Taylo v Fascia Future Ltd, Court of Appeal - Queen's Bench Division, November 09, 2018, [2018] EWHC 3049 (QB)

Resolution Date:November 09, 2018
Issuing Organization:Queen's Bench Division
Actores:Taylo v Fascia Future Ltd
 
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Neutral Citation Number: [2018] EWHC 3049 (QB)

Case No: HQ18A02213

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday, 9th November 2018

Before :

ROWENA COLLINS RICE

(Sitting as a Deputy High Court Judge)

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Between :

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Mr Harry Steinberg QC and Mr Max Archer (instructed by 2020 Legal Limited) for the Claimant

Mr Richard Livingston (instructed by DAC Beachcroft Claims Ltd) for the Defendant

Hearing dates: 1st-2nd November 2018

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Draft 9 November 2018 14:32 Page 2

Ms Rowena Collins Rice :

Introduction

Mr Taylor was diagnosed with lung cancer in 2016. His doctors have given him very bad news about his future. He has a wife and four young children to think about. He is only 40 and has never smoked.

He left school at 16 in 1995. He enrolled at Moulton College just outside Northampton to learn carpentry and joinery while working locally part time as a labourer with Mr Walpole's Fascia Future business. The business took individual orders to remove old fascias, soffits and guttering from the outside of houses and replace them with new ones. He carried on working there full time after he left college in 1997. Apart from a period in 2004-2005, he was continuously employed by the business until 2007, when he bought the business from Mr Walpole and ran it with his wife, before becoming too ill to do so.

He brings this case against Fascia Future to try and establish that his cancer relates to his wrongful exposure to asbestos in the course of his employment. By an order of Master Davison of 6th September 2018, his claim was allocated to a multi-track procedure and listed for a preliminary trial of the factual issues relating to the circumstances and extent of Mr Taylor's exposure to asbestos in the course of his employment with Fascia Future. The order directed that the judge at that trial should make ``those findings of fact necessary for the Court subsequently to determine the issue of the Defendant's alleged liability to the Claimant, with the assistance of expert evidence if then necessary''.

In advance of the factual issues trial, Mr Taylor had prepared a series of three witness statements to build up a picture of his work with asbestos. Mr Walpole also provided a witness statement, which gave a very different account. Mr Taylor asked two of his former colleagues to provide statements - Mr Brian Pancoust, another former Fascia Future employee who worked at the same time as Mr Taylor for a period, and Mr Paul Swan, a rubbish clearance contractor who collected asbestos waste from Fascia Future.

At the trial before me, Mr Taylor bravely gave oral evidence himself despite being so ill. I also heard from Mr Pancoust and Mr Swan in person, and from Mr Walpole. I would like to thank them all for the help they gave with the difficult task of piecing together a picture of events which happened a good long time ago and which no-one at the time expected to need to remember in this way. I would also like to thank Mr Steinberg QC, Mr Taylor's Counsel, and Mr Livingston, Counsel for the Defendant. They both had difficult jobs to do in the circumstances, and did them with care and skill; I am appreciative of their work and that of their legal teams.

The Factual Issues

The task for trial set by Master Davison's order was to make the findings of fact necessary to enable a trial of liability. As things stand at present, the Defendant admits breach of duty but disputes causation and alleges contributory negligence. That is the background to the exercise of making preliminary findings of fact. It is agreed that Mr Taylor was exposed to asbestos in the course of his work with Fascia Future in removing old fittings (but never in installing new ones). The manner and degree are disputed. The primary focus of this exercise is therefore to produce an account of Mr Taylor's exposure to asbestos which will enable the question of causation to be addressed, if necessary with expert assistance, at a trial of liability. The parties have agreed, on the basis of medical reports, that for this purpose asbestos exposure after the end of 2005 would have been too recent to be relevant to causation of his cancer. The frame of reference is therefore the period from the middle of 1995 to the end of 2005.

