Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB)

Case No HQ15A02916

[2016] EWHC 483 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/03/2016

Before

MR JUSTICE SPENCER

Between

Carole SloperClaimant

Lloyds Bank PlcDefendant

Harry Steinberg QC and Patrick Kerr (instructed by Leigh Day) for Claimant

David Platt QC (instructed by BLM LLP) for Defendant

Hearing Hearing dates: 2 nd, 3 rd 4 th 5 th, 8 th February 2016

Judgment

Mr Justice Spencer:

Introduction

[1]This tragic case turns on disputed factual evidence as to the nature and composition of the ceilings at two branches of Lloyds Bank on the Isle of Wight 30 to 40 years ago. In November 2014, at the age of 54, the claimant was diagnosed as suffering from mesothelioma, a hideous disease that is inevitably fatal. In most if not all cases it is caused by the inhalation of asbestos fibres. Having sought legal advice, the claimant naturally enough cast her mind back over the whole of her employment history in an attempt to identify when and how she might have been exposed to asbestos. In this way she concluded that the focus should be on the period of her employment with Lloyds Bank from 1978 to 1986 at three branches on the Isle of Wight: Freshwater, Yarmouth and Totland. She began working at those branches when she was 18 years old, and left some 8 years later, after her first child was born. From conversations with former work colleagues at the bank, following her diagnosis, the claimant was led to believe that about 5 years after the end of her employment there were substantial building works at the Freshwater branch in the course of which asbestos was found and removed.

[2]As initially presented in the pleadings, the claimant’s case was that she had been exposed to asbestos at all three branches. In particular it was asserted that at Freshwater and Yarmouth there were suspended ceilings made of asbestos tiles; those tiles were disturbed in the course of maintenance to the strip lights fixed to the ceilings, and would have shed asbestos dust. In addition, it was asserted that over several weekends she was required to attend the Yarmouth branch as a key holder while substantial building works were carried out, including the removal of the asbestos tiled ceiling. In relation to each of the three branches it was asserted that there was a walk-in safe with heavy doors insulated against fire, which generated dust likely to have contained asbestos. It was also asserted that at Freshwater the claimant was exposed to asbestos lagged pipes.

[3]Proceedings were issued on 29th June 2015. A defence was filed on 29th July 2015. Directions were given on 5th August 2015. The claimant’s evidence was taken on commission on 9th September 2015 at her home. Witness statements were exchanged at the end of October 2015 but there were late applications on both sides to adduce further witness evidence. In the event all the witness evidence which each side wanted to rely upon was admitted by consent, with the court’s approval. The nature of the case, and the speed with which it had come to trial, provided sufficient justification.

[4]Each party instructed an expert occupational hygienist specialising in asbestos cases: Mr Christopher Chambers on behalf of the claimant; Mr Martin Stear on behalf of the defendant. They produced a joint statement, identifying a series of narrow but crucial issues of dispute. Each party instructed an eminent consultant physician, highly experienced in mesothelioma cases: Dr. Robin Rudd on behalf of the claimant; Dr. John Moore-Gillon on behalf of the defendant. They too produced a joint statement identifying a single but critical issue of dispute.

The issues

[5]Quantum is agreed at £250,000. Only liability is in dispute. That is the sole issue I have to decide. I heard a good deal of oral evidence and argument over a period of five days and reserved my judgment. I am grateful to both counsel for the thoroughness of their written and oral submissions, all of which I have carefully considered. The issues, as they eventually emerged, may be summarised as follows:(1) At the Freshwater branch, was there a suspended ceiling with asbestos tiles which were disturbed during the course of maintenance work to the fluorescent strip lights, such as to expose the claimant to asbestos inhalation? If not, the claim in respect of the Freshwater branch must fail.

(2) If there was such exposure from asbestos ceiling tiles at the Freshwater branch, was it such as to create a material increase in the risk of contracting mesothelioma, applying the principles in Fairchild v Glenhaven Funeral Services Ltd [ 2003] 1 AC 32?

(3) At the Yarmouth branch was there a suspended ceiling with asbestos tiles which were disturbed during the course of maintenance work to the fluorescent strip lights, such as to expose the claimant to asbestos inhalation?

(4) Further or alternatively, was the claimant present at the Yarmouth branch when substantial building works took place involving the taking down of an asbestos tiled ceiling, thereby exposing her to the risk of asbestos inhalation? If so, it is common ground that this would have caused a material increase in risk sufficient to establish liability. The issue of dispute between the doctors (mentioned above) would arise only under (2) and (3), and comes down to whether the increased risk of mesothelioma (assuming a finding that there were suspended ceilings with asbestos tiles) was not material and/or was de minimis at levels below an annual elevated risk of 1 in 1 million.

[6]The pleaded assertions in relation to the Totland branch, in relation to the safe doors at each branch, and in relation to asbestos lagged pipes at the Freshwater branch were not, in the event, pursued.

[7]In relation to Freshwater, the claimant’s case is that she and two work colleagues at the time clearly recall areas of asbestos tiling on a suspended ceiling, and when maintenance to the strip lights was carried out she must have been exposed to asbestos dust. The defendant’s case is that there was no such asbestos tiled ceiling at Freshwater branch and that there is contemporary documentation, from building works carried out in 1978, which proves this.

[8]In relation to Yarmouth, the claimant’s case is that she clearly remembers having to attend the bank over several weekends whilst substantial building works were carried out including the taking down of the asbestos tiled ceiling. The defendant’s case is that there never was an asbestos tiled ceiling at Yarmouth either, and any building works the claimant was required to oversee at weekends came several years later, in 1992, when she returned briefly to work for the defendant to earn some extra money, and did not involve the removal of any ceilings.

[9]In view of the volume and complexity of the factual evidence I shall set out in some detail what the witnesses said, before analysing the evidence as a whole and expressing my conclusions. I shall deal with the evidence of the claimant herself in one piece, Freshwater and Yarmouth. Thereafter I will summarise the evidence in respect of Freshwater and Yarmouth separately, recognising that a conclusion in respect of one may inform the conclusion in respect of the other.

The claimant’s evidence

[10]In relation to Freshwater, in her first witness statement (19th May 2015) the claimant said that, to the best of her knowledge, the ceiling on the ground floor had been lowered to reduce noise and to help customers’ conversations to be kept private. There were in effect two ceilings. The top ceiling had cables which held the strip lighting and also held the aluminium runners into which white square ceiling tiles were inserted. The tiles had holes in them and were approximately two feet square. The corners of some of the tiles had broken off and were missing. She remembered the ceiling tiles because the strip lighting often flickered and the bulbs (i.e. the fluorescent tubes) would require changing. An electrician from Corbett and Sons would attend with step ladders to change the bulbs. When he did so he would remove some tiles, and this caused the dust which had gathered in the aluminium runners to fall down onto the claimant and her colleagues as he worked overhead.

[11]In relation to the Yarmouth branch the claimant said that, to the best of her knowledge, she believed the ceiling was similar to the ceiling in the Freshwater branch. She could recall seeing white tiles with broken corners and the electrician would come with his step ladders and change the bulbs, in the course of which the dust which had gathered in the runners fell all around her and her colleague.

[12]Additionally there was a period before her eldest child was born (so before 1985) when she was asked to go to the Yarmouth branch for about 4 weekends whilst refurbishment work was being undertaken. She was required to open up for the builders and remain there whilst the work was done, from about 9am to 5pm. She would read the paper or read a book. This refurbishment was extensive and involved a complete overhaul. The public area was made larger to incorporate a meeting room, some of the walls were removed and the ceiling tiles and lighting were removed and replaced. The builders were W. Downer and Sons. During this work, which was taking place around her, it was extremely dusty.

[13]Owing to her ill-health, the claimant’s evidence was taken on commission at her home on 9th September 2015. Her evidence was video recorded, and lasted some 98 minutes. As well as reading the transcript, I have watched the recording in full. The claimant gave her evidence in a perfectly straightforward way. In chief, she expanded on her description of changing the bulbs at the Freshwater branch. Two electricians would attend with step ladders. They would “get the ceiling tiles out”, pushing them up and twisting them to remove them, and would lay the tiles on the desks while they were doing what they had to do. Bits would fall out and there would be dust. The electricians would come every couple of months or so to do something with the lights, either to replace a bulb or as regular maintenance.

[14]She confirmed that the tiles were similar to the example shown in the photograph exhibited to her witness statement. There were quite a few tiles with the corners missing, as in the photograph. There was one exactly like that above where the typist used to sit in the area beneath the stairs. The claimant used to stand in for the manager’s secretary for 4 weeks a year when she was on holiday. She was “pretty sure” there were several tiles like that.

