Taylo v Fascia Future Ltd [2018] EWHC 3049 (QB)

[2018] EWHC 3049 (QB)Case No HQ18A02213
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday, 9 th November 2018
Before
ROWENA COLLINS RICE(Sitting as a Deputy High Court Judge)
Between
MATTHEW ANTONY TAYLORClaimantFASCIA FUTURE LIMITEDDefendant
Mr Harry Steinberg QC and Mr Max Archer (instructed by 2020 Legal Limited) for ClaimantMr Richard Livingston (instructed by DAC Beachcroft Claims Ltd) for DefendantHearing Hearing dates: 1 st-2 nd November 2018
Judgment ApprovedMs Rowena Collins Rice :

Introduction

[1]I was also invited by Mr Steinberg to be guided in resolving this issue by the approach of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Ltd[2010] EWCA Civ 683. This was an industrial injury case relating to hearing impairment. The claimant had to prove that he had been exposed for periods of over 8 hours to noise levels in excess of 85 decibels. The employer had been aware of noise problems (it had, for example, provided ear protections) but had failed to measure and record noise levels. The trial judge was satisfied that the claimant had been exposed to excessive levels of noise, sometimes in excess of 90 decibels, but not that there was exposure to excessive levels for periods of 8 hours with any regularity. The Court of Appeal allowed an appeal. Longmore LJ, giving the judgment of the Court, accepted that the level of the claimant’s exposure to noise was essentially a question of fact, for the claimant to prove. However he noted that:
“in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant’s breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor.” (paragraph 18). He continued (paragraph 19): “If it is a defendant’s duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not in fact excessive. In such circumstances the court should judge a claimant’s evidence benevolently and the defendant’s evidence critically. … [A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case.”
[2]From June 1995 (when he left school) to September 1996 (the start of his second college year), Mr Taylor worked for Fascia Future 2 days per week during term time and full time during the school/college holidays. From September 1996 to June 1997 (when his college course ended) he worked 4 days per week during term and full time during the holidays. From June 1997 he became a full-time employee of Fascia Future.[3]From June 1997 to the end of 2005 his employment with Fascia Future was continuous, apart from a period of around half a year in 2004-05 when he was in London. He had a period of sick leave from 8th May to 23rd June 2000 following an injury.[4]Apart from the flat-roofing work from 1995-1999 (which was seasonally-dependent, and was undertaken around once every three weeks), Mr Taylor was employed on removing and replacing fascias, soffits and guttering. The removal work had a potential exposure to asbestos; the replacement work did not. The work was seasonally variable. Mr Taylor’s conditioned hours were 8am to 5pm Monday to Friday (with a half hour lunch break, taken in the place of work). He worked some weekday overtime in the summer; in the winter there was significantly less removal/replacement work.[5]Mr Taylor was involved in around 50 removal and replacement jobs a year. Of these up to three quarters, on average, involved removing some asbestos - asbestos soffits and/or asbestos guttering.[6]Physical detachment took around 1-2 hours per job, including removal of the (non-asbestos) fascias. Soffits had to be sawn through in situ to remove them at least in cases where semi-detached or terraced properties were concerned (which was often), and otherwise depending on construction, size and accessibility. That created sawdust. Guttering was sometimes cut with power tools in similar circumstances. Soffits and guttering usually had to be removed with hand tools. The old materials were in poor condition; sometimes they broke of their own accord in the process of removal. They were removed as simply as possible, but without unnecessarily respectful treatment. Sometimes they could be detached intact, perhaps in up to 20% of cases, but more usually they were not.[7]Smaller fragments were dropped down to the ground from roof height. Larger pieces might be dropped, lowered, pivoted or stepped down the ladder. Unnecessary risk of damage to other property was not taken in the process, but nor was particular respect shown to the waste products.[8]The waste products were put loose into a van. Sometimes longer pieces broke or were broken there. Clearing up rubble and dust, on site and in the van, was done by dry brushing.[9]From 1995 to 1999, the practice was for the van to make regular trips, when it needed to be emptied, to a rubbish tip. That happened most weeks. There, all the waste material was unloaded manually and dumped indiscriminately.[10]From around 1999, the tip refused to accept asbestos waste. From then on, the asbestos waste had to be separated out and bagged up, and a contractor paid to collect it for specialist disposal. It was separated out on the trips to the tip; the asbestos waste was returned to or retained in the van for further transportation.[11]A domestic garage, belonging to Mr Walpole’s mother-in-law, was used to store asbestos waste on an interim basis. The waste was transported there most weeks by the van. Mr Taylor went to the garage, at intervals of around a month, to break up the waste and pack it into bags ready for collection by a waste disposal contractor. The contractor was paid by the bag, so there was an incentive to break the material up small. The process of breaking took up to an hour or two per session; Mr Taylor spent further time each session bagging up the resulting waste and perhaps doing other work at the garage.[12]Paper face masks were available to Mr Taylor for protection from dust. Their use was not enforced or routine when handling asbestos.[13]Other than Mr Taylor’s Moulton College course, both Mr Walpole and Mr Taylor were, during the relevant period, untrained as to the risks of the asbestos materials they were handling. They had little or no knowledge of the legal regulatory regime applicable to exposure to asbestos in the workplace, or of relevant guidance or good practice. Their knowledge of different asbestos materials, and the different levels of risk posed by each, was limited. They had some general background or anecdotal awareness that asbestos was a potentially hazardous product.