The fact-finding exercise within the terms of the order is otherwise at large. I have been guided by a twelve-point list of issues agreed by the parties, and adopt that scheme below (but in one respect out of order). A number of other suggestions were made at trial about facts which I should find. At the core of the dispute are differing accounts of the frequency with which Mr Taylor worked on removing asbestos fittings, the way in which they were removed, and how they were disposed of. The distance between the parties' accounts of these narrowed in the course of the trial.

A: Frequency of Encounter

Question 1: For how many days per week did the Claimant work for the Defendant between 1995 and 1997?

In his first witness statement, Mr Taylor said he was at college three days a week during term, and that he worked for Fascia Futures two days a week and during all the college holidays. Mr Walpole's written evidence was that during term Mr Taylor worked a four day week and studied for only one day. Mr Taylor said in his third statement, having noted Mr Walpole's evidence, that perhaps in his first year the ratio of study to work had been 3:2, moving to 1:4 in his second year. There is no other evidence. The parties agreed that there was little to distinguish between them on this issue. I see no reason not to accept Mr Taylor's later account, which reconciles the evidence.

General issues about frequency of encounter

Consideration of the evidence about Mr Taylor's exposure to asbestos proceeded on the basis of considering a typical (full time) working week. Although not raised under the rubric of agreed questions, a small number of issues arose about whether there were periods of time after Mr Taylor became a full-time employee which were atypical, and when he could be said to have been exposed to asbestos very little or not at all.

First, there was no dispute that he had had a period of sick absence following an injury, between 8th May and 23rd June 2000.

Second, Mr Taylor said in his first and second statements that there was a period in the tax year 2004/2005 when he was employed by a London firm as a floor-layer (with no exposure to asbestos) before resuming full-time employment with Fascia Future. That is reflected in his tax records. He put that period at a couple of (or 2-3) months. He also spoke of a period of time when he had gone `down south' to look for other work. He could not remember when that was but said it was when he met his wife (their first child was born in April 2005). It was put to him that this period could have lasted for about a year in all. From his tax records that would appear to be putting it at, if not slightly beyond, its highest. Mr Taylor did not mention any other employers at this sort of time, or suggest long spells of unemployment. I deduce that something closer to half a year would be a better fit with the evidence.

Mr Taylor agreed that for a couple of years, when he first started working with Fascia Future in 1995, some of his time was spent on a subsidiary venture of the business: flat-roofing work using a product called Polyroof (Mr Walpole put the period at 1995-99). This did not involve asbestos. Mr Walpole said this work was quite popular, and profitable. Mr Taylor said it was never a major part of the business, and they gave it up altogether after a few years because it was so seasonal-dependent; it could not be done if the weather was too hot, too cold, or wet. That was not challenged. Mr Taylor thought they did a Polyroof job on average once every three weeks. In any event, it was agreed that the majority of Mr Taylor's work was on fascias, soffits and guttering - and exclusively so from 1999.

The work of Fascia Future had an obvious seasonal dimension more generally. Mr Taylor observed in his second statement that ``there is not a lot of business replacing fascias during the winter months''. Mr Taylor's evidence was that normal working hours were 8am to 5pm. He did do overtime (in the summer) but never worked weekends. He likely had reduced exposure to asbestos products during the winter.

It was agreed that a typical job was the complete removal of all the old fascias, soffits and guttering on a domestic house, and their replacement with new equivalents. The houses were often, perhaps usually, semi-detached or terraced. The job involved working around the exterior, removing and replacing each section before moving on to the next. The old material was driven away in their van. A job took one or two days to complete on site. The removal and disposal elements involved potential exposure to asbestos. The replacement element did not - the new materials never contained asbestos.

Question 2: How frequently did the soffits, gutters and fascias, encountered by the Claimant, comprise asbestos?

The answer to this question is at the heart of the dispute. It falls into a number of related parts: how many of these jobs were done in an average year? What proportion of jobs involved encountering some asbestos...

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