Cox v Transco Plc

JurisdictionEngland & Wales
JudgeLORD JUSTICE GAGE,LORD JUSTICE LLOYD
Judgment Date25 January 2006
Neutral Citation[2006] EWCA Civ 127
Docket NumberB3/2005/2913
CourtCourt of Appeal (Civil Division)
Date25 January 2006

[2006] EWCA Civ 127

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE LEEDS COUNTY COURT

(HIS HONOUR JUDGE COCKROFT)

Royal Courts of Justice

Strand

London, WC2

Before:

Lord Buxton

Lord Justice Gage

Lord Justice Lloyd

B3/2005/2913

Cox
Claimant/Respondent
and
Transco Plc
Defendant/appelant

ROBERT OWEN QC (instructed by Messrs Everatt & Co, Vale Chambers, 110—112 High Street, Evesham, Worcestershire WR11 4EJ) appeared on behalf of the Appellant.

N BRASLAVSKY QC and M RAWLINSON (instructed by Messrs Irwin Mitchell) appeared on behalf of the Respondent.

LORD JUSTICE GAGE
1

1. The appellants were the defendants to a claim made by George Cox, the respondent, for damages for personal injuries sustained as a result of the appellants' alleged negligence. By his judgment, given on 8 December 2005, HHJ Cockcroft found the defendants negligent and ordered them to pay to the claimant agreed damages in the sum of £86,750 less CRU benefits.

2

The appeal solely concerns findings of fact made by the judge. There is no dispute that the claimant, now aged almost 84, suffers from malignant mesothelioma. Sadly, he is gravely ill. There is also no dispute that it is overwhelmingly probable that his condition resulted from his exposure to substantial quantities of asbestos dust. The issue at trial was whether this condition was caused by exposure to asbestos dust in the course of his employment by T Strang Electrical Engineers Ltd when he was working at the Bankfield Gas Works in Hull between August 1962 and February 1971. The defendants, at the time, were the occupiers of those premises. There was also no dispute that with the possible exception of this and two other periods of employment, the claimant was not exposed to respirable asbestos fibres.

3

The details of the two other periods of employment are as follows: first between 1963/1964 and 1966/1967, he was employed by British Insulated Calendars Construction Company Ltd (BICC) as a cable foreman at West Burton Power Station. Secondly, between 1972 and 1987, he was employed by West Yorkshire District Council at its Bramley Depot. As to the first period of employment, there was some evidence that in that period his work took him close to lagging contractors where lagging was being disturbed and when raw asbestos was mixed and applied. It was so alleged in his solicitor's letter before action, addressed to BICC. However, the expert evidence was inconclusive in respect of this period of employment and the judge made no finding as to whether or not there was any relevant exposure.

4

As to the period of exposure between 1972 and 1987, there was evidence from the claimant that he was regularly in contact with asbestos dust in such a way that the expert witnesses concluded that if the claimant was accurate, he must have inhaled significant quantities of asbestos dust. The judge contented himself with observing that the claimant clearly had a case against the District Council if he had wished to pursue it.

5

It follows that on the evidence heard by the judge there was at least one other possible alternative cause for the claimant's mesothelioma, a point emphasised in the submissions of counsel put before the judge and in this court.

6

I turn now to the Bankfield Gas Works. The crucial issue of fact for the judge to decide was whether or not at that site the claimant had been exposed to asbestos dust in a significant quantity. If he had been, the decision of the House of Lords in Fairchild v Glenhaven Funeral Services Ltd & Ors [2003] 1 AC 32, shows that whether or not any other employer or company may have exposed the claimant to a significant quantity of asbestos dust, the defendant will be liable on proof that their wrongdoing had materially increased the risk of him contracting mesothelioma. Assuming significant exposure to asbestos dust at that site, it was accepted by the defendants that as the occupiers of the building they would be in breach of a duty of care owed to the claimant and liable for the injuries sustained by him which were a foreseeable consequence of their breach of duty.

7

The issue at trial was, therefore, primarily an issue of fact for the judge to decide. The oral evidence consisted of evidence given by the claimant and evidence from Mr Peter Deary, a consultant forensic scientist called on behalf of the claimant. There was also a joint statement made by Mr Deary and the defendants' expert consultant scientist, Mr R Beauchamp. Before giving evidence, a statement dated 6 May 2005 was disclosed to the defendants, it being made by the claimant. In that statement, the claimant described working at the Bankfield Gas Works for a period of approximately two years. He described working in an old building which contained old coke ovens and boilers and pipework, the latter lagged with asbestos. In his witness statement, he said that he worked next to contractors who were removing the coke ovens and pipework. The coking house, he recalled, was full of dust because the old asbestos lagging was being removed. This version of his exposure to asbestos dust was incorporated in Mr Deary's report dated 27 April 2005.

