Francois Maartens Heynike (Executor of the Estate of David Hill, Deceased) v (1) 00222648 Ltd (Formerly Birlec Ltd)

JurisdictionEngland & Wales
JudgeCurran,Judge
Judgment Date22 February 2018
Neutral Citation[2018] EWHC 303 (QB)
CourtQueen's Bench Division
Date22 February 2018
Docket NumberCase No: HQ15A03103

[2018] EWHC 303 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ASBESTOS LIST

FATAL MESOTHELIOMA

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

HIS HONOUR JUDGE Curran QC

(Sitting as a Judge of the High Court)

Case No: HQ15A03103

Between:
Francois Maartens Heynike (Executor of the Estate of David Hill, Deceased)
Claimant
and
(1) 00222648 Limited (Formerly Birlec Limited)
(2) Ministry of Defence
(3) Special Metals Wiggin Limited
Defendant

Simon Kilvington QC (instructed by Birchall Blackburn Law) for the Claimant

Ronald Walker QC (instructed by Plexus Law) for the First Defendant

Mr Kam Jaspal (instructed by Government Legal Department) for the Second Defendant

Mr Philip Turton (instructed by DWF LLP) for the Third Defendant

Hearing dates: 16 – 18 January 2018

Judgment Approved

HHJ Curran QC:

Introduction

1

Mr David Hill died on 22 nd July 2012, aged 63. The cause of his death was mesothelioma, a disease which developed as a result of Mr Hill's exposure to asbestos at work.

2

Mr Hill was a time-served bricklayer, and had worked in the UK in the early 1970s. His work then included maintenance and refurbishment of industrial furnaces, which involved stripping out the inner surface linings, including removal of courses of brickwork, fibreglass and asbestos, and then re-lining the furnaces.

3

Amongst the places at which he worked were factories occupied by the second and third defendants (“the factory defendants”) for whom he performed the tasks as a craftsman provided to them by the first defendant company (“Birlec”). Birlec obtained his services from another company by whom he was at least nominally employed, called either Lou Brawn (Staffs) Ltd. or Lou Brown (Staffs) Ltd. That company, if it still exists, is not a party to these proceedings. (The name “Brown” seems to be the result of a mistake — it is thought — for “Brawn” in a number of the documents in the case. Whatever may be the exact position, I shall refer to it below as “Lou Brawn”.)

4

It is not disputed that Mr Hill was exposed to asbestos in the course of his work for the defendants. The details of that exposure are set out in the evidence of Mr. Chambers, a former Factory Inspector, and Health & Safety Consultant, who was instructed by solicitors acting for Mr Hill's executor. Mr Chambers' report, dated 25 th November 2016 is at trial bundle p. 120. It is not contradicted by any evidence from any of the defendants.

5

No issue arises over causation, which is established by the undisputed evidence of Dr Barber, Consultant Respiratory Physician, whose report dated 24 th July 2015 is at trial bundle p. 228.

6

The trial concerned liability only. Subject to the resolution of that, all parties have agreed that the appropriate quantum of damages is £135,000.

7

The only evidence which was given at the hearing was from witnesses for the claimant. That evidence was contained in the witness statements of the deceased, the witness statements of Mr David Hill, and the witness statement of Mr Roger Roberts. Mr David Hill and Mr Roberts were each cross-examined. None of the defendants called any evidence.

8

The first defendant company, Birlec, has been restored to the register (presumably) for the purpose of these proceedings and it now goes under the designation “00222648 Limited (formerly Birlec Limited)”. Both it and its former insurers are insolvent, and its appearance in the proceedings is to be explained by the existence of certain compensation arrangements which I shall deal with presently.

The evidence of the late Mr David Hill

9

Mr David Hill had made two witness statements in the year 2012, shortly before he died. In the first of these, which begins at page 47 of the trial bundle, he explained how having left school at age 14 or 15, he attended a college for a year and thereafter did an apprenticeship as a bricklayer. He stated in the clearest terms in that witness statement that he was employed by “Lou Brawn”. From about 1971, when he would have been aged 22 to 23, he said that,

“… I was employed by Lou Brawn as a specialised refractory bricklayer for Birlec. …. Around 1974 or 1975 the work for Birlec was decreasing. As Lou Brawn was in essence a labour broker supplying labour to Birlec this meant we were laid off. As the youngest employee I was laid off early on.”

