Pinder v Cape Plc

The Claimant, John Pinder has been diagnosed with malignant mesothelioma of the pleura, a cancer of the outer lining of the lungs. These proceedings were commenced on 2 October 2006. An expedited hearing was directed so that the claim could be heard in Mr Pinder’s lifetime, given the poor prognosis for his condition.

The case is brought against the Defendant, Cape PLC (“Cape”). At material times between 1939 and 1970 Cape’s predecessors were the owner and occupier of factory premises at Acre Mill, Hebden Bridge. That factory was some five miles from Mytholmroyd where Mr Pinder spent his childhood up to the age of 22, when he married and moved away.

In Scout Road, Mytholmroyd is an area of land which originally was in private ownership. Part of the land, known as Scout End Tip, was retained in private ownership and passed to Mr Harry Brown, who lived at Scout End Cottages. On 4 October 1950 part of the land, known as Scout Road Tip, was leased to the then local authority, Hebden Royd Urban District Council. There is an issue as to where and when waste was first tipped on that land but from 1950 the Scout Road Tip became a tip for house and trade refuse for the Hebden Royd UDC. It is Mr. Pinder’s case that he contracted mesothelioma as a result of playing on the tip at Scout Road in the 1950s when he was a child and that the cause of the mesothelioma is the dust from the asbestos waste from Cape’s factory which was dumped on that tip. It is contended that Cape owed a duty of care to Mr. Pinder and negligently and in breach of that duty caused the personal injury to him.

Cape put Mr. Pinder to proof of his exposure to asbestos and of the fact that Cape dumped asbestos at the tip in Scout Road. In any event, Cape contends that they are not liable for what is described as secondary exposure; that is, liability for exposure beyond the liability which exists for primary exposure as employers and occupiers of premises. Cape relies on the Court of Appeal decision in Maguire v Harland and Wolf PLC [2005] EWCA Civ 1; [2005] PIQR P21 where, by a majority, it was held that the defendant was not liable to the wife of an employee who suffered mesothelioma as a result of exposure to asbestos dust on the clothes of her husband who worked for the defendants.

Mr. Pinder however relies on the decision in Barperson and Hancock v JW Robert [1996] PIQR P154 (upheld on appeal at [1996] PIQR P358) in which the plaintiffs suffered mesothelioma by playing as children immediately adjacent to a factory where asbestos dust was emitted and stored.

Before I consider the question of legal responsibility it is necessary to resolve certain factual matters which are put in issue. I have been provided with and invited to read much documentary evidence which was made available on disclosure and deals with the history of the tip at Scout Road and of the Cape factory at Acre Mill. It also charts the history of the development of knowledge about the risks of asbestos.

I have also heard evidence from the Claimant and from Stella Firth, Ronald Clark and David Summerscales, all now aged over 60 who recounted their childhood memories of playing on the tip in Scout Road several times a week searching in the waste for treasures in the form of marbles, wheels and other objects. I am certain that each of the witnesses did their best to give their honest recollection of matters from the distant past. Some memories were particularly clear but, unsurprisingly, precise dates were more difficult to recall.

Ian Summerscales also provided a witness statement and attended the hearing but Cape did not wish to cross-examine him. Betty Burns, Roger Sutcliffe, Jimmy Harrop and Gary Sunderland also provided witness statements. It was not thought appropriate for Betty Burns, now nearly 80, to be asked to attend the hearing; a Civil Evidence Act Notice was given for Roger Sutcliffe who was too ill to attend; Jimmy Harrop and Gary Sunderland were not called as witnesses.

There are also three other statements given under a Civil Evidence Act Notice. Those statements were from Sydney Purvis, Roland King and James Gregson all deceased. The statement from Mr. Purvis is unsigned and undated; that from Roland King is signed and dated 4 February 1982 and that from James Gregson is signed and dated 18 November 1985. Those statements are in short form. There are further statements from Mr. John Pickering formerly a partner and now a consultant with Mr Pinder’s Solicitors, John Pickering and Partners and also from Ruth Davis currently a partner in that firm. Their witness statements explain what is known about the background to the statements of Mr Purvis, Mr King and Mr Gregson which were taken from the files of John Pickering and Partners which specialises in mesothelioma cases and which were retained to assist on other cases.

As submitted by the parties, except where Cape did not wish a witness to be produced for cross-examination, the weight to be given to the evidence of those witnesses who were not cross-examined has to be assessed taking account of the contents of the statements and of the circumstances set out above. In a case where there is limited documentary evidence, I must in any event be cautious of the accuracy of statements made long after the event.

