Marie Georgina McGregor v Genco (FC) Ltd
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Patterson |
| Judgment Date | 08 May 2014 |
| Neutral Citation | [2014] EWHC 1376 (QB) |
| Docket Number | Case No: HQ13X02951 |
| Court | Queen's Bench Division |
| Date | 08 May 2014 |
[2014] EWHC 1376 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Manchester Civil Justice Centre,
1 Bridge Street West, Manchester, M60 9DJ
Mrs Justice Patterson
Case No: HQ13X02951
David Allan QC (instructed by Irwin Mitchell LLP) for the Claimant
Charles Feeny (instructed by Berrymans Lace Mawer) for the Defendant
Hearing date: 2nd April 2014
Approved Judgment
Introduction
The claimant, Marie McGregor, is 58 years old. She has developed malignant mesothelioma of the pleura. She began suffering with symptoms of mesothelioma in May 2012 with shortness of breath and lethargy. Diagnosis was made on the 9 th August 2012. The prognosis is poor.
The claim is for damages which have now been agreed, subject to the issue of liability, in the sum of £135,000 inclusive of interest.
The issues
The issues to be determined are
i) Was the claimant exposed to asbestos dust during the course of her employment with the defendants? If so:
ii) what was the extent of her asbestos exposure?
iii) did that exposure cause her mesothelioma?
iv) was that asbestos exposure negligent? In particular, did the claimant's asbestos exposure from the defendant give rise to a foreseeable risk of injury having regard to the state of knowledge at the time of her employment.
When the claim was formulated allegations were made that the defendant was in breach of statutory duty arising under the provisions of the Construction (General Provisions) Regulations 1961, and/or the Construction (Working Places) Regulations 1966, and/or Asbestos Regulations 1969, and/or the provisions of the Factories Act 1961.
During the hearing, in response to a question from me, Mr Allan QC confirmed, what appeared to be the case from his skeleton argument, that he was pursuing the case entirely on the basis of a breach of common law duty of care. I do not, therefore, deal with the allegations of breach of statutory duty as alleged in the particulars of claim elsewhere in this judgment.
The claimant's employment history
The claimant was too ill to attend court. Her evidence was given on commission and recorded on a DVD which I have seen. In that she confirmed her two witness statements and was subject to cross examination by Mr Feeny, counsel for the defendant, and re-examination by Mr Allan QC, her own counsel.
The claimant left school at the age of 15 and went to work in Lewis's Department Store in Ranelagh Street, Liverpool. She worked in the shoe section of the store. She was employed by the British Shoe Corporation which operated a concession on the first floor at Lewis's.
The claimant remembered the old escalators at Lewis's being taken out and replaced. The works she thought took place in the mid 1970s. The position of the escalators was moved from the side of the shop to the centre. The shoe section where she worked on the first floor was about 10 feet or so away from the escalators which were being demolished and moved. She was working also within 10 feet or so of where the new escalators were installed in the centre of the shop. The work on the first floor of Lewis's she recalled as going on for between four to six weeks, if not longer.
During that time she accepted that the new escalators were installed prior to the removal of the old ones. She recalled the workmen knocking out the sides of the old escalators to dismantle them. She thought that the panels on the sides of the escalators contained asbestos sheets. The workmen wore face masks as they dismantled the elevators. It was very dusty work and she could see dust and particles in the air around where they were working. The masks that the men were wearing were white paper masks that had been arranged by their union.
The work took place during the day when the shop was open to the public. The claimant did not recall the area in which the men worked as being boxed off from the rest of the floor. There were no sheets put down to protect the floor or to catch the dust. Her section was an extremely dusty place to work whilst the escalator work was ongoing.
During the course of the working day the claimant had to dust the glass shelves upon which the shoes were displayed because of the white dust which settled upon them. She brushed the dust off the shelves and into her hand with a small brush or cloth depending on what she had to hand at the time. She then threw the dust into the dustbin which stirred the dust into the atmosphere.
