Jeffrey Jones and Others v The Secretary of State for Energy and Climate Change (First Defendant) Coal Products Ltd (Second Defendant)
| Jurisdiction | England & Wales |
| Judge | The Honourable Mrs Justice Swift DBE,The Honourable Mrs Justice Swift |
| Judgment Date | 23 October 2012 |
| Neutral Citation | [2012] EWHC 2936 (QB) |
| Docket Number | Case No: HQ09X03547 |
| Court | Queen's Bench Division |
| Date | 23 October 2012 |
[2012] EWHC 2936 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Swift DBE
Case No: HQ09X03547
and
Mr David Allan QC and Mr Ivan Bowley (instructed by Hugh James Solicitors) for the Claimants
Mr Ronald Walker QC and Mr Robert O'Leary (instructed by Nabarro LLP) for the Defendants
Hearing dates: 17–31 October 2011; 7 November – 2 December 2011; 19–21 December 2011
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.
CONTENTS OF JUDGMENT
Generic judgment
| Section/Appendix | Title of Section/Appendix | Page No |
| Section 1 | Introduction | 4–10 |
| Section 2 | Working Conditions at the Phurnacite Plant | 11–55 |
| Section 3 | Occupational Exposure at the Phurnacite Plant | 56–84 |
| Section 4 | Other Issues relating to Exposure | 85–98 |
| Section 5 | Breach of Duty | 99–128 |
| Section 6 | Legal Causation | 129–140 |
| Section 7 | Carcinogenesis | 141–143 |
| Section 8 | The Causation of Lung Cancer | 144–158 |
| Section 9 | The Causation of Bladder Cancer | 159–173 |
| Section 10 | The Causation of Skin Cancer | 174–187 |
| Section 11 | Respiratory Disease | 188–193 |
| Section 12 | Limitation | 194–219 |
| Appendix A | Personal Exposure Levels to Phurnacite | 220 |
| Appendix B | Professor Jones' Exposure Matrices | 221–222 |
Individual judgments
| Name of lead claimant | Page No |
| Ernest Noel Carhart | 223–238 |
| Raymond Davies, deceased | 239–257 |
| John Griffiths, deceased | 258–272 |
| Ronald Lyndhurst Jenkins, deceased | 273–279 |
| David Samuel Jones | 280–286 |
| David Middle | 287–299 |
| Frederick John Richards | 300–317 |
| Michael Douglas Robson, deceased | 318–333 |
Page references are indicated as follows:
| SD/ | Standard disclosure |
| CB1/1 | Core bundle number/page number |
| CBP/1 | Core bundle of photographs/page number |
| Syred1/1 | Name of expert & number of expert's bundle/page number |
| TD1/1 | Transcript, day number/page number |
| WS1/1 | Witness statement bundle number/page number |
| JS/1 | Joint statements bundle/page number |
| C or D/LBB/1 | Party's limitation bundle, bundle letter//page number |
| GMM/1 | Mr Gareth Morgan's witness statement/page number |
| Carhart1/1 | Claimant bundle number/page number |
SECTION 1
INTRODUCTION
The litigation
This judgment concerns the cases of eight lead claimants in group litigation known as the Phurnacite Workers Group Litigation (PWGL). The claims are made in respect of men who were formerly employed at the Abercwmboi Phurnacite Works ('the Phurnacite Plant'), Aberaman, Cynon Valley, South Wales. A group litigation order (GLO) was made in the PWGL on 22 July 2009.
The claimants
Approximately 250 claimants have registered claims under the PWGL GLO for damages for respiratory disease and/or various types of cancer which they allege were caused by the exposure to dust and/or fume containing carcinogenic substances in the course of work at the Phurnacite Plant. Some of the claims have been made by former Phurnacite workers; other claims have been brought by the widows or other family members of former Phurnacite workers who have died. In the course of this generic judgment, I shall refer on occasion to all the former Phurnacite workers in respect of whom claims have been made as 'the claimants'.
The defendants
The Phurnacite Plant opened in 1942 under the ownership of a private company, Powell Duffryn Limited (PDL), which operated a number of collieries in South Wales. On 1 January 1947, as a result of nationalisation, the Phurnacite Plant was vested in the National Coal Board (NCB). From that time until 1973, it was operated by the NCB or the British Coal Corporation. From 1973 until the production of Phurnacite ceased in 1990, the Plant was operated by National Smokeless Fuel Limited (NSFL), a company which was wholly owned by the second defendant, Coal Products Limited (CPL). CPL was in turn a subsidiary of the NCB/British Coal Corporation.