8

The claimant was too ill to give evidence in court. Accordingly, his evidence was taken on commission at his bedside on 25 October 2005. It was at once clear that the claimant's version of his exposure to asbestos dust at Bankfield Gas Works was different to his witness statement of 27 April 2005. The transcript of his oral evidence at page 82, line 26 starts with the following question from his own counsel:

"Question: When you went into the building, was it free of dust?"

"Answer: No.

"Question: You say that emphatically?

"Answer: Yes, because the floor was well covered with two inches of loose material.

"Question: Where had the dust come from? You cannot say?

"Answer: I can't say.

"Question: And equally, I think you cannot say what was in that dust?

"Answer: No.

"Question: All that you can say is that it was two inches thick?

"Answer: Yes.

"Question: As you worked within that building, did that dust remain undisturbed?

"Answer: No, because we were walking in the area."

9

And on the following page, page 83, line 18:

"Question: Now, your witness statement seems to suggest that you worked very close to laggers who were taking lagging off pipes.

"Answer: No.

"Question: That is not right?

"Answer: No. That is not right.

"Question: Are you aware from your own, what you saw and what you are sure in your knowledge and experience, would be able to say what sort of equipment would have been in the coking house before you got there?

"Answer: Well, just the ovens.

10

That completed the examination in chief. In cross-examination, the claimant was asked about inconsistencies between his oral evidence and witness statements made by him. Towards the end of his evidence, the following exchange took place, between him and junior counsel for the defendants. It is a passage which has featured in the appeal in this case. Page 91, line 10:

"Question: And it is right to say, I think, you have clearly indicated that at no stage did you see any laggers at all?

"Answer: Well, I saw the lorries taking the rubbish and that away, but I mean, actual laggers, I wouldn't say I saw.

"Question: No. Right. And you couldn't see what was on the sides of the lorries?

"Answer: No because it was all sheeted up.

"Question: It was all sheeted up?

"Answer: Yes.

"Question: All right. Rather different perhaps from what you saw in the yard at Bramley, that was not sheeted up?

"Answer: No. No."

11

On 30 November 2005, the trial resumed at York County Court. The only oral evidence that the judge heard on that occasion was from the claimant's expert consultant, Mr Deary. By 30 November, Mr Deary and the defendants' consultant forensic scientist had met, following the evidence given by the claimant on commission. The result of their meeting was an agreed joint statement dated 29 November 2005. Based on an understanding of the claimant's evidence, given on commission, they agreed on a joint statement in the following terms:

"As far as we understand the claimant's evidence, as given on commission, he worked in the coke-oven buildings at Bankfield Gas Station for a fortnight or so and during that time, the floor was covered with two inches or so of loose material including dust. In walking about in the coke-oven building, the dust was disturbed. At the time of working in the coke-oven building, all the plant equipment, apart from chutes, had been previously removed from it.

"We are agreed it will be a matter for the Court to determine the composition of the material on the floor of the coke-oven building. We are agreed that pipework and plant in the coke-oven building would likely have been insulated with asbestos-containing materials. However, it is unlikely that the coke ovens themselves would have been insulated. It is likely that the removal of pipework and plant from the coke-oven buildings would have resulted in much of the way of asbestos dust and debris being deposited on the floor of the building. It is a matter of evidence as to whether or not such dust and debris was removed from the floor prior to the Claimant working in the building. If it be the case that such dust and debris arising from the removal of pipework and plant had not been removed from the floor prior to the Claimant entering the building, then such dust and debris would likely have contained a proportion of asbestos. Under such circumstances, in going about his work in the coke-oven building, the Claimant would likely have been exposed to, and have inhaled, significant quantities of asbestos dust as judged by the...

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    • Court of Appeal (Cayman Islands)
    • 13 June 2019
    ...Ltd., [1955] 2 Q.B. 68; [1955] 2 W.L.R. 998; [1955] 2 All E.R. 241; [1955] 1 Lloyd’s Rep. 349, considered. (20)Cox v. Transco plc, [2006] EWCA Civ 127, referred to. (21)DNB Mortgages v. Bullock & Lees, [2000] EWCA Civ 20; [2000] PNLR 427; [2000] 1 E.G.L.R. 92, followed. (22)Day v. Cook, [20......
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