Preliminary Trial on the Facts in Asbestos Related Lung Cancer Claim: Taylor v Fascia Future Ltd [2018] EWHC 3049 (QB)

By order of Master Davison, on 6 September 2018, an asbestos-related lung cancer claim was allocated to the multi-track. In the interim, the case was listed for a preliminary trial on the facts, ‘to enable a trial of liability’.

Master Davison’s Order directed that the High Court, in Taylor v Fascia Future Ltd [2018] EWHC 3049 (QB), 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’.

The preliminary trial took place earlier this month. Sitting High Court Judge, Ms Rowena Collins Rice, observed that the distance between the parties’ accounts ‘narrowed in the course of the trial’. This allowed her to reach conclusions on the ‘findings of fact’, specifically in relation to exposure type, exposure periods and health-risk management.

In 2005, aged 16, the claimant commenced a period of employment with the defendant, on a part-time basis (2 days per week, increasing to 4 days per week). Upon completion of college, 2 years later, the claimant carried on working for the defendant on a full-time basis (Monday to Friday, 8am to 5pm). Between 1997 and 2007, he was continuously employed, with the exception of the period between 2004 and 2005.

Work regarded the removal and replacement of old facias, soffits and guttering from the outside of houses. Removal work, which constituted three-quarters of the job role, potentially involved exposure to asbestos. Replacement work did not.

The Court established that detachment involved:

  • The removal of non-asbestos facias;
  • The sawing of soffits in in situ for semi-detached and terraced properties, creating sawdust; and
  • The cutting of guttering with power tools.

The removal of old materials often led to degradation of its own accord. Indeed, in only 20% of cases, materials remained intact. Of these, smaller fragments were dropped from roof height and larger pieces were either dropped lowered, pivoted, or stepped down ladders.

Mess on site, including rubble and dust, was cleaned by way of dry brushing. From 1999, asbestos waste material was no longer accepted by rubbish tips. Roughly once per month, asbestos waste had to be broken up, separated out and bagged up for specialist disposal.

The claimant, now 40-years-old, was diagnosed with lung cancer in 2016. He attributes his condition to wrongful exposure to asbestos, in the course of his employment, between 1995 and 2005. It was agreed, on the basis of medical evidence, that any occupational exposure post-2005 would have been too recent to have caused the claimant’s cancer.

The defendant admits breach of duty, but disputes causation and alleges contributory negligence.

From the witness evidence adduced at the preliminary trial on factual evidence, it was ascertained that paper face masks were available to the claimant for dust protection. However, the defendant did not enforce routine use of PPE when handling asbestos. The claimant was untrained in the risks of asbestos materials handled. Mr Rice went on to summarise, at paragraph 66:

‘They had little or no knowledge of the legal regulatory regime applicable to exposure to asbestos in the workplace, or of relevant guidance or good practice. Their knowledge of different asbestos materials, and the different levels of risk posed by each, was limited. They had some general background or anecdotal awareness that asbestos was a potentially hazardous product’.

Should the ‘trial on liability’ take place, we will endeavour report on the decision once judgment is handed down.

Full text judgment can be accessed here.