I now turn to consider the factual matters. First there is the question of exposure to asbestos. Mr. Pinder left school in 1960 and until 1968 worked for a company called Pratt Precision Hydraulics in Halifax. He states that his only contact with asbestos was in the form of asbestos gloves, aprons and mats used by him. He says that he wore the gloves and aprons approximately once a month for between 2 and 3 hours between 1960 and 1965. He also refers to using Bakelite/Tufnel material which it is possible contained asbestos.

Mr Pinder then trained as a teacher in technical engineering from 1968 to 1969. Subsequently from 1969 until his retirement in 1995 he worked as a teacher at Bury College in Bury. He says that he used Bakelite/Tufnel about once or twice a year during his first 5 years and also used asbestos gloves, aprons and mats about once a month.

So far as exposure to asbestos at the tip at Scout Road is concerned, from the ages of 8 to 13 or 14 he used to play there in evenings after school and at weekends. He says that he and his friends “got really dirty playing on the tip and got dust and muck from the tip all over our clothes. We stirred up the dust and ashes as we played on the tip, kicking cans and kicking up dust and debris”. He recalls that he used to get so dusty from the dirt and debris dumped onto the tip that his mother bought him some dungarees.

Investigations into the asbestos at the tip at Scout Road were later carried out and are shown on a plan of the site (62/004/006) which was produced by the Metropolitan Borough of Calderdale. That plan does not give a quantitative analysis of the existence of asbestos on the site. It does however show that over substantial areas of the tip, both the land used by the local authority at Scout Road Tip and the adjacent land at Scout End Tip in private ownership, asbestos has been found.

The evidence of the quantity of asbestos at the site is mainly gathered from the recollection of the witnesses who have given evidence. Ronald Clark remembered wagons which came and dumped a grey dusty material onto the tip. He said that the material was like a grey flock mattress; it was lumpy material; it was harder than cloth and when it was wet it had a clay consistency. He also recalled flat bed trucks which came to the tip with bales of the material on the back which were tossed onto the tip. Some of the material was dark grey, some of it was an off-white colour. There was also fine thread mixed in with the dirt.

Stella Firth described two types of asbestos waste. One was a wet clay-type waste which was blue and white in colour. The other was a dry “powdery, fibrey and fluffy” type of asbestos which was often in square Hessian sacks which were dumped on the tip.

It is clear from the evidence of the witnesses who gave evidence, supported by the other statements that substantial amounts of asbestos waste were dumped on the site of Scout Road Tip. The asbestos waste was dumped from lorries which entered the site and was placed in heaps towards the centre of the land on Scout Road Tip not far from a large boulder which, as all the witnesses recalled, was a focal point for the children. There was an absence of evidence from the witnesses called at the hearing relating to playing on the Scout End Tip or seeing asbestos waste being dumped there.

The engineering experts, Mr R B Clark and Mr R H Beauchamp, who are experienced in dealing with asbestos claims have reached agreement on many issues in this case. They agree that, on the basis of the evidence which I have now accepted, the children playing on the site would often have been exposed to asbestos fibre concentrations in the moderate (2 to 20 fibres /ml) range, and on occasions in excess of 20 fibres/ml. This compares with an exposure towards the lower end of the 2 to 20 fibres/ml range to which Mr Pinder might have been exposed as a result of wearing heat resistant gloves and aprons at Pratt Precision Hydraulics and at Bury College. Mr Clark, the expert instructed by the Claimant, has made a calculation to attempt to calculate Mr Pinder’s cumulative occupational asbestos exposure. His calculation indicates that about 75% of the exposure can be apportioned to the tip at Scout Road, compared to 25% from the other two exposures. Mr Beauchamp, the expert instructed by the Defendant, points out that the figures depend on the period of exposure and that the period of 4 hours per week at the tip every year for 6 years, on which Mr Clark’s figures are based may not be correct. Equally they depend on Mr Clark’s estimate of an average fibre concentration being about 10 fibres/ml.

Obviously, such calculations as those produced by Mr Clark are an assessment based partly on speculation and partly on matters of judgment. I do not consider that Mr. Clark’s calculation can be relied on as an accurate assessment of the exposure to which the Claimant was exposed. It can, however, be used to give a broad indication of the comparative figures for asbestos exposure during Mr Pinder’s childhood and during his working life. I accept that it shows that Mr Pinder’s exposure to asbestos whilst playing at the tip in Scout Road during his childhood was likely to have been more substantial than his exposure elsewhere.