[15]Cross-examined about Freshwater, she confirmed, as she had said in her witness statement, that the possibility of exposure to asbestos at the bank had only occurred to her when she spoke to one of her former colleagues and was told that asbestos had been removed from the Freshwater branch about 5 years after she had left. It was suggested to her that any tiles she saw were probably fibreboard, made from compressed wood rather than asbestos, and she would not have looked at them in any detail. She repeated that the electricians used to lift the tiles out and put them down on the desk whilst they were up there doing their work. She said that these white perforated tiles covered the whole of the banking area.

[16]Curiously, she then described the arrangement of the lights and the ceiling tiles in a way which everyone accepts simply cannot be correct. She said that the lights were situated above the suspended ceiling, so that the light shone through the perforations in the tiles. That was how she remembered it, and she remembered the electricians pushing tiles up to get at the lights above. She said that they used to take out a lot of the tiles. The fluorescent lights were in pairs and there were probably ten pairs throughout the whole expanse of the ceiling of the banking area.

[17]In relation to Yarmouth, in chief the claimant added that the refurbishment work, during which she attended at weekends, was a complete overhaul of the inside of the branch. They moved the cashiers’ desk back to make enough room at the front to put in a meeting room. The whole lot was revamped and repainted. Everything went out in a skip and the new stuff came in. She had to be there as the key holder. She opened up and locked up and had to stay on the premises while they were doing the work. At the end of the day once they started to tidy up she would get the vacuum cleaner out and vacuum the carpets and do some damp dusting. The work covered the whole of the ground floor. Everything was put in a skip and dumped.

[18]In relation to Yarmouth, the ceiling tiles removed in the course of this refurbishment were the same as the ones at the Freshwater branch, so far as she could remember. Cross-examined she could not remember precisely when this work had been done. It was certainly before her daughter was born in 1985, and when she was fairly newly married. The extra money was welcome for that reason (she was married in 1980). She was shown an old plan of the Yarmouth branch (attached to the 1987 lease). She repeated that it was when this refurbishment took place that the manager’s room was put in; previously there had been no manager’s room. She corrected this in her subsequent witness statement, to which I shall return. The cashiers’ desk was moved back to make more room in the public area to put in the manager’s room. She agreed that some years later she had gone back to work for Lloyds to earn some extra money. It was suggested that this was in 1992 when a new cash point was put in, and that perhaps it was this work she was recalling rather than refurbishment work during her main period of employment prior to 1985. She was adamant this was incorrect. She remembered going down there at weekends and there was no manager’s room when she had started working at Yarmouth, and no meeting room.

[19]In a further witness statement dated 13th October 2015, which has not been the subject of any cross-examination, the claimant enlarged upon her description of the ceiling tiles. They were white on the front and grey on the back. She was able to say this because the electricians would remove the tiles and put them down where she could see them. It was in this statement that she corrected her oral evidence that a manager’s office was being put in as part of the refurbishment at Yarmouth. On reflection, the counters were pushed back not in order to create a manager’s office but to provide direct access from the public area to the existing manager’s office without having to enter the staff area first. The reason she was asked to go into the Yarmouth branch over these weekends was because she had missed out on a profit share bonus, and the manager (Mr Day) offered her this opportunity of extra pay. In her final witness statement dated 27th January 2016 the claimant recalled that the ceiling tiles she had described were up to about half an inch thick.

The Freshwater branch

[20]The principal witnesses called by the claimant in relation to the Freshwater branch were two former colleagues, Linda Cotton and Elizabeth Morris.

Linda Cotton

[21]Mrs Linda Cotton worked at the Freshwater branch from 1975 for 39 years until 2014, save for 6 months maternity leave in 1988 and a period of 4 years around 1992/1993 when she was transferred to the Newport branch. In her witness statement (11th October 2015) she recalled several extensive renovations at the Freshwater branch during her employment. In addition to the most substantial work in 1978 there were further extensive renovations after the claimant’s departure (in 1985) and before Mrs Cotton was transferred to the Newport branch in 1992. She recalled that the ceiling tiles in the Freshwater branch were similar to those in the photograph exhibited to her witness statement. It is accepted that this photograph shows examples of perforated asbestos ceiling tiles. Mrs Cotton’s work station was in a small open area below the stairs which undoubtedly had a suspended (or lowered) ceiling. She recalls that it was not only the ceiling immediately above her work station that had these tiles, but also the area of ceiling above where the majority of the staff worked. The ceiling tiles were not, however, above the public areas. The ceilings were therefore at different levels in different parts of the ground floor. She recalled electricians attending to fix the flickering strip lights and to clean the plastic casings. Mrs Cotton still banks at the same branch and in a second witness statement (27th November 2015) she was confident that the present ceiling in the staff area was higher than it used to be when she worked there. In her day the electricians worked on the lights from step ladders, whereas now the ceilings would be too high to permit that.

[22]In her oral evidence Mrs Cotton agreed that there had always been high ceilings in the public area, but not in the staff area. When she joined the bank in 1975 there was a suspended ceiling in the staff area which looked as if it had been there for years. When it was pointed out to her that the 1978 building works involved the insertion of two steel joists which would necessarily have involved removing the existing ceiling in that part of the ground floor, she accepted that the suspended ceiling thereafter was not across the whole of the staff area. It was certainly in the area where she worked under the stairs, and beyond that for some distance. It remained there for some years. She marked on the plan of the proposed alterations, drawing No 34/11 (bundle G page 327), the area to which she was referring, adjacent to where she worked beneath the stairs and across the whole width of that part of the staff area adjacent to the strongroom, including the area where the telephones were situated. She described it as a flat ceiling with fluorescent lights in casings. The electricians used to clean and remove the casings using step ladders. It was suggested to her that in fact the fluorescent lights were attached to the underside of the encased beams (the soffits). She was adamant that the lights were fixed to flat ceilings, not to beams or in recesses. In re-examination she said that she recalled the lighting was eventually changed from fluorescent strip lights to up-lighters, but that was much later – probably in the mid to late 1990s. It is to be noted that Mrs Cotton at no stage suggested that as part of the process of maintaining the strip lights any of the ceiling tiles were physically removed, as the claimant describes.

Elizabeth Morris

[23]Mrs Elizabeth Morris started working at the Freshwater branch in 1969. She left in 1985 and returned in 2000, retiring in 2010. In her witness statement (11th October 2015) she recalled the extensive renovations in 1978 but, like Mrs Cotton, she also recalled other renovation work in later years. She recalled ceiling tiles, similar to those in the same photograph identified by Mrs Cotton, as the kind of tiles on the ceilings in the staff area at Freshwater, but not in the public area. The strip lighting was attached to the tiles. Her late brother was one of the electricians working for Corbett and Sons who regularly came to replace the fluorescent tubes and to clean the lights. She could recall seeing dust floating in the air when he did so, and some of it would settle on the work surfaces. In a second witness statement (27th November 2015) Mrs Morris observed that, having inspected the present ceiling recently, she was confident that her brother could never have replaced and cleaned the lights from a step ladder, as he did, had the ceilings then been at their present height.

[24]In her oral evidence Mrs Morris was adamant that after the extensive works in 1978 there was still a tiled ceiling above the area where she used to work, to the side of the strongroom. She too did relief typing when Mrs Cotton was on holiday and worked beneath the stairs. She marked on another plan, drawing 34/6A (at G 155A), the area where she recalls there was a suspended ceiling, alongside the strongroom but not extending right across the width of the building as Mrs Cotton had indicated. The area she marked on the plan was where the telephones were. She was unable to describe that ceiling in any more detail. She could not say whether it was plastered. It was suggested to her that the present height of the ceiling in the staff area was only nine feet and could easily have been reached from a step ladder. She disagreed. Once again, it is to be noted that Mrs Morris did not describe ever seeing tiles being removed in the course of replacing fluorescent lights or cleaning the casings.

Other witnesses on behalf of the claimant

[25]The claimant called two former employees of the contractors William Downer and Sons (IW) Limited, who had carried out work at the Freshwater branch, David Kempster and Ronald Blakeley.

[26]Mr Kempster was a carpenter/joiner. In his witness statement (8th November 2015) he said there was a suspended ceiling behind the counter, but a higher ceiling in the customer area. In his oral evidence he thought that he did work at the Freshwater branch on about a dozen occasions in the period 1973 to 1994. It was generally maintenance work. When shown photographs of the bank as it is now, he thought he had never in fact been behind the counters in the staff area. He had a recollection of suspended ceilings behind the counter because he could clearly see them through the glazed screen.

