Jennifer Cuthbert (Executrix of the Estate of Derek Barry Cuthbert, deceased) v Taylor Woodrow Construction Holdings
| Jurisdiction | England & Wales |
| Judge | Freedman |
| Judgment Date | 30 November 2022 |
| Neutral Citation | [2022] EWHC 3036 (KB) |
| Docket Number | Case No: QB-2021-004430 |
| Court | King's Bench Division |
[2022] EWHC 3036 (KB)
HIS HONOUR JUDGE Freedman
(Sitting as a Judge of the High Court)
Case No: QB-2021-004430
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Max Archer (instructed by Boyes Turner LLP) for the Claimant
Catherine Foster (instructed by Clyde & Co Claims LLP) for the Defendant
Hearing dates: 31 October and 1 November 2022
Approved Judgment
This judgment was handed down by the Judge remotely by circulation to the parties' representatives by email and release to The National Archives. The date and time for hand-down is deemed to be 10:30am on Wednesday 30 November 2022.
His Honor Judge
Introduction
This is a claim for damages arising out of the death Mr Derek Cuthbert (“the deceased”) from mesothelioma on 5 April 2022. The claim is brought by the deceased's widow as executrix of his estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and as his dependent under the Fatal Accidents Act 1976.
The claimant's case is that the deceased was exposed to asbestos dust and fibres whilst employed by the defendant between in or about 1956 and in or about 1959, engaged in construction work at Queenswood School in Cheshunt, Hertfordshire (“the school”). It is alleged that this occupational exposure to asbestos dust caused the deceased to contract mesothelioma.
The claim is brought both in common law negligence and under the Building (Safety, Health and Welfare) Regulations 1948. It is agreed that the latter do not impose any different or higher standard of care than that imposed at common law. Accordingly, in terms of a cause of action, this claim need only be considered in the context of common law negligence.
The defendant is unable to admit the deceased's employment or the capacity in which he may have been employed: the HMRC schedule does not cover his employment before 1960 and the defendant company was dissolved on 27 May 2009. In such circumstances and whilst, inevitably, no positive case is advanced, the claimant is put to strict proof, both as to the alleged exposure to asbestos dust and as to the allegations of breach of duty.
No issue is taken with the diagnosis of mesothelioma. The medical reports of Dr Twort are not challenged. Quantum remains in issue, but it was agreed by Counsel that breach of duty should be determined first and then, as necessary, an assessment of quantum would follow.
Whilst the claimant was called to give evidence to confirm her witness statement, the only live evidence of substance received by the court was from the Occupational Hygienists, Ms Tina Conroy, instructed on behalf of the claimant, and Dr Philips, instructed on behalf of the defendant. Of critical importance were the two witness statements provided by the deceased, dated respectively 10 May and 21 July 2021, admitted under the Civil Evidence Act.
The principal sources of exposure to asbestos dust were said to arise from carpenters cutting Asbestolux boards whilst the deceased was supervising them and when the deceased swept up dust and debris from the cutting up of the boards.
There is no suggestion that the deceased was provided with overalls or protective equipment. Nor, equally, is there any suggestion that any measures were taken to reduce the levels of exposure to asbestos dust.
Issues
Assuming that I find (as I do) that the deceased was employed by the defendant during the late 1950s at the school, the central issues may be summarised as follows:
(i) The extent, degree and frequency of the deceased's exposure to asbestos dust;
(ii) Whether any such exposure amounted to a breach of duty, having regard to what was known or ought to have been known by the defendant as to the risks of injury consequent upon exposure to asbestos dust.
The deceased's evidence
The deceased was born on 14 December 1938. Between 1952 and 1953, he was employed at a coffin factory doing sawing and cutting work. Thereafter, between 1953 and 1955, he worked in a wood factory. According to his statement, he then worked in a bread factory engaged in painting and decorating. In none of those employments was there any exposure to asbestos dust.
Before turning to his employment with this defendant, it is to be noted that the deceased spent the majority of his working life in the construction trade. Up until 2000, he was employed by various contractors. Thereafter, he ran his own business. The only other employments where he describes exposure to asbestos was when he worked for Davey Estates Limited between in or about 1962 and 1964 and Tillott Shopfitter Limited between in or about 1964 and 1966. Specifically, he recalled the cutting up of asbestos sheets.