Dr R M Rudd, a consultant physician who specialises in asbestos related diseases concludes, in my view correctly, that Mr Pinder suffered the majority of his asbestos exposure from the tip in Scout Road. His opinion which is not challenged and which I accept is that this exposure materially increased the risk that Mr Pinder would develop mesothelioma. He states that the mechanisms of causation of mesothelioma are incompletely understood and that, in his opinion, all exposure which contributed to the risk that mesothelioma would occur should be regarded as having contributed to causation of the mesothelioma. He explains that mesothelioma can occur after low level asbestos exposure and there is no threshold dose of asbestos below which there is no risk.

On the basis of the factual evidence and with the assistance of the expert evidence form Mr Clark, Mr Beauchamp and Dr Rudd, I am satisfied that Mr. Pinder’s mesothelioma was caused or materially contributed to by his exposure to asbestos at the tip at Scout Road when he played there as a child in the 1950s. Further, the evidence shows that Mr Pinder played on an area of the Scout Road Tip, that is the tip provided by the local authority.

There is, however, a further factual issue concerning the provenance of the asbestos. Cape puts in issue whether the asbestos waste came from its Acre Mill factory and, if so, whether it was brought there by Cape employees or by third party contractors.

Cape has called no evidence and therefore the evidence has to be gleaned from the documents provided on discovery, the evidence of the witnesses and the statements provided from the files of John Pickering & Partners.

As part of the background, it is necessary to recount a little of the history of the Cape factory at Acre Mill which was in operation from 1939 to 1970. A history of the operations at the factory was produced on 4 July 1974 and the initials indicate that it was produced by Mr A.A Cross who was the manager at the factory from 1949 to 1953. He later became the Group Consultant for Environmental Control and was Chairman of the Environmental Control Committee of the Asbestosis Research Council. He was much involved in later developments.

The history produced by Mr Cross relates that the old mill on the heights above Hebden Bridge was acquired in 1939 by the Ministry of Supply, under its Wartime Disposal of Industry powers. It was to produce filter pads for respirators as an alternative to Cape’s established factory in Barking. During the Second World War it also manufactured some millboard and asbestos sectional pipe insulation.

In 1947 after the end of the war, when production of respirators was no longer required, Cape took the factory over from the Ministry of Supply and decided to manufacture chrysotile asbestos textile products as well as millboard and pipe insulation. In 1952 the asbestos textile production (opening, carding and spinning, weaving and blue rope lagging departments) were transferred to Acre Mill from Barking. From then production increased and in 1956 a new extension was built for the weaving operations. Production continued on all three products until the 1960s.

Various changes in production took place in the 1960s. By 1969 demand for the products was no longer at an economic level and the report states that “by this time there was increasing awareness of a potential health hazard associated with the use of asbestos lagging”. A decision was therefore taken to close the plant and production finally ceased in December 1970.

Concern about the waste asbestos material in the tips within the area appears to have been raised from about 1972 when letters were written by Mr Thompson, a solicitor in Manchester, addressed to Hebden Road Urban District Council. The Clerk to Hebden n Rural District Council responded:

“So far as I am aware, the bulk of the asbestos waste from Acre Mill, Wadsworth, was disposed of outside the district by private arrangements made by the company. From time to time this Council was asked to receive on their refuse disposal tip limited quantities of asbestos waste, and it was a condition of the Council that this waste should be wetted before delivery to the tip so that it could be easily handled for covering on the tip by domestic refuse. On occasions some of the waste was delivered to the tip in polythene bags.

Any acceptance by the Council of asbestos from Acre Mill had ceased some time prior to the issue of Circular 80/69.”

There is an internal Cape memorandum from Mr E Gaskell the Managing Director of Cape to Mr PS Williams dated 4 July 1967 which referred to “requirements for waste disposal now being imposed by the Council”. Mr Gaskell said:

“It goes without saying, of course, that you will do exactly what the Council ask you to do and meet all their requirements if at all possible. They ask us to wet the waste and not to put it in sacks or polythene bags. I would have thought that it would have been far better for all concerned to wet it and put it in bags. Is it possible for us to ensure that after dumping waste earth or some other suitable cover is put on top in the tip.

When I am up at Acre Mill next week would you please show us the Public Tip at Pecket Well and also let me have details of exactly how we dispose of our waste, and exactly how the Council’s requirements are now being carried out.”

It would seem therefore that prior to this date in 1967 there were no such requirements and the Council’s correspondence in 1972 was referring to this period after 1967.