[27]Mr Blakeley was employed by William Downer and Sons from 1972 to 1990, initially as an apprentice then as a carpenter/joiner and later as a chargehand. In his witness statement (8th November 2015) he recalled that the ground floor of the Freshwater branch had a suspended ceiling behind the counter, but a high ceiling in the customer area. He could remember working on the first floor of the building. In his oral evidence he confirmed that he had been in the area behind the counter. His recollection was of a level ceiling rather than encased beams, but he could not remember whether this was before or after the major building works in 1997/78. The main period when he worked on jobs at the bank was the 1970s, and maybe into the 1980s. That is when he would have seen the ceiling he described, but he could be no more specific.

[28]William Downer and Sons undoubtedly carried out a good deal of work for Lloyds at their branches on the Isle of Wight, including Freshwater and Yarmouth. The claimant called Pauline Kent, who worked as a secretary at Downers from 1974 to 2011. She described the process for obtaining work. No invoices or other paperwork has survived to show what work was done at what branch. Orders came either from the branch or from the architect’s department in Salisbury where Mr Leslie Smith worked. The jobs which were authorised locally by the manager of the branch would be small jobs, perhaps £500 to £1,000. Anything more substantial would be authorised from Salisbury

[29]On the face of it, the evidence summarised so far suggests that there was a suspended ceiling in the staff area, and that the ceiling consisted of perforated tiles to which the strip lights were fixed. The fundamental factual issue in relation to Freshwater is whether the reliability of this evidence is fatally undermined by contemporaneous documentation produced by the defendants, and by the evidence of the architect, Mr Leslie Smith, and the bank manager at the relevant time, Mr Malcolm Day.

The contemporary documentation

[30]On 1st December 1977 Lloyds entered into a JCT Building contract with GE Banks and Son for substantial works described as “extending ground floor accommodation into garden area, forming new manager’s room and interview room and replacing counters etc including complete redecoration” (G 335). It was a very substantial job. The contract price was just under £55,000. The work was described very fully and costed in a bill of quantities running to over 150 pages. The work was supervised by Lloyds’ in-house architectural department. The regional office was in Exeter, but the work was supervised from the Salisbury office where Mr Smith was based. It was Mr Smith who drew the detailed plans for the work, including Nos. 34/6A and 34/11.

[31]It is common ground that because of the extensive structural works to the ground floor, including the fitting of two new steel joists to the ceiling above the new manager’s office, part of the ceiling over the staff area would necessarily have been replaced. There is no indication in the bill of quantities that any other part of the existing ceiling was to be removed. The defendants rely principally on the section at page 120 of the bill of quantities (F290) which deals with painting and decorating of the “Existing Ground Floor Areas”. The document then distinguishes between work on(a) (A) “new surfaces” and work on

(b) (B) “existing surfaces.” For each item the area of ceiling involved is separately described in detail and costed. On “new surfaces” (i.e. arising from the structural alterations involving the insertion of the new steel joists) the area specified is 19 sq. m. “on plastered ceilings (new ceiling beams)”. On “existing surfaces” the relevant items are specified a follows:

“f) Prepare as described existing plaster and emulsioned ceiling and apply two coats vinyl emulsion….. 48 sq.m. g) Ditto but sloping ceiling….. 2 sq.m. h) Ditto but sides and soffites (sic) of ceiling beams and friezes with cornices in party colours….. 36 sq.m i) Prepare, wash off and apply two coats vinyl emulsion to existing emulsioned perforated fibre-board ceiling linings….. 3 sq.m. j) Prepare as described existing plastered decorated surfaces and apply two coats vinyl emulsion to surfaces of column….. 18 sq.m. ”

[32]The defendant’s case is that this document provides unequivocal proof that there was no suspended ceiling in the staff area after these works were executed in 1978. The area of 3 sq.m. of “existing emulsioned perforated fibre-board ceiling linings” must be a reference to the area beneath the stairs over the typist’s workstation. This seems to be common ground, based upon a visual assessment of the dimensions of the current ceiling in that area, which is still lined with sound proofing tiles (but not the tiles referred to in this document nearly 40 years earlier). It is said that the document gives a detailed description of the whole of the area of the ground floor ceiling that required painting and decorating. Apart from this 3 sq.m. section, the document clearly indicates that the existing ceilings were a combination of areas “plastered and emulsioned” and the soffits (i.e. undersides) of the ceiling beams. It is said that had there been an existing area of ceiling, even limited to that described by Mrs Cotton and Mrs Morris, there would surely have been explicit reference to it in this detailed description in the Bill of Quantities because it would have required redecoration.

[33]The defendant also relies on the evidence of Mr Leslie Smith (the architect) and Mr Malcolm Day (the bank manager).

Leslie Smith

[34]Mr Smith worked for Lloyds bank as an architectural technician from 1970 to 1991. In his first witness statement (7th October 2015) he recalled this building project at the Freshwater branch. He said in terms that he did not know whether there was a suspended ceiling, but almost certainly the original ceiling would have been plaster, and he thought they would have made good the existing ceilings using the same plaster. In his second witness statement (26th October 2015), having examined photographs of the ground floor as it is today, he could see no evidence that there had been a suspended ceiling, either behind the counters or in the public area, and the ceilings still look as they did when the project was completed in 1978. Had there been a suspended ceiling which was removed subsequently he would expect to see signs of repair work and he could see none in the photographs. In his third witness statement (3rd January 2016) his recollection had become firmer: there was no suspended ceiling in the public area or in the cashiers’ area.

[35]Mr Smith was pressed in cross-examination about this developing sureness that there were no suspended ceilings. He agreed that in his time working for Lloyds he probably had dealings with around 190 branches in the South West of England. With other employment before and after his time at Lloyds, he must have inspected thousands of ceilings. He made the point, however, that for this major building work at the Freshwater branch he had himself surveyed the building to prepare the drawings. He had indicated by dotted lines on the plan where all the beams were, with the notation (on No 34/6A) “line of existing beam casings”. He could not have done that if they were not visible. The relevant drawings, nos. 34/6A and 34/11, are dated 25th March 1977 and 1st September 1977 respectively. The bill of quantities is dated June 1977. He accepted that no bill of quantities is set in stone. There could be variations from time to time. He agreed that without any invoices or other records of what was actually done it remained a theoretical possibility that work in relation to a suspended ceiling could have taken place although there was now no record of it anywhere. He agreed that there was evidence of cash points being fitted at the Freshwater Branch in 1985 (for which planning permission was sought) but no records had been disclosed by the defendants in relation to the execution of that work, and this would have been a bigger job than removing a suspended ceiling at a later date. In re-examination he was asked what description he would have expected to see in the bill of quantities had there been a suspended ceiling with tiles like this. He said he would have expected to see specific mention of suspended tiles but he accepted they would have been difficult to paint and would probably have required only “washing off”, i.e. cleaning rather than painting.

Malcolm Day

[36]Mr Malcolm Day was the manager of the Freshwater branch from 1977 until 1985. This period covered the entirety of the claimant’s employment at the Bank, save that she returned in 1992 for a short time, to which I shall return. Mr Day is now nearly 76 years old. He worked for Lloyds for 36 years until 1994. He was first approached by telephone about his recollection of any building work at Freshwater or Yarmouth in November 2015, by the claimant herself. He told her he could recall nothing apart from the extension works at Freshwater in 1977/78, and the fact that he used to visit the Yarmouth branch on Wednesday mornings. Since leaving the Isle of Wight in 1985 he had not thought about the premises at either branch. The claimant’s solicitor spoke to Mr Day on the telephone on 26th November 2015. He said that his memory was not very good. He had worked in so many branches of Lloyds that he could not remember what work had been done, or the type of ceiling in either branch. However, in his witness statement (5th January 2016) he was able to recall some detail of the major extension and refit at Freshwater. He had no recollection of a suspended ceiling at Freshwater or Yarmouth and believed there was an original ceiling in both branches. Shown the photograph of a perforated asbestos ceiling tile of the kind described by Mrs Cotton and Mrs Morris, he did not recall any such ceiling tiles either at Freshwater or Yarmouth. He did recall that electricians would come to change the fluorescent tubes in the strip lights, and that the decision was made that they should come once a year and change all the tubes whether or not they were defective, because it was cheaper than calling out the electrician on an ad hoc basis when an individual tube required replacing. Shown current photographs of the Freshwater branch (plaster ceilings with cross-beams) he said the appearance accorded with his recollection of plaster ceilings, not ceiling tiles.

