Lilian Rose Asmussen v Filtrona United Kingdom Ltd

Hearing dates: 20-22 June 2011

Mr Justice Simon

Introduction

This is a claim for damages brought by the Claimant, Lilian Asmussen, who was born on 21 May 1933, and is now aged 78. She alleges that she was exposed by the Defendant to asbestos dust in the course of her employment at the Bede Industrial Estate in Jarrow, that this exposure was negligent and constituted a breach of statutory duty and that it caused the development of malignant mesothelioma.

The Claimant's history in outline

The Claimant began work in 1948 and between 1955 and 1960 she worked for the Defendant (then named Cigarette Components) in Jarrow. Between 1960 and 1962 she left and worked for another employer, before returning to work for the Defendant and staying until 1972, when she left for other work. In 1988 she retired.

It follows that the claimant worked for the Defendant for two periods: a five year period from 1955–60 ('the first period') and from 1962–1972 ('the second period'). It is her case that any contact with asbestos was confined to the two periods of her employment with the Defendant.

In December 2004 she was diagnosed as having pleural plaques which were associated with exposure to asbestos. As a result the claimant made a claim against the Defendant; and made a statement in support of the claim dated May 2005.

In February 2010, following a period of protracted ill-health, she was diagnosed as suffering from mesothelioma and the present proceedings were issued in May 2010.

On 10 March 2010, before the Claim Form was issued, the Claimant made an updating statement, which has been followed by a number of further statements. The statements which are material to the issues I have to decide (quantum having been agreed) are dated 8 July, 4 August and 11 November 2010. In addition, evidence was taken on commission on 9 August 2010. Mr Feeny (for the Defendant) initially sought to rely on some of this evidence. However, having considered the matter, I indicated my view that it would not be fair to the Claimant to rely on it. She was (and is) gravely ill and in pain; and it is clear she had great difficulty in concentrating on the questions. Mr Feeny did not try to persuade me from this view.

The site

The Defendant's premises at the Bede Industrial site in Jarrow consisted of a number of factories where it carried on the manufacture of cigarette filters and, for some of the relevant period, crepe paper. There were a number of buildings on the premises, which were numbered 1 (the earliest) to 8 (the last to be built). The Claimant worked mainly at Factory 1 in the first period and Factory 4 in the second period.

Factory 1 was a brick-walled building heated by about 10 space heaters, which were fed by steam feed and return pipes at a height of about 20 feet above the factory floor. These pipes, which were lagged with asbestos material, formed the main focus of the factual investigation during the course of the trial. In addition to these pipes there were other pipes connected to other pieces of machinery.

Up to the end of the 1960s there were 4 crepe machines in Factory 1, but these were removed, although overhead pipes seem to have been left in place.

In the first period the Claimant worked in Factory 1 on the shop-floor and in the laboratory. On the shop-floor she carried out inspections in the area known as the interleaving department; and in the laboratory she measured and tested cigarette filter papers and made visits to the shop-floor to collect samples to test. Although there was a plan of Factory 1 in the trial bundles, this was less useful than it otherwise might have been since it was clear that the layout of the factory was different during the relevant periods.

During the second period of employment the Claimant worked mainly in Factory 4; although she made frequent visits to other factories including Factory 1. In Factory 4 she initially worked on the machines; and was later based in the laboratory, from which she made frequent visits to the shop-floor. Factory 4 was demolished some time ago and no relevant plans remain. The witnesses agreed however that its layout was broadly similar to that of Factory 1.

The factual evidence

Although the Claimant was not called, I heard evidence from three witnesses who worked at the premises at the time. The evidence related to events which occurred at least 40 years before. The witnesses plainly and understandably faced difficulty in recalling events in any detail.

Norman Hall is now 74. He was employed by Darlington Insulating Co from 1951. He described putting new lagging onto new pipe-work for heaters in Factory 1. He thought this was during a 2 to 3 week period in 1963 or 1964. He described working on a tower scaffold and cutting up asbestos sections as he required them throughout the working day.

Much dust was created from cutting through the sections which would fly through the air and cover us in dust. I remember we covered the machines under where we were working with dust sheets. The dust, which could clearly be seen floating around in the air, would eventually settle on surfaces and lay on the dust sheets. A lot of the dust was swallowed and breathed in because it was impossible to avoid.

Stanley O'Brien is now 84. He worked at Cigarette Components from 1964/65 to 1977/78 as a Plant Engineer. He recalled the boiler man carrying out repairs to the lagging on the pipes while he was there. He described the state of Factory 1 as dusty from the cellulose and the activated carbon processes that were being carried out in the course of manufacture, as well as the steps taken to keep the factory free of dust.

Septimus Evans is now 72. He had started work at Cigarette Components in 1959 as a fitter in Factory 1, carrying out maintenance on the production machinery and some of the services. In 1970 he left, and returned as a plant maintenance supervisor in 1971, before transferring to work in Factories 7 and 8.

In addition to these witnesses I heard the evidence of John Harbron, the Defendant's current Group Health, Safety and Environment Manager. He was able to give evidence of the present state of Factory 1 and the records of work done over the years. He described the overhead steam feed and return pipes as 2 inch diameter pipes. This appears to be an accurate description of the diameter in so far as one can tell from the contemporary photographs of the shop floor.

It is clear from the evidence that the Defendant's manufacturing process generated large amounts of dust. This was predominantly paper dust; and there was a system of regular cleaning to remove dust which had settled on surfaces, including dust which had settled on the high level lagged pipes. There was good evidence that this was done during every shift by specialist cleaners using vacuum cleaners with extensions which enabled nozzles to reach the pipes at a high level. However carefully this was done, the difficulties of manoeuvring the nozzle would have made it difficult to avoid at least some slight abrasion damage to the painted surface over time.

There was also evidence from Mr O'Brien about disturbance to the pipes by vibration caused by water hammer and, where the pipes ran over the doors, by the slamming of doors. I am not persuaded that this caused any significant disturbance to the lagging, although it may have dislodged the dust which had accumulated from the manufacturing process.

As already noted, this process involved the creation of large quantities of dust; it is therefore important to distinguish between dust from this process and asbestos dust. Asbestos dust and fibres could have been released in two ways: in the course of repairs to damaged lagging and by the mechanical effects of the vacuuming.

In her first witness statement (May 2005) the Claimant recalled an occasion when she was walking to the toilet and saw a man named Lenny Lowdon working on a ladder. She asked him what he was doing and he replied that he was lagging pipes. She described him as tucking something around the pipes that looked like 'a thick Hessian cloth'; and she said that she had to pass under the place where he was working to get to the toilet. In her statement of November 2010, she gave a further description of the place where she encountered Lenny Lowdon.

Although the Defendant was not in a position to challenge this evidence, there was an issue as to when it took place. Mr Feeny pointed out that the structure of the May 2005 statement suggested that it took place in the first period since, in §15, the Claimant said that she did not come into contact with asbestos in the second period. For the Claimant, Mr Allan QC invited attention to the evidence of Mr O'Brien who worked for the Defendant in the second period but not the first. He recalled a boiler man carrying out repairs to the insulation work, taking off the old insulation, ripping the cloth and unrolling the asbestos rope, and applying new insulation in a reverse process. Mr O'Brien described such repairs as being carried out occasionally, but during the normal working day when other employees were at work. One of the boiler men he...