By 1974 there was increased concern about the way in which asbestos waste had been disposed of in the Calderdale District Council area. This concern led to the Environmental Health Committee commissioning a report by Mr RH Wood, the Chief Environmental Health Officer of that council. His report dated 10 December 1974 under the title “Investigations into the Disposal of Asbestos Waste Material within the Metropolitan Borough of Calderdale” appears to contain a full review of the position as known at that time.

That report identifies Cape and another company as being manufacturers of asbestos. The other company, situated outside Calderdale, manufactured asbestos products in the form of brake linings and clutch plates and “used a site within Calderdale for the disposal of asbestos waste.”

The Report identified a number of sites which were being used or had been used for the disposal of asbestos waste. It stated that all known sites had been visited and the circumstances surrounding their usage had been investigated. The Report dealt in particular with tips at Pecket Well, Scotland Quarries in Midgley and two tips referred to as “Scout Road Tip” and “Scout End Tip”.

In relation to Pecket Well, there is reference to the former Hepton RDC being in consultation in 1967 with the firm concerned in order to regularise the methods adopted in the delivery and deposit of the waste. From the correspondence I have referred to, this is evidently a reference to Cape.

In relation to Scotland Quarries, the Report states that the tip had been used for some considerable time by a firm operating locally, which from other documents was Cape. It stated that the asbestos waste was now some 50 feet under the surface of other covering material. The quarry was originally 120 feet deep and the Report states that the tipping was carried out under the strict control of the Public Health Department of the former Sowerby Bridge Urban District Council, who made frequent visits. The Report states:

“It was found that the necessary conditions were being complied with including the fencing of the quarries, some of which can still be seen to-day. The general tipping was carried out in layers as follows:- 6’-8’ depth of tyres; 4’ quarry waste; 6’ asbestos waste; 4’ quarry waste and repeated.”

In relation to Scout Road, there were two tips identified. In relation to the first, the Scout Road Tip, the Report stated:

“This site is still in use as a waste disposal site under the direct control of the West Yorkshire Metropolitan County Council.

Asbestos waste was deposited on this site. It is, however, at least ten years since the site was used for such purpose and it is suggested that such waste will be at least 25 feet below the present tip surface.”

In relation to the second tip, the Scout End Tip, the Report stated:

“This site is in private ownership. Apparently some 25 to 30 years ago vast amounts of asbestos waste were deposited at Scout End. The site itself is large, is steep, and is covered by proliferation of vegetation, principally young trees, bushes, bracken and grass. The asbestos waste does not appear to have been covered with any consolidating material whatsoever. Consequently one can feel the ground to be “spongy” underfoot.

There is a public footpath which runs through the site.

Two residents have been interviewed but they do not recollect any nuisance caused by this tip.

It seems that at least some of this asbestos waste material is in fact blue asbestos waste.

Further information has come to light in connection with asbestos waste disposal at this site. A person has been interviewed who was employed casually by the owner of this site. To his definite knowledge asbestos waste was tipped up to 1954. He claims that vehicles delivering this waste were in the ownership of a firm of asbestos manufacturers and not in the ownership of a separate haulage contractor. His main concern was that in 1954 this waste was delivered to Scout End Tip in Hessian sacks and that to his knowledge two or three dozen of these sacks were sold to another firm in Hebden Bridge.

This matter has been checked. It appears that the statement is correct and that over a number of years this firm received a considerable number of hessian sacks. The state of these sacks was such that they all passed through a cleaning machine prior to being used. The actual cleaning works were carried out by two employees of the firm who are still in the same employment. After cleaning, the sacks were packed with the firms own product and distributed to their customers. Consequentially the distribution of these sacks will be very wide.

So far as the Scout End Tip itself is concerned, the situation is that the site, which is very steep, is overgrown with small trees and shrubs and that there is little or no covering material other than that accumulated together with the grass over the years. It seems that it is the grass roots and moisture which is holding the waste together.”

The Report also refers to an investigation by the West Yorkshire Metropolitan County Council who in a letter dated 19 November 1974 reported that there was no observable asbestos at the Scout Road Tip but stated that at the Scout End Tip:

“Twenty five to thirty five years ago considerable amounts of asbestos were tipped on this site. There are evident signs of the asbestos either on or just below ground level and covering material is either non-existent or minimal.”

It then referred to possible methods of remedying the situation. In an addendum to the Report are results of the analysis of two samples from the Scout End Tip which were shown to be white asbestos and blue asbestos (crocidolite). It was stated that the material would constitute a serious health hazard if it became dry and airborne.