[37]In his oral evidence Mr Day explained that the initial phone calls from the claimant and her solicitors came at a bad time when he had been worried about his health and preoccupied with those worries. He agreed he had worked at and visited a large number of branches during his time with Lloyds. His recollection was that, apart from the area beneath the stairs where Mrs Cotton did her typing, there were plaster ceilings at Freshwater as there were at Yarmouth. He had no recollection of any other section of suspended ceiling (as described in evidence by Mrs Cotton and Mrs Morris). The plastered ceiling, with beams cornices and pillars was quite a feature of the branch, almost reminiscent of a wedding cake (he implied).

Other witnesses on behalf of the defendant

[38]The only other witness to give oral evidence who had worked at the Freshwater branch at the material time was Mr Allen Clark. He worked as a sub-manager at the Freshwater branch from 1975 until April 1977, leaving before the substantial building works were carried out. In his witness statement (7th January 2016) he recognised the pillars and ceiling in the current photographs as very similar to how they were in his time. He recalled a solid plaster ceiling, not a suspended ceiling with tiles. In his oral evidence he thought there might be some confusion over terminology. Having seen and heard Mrs Cotton and Mrs Morris give evidence, he felt that there may have been a “false ceiling” put in across the joists to accommodate an easier fixing for the fluorescent lights. It would not have been in the public area. He recalled no ceiling tiles, just a normal plaster ceiling - a flat white ceiling - to which the strip lights were attached.

[39]The defendant called the present manager at the Freshwater branch, Mr Timothy Welstead. He has only been at Freshwater since 2012 and has no direct knowledge of the premises before that date. It was he who took the current photographs of the bank. In his oral evidence he was asked about measurements he had taken of the height of the ceiling in the staff area. Referring to the photograph at A252, the highest part of the ceiling measured 2.85 metres from the floor, approximately 9 feet. The purpose of this evidence was to meet and refute the suggestion by Mrs Cotton and Mrs Morris that the electrician who changed the strip lights in their day from a step ladder would not now be able to do so as the present ceiling is significantly higher.

[40]There was evidence in statement form from three further witnesses who used to work for Lloyds at Freshwater and Yarmouth. None gave oral evidence.

[41]Michael Duthoit was sub-manager at the Freshwater branch from June 1982 to July 1983. He had no recollection of any work at Freshwater (or Yarmouth) during that period, so his evidence took the case no further and he was not called.

[42]Mr Anthony Butt worked as a cashier and a security clerk at Freshwater from 1971 to 1980. He had no recollection of the nature or composition of the ceilings at Freshwater or Yarmouth. He recalled alterations at Freshwater, but none at Yarmouth, and he did recall the layout at Yarmouth (to which I shall return). Again, his evidence in relation to Freshwater takes the case no further.

[43]Finally the defendant relies upon an unsigned witness statement from Mrs Pamela Broadhead. Her mother has recently died and she did not want to become involved in giving evidence. Her draft witness statement is based on a conversation with the defendants’ solicitors on 14th January 2016. By agreement the draft statement has been admitted under the Civil Evidence Act 1968 but I bear in mind the limited weight it should be given. It is not signed, so there is no declaration of truth. Nor has the evidence been tested in cross-examination. Mrs Broadhead’s evidence bears upon Freshwater and Yarmouth. Mrs Broadhead has worked at the Freshwater branch from 1965 to 1997. She started as a cashier and rose to the position of retail branch manager. As far as she can remember there was no suspended ceiling at Freshwater or Yarmouth at the time the claimant worked there. She recalled a major renovation (in 1977/78) and a second major renovation around 1992, shortly before she became a manager. That work involved completely modernising the branch and changing the layout. She had no recollection of any ceiling coming down as part of the works. She was “pretty certain” that the fluorescent strip lights were attached to a solid ceiling rather than a suspended ceiling.

The Yarmouth branch

[44]I have already summarised the claimant’s evidence in relation to the Yarmouth branch. The only other witness called by the claimant who was employed at Yarmouth was Mrs Elizabeth Morris.

Elizabeth Morris

[45]Like the claimant, Mrs Morris was based at Freshwater but would cover Yarmouth and Totland in rotation as well. In her witness statement (11th October 2015) she recalled that there ceiling tiles at Yarmouth (as at Freshwater) in the back area where the staff worked, but not in the public area. They were similar to those in the photograph she exhibited. She recalled refurbishment work at Yarmouth some time before October 1985 (when she ceased work to raise her family) and recalled that the claimant was asked to remain on the premises in Yarmouth whilst the work was undertaken. The work including moving the counter back to allow the public to have direct access to the manager’s office without having to go through the staff area. In her oral evidence she was adamant that there was work done prior to 1985 which involved moving the counters back to increase the public area. She recalled that the external letter box, whose location would not have changed, was originally behind the counter whereas after these works it was in the public area. She also recalled that originally when she sat at the counter the window to her right was behind her, whereas after these works the window was alongside the counter. All she remembered of the refurbishment at Yarmouth was that the counters were moved back and new floors were put in. She had “absolutely no doubt” that the public space was made bigger. Previously the manager’s room could not be accessed without going behind the counter into the staff area. She remained adamant on these points even when confronted with the old plan (attached to the 1987 lease) and a 2002 plan, both of which showed the counters adjacent to the window. She was asked in cross-examination about the ceilings. All she could say was that they “just looked like totally flat ceilings”. She could not say whether they were the original ceilings.

Other witnesses on behalf of the claimant

[46]The claimant called two witnesses who had been customers of the Yarmouth branch at the material time: Paul McKillop and Paul Wavell.

[47]Mr McKillop managed The Bugle Hotel from 1981-1894/5, which was directly next door to the bank. In his witness statement (25th November 2015) he recalled that sometime during this period there was extensive building work which involved moving the counters back and moving the door to the manager’s office from its original position behind the counter to the customer area so that the office could be accessed directly without going behind the counter. In his oral evidence Mr McKillop described the bank as quite grand in its structure for such a small building. He remembered “tall rooms”, whereas a modern building would be more enclosed and would feel a little more oppressive. He remembered glass screens above the counter but could not remember whether they went all the way up to the ceiling. He could not say whether there was a false ceiling. Because he gave evidence over a video link it was difficult for him to comment on the plans shown to other witnesses, which indicated that the door to the manager’s office was always in the public area. He recalled that the building was kept in really good order and was regularly painted inside and out. It was a handsome building. He agreed with the suggestion that it had not been “too mucked about with modern designs”.

[48]Mr Wavell ran an off licence and general store less than 100 yards from the Yarmouth branch. He sold the business in 2002. In his witness statement (25th November 2015) he recalled building work at the bank sometime in the 1980s which inconvenienced him because he was unable to deposit his daily takings in the night safe at Yarmouth and had to take them instead to the Freshwater branch. These were large sums of cash which he felt uncomfortable carrying in his car for any distance. He recalled that as a result of the building work the public area was made larger because the counters were pushed back. He recalled that the manager’s office was refurbished, and he commented to the manager (Mr Malcolm Day) how smart it looked. He also recalled that the entrance to Mr Day’s office had been moved into the public area.

[49]In his oral evidence, having seen Mr McKillop cross-examined, he volunteered (very properly) that his own witness statement was wrong: the door to the manager’s office had not moved. It was an optical illusion that it had moved because the counters had been pushed back, so that the door was further away. Cross-examined he said that the night safe was out of use whilst the work was going on, and during the week the Yarmouth branch was closed. This went on for more than a week, possibly 2 or 3 weeks. He was shown the same plans as Mrs Morris. His recollection was still that the public area of the bank seemed larger after these works. He recalled that it was quite soon after he got married (September 1979) that this work was done. He mentioned that the letterbox which had been behind the counter was now in the public area. However, when he was shown a recent photograph of the outside of the bank, in which the letterbox is some distance to the right of the window (i.e. well into the public area) he acknowledged that he must be wrong.

[50]Mr Ronald Blakeley, a former employer of William Downer and Sons, whose evidence in relation to Freshwater has already been summarised gave only very limited evidence about Yarmouth. He recalled Downers undertaking refurbishment work including some work to the counters. All he could say was that it was before he left the company in 1990.

[51]In summary, therefore, the evidence called by the claimant, taken at its highest, is that she and Mrs Morris alone recall asbestos tiles in a suspended ceiling. The claimant alone recalls that there was building work which involved the removal of asbestos tiles. At most there is limited circumstantial evidence of works of some kind during the period of her employment. Her case is that the evidence of Mrs Morris in particular demonstrates that there were building works involving the moving of the counter to increase the public space.