The Department of Energy and Climate Change (the Department), has succeeded to the liabilities of the NCB, the British Coal Corporation and NSFL and has agreed to indemnify the second defendant fully against all damages and costs arising from this litigation. The first defendant, the Secretary of State, is conducting the proceedings on behalf of both the Department and the second defendant. I shall refer to the first and second defendants collectively as 'the defendants'. I shall usually refer to the operators of the Phurnacite Plant as the NCB (before 1973) and NSFL (after 1973).
The lead claims
The Group Register which was set up pursuant to the PWGL GLO was divided into two Schedules. Schedule A of the Group Register consists of claims for non-malignant respiratory disease, namely chronic obstructive pulmonary disease (COPD) and chronic bronchitis ( CB). Schedule B consists of claims for lung cancer, bladder cancer and skin cancer. Some claimants are registered on both Schedules. It was agreed that there should be a trial of eight lead claims. I directed that each party should choose one lead claim from Schedule A, together with one case each of lung cancer, bladder cancer and skin cancer from Schedule B. Where a lead claimant had made a claim in respect of more than one medical condition, I directed that all those claims should be dealt with at the trial of the lead claims. The eight claims can be summarised thus:
The parties' cases
| Name of claimant | Medical condition |
| Ernest Noel Carhart, deceased | Lung cancer; COPD; CB |
| Raymond Davies, deceased | Lung cancer |
| John Griffiths, deceased | Lung cancer; CB |
| Ronald Lyndhurst Jenkins, deceased | Bladder cancer |
| David Samuel Jones | Skin cancer |
| David Middle | Skin cancer; CB |
| Frederick John Richards | Bladder cancer; COPD; CB |
| Michael Douglas Robson, deceased | COPD; CB |
The claimants' case was that, over the period for which the Phurnacite Plant was in operation, the NCB/NSFL exposed them to dust and/or fume containing carcinogenic substances in breach of their statutory duty and negligently. The claimants contended that their occupational exposure at the Phurnacite Plant had caused the various conditions in respect of which claims were made.
The defendants made a number of admissions, in particular as to breach of duty and as to the causation of non-malignant respiratory disease and lung cancer. However, those admissions were limited and a large number of issues remained to be resolved. In particular, the defendants did not accept that exposure to dust and/or fume at the Phurnacite Plant was capable of causing bladder cancer, or skin cancer of the type suffered by the two lead claimants with skin cancer claims. There was a dispute about the extent of the claimants' exposure to dust, fume and carcinogenic substances and the defendants denied causation in each individual case. They contended that all except two of the lead claims were statute-barred.
The trial
Between 17 October and 2 December 2011, I heard evidence in the eight lead cases. There was a considerable amount of lay witness evidence, together with evidence from nine expert witnesses. In addition, there was a great deal of documentation about the Phurnacite Plant from the defendants' archived material and other sources. Nine core bundles of documents were prepared for use at the trial and many other documents (known as the standard disclosure documents) were available on CD. There were also bundles of documents (such as training and employment records, general practitioner (GP) and hospital records) relating to each lead claimant. In addition, the experts produced technical and medical literature in support of their opinions. That literature ran into many lever arch files.
Because of the location of the Phurnacite Plant and the age and infirmity of some of the claimants and lay witnesses, I heard the oral evidence from them in Cardiff. The expert evidence was heard in London. At the conclusion of the expert evidence, there was a break before oral submissions, which I heard between 19 and 21 December 2011. The parties then requested me to delay finalising my judgment until after the Supreme Court had delivered their judgments in Ministry of Defence v AB and others (the 'Atomic Veterans' case ) 1. After those judgments had been handed down, I received further written submissions from the parties which I have now had the opportunity of considering. With the parties' consent, I also requested one of the experts to carry out further calculations and the parties commented on those calculations in their further submissions.
At the trial, the claimants were represented by Mr David Allan QC and Mr Ivan Bowley and the defendants were represented by Mr Ronald Walker QC leading Mr Robert O'Leary.
The Phurnacite Plant
The Phurnacite Plant at Aberaman covered approximately 150 acres 2. A river ran through the site and there was a lake, together with a number of man-made lagoons which were used for the treatment of effluent. The Plant was used for the manufacture of a smokeless fuel with the trade name 'Phurnacite' and, until its closure in 1990, it was the only site at which Phurnacite was manufactured.
The collieries owned by PDL had produced a surplus of 'small coal' (also known as 'fines' or 'duff'), i.e. fragments of coal too small to be sold as fuel. The 'duff' was...
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