David Thompson v The Renwick Group Plc
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Underhill,Lord Justice Rimer |
| Judgment Date | 13 May 2014 |
| Neutral Citation | [2014] EWCA Civ 635 |
| Docket Number | Case No: B3/2013/1347 |
| Court | Court of Appeal (Civil Division) |
| Date | 13 May 2014 |
[2014] EWCA Civ 635
Lord Justice Rimer
Lord Justice Tomlinson
and
Lord Justice Underhill
Case No: B3/2013/1347
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MANCHESTER COUNTY COURT
His Honour Judge Platts
2YL19601
Royal Courts of Justice
Strand, London, WC2A 2LL
Christopher Melton QC and Richard Norton (instructed by Linder Myers) for the Respondent
Robert Weir QC and Simon Plaut (instructed by Bond Dickinson LLP) for the Appellant
Hearing date: 2 April 2014
Introduction
The Respondent, Mr David Thompson, is only sixty years old but sadly is and has for some years been seriously incapacitated by diffuse pleural thickening. Although it has not yet been formally determined, there is little doubt that this has been caused in whole or in part by exposure to asbestos dust. In addition to the acute respiratory disability from which he already suffers, the Respondent is at increased risk of mesothelioma and lung cancer. His predicament is all too familiar, but the sympathy which it commands is in no way lessened by that. Indeed, whilst this court is in no position to make definitive findings about the contemporary state of knowledge as to the risk of exposure to asbestos dust in the mid-1970s when Mr Thompson was engaged in "hand baling" of raw asbestos, and is not invited to make such findings, the conditions in which Mr Thompson was expected to work are really quite shocking and should be a cause for shame.
Not unnaturally Mr Thompson seeks damages arising out of his employment. However his misfortune is compounded by the fact that neither of his employers at the relevant time is worth powder and shot and neither, apparently, had in place responsive liability insurance. So Mr Thompson has started proceedings against the Appellant, The Renwick Group plc, a holding company which was at material times the parent company of both of his relevant employers.
The parties agreed that the question whether the parent holding company owed a direct duty of care to Mr Thompson should be determined as a preliminary issue. The issue was tried by His Honour Judge Platts on the basis of exiguous evidence in the course of a single day in the Manchester County Court. In an impressively clear extempore judgment delivered that same day, 24 April 2013, the judge decided in Mr Thompson's favour that the parent company had indeed assumed such a duty. It is against that conclusion that this appeal is brought by The Renwick Group plc.
The Facts
Mr Thompson began work at Arthur Wood and Co (Transport) Ltd in Salford in August 1969. It was a haulage company with a significant fleet of thirty or so lorries and a large warehouse on the site of an old gas works. All kinds of goods were stored in the warehouse including copper, zinc, asbestos and numerous types of chemicals and plastics.
Mr Thompson started work as a labourer. Arthur Wood handled significant amounts of asbestos. Raw asbestos, either loose or in hessian sacks, was transported in containers from Canada to Manchester docks. It was Mr Thompson's understanding that the dockers refused to handle the raw asbestos. The containers were brought to Arthur Wood's warehouse. On arrival the raw asbestos was manually unloaded by Mr Thompson and his colleagues. It was put onto pallets in a process known as hand baling, and kept in the warehouse until it was ready for delivery. Mr Thompson believes that he was involved in unloading, manoeuvring and palletising asbestos during every week of his employment as a labourer at Arthur Wood, sometimes for days on end.
In 1974, at the age of 21, Mr Thompson obtained a Class 1 HGV licence and moved on to undertake mostly driving work. However overtime was frequently available and between the ages of 21 and 25, thus from 1974–1978, Mr Thompson would on most weekends work in the warehouse manoeuvring asbestos in the manner already described.
At some stage in 1978, and as I shall hereafter relate, a business reorganisation meant that the Arthur Wood business relocated to Bury. Mr Thompson at that stage left the company and took up new employment as a driver with a company based locally to his home in Salford.
On 27 September 1975 the business assets and liabilities of Arthur Wood and Co (Transport) Ltd were acquired by David Hall & Sons Ltd.
All of the shares in David Hall & Sons Ltd had since 1971 been owned by William Nuttall Transport Ltd.
In August 1973 The Renwick Group Limited acquired all of the shares in William Nuttall Transport Ltd.