In addition, she dusted the shoes on display which were coated in a fine layer of white dust. The dust was worse in the mornings as the workmen continued working after the claimant had gone home. The claimant estimated that she cleaned the dust away from the shelves and shoes about three or four times a day. The dusting took varying amounts of time. Brushing away the dust in the morning took the greatest amount of time as the dust and fibres had built up overnight.
The claimant recalled walking past the workers as they were carrying out the demolition of the escalators at least four times a day. As she walked past she was about one foot away from the escalator work. She had to walk past in the morning to get to the shoe department, again when she was going for her lunch and returning from her lunch break, and, finally, when she left the store at the end of her working day. On occasion, she would stop for a few minutes to see how the escalator work was progressing.
When the contractors began installing the new escalators they cut sheets of white board with a power saw and fastened them to the side of the escalators. The claimant was working within 10 feet of where the new escalators were erected in the centre of the shop. It was extremely dusty. She continued to brush white dust from the shoes on display during the course of her shift whilst the installation was continuing.
No special precautions were taken to deal with asbestos during the works. The renovation work was not sheeted or boxed off from the rest of the floor. She was never warned about the dangers of asbestos, or given any training about how to deal with asbestos dust or told what to do. She worked between 8am-5pm from Monday — Friday whilst the escalator work took place.
The claimant did remember a wooden panel being erected around the holes where the escalators were being removed and installed. The panels were about 3 or 4 foot high. She had no recollection of any other covering.
In 1981 the claimant left Lewis's department store in Liverpool and moved to their store in Manchester. She did not come into contact with asbestos during that later period.
In 1984 the claimant went to work part time for Timpson selling shoes. She did not come into contact with asbestos. In June of 1985 she gave up work to raise her family.
Evidence on behalf of the claimant on asbestos exposure
Marie McIver gave evidence that she used to work with the claimant at the Lewis's store in Liverpool. She was employed within the shoe section from 1971–1985.
In the mid 1970s the store underwent renovation when the escalators were moved from the side into the centre of the store. That was a large job and involved work that went on for several months. The store remained open to the public throughout.
She had not thought or talked about the works since 1976, when they took place, until she made her witness statement in 2013. The precise period of time that the escalators were out of action was uncertain. People had to use the lifts and stairs in the absence of operational escalators.
She recalled the escalator operation as one that created a lot of dust. She recalled wiping and dusting the shoes and the glass display shelves throughout the day because of the covering of dust. It was a task that needed to be carried out a few times each the day during the months that the work took place.
She remembered a wooden barrier about 4 feet high as if it was to cordon off the area in which the works were taking place. She could not remember any floor to ceiling covering. She could see what the workmen were doing over the top of the barrier.
There was not a problem selling to customers because of the dusty conditions. The sales assistants were not provided with masks to wear whilst work was being undertaken. They were not warned that the work could have adverse effect on their health. She did not complain about the conditions at any time.
Mr George Burke, the claimant's brother, gave evidence. He was employed by the British Shoe Corporation at their concession in the Lewis's department store between 1967 and 1970–71 as the assistant manager of the concession. He had recommended his sister to his boss to work as a sales assistant in the same concession. Their employment at the store overlapped for a short while: less than one year.
When Mr Burke left Lewis's store in Liverpool he continued to work for the British Shoe Corporation but as a manager in different locations. He continued to go home to Liverpool because his mother and sister were living there. He would take Sunday and Monday off so that on Mondays he would visit the Lewis's store in Liverpool to see his sister. On some of those occasions he had lunch with the manager called John Stevenson and, having completed that, would go to visit his sister in the concession. On those visits he would see the stock and the store room. Because of his continued professional involvement with British Shoe Corporation the conditions of work were of interest to him.
He recalled that one of the matters mentioned to him by the staff was that they were fed up with cleaning the dust off the shelves. There was an emphasis that the display should be kept...
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