[52]The defendant relies upon two plans to refute this suggestion. The first is the “old plan” already referred to, which is an undated plan attached to the lease of the bank premises dated 29th June 1987. This must have been a renewal of a former lease. The plan is clearly of some antiquity, probably dating back to the 1920s or 1930s judging by the picturesque representation of an open touring car parked outside the bank. The second plan is dated November 2002 and relates to works which including the fitting of a ramp at the entrance to the building. On both these plans the counter is shown in the same position, immediately adjacent and at right angles to the window closest to the main entrance.

Witnesses on behalf of the defendant

[53]The architect, Mr Smith, and the bank manager, Mr Day, were the principal witnesses called by the defendant in relation to Yarmouth.

[54]Mr Smith said in his witness statement (7th October 2015) that he had no recollection of any refurbishment at Yarmouth during his time in the bank’s architectural department (1970 to May 1991). There would have been regular maintenance and redecoration on a rolling five or six year cycle. He recognised the old plan. In his oral evidence he suggested that the impression of the claimant’s witnesses that the public space was enlarged when there was work done to the counters may simply have been because modern replacement counters had a recessed front, below the counter itself, so that at floor level the counter could well have moved six inches or so further back. He recognised the old plan because he remembered using it. When he visited any branch he would take with him a copy of the relevant plan so that he could annotate it if any work required to be done. He was adamant that there were no major works at the branch during his time. He was able to identify the height of the ceilings from the section shown on the plan. He agreed that the practice was to keep the bank open during any works, and the practice was to pay staff “dirt money” as compensation for damage or dust to their clothing.

[55]Mr Day recalled in his witness statement (5th January 2016) that he used to visit the Yarmouth branch on Wednesday mornings, to save important customers having to drive to Freshwater to see him. He did not remember any suspended ceiling at Yarmouth. His recollection was that it was the original ceiling. He was sure that access to the manager’s office was always from the public area, with no need for customers to go “behind the scenes” to get into his office. In his oral evidence Mr Day agreed in cross-examination that the older plan did not fully accord with his recollection of certain details of the layout. For example, the plan shows the door from the public area to the staff area (marked “C” on the plan exhibited to Mr Day’s witness statement) as opening inwards, whereas by the time he started at the bank it had been altered to open outwards. This was for the good practical reason that somebody could break the door with a good kick or a sledgehammer if it opened inwards, but that would be more difficult if it was held in place by the door jamb all round in its altered position. He agreed that it was bank policy not to allow workmen to be in the bank unattended. He recalled that there was a profit share scheme which had recently been brought in when the claimant worked at the bank, by which the employee had to work a full calendar year to qualify. The claimant might have missed out on that by a couple of weeks in her first year, and again in the year she left. He agreed that the bank would pay “dirt money”, a relatively small tax-free amount, as compensation for dirty clothes from building work. But if she had been required to work at Yarmouth at a weekend she would have been paid overtime.

[56]The remaining evidence relied on by the defendant in relation to Yarmouth came from two witnesses already mentioned who were unavailable to give evidence, Anthony Butt and Pamela Broadhead.

[57]Mr Butt had no recollection of the nature or composition of the ceiling at Yarmouth. He had spells working there between 1971 and 1980, although Freshwater was his main branch. In his witness statement (19th January 2016) he described the layout at Yarmouth and was sure the manager’s office was accessed from the public area.

[58]Mrs Broadhead, in her draft witness statement, recalled that the Yarmouth branch had “some lovely old fashioned features”, including a beautiful mosaic floor. She was confident that the door into the manager’s office was always accessed from the public area. As far as she could remember there was no suspended ceiling at Yarmouth. This recollection was reinforced by her memory of an episode when the washing machine in the residential flat upstairs, above the bank, overflowed and water leaked through the ceiling and had to be mopped up from the floor. The water had leaked through the actual ceiling, not from a suspended ceiling.

[59]The liability experts for both parties, Mr Chambers and Mr Stear, gave evidence in their reports and orally about the probability or otherwise of there being a suspended ceiling at either Freshwater of Yarmouth. However, their evidence amounted, in effect, to an analysis of and commentary upon the lay evidence which I have summarised. Counsel for both parties accepted that this aspect of the expert evidence was unlikely to assist, because that analysis and assessment was for the court alone. Neither of them was qualified as a surveyor, for example. The relevance of their expertise would come into play principally if my conclusion were that there was, at either branch, a suspended ceiling with tiles, and if so, in resolving the issue whether those tiles were likely to have contained asbestos.

Approach and analysis

[60]On the central issue of whether there were suspended ceilings with asbestos tiles at either or both the Freshwater or Yarmouth branches there is a stark conflict of evidence. Witnesses have had to try to recall what, at the time, would have been unremarkable details of these buildings 30-40 years later. It follows that however credible the testimony of a witness may seem, the reliability and accuracy of the details of that testimony have to be assessed against any objective evidence.

[61]In relation to mesothelioma cases, there is a particular need for caution in this regard, as Lord Rodger emphasised in Sienkiewicz v Greif UK (Ltd)

[2011] 2 AC 229

, having regard to the special rule of causation in such cases, established in Fairchild (supra). At paragraph 166 he said:

“It is important that judges should bear in mind that the Fairchild exception itself represents what the House of Lords considered to be the proper balance between the interests of claimants and defendants in these cases. Especially having regard to the harrowing nature of the illness, judges, both at first instance and on appeal, must resist any temptation to give the claimant’s case an additional boost by taking a lax approach to the proof of the essential elements. That could only result in the balance struck by the Fairchild exception being distorted…”

[62]Mr Platt QC, for the defendants, drew my attention to a very recent Scottish decision in a mesothelioma claim with some similarities to the present case, where Lord Pentland made some helpful observations on the reasons for caution: Prescott v The University of St Andrews [2016] SCOH 3 (13th January 2016). Drawing upon observations of Leggatt J in Gestmin SGPS S.A. v Credit Suisse (Uk) Ltd

[2013] EWHC 3560 (Comm)

, at paragraphs 15-23, Lord Pentland said, at paragraph 42 of the court’s Opinion:

“The process of attempting to remember events in the distant past is an inherently fallible one; it is a process that is highly susceptible to error and inaccuracy. Our efforts to think back many years to recollect the details of past events are liable to be affected by numerous external influences; involvement in civil litigation can in itself operate as a significant influence. All remembering of events many years ago involves processes of a reconstructive nature; these processes are largely unconscious with a result, as Leggatt J said, that the strength, vividness and apparent authenticity of memories are often not reliable markers of their truth. Having seen and heard the pursuer give evidence, I have come to the view that I must evaluate the reliability of his claimed recollections with caution. I have, wherever possible, tested his evidence against other evidence in the case and have considered objectively where the probabilities lie.”

[63]In Gestmin Leggatt J made the pertinent observation, at paragraph 19:

“The process of civil litigation itself subjects the memories of witnesses to powerful biases. The nature of litigation is such that witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has a tie of loyalty (such as an employment relationship) to a party to the proceedings. Other, more subtle influences include allegiances created by the process of preparing a witness statement and of coming to court to give evidence for one side in the dispute. A desire to assist, or at least not to prejudice the party who has called the witness or that party’s lawyers, as well as a natural desire to give a good impression in a public forum, can be significant motivating forces.”

[64]These latter observations are, in my view, particularly apposite in the present case in relation to the evidence of the witnesses called by the claimant. The tragic nature of the case and the natural desire to assist in any proper way, are inevitable human reactions. These, and the other factors referred to in the passages quoted above, make it all the more important to test the recollection of witnesses against contemporaneous documentation. In relation to both Freshwater and Yarmouth there is documentation of this kind. I bear firmly in mind, however, the submission by Mr Steinberg QC on behalf of the claimant that there is also a lack of other documentation which might have cast a different light on the same issues.

[65]I must emphasise at the outset of my analysis of the evidence that I am quite sure that no witness has to come to court, or made a witness statement, intending to do other than his or her very best to recall events fairly and truthfully. But for the reasons already explained, that is quite a different matter from the reliability of what the witness recollects, tested objectively.

[66]For this reason as well, it is not appropriate to attempt to consider the evidence in relation to Freshwater and the evidence in relation to Yarmouth as if it came in separate water tight compartments. Reliability, or lack of reliability, of the evidence of a witness in relation to one branch may well have an important bearing on the reliability or lack of reliability of the same witness in respect of the other branch.

[67]Having carefully reviewed all the evidence, written and oral, with the considerable assistance of a full live note transcript, I find it helpful to consider Yarmouth first.

