Mr Alan Hawkes (Executor of the Estate of Mrs Doris Helen Hawkes) v Warmex Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Peter Marquand |
| Judgment Date | 08 February 2018 |
| Neutral Citation | [2018] EWHC 205 (QB) |
| Date | 08 February 2018 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17A01405 |
[2018] EWHC 205 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Peter Marquand (Sitting as a Deputy High Court Judge)
Case No: HQ17A01405
Mr Harry Steinberg QC (instructed by Leigh Day) for the Claimant
Mr Alexander Macpherson (instructed by BLM) for the Defendant
Hearing dates: 20 & 21 December 2017
Introduction
This claim is brought by Mr Alan Hawkes who is the son and executor of Mrs Doris Hawkes. Mrs Hawkes died in October 2014 from mesothelioma having been exposed to asbestos in the course of her employment. The Claimant says this exposure took place between 1946 and June 1952 whilst Mrs Hawkes was employed making electric blankets at the Defendant's premises.
The issues
The first issue is a question of fact for me to determine. Were the inner linings of the electric blankets made of asbestos? The Claimant accepts that if I find, as a matter of fact, that they were not, then the claim fails. The burden of proof is on the Claimant and I am to decide the facts on the balance of probabilities.
The second issue is whether the Asbestos Industry Regulations 1931 applied to the Defendant's premises. The third issue is whether section 47 of the Factories Act 1937 was breached and fourthly, was the Defendant in breach of the common law duty owed to Mrs Hawkes.
I do not need to decide the issue of causation as it is agreed between the parties that in the event that I find any breach of duty made out then causation follows. The expert evidence of Prof. Twort, consultant physician, in a report dated 28 April 2015 confirms the diagnosis and development of mesothelioma as a result of occupational exposure to asbestos. I also do not need to make any findings on quantum as the parties have agreed the damages at £77,484. Finally, as originally pleaded, there were allegations relating to a short further period of work that Mrs Hawkes undertook for the Defendant in 1962. However, those allegations are not pursued.
Background
Mrs Hawkes was born on 21 November 1925 and left school at the age of 14 in 1939. Her first job was manufacturing aircraft parts at Pye following which she moved to work for Gray-Nicholls, the manufacturer of sporting equipment. She returned to work again for Pye making radios for tanks, but after the war in 1946 she joined Warmex and remained in their employment until June 1952. Between 1952 and 1962 she was a housewife raising her children, Alan and Lesley.
In 1962 Mrs Hawkes returned to work with Warmex Ltd for about six months on a part-time basis. Following this she had various other jobs finally assisting her husband in his work. Mr Hawkes was a chef and always worked in catering. Apart from the work at Warmex Ltd, Mrs Hawkes does not identify any other exposure to asbestos.
Mrs Hawkes' employment with Warmex Ltd involved the manufacturer of electric blankets for beds. The blankets consisted of a lining with an electrical wire fed through it, which generated the heat and the lining, together with the wire, were “stuffed” inside a canvas cover which was in turn covered with a softer material. There were switches on the outside of the blanket to control the heat. The central issue in this case is whether or not the inner lining, through which the wire was stitched, was made of asbestos. I will deal with the evidence concerning this issue below.
In the first six months of Mrs Hawkes' work with Warmex Ltd she measured out and cut the correct length of wire. Another person would take the wire to be threaded through the inner lining, which was undertaken at the other end of the room from where she worked. After this period of work, she was moved to threading the wire through the inner lining. Mrs Hawkes in her statement describes using a long needle to thread the wire through that lining. Having undertaken that activity for six months she spent the remainder of her time with Warmex Ltd cutting out the softer covers that the canvas material went into and sewing them together.
Unfortunately, in June 2014 Mrs Hawkes developed respiratory symptoms. Initial treatment with antibiotics failed to resolve the problem and she was sent to Addenbrooke's Hospital. A chest radiograph was abnormal and further investigations were undertaken and Mrs Hawkes was advised that she was suffering from mesothelioma on 7 August 2014. She was advised by her treating clinicians that there was no curative treatment and she only had three to five months to live. Her statement and the statement of Mr Alan Hawkes detail the symptoms and undoubted suffering that Mrs Hawkes went through from the consequences of mesothelioma prior to her death on 23 October 2014 at the age of 88.