(“Refractory” bricks are those designed to be used in structures subjected to very high temperatures. They are exceptionally hard and durable bricks.)

10

The deceased described in his first witness statement how his employment by Lou Brawn was arranged through Mr Hill's brother John. He did not in fact meet Lou Brawn himself for more than a year after he had started work and during the whole time that he was working for him met him only about six times. Lou Brawn, he said, supplied bricklayers and labourers to Birlec and, so far as brickwork was concerned all the men who worked for Birlec would be “ Lou Brawn men” with the exception of the directly-employed Birlec supervisors.

11

It is clear that, as a young man, the deceased looked at the Birlec supervisors with some awe. He said they held very prestigious positions and were regarded as experts.

“We all reported to them. They told us what to do and how to do it, everything I did was under their instruction. We would ask them if we got stuck on any specific problem, actually we did nothing without their permission. The supervisors were familiar with the material that we used. …. They knew it was horrible to work with the material which is why they would not do it themselves. As far as I knew all the work I did was for Birlec.”

12

He described working inside the furnaces themselves to remove the refractory lining within them: the outer brick lining, behind that insulation brick, behind that glass fibre insulation, and behind that asbestos. The whole design of the furnace was such as to prevent any escape of heat when in use, and so in normal circumstances it was airtight. A hole approximately 2 feet square would be made in the top of the structure of the furnace to permit access for the relining work, but there was very little air circulation, with the result that the air within the furnace was “ thick with dust”. Such dust, the deceased made clear, came from every layer of the lining. Conditions were extremely cramped and hot, and the deceased said that a man could only work for 20 to 30 minutes at a stretch before needing to crawl out to recover, but even outside the furnace (and within the factory premises) there was a great deal of dust both in the air and covering his clothing.

13

Mr David Hill also said in his first witness statement that after emigrating to South Africa in 1982 he worked in the construction industry until 1998, when he joined a family business involving the reproduction and distribution of educational material. Mr Hill's dependant widow, Mrs Cheryl Hill, lives in South Africa.

The evidence of Mr John Hill

14

In addition to the evidence contained in the deceased's witness statements, Mr Hill's elder brother, Mr John Hill, supplied much of the evidence, in terms of unchallenged background information, as to how his late brother came to be doing the work with which the case is concerned, and as to the various parties involved arranging for the work to be done, and also as to the nature of the processes, working methods, and conditions which obtained in the various places.

15

Mr John Hill began work for Birlec in the year 1961, working as an apprentice welder and steel erector. After completion of his apprenticeship he eventually became a supervisor. Birlec designed, built and installed furnaces. They also maintained existing furnaces and this he described as a lucrative source of business for them. Birlec did not itself employ a large workforce to carry out installation and maintenance work. Instead it trained a relatively small number of supervisors, such as Mr John Hill himself, and then brought in tradesmen under contract for particular jobs. The number of tradesmen depended on the size of the job. Whilst Birlec had contacts with agencies for certain tasks such as steel erecting, furnace bricklayers were nearly always obtained by Birlec through the agency of Lou Brawn's company.

16

Mr John Hill described the man Lou Brawn, who gave his name to the company, as a friend of his boss at Birlec. When they worked for Birlec Lou Brawn's men were under the control and supervision of Birlec men. On a smaller job this was usually a supervisor who was trained as a furnace erector such as Mr John Hill himself. On larger jobs there could be an “engineer-level supervisor” from Birlec who generally oversaw the work, took care of administration, and liaised with the factory owners.

The evidence of arrangements between the deceased, Lou Brawn, and Birlec

17

Mr Hill said that his younger brother David had approached him at a time when, although he was a skilled bricklayer, there was a lull in the building trade. Mr John Hill knew that specialist bricklayers were required by Birlec for furnace bricklaying, which he knew his brother David was able to do. He used his influence and, as he put it, in terms, “ Lou Brawn agreed to employ my brother.”

18

In his second witness statement Mr John Hill gave more detail about the arrangements between Lou Brawn and Birlec:

“Birlec Ltd contracted for installation and repair work on furnaces for factories around the country. The work was subject to seasonal peaks and troughs: for example, the Easter holidays and summer periods were always busy because this was traditionally a time during which factories closed for shut down repair work. The fluctuations in the amount of contracts available at any one time had a knock on impact on Birlec's need for labour. Whilst the company had work scheduled throughout the year, there was inevitably times...

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