Abraham v G Ireson & Son Ltd and Another
| Jurisdiction | England & Wales |
| Judge | THE HON. MRS JUSTICE SWIFT DBE,The Hon. Mrs Justice Swift DBE |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWHC 1958 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X00269 |
| Date | 31 July 2009 |
[2009] EWHC 1958 (QB)
The Hon. Mrs Justice Swift DBE
Case No: HQ09X00269
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Hearing date: 13 July 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
The claim
This is a claim for damages by Terence Charles Abraham, who was born on 4 August 1940 and is now aged 68 years. He alleges that both defendants exposed him to asbestos dust in the course of his employment with them, negligently and in breach of statutory duty, and that, as result, he developed a malignant right-sided pleural mesothelioma.
The quantum of damages has been agreed, subject to the issue of liability, in the sum of £155,000, inclusive of interest.
The issues
The issues to be determined are:
a) was the claimant exposed to asbestos dust during the course of his employment with the first and/or second defendants?
If so:
b) what was the extent of his asbestos exposure?
c) did that exposure cause his mesothelioma?
d) was that asbestos exposure negligent? In particular, did the claimant's asbestos exposure with the first and/or second defendants give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of his employment with them?
e) did the claimant's asbestos exposure give rise to a breach of regulation 82 of the Building (Health, Safety and Welfare) Regulations 1948 and/or regulations 20 and/or 21 of the Construction (General Provisions) Regulations 1961?
The claimant's employment history
Between 4 August 1956 and 4 August 1961, the claimant served a plumber's apprenticeship with the first defendants (who were formerly known as G. Ireson & Son and G. Ireson & Son Limited). He continued working for the first defendants as a plumber for a further period of about six months after the end of his apprenticeship, i.e. until late 1961 or early 1962.
The first defendants were a small firm of general builders. They had a yard at Wellingborough, Northamptonshire, with an office and storage for materials and equipment. Their workforce of tradesmen (carpenters, decorators, plumbers and bricklayers) were based there. There was a carpenters' workshop in the yard and the first defendants now admit that the yard incorporating the workshop constituted factory premises within the meaning of the Factories Act 1937 and 1961. It is admitted also that the Building (Health, Safety and Welfare) Regulations 1948 applied to the work carried out by them. The claimant was one of only two plumbers employed by the first defendants, the other being Mr Anthony White, who trained him.
The first defendants carried out repair and maintenance work at domestic premises in Wellingborough and the surrounding area. The proprietor of the first defendants, Mr Geoff Ireson (now deceased), owned a number of properties which he would renovate and/or convert into flats. A substantial proportion of the first defendants' work was carried out on the properties belonging to Mr Ireson.
After he left the first defendants' employment, the claimant had a short period of employment (he recalls that it was only a matter of weeks) with a plumbing firm called R.B. Freeman. The firm carried out domestic plumbing work. The claimant remembered carrying out some repair work on council houses in Wellingborough.
The claimant began to work for the second defendants some time during the tax year 1962/3 and left during the later part of 1965. He was therefore employed by them for a period of about two to three years. The second defendants were a small plumbing firm employing three or four plumbers. They carried out domestic plumbing work at private houses in the Wellingborough area. They had a yard in Wellingborough which was used primarily for storage purposes, although a small amount of maintenance work was carried out there. It is not suggested that the premises came within the definition of a factory. However, the second defendants admit that the Construction (General Provisions) Regulations 1961 applied to the work carried out by them.
The claimant contends that he was exposed to asbestos dust while working for both the first and second defendants. He cannot remember any exposure to asbestos dust during his employment with R.B. Freeman.
In 1965, the claimant left the second defendants for better paid work as a lorry driver. He continued to work in that capacity until his retirement in 2005. He had no further asbestos exposure in the course of his working life. At the time of his retirement, he appeared to be in good health. The following year, he developed intermittent pain in the right side of his chest, which persisted. He sought medical advice and underwent various investigations. These resulted in a diagnosis of mesothelioma in July 2008. Despite his condition, he remains in reasonable health and was well enough to give oral evidence.
The evidence of asbestos exposure
The claimant's evidence about exposure with the first defendants
The claimant's evidence was that, while he was working for the first defendants, he carried out typical domestic plumbing work. He would repair burst or leaking pipes, carry out repairs to lavatory cisterns, remove and replace lavatories and/or bathroom fitments and lay soil pipes and hot and water pipes. He did not do any commercial or industrial plumbing work, nor did he service boilers. He could recall only one job involving central heating during his employment with the first defendants.
In his witness statements, the claimant identified two circumstances in which he was exposed to asbestos while working for the first defendants. He described how, when repairing a section of old pipe work or running a section of new pipe work, he would have to solder pipe joints, using a blow lamp. When the joint to be soldered was situated near to a surface (such as a skirting board or a wood, plaster or painted surface) which would be vulnerable to damage from the heat of the blow lamp, he would wedge or hold in place an asbestos scorch pad between the joint and the surface which had to be protected. The scorch pad was approximately A4 size, about 1/4- 1/2 inch thick, and composed of multi-layered asbestos cloth with cross-stitching. The claimant said that he would carry the scorch pad with him in his tool bag. Over time, it would become worn and frayed. Eventually, holes would develop (usually in the centre) and the pad would disintegrate and become useless. He said that he would use the pad until it was worn out and then ask his employer for a new one. A pad would last for months, rather than weeks. Indeed, the same pad might last for a year or more. It depended what work was being done.
The claimant's evidence was that the time he spent on soldering would vary according to the job on which he was engaged. If he was installing pipe work for a hot and cold water supply to a new bathroom, he might have to do some soldering work every day for a week. Each joint would take only a few minutes to solder, but there would be numerous joints in a pipe work system. The pipe work would be situated in different locations and the use of scorch pads would not always be necessary.
At other times, the claimant might have to do several small jobs in the same week involving soldering and the use of asbestos scorch pads. On some occasions, he would go for a month or two without doing any soldering work at all. The claimant said that, when he was soldering, his face would be no more than an arm's length away from the pipe being soldered, with the asbestos scorch pad behind the pipe. He did not notice dust coming off the pad as he worked, although he would get a “bit” of dust on his hands when he handled the pad.
The claimant said that, sometimes, he would use spare materials which happened to be lying around (such as pieces of tin or hardboard) as improvised heat deflectors, instead of the asbestos scorch pad. If he did use spare materials for this purpose he would discard them immediately after use.
The claimant's evidence was that, during the later period of his employment with the first defendants, he sometimes used asbestos string for caulking (i.e. sealing) the joints of soil pipes. The soil pipes would run up along the outside wall of the house, then pass through the wall into the area of the lavatory and from there up to gutter level. He said that, in the early days, he would use paint and putty or cement as a caulking compound. The claimant said that he would sometimes put newspaper into the joint, but only to stop the materials he was using for caulking from falling out.
The claimant's evidence was that, later in his employment with the first defendants, he began to use asbestos string. The string was wound around a cardboard cylinder and had a diameter similar to that of his little finger. The claimant would cut off a length of string, using a knife, scissors, a hacksaw or tin snips. He said that he would see dust when he cut the string and would get the dust on his fingers and tools. Having cut a length of string, he would feed it around the collar of the joint. He would then tap the string down, using a screwdriver or chisel. Finally, he would pour water over the string so that it would set and seal the joint. He said that the amount of caulking which he...
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