Briggs v Drylined Homes Ltd
| Jurisdiction | England & Wales |
| Judge | Dexter Dias |
| Judgment Date | 24 February 2023 |
| Neutral Citation | [2023] EWHC 382 (KB) |
| Court | King's Bench Division |
| Docket Number | Case No: QB-2020-001072 |
[2023] EWHC 382 (KB)
Dexter Dias KC
(sitting as a Deputy High Court Judge)
Case No: QB-2020-001072
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Plaut (instructed by Irwin Mitchell LLP) for the Claimant
Amarjit Rai (instructed by Brindley Twist Tafft & James LLP) for the Defendant
Hearing dates: 7, 8 and 9 February 2023
Approved Judgment
(Circulated to parties in draft 12 February 2023)
Dexter Dias KC:
(sitting as a Deputy High Court Judge)
A. INTRODUCTION
This is the judgment of the court.
I deliver it in eight sections, as set out in the table below, to explain the court's line of reasoning:
(B1234, §XX) refers to the trial bundle page and (internal) paragraph.
A bracket with a witness's name indicates oral testimony.
| Section | Contents | Paragraphs |
| A. | Introduction | 1–5 |
| B. | Brief background | 6–13 |
| C. | Law Thirteen axioms of fact-finding | 14–15 |
| D. | Evidence | 16–35 |
| E. | Issue 1: Soffits cut indoors? — General analytical approach — Eight necessary sub-issues — Provisional finding | 36–70 |
| F. | Issue 2: Soffits containing asbestos? — Five prime heads of evidence | 71–91 |
| G. | Findings on Issues 1 and 2 | 92–93 |
| H. | Disposal | 94–98 |
This is a claim for damages arising from Mr Brian Briggs contracting and dying from mesothelioma, an asbestos-related cancer. This is my judgment following the contested trial. It focuses exclusively on two critical — and ultimately decisive — findings of fact.
On 26 March 2017, Brian Briggs, a man aged 72, was found cold and motionless, slumped in the bathroom of his home in Cannock, not far from Wolverhampton in the Midlands. Mr Briggs had died. His rapid medical deterioration came as a shock because prior to 2014, save for an atrial (heart) flutter he was managing with anticoagulant medication, Mr Briggs had been a fit man. He had worked for many years in the construction trade and mining. Naturally, his death was a cause of great distress to his wife Mrs Sadie Briggs, the claimant in this case. She, as executrix of her husband's estate and his dependent, brings a claim in negligence against one of her husband's former employers, Drylined Homes Ltd. (“DHL”). DHL engaged Mr Briggs to perform what is called “drylining” — putting up plasterboards — during house construction. This was between approximately 1975 and 1979. Therefore, this case examines what happened – or did not happen – well over 40 years ago in the house building industry when there was a mass of low-cost social housing construction to move inner city dwellers away from old and decrepit housing stock. In this sense, this case forms part of our collective social history.
The parties to the case are as follows: the claimant is Mrs Sadie Briggs, represented by Mr Plaut of counsel. Mrs Briggs brings the claim pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 in respect of her husband's estate and under the Fatal Accidents Act 1976 as his dependent. The defendant is Drylined Homes Ltd., represented by Mr Rai of counsel. DHL, while very active in construction the 1970s, is now largely dormant. I must say at the outset that the court is particularly grateful to counsel for their focused advocacy and spirit of cooperation throughout.
B. BRIEF BACKGROUND
In December 2015, Mr Briggs's health began to deteriorate significantly. He developed a bad chest infection and had to be taken by ambulance to the New Cross Hospital in Wolverhampton. The story is taken up by the medical expert in the case, Dr Andrew Fairfax. He notes that investigations of Mr Briggs's condition showed that he had a malignant mesothelioma. Mesothelioma is a cancer in the lining of certain organs of the body. It is caused by exposure to asbestos dust and fibres. Indeed, a single fibre can be sufficient to cause this lethal cancer. Presently, there is no known cure. Survival times after diagnosis vary and Mr Briggs was, as his wife says, “a fighter”. Brian Briggs died 9 months after diagnosis following what Mrs Briggs calls a “terrible time”, involving chemotherapy and progressive breathlessness. The cancer had spread to his pericardium, the sac around our heart, and to his right lung.
Before he died, Mr Briggs wrote a statement. He said that he was exposed to asbestos while working for the defendant company. Mr Briggs was a plasterer who was fitting plasterboards to new-build properties (hence the “dry” in drylining as opposed to wet plastering). The plasterboards did not contain asbestos. No one suggests they did. But when it rained, carpenters who were working outside to make roofs watertight would come inside. The carpenters were fitting what are called “soffits”, lengths of board that close the gap between the fascia and the house wall or frame.