As to his employment with this defendant, the deceased gave the following account in his first statement:
“… I was not doing a proper apprenticeship, but I was learning the trade of building. In fact, my job was really ‘Trainee Supervisor’. This is the job where I recall coming into contact with asbestos on a daily basis. I worked on a job at Queenswood School in Cheshunt which was a brand new construction. I worked on this job for the entirety of my employment at Taylor Woodrow which was for two or three years. I was helping with the construction of the buildings and I was looking after all of the trades. I can recall carpenters cutting up Asbestolux, asbestos sheets that measured 8ft x 4ft. They were white in colour. They were smooth on one side and had a ripple effect on the other. The carpenters were using them for soffits which they were putting in just below the roofs. I talked to them every day as they were cutting up the asbestos and effectively supervised them. I saw them every day and it was a regular occurrence to see them. I was often just a few feet away and they cut up inside or outside depending on the weather. They always cut up on the ground floor. I cannot recall whether they used power saws, but they did use electric drills. I am sure that they were using handsaws for some of the time and they may well have used electric saws too as I think it was a combination. … They were cutting them into strips that measured 2.4m x 300mm. The cutting of the asbestos was dusty work and I of course got covered in dust as I was walking about the site and as I was chatting to them. It was my job to sweep up as well which I did throughout the day several times, as and when needed. I simply used a broom to sweep up any asbestos and other debris. I do not think we had a skip in those days. I think I simply bagged it up or put it in a large bin. …”
As indicated above, the deceased made a second statement approximately two and a half months later. It is not clear as to the circumstances in which he came to make the second statement or how it was that he was apparently able to provide further detail, in particular in relation to the extent and duration of exposure to asbestos dust. At all events, his second statement contains the following account:
“I was based at Queenswood School for the entire period of employment. As I said in my previous statement, the carpenters were cutting Asbestolux sheets. These were used on the outside of the buildings for soffits, but also in other areas. Some were used below on the ground floor for lining canopies or ‘lean-tos’. I recollect that the Asbestolux was cut inside and outside the building every day. There were a lot of soffits that needed to be cut and also a lot of flat areas that needed to be lined. It was a huge building with many canopies and ‘lean-tos’. Sometimes, the 8 x 4 sheets did not need to be cut and were fixed as is. There were about four carpenters onsite and one or two carpenters were cutting the Asbestolux daily. I visited them every day and spent about 1–2 hours each day directly supervising them. I would be in their vicinity, talking to them, answering any questions they may have. I then also cleaned up after them. Their area was a mess when I visited them. It would need cleaning up and I simply used a broom and swept up any asbestos dust and debris and put it into a bin. I also handled any asbestos offcuts and put that in the bin as well. I simply answered any questions that they had. I did not usually cut the Asbestolux myself unless they asked me a specific question and I had to show them how to do it. …
When the Asbestolux was cut, there were clouds of dust … I remember being dusty at the end of the day and I needed to pat down my clothes to get the dust off. I went home dusty on a pushbike.
The carpenters used to cut the Asbestolux in the basement and then they took it up to the scaffold or wherever they had to go.”
Type of asbestos material
Assuming that it is accepted that the carpenters cut up asbestos material, a discrete issue has arisen as to whether the carpenters were sawing Asbestolux (asbestos insulation boards, “AIBs”) or whether, more likely, the product was asbestos cement. The potential importance of this issue is that, whilst hand sawing of AIBs is thought to generate between 5–10 fibres/ml, the sawing of asbestos cement sheets would be likely to generate concentrations below 1 fibre/ml.
Both products were in use at the material time. Asbestos cement sheets are described as being grey and hard, of brittle material normally containing between 5 and 15 per cent asbestos fibre. Compared to AIBs, they are denser and more rigid. Dr Philips says that asbestos cement products can generally be identified by their appearance because one side shows dimples formed by the pressure of the cylinders on the wet uncured cement sheet. Within the body of his report, he has provided an image of asbestos cement material.
Asbestolux was a type of insulating...
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