The factual evidence concerning whether the inner lining was made from asbestos
I had witness statements from Mrs Hawkes dated 11 September 2014 and 17 October 2014. A statement from Lesley Cornforth, Mrs Hawkes's daughter dated 17 May 2016 and a statement from Margaret Coleman, Mrs Hawkes's sister, dated 8 September 2016. A Civil Evidence Act Notice was served in relation to the statements of Mrs Coleman and Mrs Hawkes. There was also a statement from Mr Alan Hawkes, although that only dealt with quantum matters and is not relevant to this issue. I did not hear oral evidence from any factual witness.
The relevant evidence from Mrs Hawkes is:
i) She was exposed to asbestos when she worked for Warmex Ltd;
ii) The electric blankets consisted of “an asbestos blanket [which I have referred to as the ‘inner lining’] with electrical wire fed through the blanket to generate heat, with the asbestos blanket being stuffed inside a canvas cover…”;
iii) That when she moved on to threading “I had a long needle that I used to thread the electrical wire through the asbestos blanket…”;
iv) The asbestos blanket was a ‘fluffy’ material;
v) When she worked on the threading “bits of asbestos would come off all the time and get on my clothes”;
vi) When she went back to work for Warmex Ltd in 1962 “Again I was exposed to asbestos as I have described [in the remainder of her statement]”. She also confirms that Warmex Ltd were still using the same asbestos materials;
vii) She states her understanding that during the war Warmex Ltd made airmen's suits, which was before she worked for them.
The relevant evidence from Mrs Cornforth is:
i) She remembers that “during this time [Mrs Hawkes] told me that the factory made electric blankets and that the wires in the electric blankets were covered in asbestos. This came up in conversation about the methods they used in the factory…”;
ii) She remembers “my mother telling me that the Warmex factory made pilots' suits that pilots wore during the war. She told me that they were made in the same way as the electric blankets, with asbestos around the wires.” She also confirmed that her mother mentioned to her more than once that asbestos was contained in the electric blankets and the pilots' suits.
I was also referred to extracts from Mrs Hawkes' general practitioners records from 1997. She had presented to her general practitioner with a nocturnal cough and the doctor had recorded: “occupation – worked [with] asbestos aged 20 – 26 years.” This history is also repeated in a letter making a referral to a chest physician and in a response from the Department of Respiratory Medicine. The response states “… She worked in a factory making electric blankets and was exposed to asbestos for approximately 6 years.”
The expert evidence concerning whether the inner lining was made from asbestos
Mr Chris Chambers was the Claimant's expert and produced a report dated 19 October 2016, participated in a joint meeting of experts and gave oral evidence before me. Mr Graham Glenn was the Defendant's expert and he produced two letters dated 28 May 2015 and 9 July 2015 as well as an expert report dated 6 July 2016. Mr Glenn also took part in the joint meeting of experts and gave oral evidence.
Mr Chambers had been a factory inspector for some 10 years and is qualified in health and safety and occupational health. He has extensive experience of giving expert evidence. Mr Glenn has a degree in mechanical engineering and is a Chartered Engineer and Member of the Institute of Mechanical Engineers. Mr Glenn also has extensive experience of providing expert evidence.
What they had agreed on in the joint statement was that it was unlikely that asbestos materials were still used for the manufacture of electric blankets in 1962 (answer 12). Mr Chambers relied upon the evidence of Mrs Hawkes to form the basis of his opinion as well as other publications, patents and his opinion as an expert on the likely make up of the blanket. Mr Glenn had a different view of the materials and he relied on an analysis of a Warmex Ltd electric blanket in addition. I shall deal with these in turn.
The advertisement from ‘Popular Science Monthly’ dated January 1919
I was referred to a photocopy of a page from a magazine published in the USA in 1919 which commenced with the title “Cold? Press the button – carry an electric stove in your glove, and fight chills with the modern substitute for mustard.” The page has six diagrams on it and text about six “contraptions” that produce heat when an electrical current is passed through a wire incorporated in a blanket. The text that accompanies the pictures describes the piece of equipment and in two of them it makes specific reference to asbestos as follows:
i) “All wrapped up in this blanket built with sections of wool, canvas and asbestos with wires stitched in, all he has to do is plug in the electric lighting circuit and sweat out that cold…”,
ii) “No more need the motorman blow on chilled...
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