dust have been? The Health and Safety Executive used to issue technical data notes produced by the Factory Inspectorate. One of those notes was Technical Data Note 42, which was issued in July 1976. It was called “Probable asbestos dust concentrations at construction processes”. It set out “representative” concentrations of asbestos fibres in different processes. One of those processes was asbestos insulation removal. If the lagging was removed after it had been soaked thoroughly, the concentration of asbestos fibres was 1-5 f/ml, i.e. 1-5 fibres in a millilitre of air. If lagging was removed after it had been sprayed using water sprays, the concentration of asbestos fibres was 5-40 f/ml. And if the lagging was removed dry, the concentration of asbestos fibres was over 20 f/ml. The note said that these figures should be considered only as a rough guide, and the individual circumstances will vary. But of great significance, of course, will be how close you are to the source. One of the processes which the note considered was asbestos spraying. In the context of that process, there would be roughly 10 times fewer asbestos fibres for each 20-30 feet away from the process. Miss Boyle assumed that that applied also to the process of asbestos insulation removal, and it was not suggested to her that that would not be appropriate.[43]Guidance on how to translate these figures into levels at which they might be dangerous was given in an Environmental Hygiene Guidance Note issued by the Health and Safety Executive in December 1976. It related amongst other things to hygiene statistics for concentrations of airborne dust containing asbestos fibres. The overarching guidance was that exposure to all forms of asbestos dust should be reduced to the minimum which was reasonably practicable, but when it came to occupational exposure to asbestos dust, that exposure should never exceed 0.2 f/ml in the case of crocidolite when measured over a ten minute period. For other types of asbestos, occupational exposure should never exceed 2 f/ml when measured over a four hour period, and short-term exposure should never exceed 12 f/ml when measured over a ten minute period.[44]So if I had found that the lagging had been removed by the company’s workmen without soaking or spraying it beforehand, the concentration of asbestos fibres would have been over 20 f/ml. Miss Boyle proceeded on the assumption that there could have been up to 100 f/ml in the boiler house on that basis. Accordingly, anyone around 20-30 feet from the work would have been exposed to up to 10 f/ml. Children in the playground would have been exposed to still less depending on where they were in the playground at the time. Children who were 40-60 feet away would have been exposed to up to 1 f/ml. Children who were 60-90 feet away would have been exposed to up to 0.1 f/ml. And children who were 80-120 feet away would have been exposed to up to 0.01 f/ml. So even if the type of asbestos which the lagging contained was crocidolite, and even if the lagging had been removed without being soaked or sprayed beforehand, Miss Garner would on these figures have had to have been playing in the playground less than 60-90 feet from where the removal of the lagging was taking place for her exposure to have exceeded the relevant control limits applicable at that time.[45]I say “on these figures” advisedly. These are only the roughest of rough estimates, and the figures are no more than of illustrative value only. They give the court only a very rough and ready idea of the possible levels of exposure to asbestos which children in the playground might have been exposed to while the removal of the lagging was taking place, and they proceed on a dispersal rate of 90% for every 20 to 30 feet, for which Technical Data Note 42 gave no objective justification. Indeed, it is questionable whether they help at all given the existence of so many imponderables, and Mr Finch did not make any calculations of his own. But what the figures could be said to show is that even if Miss Garner had been in the playground when dust containing asbestos fibres drifted over, there is no certainty that the level of her exposure to them would have exceeded the relevant control limit at the time, even if the removal of the lagging had taken place without it being soaked or sprayed beforehand. All the more so, if it had been sprayed beforehand. And particularly all the more so if it had been soaked beforehand.