As from September 1975 therefore both Arthur Wood & Co (Transport) Ltd and David Hall & Sons Ltd were fellow subsidiaries of The Renwick Group Limited.
Between 1975 and 1978 Mr Thompson was employed by David Hall & Sons Ltd.
The Renwick Group Limited was, as I have already indicated, a holding company and in 1982 its name was changed to The Renwick Group plc. It was at all material times based in Paignton, Devon.
At all material times another subsidiary of The Renwick Group Limited/plc was Renwick Haulage Co Ltd, a general haulage and warehousing business based in Exeter. As at 1973 Renwick Haulage Co Ltd had a fleet of 140 vehicles.
The objects for which The Renwick Group Limited/plc was incorporated are wide, and include the carrying on of the business of Haulage and Transport Contractors, although as at the acquisition of William Nuttall Limited most of The Renwick Group's activities were said to be in the leisure field and to include travel, car hire, Volkswagen motor caravan conversion, boatbuilding and a chain of garages.
In 1973 Mr Roger Petty, a director of The Renwick Group Limited, was appointed Chairman of William Nuttall Ltd. At the same time Mr Ray Dillon, Chief Executive of Renwick Haulage Ltd, was appointed Managing Director of William Nuttall Ltd.
At or about the same time both Mr Petty and Mr Dillon were appointed directors of David Hall & Sons Ltd.
On 1 April 1976 Mr G S Rushton was appointed a director of David Hall & Sons Ltd. Mr Rushton had an extremely modest shareholding in The Renwick Group Limited.
Mr Thompson recollected that at or about the same time as David Hall & Sons Ltd had taken over Arthur Wood "another deal" was done with William Nuttall, a company at Clifton Junction, not far away, and that thereafter the three businesses, Arthur Wood, David Hall and Nuttall, then started to operate together. He must in fact have been recollecting the takeover of David Hall by Nuttall in 1971. It was also the evidence of Mr Thompson that, soon after David Hall & Sons Ltd had taken over Arthur Wood, he became aware that all of the businesses were "under the umbrella of a large company called The Renwick Group". His (now wholly unchallenged) evidence continued:-
"15. The most obvious way this happened was that a senior manager from the Renwick Group's headquarters in Exeter was sent up to run the former Arthur Wood depot. He worked alongside Mr Wood for quite sometime and then he took over completely. I cannot recollect his name although I think it may have been double barrelled. [Subsequently Mr Thompson identified this person as Mr Rushton.]
16. I remember at this time being very pleased because I was provided with a new heavy goods vehicle to drive which was fully painted up in the Renwick Freight livery, which was yellow with a green beaver painted on the side. I even remember the make and registration number of the vehicle. It was an ERF lorry with the registration number WHD132R and I remember going to collect it from Brighouse in Yorkshire.
17. We were very much part of the Renwick Group then. If for example I took a delivery down to the Proctor and Gamble Factory in London when I had unloaded I would phone the depot and be told if there was a load for me to collect and return to Manchester with as obviously that would be preferable to the wagon returning to Manchester empty. There almost always would be something for me to go and collect often from what had been the other William Nuttall depot which was at East India Dock in London, which also became part of the Renwick Group. I would also often refuel the lorry at East India Dock.
18. I remember another incident when I had taken the Renwick liveried lorry down to Southampton and some colleagues were also there and we got caught in an unexpected docker's strike. Renwick Group, from their head quarters in Exeter as I recollect, arranged very kindly for a taxi to take me and my colleagues back to our homes over the weekend so that we could return and collect our lorries when the strike had ended.
19. I also remember that all the documentation we used, for example pick up notes were all changed so that they had the Renwick name on them.
20. I also remember that Renwick lorries from other depots would use what used to be the Arthur Wood yard and as stated, on many occasions I would attend other Renwick sites, typically in the South of England, to collect loads and bring them back up North.
…
22. I continued to work with asbestos, largely by virtue of doing overtime labouring work at the weekends as described above, throughout the period of time we were being absorbed into the Renwick Group."
Apart from Mr Rushton's modest shareholding in The Renwick Group Ltd, there was no evidence of the nature of any connection or relationship between Mr Rushton and either The Renwick Group Limited or Renwick Haulage Limited. There is no evidence that Mr Rushton was ever employed by or a director of either The Renwick Group Limited or...
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