Yarmouth

[68]Here there are two central factual issues:(1) Was there a suspended ceiling with asbestos tiles?

(2) If so, was the claimant present when the ceiling was taken down as part of refurbishment works prior to 1985, when she was required to attend the bank over a period of several weekends as key holder?

[69]In relation to Yarmouth the important documents are very few, but they are critical. First there is the old “lease plan” (F58) which I am quite satisfied predates the employment at Yarmouth of any witness in this case. The second is the plan dated November 2002 (F69) prepared in connection with works to form a ramp at the entrance to the premises. Both these plans show the cashiers’ counter in the same position, immediately adjacent and at right angles to the window closest to the main entrance door. This is significant because the claimant, her colleague Mrs Morris, and two bank customers ( Messrs. McKillop and Wavell) all said in their evidence that the public space had been increased by moving the counters back to enable access to be gained to the manager’s office from the public space rather than having to go through the staff area. It is said to be the substantial works associated with these operations which required the claimant’s attendance at weekends prior to 1985 as key holder.

[70]In her first witness statement the claimant said that the public area was made bigger “to incorporate a larger meeting room”; some of the walls were removed and the ceiling tiles and lighting were removed and replaced. In her oral evidence she said that they moved the cashiers’ desk back to make enough room at the front to put in a meeting room so the manager could meet with the public there. In cross-examination she was adamant that she remembered there was no manager’s room when she first started there, no meeting room. In fact, as the old lease plan shows, there always was a manager’s room and it was in the same position on that plan as on the 2002 plan. She retracted the suggestion in her second witness statement, following her evidence on commission, but remained adamant that the public space had been increased to provide direct access to the manager’s office.

[71]Mrs Morris was equally adamant that the counters had been moved back. She was sure of this because, when she first worked there, the window to her right was behind her, whereas after the work the counter was alongside the window. She was adamant that the letterbox was originally behind the counter whereas afterwards it was in the public space. Consideration of the exterior photograph of the building (A152) exhibited to the claimant’s first witness statement demonstrates that neither of these propositions can be accurate. Mrs Morris agreed that the external position of the letterbox had not changed. The letter box can be clearly seen on the photograph between the main entrance door and the first window. The counter could never have been on the main door side of the letter box. Equally, the distance between the main entrance door and the first window is so small (no more than the width of the main doorway itself) that the counter could never originally have been in that space and only later moved backwards to line up with the window, as shown in both plans.

[72]Mrs Morris was equally sure that before the refurbishment work there was no access from the public area to the manager’s room without going through the staff area behind the counters. This was also the recollection of Mr McKillop, from the Bugle Hotel (next door). I am satisfied that they must all be mistaken and this is a good illustration of the fallibility of distant recollection. In my judgment this casts very considerable doubt on the reliability of the evidence of the claimant and Mrs Morris in relation to Yarmouth generally, and the composition of the ceiling in particular.

[73]There is bank correspondence confirming that a cash point machine was installed at Yarmouth in 1992, for which the landlord’s consent and planning permission were obtained. The installation had been completed by 2nd July 1992. The claimant accepted in her oral evidence that until she saw the inland revenue documentation she had forgotten about going back to work for the bank in 1992. She recalled the bank asking whether she wanted to earn some extra money when the cash point was put in.

[74]It is said on behalf of the claimant that, for a number of reasons, she cannot be confusing any work on the cash point with the more substantial works she describes First, she recalls spending successive weekends at the bank before the birth of her first child, which was 1985. Second she says in her final statement that it was Mr Day who asked her to do this extra work and authorised it, because she had lost out on the bonus incentive scheme, and Mr Day left the bank in 1985. Third, Mr Wavell’s recollection is that it was sometime in the 1980s, not long after his marriage and certainly during Mr Day’s time as manager, that he was inconvenienced by the building work at Yarmouth and had to deposit his takings in the night safe at Freshwater instead.

[75]I have considered all these points carefully but the fact remains that the claimant must be mistaken, like the other witnesses, in her evidence that the refurbishment works involved the moving of the counters to enlarge the public space and to provide direct access from the public space to the manager’s room. In her application form for industrial injury disablement benefit (IIDB), dated 21st January 2015, the claimant said:

“I went in over several weekends. It was very dusty work. The builders moved a section to make the main area larger, some of the internal walls were moved as well and the false ceiling tiles were removed. These were white in colour and had to be pushed up to be removed. Builders also did work in the safe. The safe was a dusty place and when we closed it we banged it which caused dust dispersion.”

[76]Thus, the claimant’s initial recollection of the work is contradicted by the objective evidence of the two plans. Only after cross-examination on commission did she accept that the works did not involve the creation of a manager’s office but, as she still thought, the provision of a new entrance from the public area. Because this is such a central issue on which the claimant has been shown to be wholly wrong in her recollection, I regret that I am unable to accept as reliable her evidence as to the composition of the ceiling and the removal of the ceiling in her presence. It may well be that, having forgotten her later period of employment, she has persuaded herself that her presence as key holder was during building works prior to 1985. I find that in fact it was not. There were no substantial building works at Yarmouth in that first period of her employment. The strength of the circumstantial evidence from Mrs Morris, Mr McKillop and Mr Wavell as to the timing of any such work, although superficially striking because of events they might be expected to remember, has to be balanced against their same fundamental error of recollection, proved by the plans, that the public space was not enlarged to provide direct access to the manager’s room.

[77]In relation to the composition to the ceiling, the claimant qualified her recollection (in her first witness statement) with the words “to the best of my belief”. Mrs Morris simply said in her witness statement that there were ceiling tiles at both branches , similar to the example of an asbestos tile in the photograph she exhibited. All she could recall were totally flat ceilings. Their evidence is to be contrasted with the recollection of Mr Smith and Mr Day. I accept that Mr Smith was familiar with the old plan, and would have had it with him when he visited the Yarmouth branch. He could recall no refurbishment work at Yarmouth during his time with Lloyd’s architectural department (1970-1991). That must, I accept, be treated with caution bearing in mind the large number of bank premises for which he was responsible. He was able to say, however, by reference to the cross-section on the old plan that there was no suspended ceiling downstairs in the bank. That was also the recollection of the bank manager Mr Day.

[78]I accept Mr Day’s explanation for not wanting to be forthcoming with any recollection of the two branches when he was first approached in November 2015; personal health problems were uppermost in his mind. It is natural that his recollection should have been improved by familiarising himself with the plans of both premises. I found Mr Day’s evidence in relation to the layout at Yarmouth straightforward, detailed and impressive. As the person who used the manager’s room, albeit it only one day a week, he had good reason to remember the access arrangements. His recollection that there was no suspended ceiling, and that all ceilings were original, must be approached with caution because of the number of branches in which he worked over the years but it is entitled to some weight. Although it is consistent with my finding on this first issue, I attach no weight to the untested evidence of Mrs Broadhead about the leak from the washing machine upstairs.

[79]Standing back, it is also appropriate to consider the nature of the building itself, as originally constructed, and the likelihood of a suspended ceiling having been fitted at some point and removed subsequently. It is an elegant little building. The impression from the witnesses’ evidence is of a tall building internally, and Mr McKillop agreed that it did not have the appearance of having been “mucked about with”. There is no documentation to support any substantial refurbishment work, although I bear in mind that there would have been regular repainting and redecoration of the bank every five years or so, and no documentation has been found in respect of that work either.

[80]Looking at the evidence in respect of Yarmouth as a whole, I am unable to accept the evidence of the claimant and Mrs Morris as reliable and accurate on the all important issue of whether there was a suspended ceiling at Yarmouth and whether there were asbestos tiles. The claimant has failed to establish, on the balance of probabilities, that such was the case.

Freshwater

[81]My conclusion as to the reliability of the claimant and Mrs Morris in relation to Yarmouth is something it is proper take into account in assessing the reliability of their evidence in relation to Freshwater. That does not apply, of course, to the evidence of Mrs Cotton who did not work at Yarmouth and gave no evidence about those premises. However, it is in relation to Freshwater that the contemporaneous documents come sharply into focus as an objective means of testing the reliability of the recollection of the claimant, Mrs Cotton and Mrs Morris that there was a suspended ceiling over part of the staff area at least, with tiles similar to the examples in the photographs exhibited to their witness statements.

[82]The claimant’s own evidence about Freshwater has been inconsistent and is demonstrably wrong in at least one important respect. Her first account (in the IIDB application form) made no mention of ceiling tiles at Freshwater at all, as distinct from Yarmouth. The relevant part of the entry reads:

“Five years after I left Lloyds, asbestos materials were removed from the stairs, the staff room and the first floor at the Freshwater branch. The first floor at the Freshwater branch is where I processed standing orders and then pinned them to the walls. I am not sure what the walls were made of.”