Source: HSE Asbestos Group meeting note. Open source and in public domain. Taken with permission from the report of an expert in the case, Christopher Chambers (B122, §3.27). 1
As can be seen from the diagram, soffits are fitted horizontally and run parallel to the floor of the building. They are part of the “boxwork” around the bottom of the roof and so part of the “roof-trim”. Now the etymology of the word makes sense: originally from the Latin, through Middle Italian and French, it means something “fixed beneath”. 2
If you cast your eyes upwards in the street, you will see soffits everywhere. Mr Briggs says that the carpenters would come inside to shelter from the rain, and then continue their work by sawing soffit boards to size near him. These soffits contained asbestos, he says. It was through these that the cancer came.
Common ground
The issues in dispute between parties narrowed significantly as the case proceeded. The common ground is reducible to a number of simple factual propositions:
(1) During the relevant times (approximately 1975–79), Mr Briggs worked for DHL as a dryliner;
(2) DHL owed him a duty of care;
(3) If he was exposed to asbestos dust/fibres during that work, the defendant was in breach of its duty of care towards him;
(4) That breach of duty of care would have materially contributed to the mesothelioma he contracted (factual causation not disputed if breach proved);
(5) Mr Briggs died as a result of the mesothelioma.
There was very little dispute about the level of damages, and no contention whatsoever but that very serious damage was caused. The only question is whether DHL breached its duty of care to Mr Briggs by exposing him to asbestos fibres/dust and thus materially contributed to the mesothelioma. Parties agreed that the court should indicate its decision on the findings of fact sought and then take stock once done. I formulated and circulated the two factual issues between parties. They agreed the court's wording.
(1) Has the claimant proved on a balance of probabilities that when it was raining, carpenters came into buildings where Mr Briggs was working and cut soffit boards near him?
(2) Has the claimant proved that it is likely that the soffit boards being so cut contained asbestos?
Everything turns on these two questions of magnetic importance. It is essential to be clear about the issue these questions go to. In the conventional four-part rubric for proving negligence (duty-breach-causation-damage), these questions go solely to the question of breach. They are the two cumulative elements to the breach allegation. Therefore, this breach question is a “fact in issue” (see Lord Hoffmann in Re H [2008] UKHL 35 at [2]). The court's task is clear. The judge is not “a mere umpire”, as Denning LJ (as then was) said in Jones v National Coal Board [1957] 2 QB 55, at 63–64. Instead:
“[The] object above all … is to find out the truth … and in the end to make up [one's] mind where the truth lies.”
This, naturally, is within the confines of the legal system and the evidence before the court (see, for example, Phipson on Evidence, 20 th Ed. at §45–05). In the simplest sense, the case comes to this: if the claimant proves both issues, her claim succeeds. If she fails on either, her claim fails.
C. LAW
(Thirteen axioms of fact-finding)
My sole task is to make findings of fact in that search for truth. Thus, I limit my account of the law to that. My decision is fundamentally grounded in the following thirteen axioms of fact-finding that I have drawn together from a wide range of relevant authority, starting with the most elementary propositions:
(1) The burden of proof rests exclusively on the person making the claim (she or he who asserts must prove);
(2) Each determination is governed by the conventional civil standard of a balance of probabilities;
(3) The court must survey the “wide canvas” of the evidence ( Re U, Re B (Serious injuries: Standard of Proof) [2004] EWCA Civ 567 at [26], per Dame Elizabeth Butler-Sloss P (as then was)); the factual determination “must be based on all available materials” ( A County Council v A Mother and others [2005] EWHC Fam. 31 at [44], per Ryder J (as then was));
(4) Evidence must not be evaluated “in separate compartments” ( Re T [2004] EWCA Civ 558 at [33], per Dame Elizabeth Butler-Sloss P), but must “consider each piece of evidence in the context of all the other evidence” ( Devon County Council v EB & Ors. [2013] EWHC Fam. 968 at [57], per Baker J (as then was));
(5) The process must be iterative, considering all the evidence recursively before reaching any final conclusion, but the court must start somewhere ( Re A (A Child) [2022] EWCA Civ 1652 at [34], per Peter Jackson J (as then was)):
“… the judge had to start somewhere and that was how the case had been pleaded. However, it should be acknowledged that she...
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Workplace Exposure To Asbestos Remains Unproven
...allegations of asbestos exposure in breach of duty. In the latest case to come before the High Court, Briggs v Drylined Homes Ltd [2023] EWHC 382 (KB). Dexter Dias KC, sitting as a High Court judge, dismissed a claim brought for alleged workplace exposure to asbestos during the period 1973 ......