Other sources for Miss Garner’s exposure to asbestos

[46]There is one final topic which I must deal with. If Miss Garner did not contract her mesothelioma by having been exposed to asbestos from the baths in 1978 or 1979, when else might she have been exposed to asbestos? And if no other time when she might have been exposed to asbestos can be identified, does that make it necessary for me to revisit my finding about how the company removed the lagging from the pipework in the boiler house at the baths?[47]Miss Garner set out in her witness statement her employment history. The only time when she might have been exposed to asbestos was between 1985 and 1987 when she worked for a company which made men’s clothing. She described how industrial steam irons were used there, and how they were left on all the time. Miss Boyle thought that even if the irons were placed on mats made from asbestos, the mats would not have contained much asbestos, and they would not have given off fibres easily. In any event, if the mats had contained asbestos, it was likely to have been chrysotile. Mr Finch thought much the same thing. Miss Garner’s exposure would have been minimal, he said, if the pads were not worn down too badly. In their joint statement, they agreed that they had seen no evidence to suggest that Miss Garner had had any occupational exposure to asbestos.[48]Having said that, an application form for benefits for people who have been diagnosed with mesothelioma or other lung diseases was completed by Miss Garner on 12 May 2011. The box which asked whether she had contracted it at work was ticked, and attached to the application form was a document setting out her employment history. It referred to the three jobs she had had between 1984 and 1991 when she stopped working to have her first child. They were the same three jobs which she mentioned in her witness statement. In that document, it was claimed that at those three jobs she had been exposed to harmful dust in the form of “damaged asbestos partitioning/lagging”, “damaged asbestos partitioning/roofing” and “damaged asbestos lagging/partitioning”. How does that sit with the claim that she had no occupational exposure to asbestos?[49]Miss Garner’s evidence was that about ten days after being diagnosed with mesothelioma, she was visited by someone from the Asbestos Support Group. Her name was Hazel. She told Miss Garner that Miss Garner was entitled to benefits, and asked Miss Garner for brief details of her employment history. Miss Garner gave Hazel the information which appears in the document about who her employers had been, what their business was, the nature of the work she did, and the years she worked for them, but she says that she told Hazel nothing about the premises being damaged or being exposed to asbestos. Indeed, what was produced were what looks like Hazel’s handwritten notes of what Miss Garner had told her, and which were eventually typed up and became the document attached to the application form. The references in the handwritten notes to the premises being dangerous and to Miss Garner having been exposed to asbestos look as if they had been added later. Miss Garner said that she had not seen the typed up document before it was shown to her in court.[50]I believed Miss Garner when she told me that the references to the premises being damaged or her having been exposed to asbestos did not come from her. I believed her when she said that if Hazel had explained to her that she would only be entitled to benefits if her mesothelioma had been contracted at work, she did not take that in. And I believed her when she said that she thought that she was entitled to benefits simply because she had been diagnosed with mesothelioma. I understand entirely why it was necessary for Miss Garner to be questioned about the document attached to the application form because it resulted in her getting benefits to which on her case she may not have been entitled – if it really is the case that the benefits to which the application form relates were work-related. In that case, Hazel has something to answer for. But I do not believe that whatever Hazel was up to Miss Garner was in on it.[51]The upshot of all this is that there is no basis for saying that Miss Garner had any occupational exposure to asbestos, and no other possible source of the exposure has been identified. Does that undermine my finding about how the company removed the lagging? The answer is that it does not. If I were to say that it did, I would be falling into the trap highlighted in Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948 of adopting the Sherlock Holmes’ aphorism that once you have eliminated the impossible, whatever remains, however improbable, must be the truth. In other words, I would be concluding that something which I found to be unlikely nevertheless occurred. Anyhow, apart from principle, the reason why it is inappropriate to do that in this case is that there are other possibilities which cannot be eliminated. In his report, Dr Rudd said:
“Mesothelioma can occur after low asbestos exposure and there is no threshold dose of asbestos below which there is no risk.”
Moreover, as Dr Muers said, as asbestos became very widely used in the UK in the 1950s, 1960s and 1970s, the ambient air which many people were exposed to, whether at home, at work or elsewhere, had more asbestos in it, and the risk of contracting mesothelioma from this kind of exposure increased. The fact is that it cannot be said with the degree of likelihood which the law requires that Miss Garner was exposed to asbestos when the baths were demolished.

Conclusion

[52]For these reasons, albeit with considerable sympathy for Miss Garner, her claim must be dismissed, and there must be judgment for the defendants. I wish to spare the parties the trouble and expense of attending court when this judgment is handed down, and I leave it to them to see if they can agree an appropriate order for costs in the light of this judgment. If they cannot, they should notify my clerk of that within 14 days of the handing down of this judgment, and I will decide what the order for costs should be without a hearing on the basis of such written representations as are made. If Miss Garner wishes to apply for permission to appeal, her solicitors should notify my clerk of that within 7 days of the handing down of this judgment, and I will consider that question as well without a hearing on the basis of such written representations as are made. However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.

Cited in 1 later judgment