In her oral evidence the claimant recalled the suspended ceiling “across the whole of the banking hall because it was quite an area but if you had done one part of it and not another it would have looked particularly odd…” . That is completely contrary to the evidence of Mrs Cotton and Mrs Morris that the suspended ceiling did not extend to the public area at all, i.e. the banking hall, and was confined to only part of the staff area.

[83]It was in the same passage of cross-examination that the claimant gave the curious description of the strip lights hanging above the suspended ceiling and shining through the perforations in the tiles. That was how she remembered it, she said, and she also remembered the electricians “pushing the tiles up and doing the lights above the tiles”. This plainly cannot be correct, as both the liability experts agreed. That is important, because it tends to suggest that the claimant has reconstructed in her own mind something which cannot have happened. It is also important because it is only this improbable configuration of the lighting above the suspended ceiling which could give rise to the need to remove tiles, even to change the strip light tube or the starter, as part of routine maintenance.

[84]The claimant said in cross-examination that the electricians “used to take out a lot of the tiles”, and would lay them on the desks whenever they were doing what they had to do. It is particularly striking, and in my judgment significant, that neither Mrs Cotton nor Mrs Morris described any such removal of the tiles. If they were both working in the same general staff area as the claimant, and tiles were removed and placed on desks or other working surfaces, it is remarkable that neither Mrs Cotton nor Mrs Morris saw fit to mention this. It inevitably casts very great doubt on the proposition that tiles were removed in the course of routine maintenance of the strip lights, because there would in fact be no need to remove tiles to replace the fluorescent tube or a starter.

[85]Even if I were to conclude that there was an area of suspended ceiling with asbestos tiles, Mr Steinberg properly conceded in his closing submissions that unless the claimant’s evidence of removal of the tiles were accepted, her case that asbestos was generated in sufficient quantity to meet the threshold of material increase in risk would fail.

[86]In assessing the reliability of the evidence of Mrs Cotton and Mrs Morris that there was a suspended ceiling with asbestos tiles I bear very much in mind the fact that each of them worked at this branch for many years, far longer than the claimant. To that extent it can be said that each would have had the opportunity daily to observe the ceiling and its composition. That pre-supposes however, that there was any reason at the time why either of them should have paid any attention to the ceiling.

[87]There was an important shift in the evidence of Mrs Cotton. In her witness statement she described the area below the stairs where she worked, where undoubtedly there was a lower ceiling, and this is the area which still has a lower ceiling as shown in the current photograph (A254). She said:

“These tiles were not only on the ceiling above where I worked, but where the majority of the staff worked. I do not recall seeing them in the public areas.”

In her oral evidence, when reminded that the building work in 1978 involved the introduction of two new steel beams across the ceiling at one end of the staff area, she described and marked on the plan (No 34/11) a much smaller area of ceiling than “where the majority of the staff worked”, as she had put it in her witness statement. As already explained the area she marked stretched from the strongroom across the width of that part of the building, embracing the supervisor’s desk (as shown on the plan) but not above any of the area where the cashiers and clerks were seated (as shown on the plan).

[88]Mrs Morris had simply said in her witness statement that she recalled ceiling tiles similar to the examples in the photograph in the back areas, i.e. where the staff worked, at Freshwater and at Yarmouth, but not in the public areas. In her oral evidence she marked on the plan No 34/6A (F 155A) the extent of the tiled ceiling, alongside the strongroom but not extending right across the width of that part of the staff area. She said that was where the phones were. She described it as a flat ceiling that “went straight out” from the area beneath the stairs, but she could not say how far it extended. She thought it may have gone as far as the tills, i.e. the cashiers’ counter.

[89]Both Mrs Cotton and Mrs Morris made further witness statements in which they said that from their recent observation of the ceilings at Freshwater they could say that the electricians would not now be able to reach the ceilings from step ladders, as they did at the relevant time, because the ceilings were now higher. There was nothing improper in the witnesses pooling their recollection and discussing it, but this demonstrates that there has, quite understandably, been discussion about the central factual issues. It never emerged during the evidence whether the former colleagues who had alerted the claimant to the removal of asbestos from the Freshwater branch five years after her departure were, or included, Mrs Cotton and Mrs Morris. I found this evidence about the step ladders unconvincing. It does not square with the measurements taken by Mr Welstead. I accept his evidence that the height he measured from floor to ceiling (at the highest point where the ceiling is in a recess) was 2.85 metres, around 9 feet. From a step ladder, working at a height of 4 to 5 feet above floor level, it would be surprising if an electrician even of modest height could not easily have reached up to work on a light 9 feet above the floor.

[90]For the reasons I have explained, there are inherent difficulties and contradictions in the evidence of the claimant, Mrs Cotton and Mrs Morris. However, it is the contemporaneous documentation which provides the most powerful and instructive objective evidence against which their reliability can be assessed. The documentation in question is the bill of quantities and the plans drawn by Mr Smith in March and September 1977.

[91]The March plan (34/6A) is endorsed and signed as one of the drawings referred to in the JCT Agreement dated 1st December 1977. It is significant that the line of the existing beam casings is shown on the plan, by dotted lines. Mr Smith made the important observation in his oral evidence that if the beams had not been visible, he would not have been able to mark their position. In other words, had there been an existing suspended ceiling below the level of the beams which covered any significant area, he could not have prepared the drawings as he did. This evidence was not challenged, although I have considered the possibility that any suspended ceiling in existence at the time might have been flush with the existing beam casing, so that the line would still have been visible in any event. It is to be noted that on plan 34/6A there is a specification for the encasing of the new steel beams with superlux boarding. That is a non-asbestos board. Had Mr Smith noticed asbestos ceiling tiles over part of the existing ceiling, he might well have noted it somewhere and been concerned that such a material was being retained, given that superlux was specified for the new beam casings.

[92]For completeness I should mention that there is a much earlier plan referred to in the JCT Agreement (F124) which shows the ground floor with various annotations. The plan is dated 1944 but amended in 1954. It seems to be common ground that nothing turns on this plan. It did not feature in counsel’s submissions.

[93]The bill of quantities is a very detailed and carefully prepared document. It is dated June 1977. There is no evidence from the quantity surveyors who prepared it, but the document speaks for itself. It runs to more than 150 pages. Although it was not expressly explored in evidence, there must have been a physical survey of the existing ceilings in order to prepare the detailed section on painting and decorating at page 120 of the document (F290), already quoted. In particular, the very full description at (i) of the 3 sq.m. of “existing emulsioned perforated fibre-board ceiling linings” cannot have been obtained merely from a plan. It is common ground that this 3 sq.m. area corresponds with the area beneath the stairs where there is still a lowered ceiling, where Mrs Cotton used to be based as the typist.

[94]There were three other areas of ceiling under the heading “existing surfaces”. This is where one would expect to see mentioned any remaining tiled ceiling of the kind described by the claimant, Mrs Cotton and Mrs Morris. Indeed, if there was such a ceiling still in existence, and if it was effectively an extension of the 3 sq.m. area (as Mrs Cotton suggested), one would expect it to have been described in the same way. There is no reason why it should have been omitted altogether.

[95]The largest area of other “existing surfaces” is 48 sq.m. of “existing plastered and emulsioned ceiling”. That would plainly not be apposite to describe an area of perforated asbestos tiled ceiling. The next area of existing surfaces is described as 2 sq. m. of “ditto but sloping ceiling”, i.e. a plaster and emulsioned sloping ceiling. It is particularly significant that the bill of quantities here descends to the detail of as small an area as 2 sq.m. It is not entirely clear where it was, although I note that there is an area of sloping ceiling adjacent to the current lowered ceiling beneath the stairs (see photograph A254), the slope coinciding with the angle of the staircase above.

[96]The next item of existing surfaces is 36 sq.m. of sides and soffits of ceiling beams and friezes with cornices. Only the undersides of the beams (i.e the soffits) would form part of the overall ceiling area. As a working figure it was accepted during the course of the evidence (and in submissions) that one-third of this area could properly be regarded as ceiling (as opposed to sides, friezes and cornices), i.e 12 sq.m. On this basis, the total area of “existing ceilings” would amount to 65 sq.m. Adding the 19 sq.m. of new plastered ceilings arising from insertion of the new beams, the total area comes to 84 sq.m. As a result of photocopying there is no reliably proportioned version of the scale plan from which the precise area can be scaled off and calculated However, reference was made to the planning application for this building work. The figure given for the total floor space of all buildings to which the application relates was 264.32 sq.m. That covers all three floors of the building. Dividing the total area by three produces a figure of 88 sq.m. for the ground floor. On behalf of the defendants, Mr Platt submits that this is very close to the total area of 84 sq.m. produced by the addition of the figures mentioned above, and provides a useful cross-check which excludes the possibility that any significant area of suspended tiled ceiling could, for some reason, have been omitted. Whilst recognising the limitations of that exercise, I accept that it provides some support for the inference that there has been no such significant omission.

[97]On behalf of the claimant, Mr Steinberg points out (as Mr Smith accepted) that no bill of quantities is set in stone. There can always be variations. However, it is difficult to see what form any variation here could have taken which would affect the position. Could the presumed area of asbestos tile suspended ceiling have been omitted in error? Whilst this may be a theoretical possibility, I am concerned with probabilities not mere speculation. Given the evident care with which the bill of quantities was drawn up, I find it improbable in the extreme that a significant area of asbestos tiled ceiling would have been overlooked and omitted.

[98]Mr Steinberg also raised the possibility that such an area of ceiling might not have needed painting at all, but simply washing down. Mr Smith mentioned this possibility in re-examination, but it would still have been a chargeable item of redecoration. Mr Smith referred to the difficulty of painting modern tiles of the type currently in the area below the stairs (shown in photograph A254). Mr Stear (the defendant’s liability expert) gave evidence, which I accept, that asbestos insulation board, which is the claimant’s case for the suspended ceiling, would inevitably be painted. Furthermore, the 3sq.m. of fibre-board beneath the stairs was undoubtedly to be repainted, and if there was other perforated boarding in a suspended ceiling, asbestos or otherwise, there is no logical reason why it should not have been listed for painting, or repainting.

[99]Mr Smith (the architect) and Mr Day (the bank manager) recalled no tiled suspended ceiling at Freshwater. Had that been the only evidence the defendants put forward to contradict the claimant’s case, the issue would have been finely balanced. But the objective evidence of the bill of quantities and the plans, coupled with the inconsistencies in the evidence of the claimant herself and the evidence of Mrs Cotton and Mrs Morris, drive me in the end to the very clear and firm conclusion, on the balance of probabilities, that there was no suspended tiled ceiling in the Freshwater branch. I have not overlooked the evidence of Mr Kempster and Mr Blakeley of William Downers, but neither impressed me as having a clear and reliable recollection of any suspended ceiling in the staff area. Neither of them claimed actually to have worked on any such ceiling.

[100]I am satisfied that the overwhelming probability is that there was no suspended asbestos tiled ceiling at the Freshwater branch. Accordingly the claimant has failed to prove this fundamental element of her case. I am reinforced in this conclusion by my finding that the claimant and Mrs Morris must be wrong in their recollection of a suspended tiled asbestos ceiling at Yarmouth. Equally, my conclusion in respect of Freshwater strengthens my assessment of the unreliability of the claimant’s case on Yarmouth.

The 3 sq. m. area of ceiling under the stairs

[101]Had I found that there was an asbestos tiled ceiling at Freshwater, as described by Mrs Cotton and Mrs Morris, I would not have been able to accept the claimant’s evidence that ceiling tiles were removed for the purpose of routine maintenance. Had that been the case, Mrs Cotton and Mrs Morris would have spoken of it. In view of Mr Steinberg’s concession in closing submissions, already referred to, I could only have approached the issue of exposure to dust on a highly speculative theoretical basis that very occasionally it might have been necessary for the electricians to remove one or more tiles to get access to part of the light fitting above the ceiling.

[102]In the course of closing submissions I invited counsel to address me on the hypothesis that the only suspended (or lowered) ceiling was the 3sq.m. under the stairs where Mrs Cotton worked, and that the tiles were asbestos. Could that give rise to sufficient exposure to found liability? Mr Platt submitted that any such exposure would be de minimis taking into account the fact that the claimant only worked as a relief typist when Mrs Cotton was on holiday. Mr Steinberg submitted that even this modest exposure could be sufficient to create a material increase in the risk of contracting mesothelioma.

[103]There are two factual issues here: first, was this area of boarding asbestos at all? Second, if it was, is it likely that it would have created any material increase in exposure to asbestos?

[104]On the first issue, there was evidence from both liability experts as to their researches into the availability of asbestos and non-asbestos perforated ceiling tiles in the 30 years or so prior to the date of the bill of quantities (1977). For present purposes it is the description in the bill of quantities which is critical, because I have already reached the conclusion that the evidence of the claimant and her witnesses in relation to the extent and composition of any suspended ceiling is unreliable. The description and the bill of quantities is “emulsioned perforated fibre-board ceiling linings”. The perforations indicate that the purpose of the fibre-board was to provide acoustic insulation. Although the description uses the word “linings”, I shall assume that this meant “tiles”. The evidence is that asbestos insulation boards (AIB) became commercially available in the early 1950s. It was not until around 1980 that the supply of such boards ceased in the United Kingdom. They were commonly used for fire proofing and acoustic purposes. Reference was made to an article in The Times in 1967, discussing the use of asbestos, which included the following; “The reconstructed premises of Lloyds Bank, in Sutton Coldfield, offer a good example of the maximum use of the fire-protective qualities of asbestos, which also increases total thermal insulation and helps to overcome acoustic problems. The ceilings at the bank had been made of asbestos insulation board with a finishing coat of sprayed asbestos.” The defendants’ liability expert, Mr Stear was also cross-examined about an article he had written in 2013 entitled “Let’s talk shop”, in which he traced the history of the use of AIB in the 1950s, 1960s and 1970s. Thus, if this 3sq.m. section of ceiling was fitted after the mid to late 1950s it is quite possible that it contained asbestos.

[105]Equally, however, the researches of the liability experts confirm that non- asbestos acoustic tiles had been available in Britain long before the Second World War and continued to be used well into the 1960s. The main manufacturer was a company called Celotex which started trading in 1925. The claimant’s liability expert, Mr Chambers, properly conceded that the description in the bill of quantities could be consistent with Celotex acoustic fibre-board, as well as with AIB.

[106]In the end the position is that there is simply no evidence as to how long this area of boarding beneath the stairs had been in place. Mrs Cotton, in describing the overall area of suspended ceiling (including this 3 sq.m.), said that it looked as if it had been there for years. Bearing in mind that this was an old fashioned building on the Isle of Wight it seems to me no more probable that these 3 sq.m. of ceiling tiles were fitted after rather than before the early 1950s. That being so, I am not persuaded that the claimant has proved that it was more likely to be asbestos boarding than non-asbestos boarding. Accordingly I cannot find that even this small section of ceiling contained asbestos which could have given rise to exposure to harmful dust.

[107]On the second issue, even if this 3 sq.m. did contain asbestos, any exposure would in my judgment have been de minimis for the following reasons. First, there is no evidence that any strip light (requiring maintenance) was affixed to this section of ceiling. Mrs Cotton said of the area below the stairs, “I could stand upright but there was a slope behind me”. The impression she gave was of a very low ceiling, on which it is unlikely that a strip light would have been mounted, simply through lack of head room. Second, if there was such a strip light fixed to this small area of ceiling, harmful exposure would only have occurred if one or more of the tiles were removed for maintenance purposes. Routine maintenance consisting of replacing a tube or a starter would not have required the removal of any tiles. Third, the likelihood of there being any maintenance of a strip light on this area of ceiling during the four weeks a year when the claimant was standing in for Mrs Cotton must be so remote as to be negligible. Fourth, the possibility that during one of these periods there was maintenance which went beyond the replacement of a tube or starter, instead necessitating the removal of tiles, is even more remote, and likewise negligible.

Conclusion

[108]For all these reasons I am unable to find that there was any exposure to asbestos dust in either the Freshwater branch or the Yarmouth branch, and despite my heartfelt sympathy for the claimant’s tragic circumstances, the claim must be dismissed.

Sloper v Lloyds Bank Plc [2016] EWHC 483 (QB)

The issues

The claimant’s evidence

The Freshwater branch

Linda Cotton

Elizabeth Morris

Other witnesses on behalf of the claimant

The contemporary documentation

Leslie Smith

Malcolm Day

Other witnesses on behalf of the defendant

The Yarmouth branch

Elizabeth Morris

Other witnesses on behalf of the claimant

Witnesses on behalf of the defendant

Approach and analysis

Yarmouth

Freshwater

The 3 sq. m. area of ceiling under the stairs

Conclusion

Cited in 7 later judgments