The Report led to a number of further investigations and proposals for remedial works, particularly at Scout End Tip. In a letter of 31 December 1974 from Mr Cross at Cape to Mr Wood at Calderdale MBC, Mr Cross stated:

“”

“I am glad to read that you confirm that there appears to be no cause for concern on any of the site alleged to be used by Acre Mill. You except the site at Scout End, Mytholmroyd which is now also alleged, for the first time to my knowledge, also to have been used. Such enquiries as I have been able to make to date have not confirmed the use of the site by the Acre Mill Factory. My information is that, until Scotland quarries were brought into use under the control of the Sowerby Bridge UDC, all unusable waste was disposed of, as industrial waste, to the Hepton RDC tip.”

There is a manuscript note referring to the Hepton RDC tip as Pecket Well.

In an internal memorandum of 14 January 1975 from the Personnel Officer at Cape, Mr Middlemas to Mr Cross he refers to information about the Scout End Tip and says that

“Calderdale Council have traced the owner of the land, who states that the waste was tipped somewhere between 1940 and 1946 or 47 and that it came from Cape.”

There followed some inconclusive correspondence between Calderdale MBC and Cape and in a letter of 19 October 1977 from Mr G.J. Norrie, the legal Officer of Calderdale MBC to Mr Cross at Cape, he states in relation to correspondence in 1976:

“…in your letter dated 27 July 1976 addressed to Mr Barraclough of the Environmental Health Department you indicated that there was no direct evidence to support the claim that the Cape Group was responsible for the tipping of asbestos waste at the Scout End Tip.

In view of the costs involved, I have been making further enquiries into this matter and I have now obtained a statement from a former Cape employee who is prepared to give evidence to the effect that over a period of 10 years between 1948 and 1958, whilst in the employment of Cape he delivered asbestos waste to the Scout End Tip on many occasions. This is evidence that was not available to me at the time we last corresponded on the matter.

My Council is strongly of the opinion that the public interest demanded that action be taken to eliminate the possibility (howsoever remote) of any health hazards arising from the presence of asbestos at the Scout End Tip. There now exists clear evidence that Cape were responsible for tipping that waste and in these circumstances my Council think it is not unreasonable that Cape should consider making some contribution towards the cost of the works.”

Further investigations were carried out, leading to remedial work in the 1990s. The investigations, particularly in the 1990s, indicate that asbestos waste was found over extensive areas of the Scout Road Tip and the Scout End Tip, as shown on the plan already referred to. Also, in a Report dated June 1994 by a firm of consultants, SGS Environment, they summarised the following asbestos distribution over the site of Scout Road Tip:

There is evidence in the documents which links Cape to asbestos dumped on the Scout End Tip in the 1940s, 25 to 35 years before the Report in 1974. This evidence appears to have come from a worker interviewed by Calderdale MBC. There is also evidence of Scout End Tip being used in the 1950s. In addition, there is evidence of asbestos being dumped on the Scout Road Tip prior to 1964 when it was a Council tip but no direct statement in the documents that this asbestos came from Cape.

The evidence which I have before me does however connect Cape with the asbestos at Scout Road Tip. Mr Pinder referred to the waste as coming from the Cape factory. He said that, in the days before television, he and his friends would watch the tip whilst sitting on rocks and see about 5 to 10 lorries per day. He said it was common knowledge that the waste came from Cape.

Mrs Firth said in oral evidence that her uncle who worked for Cape had told her that the rubbish was coming from Cape. She had also heard it in general conversations and knew that it came from Cape. She also referred to hessian sacks and to asbestos wagons tipping at the tip. Mr Clark recalled being told that the waste was from Cape Asbestos by one of the workers at Scout Road Tip, whose sister he later married. He recalled the bales of hessian made of either sacks or two strips of hessian held together with pegs. David Summerscales remembered being told by Tommy Buick, who was working at Cape at the time, that he should keep away from asbestos dumped by Cape as it was dangerous. He recalled seeing a vehicle once a week with material from Cape.

In his statement, Roger Sutcliffe stated that he worked at Cape from 1966 to 1970 and said he had spoken to other workers who had told him that the Scout Road tip had been used to dump asbestos. He referred to Alf Rose and Eric Varley as being people he remembered telling him. Alf Rose was a chargehand in the dust and waste department. The documents from Cape confirm that A Rose joined Cape in 1952 and left in 1970. He died aged 53 having been certified with asbestosis.

Jimmy Harrop worked for Hepton RDC as a housing foreman from 1966 to 1970 and visited the tip at Pecket Well and Scout Road. He says that he saw wagons from Cape dumping waste both at Pecket Well as well as Scout Road. He said

“I think that there was so much asbestos waste that drivers had to use Scout Road tip as well as Pecket Well tip. It was common knowledge that the asbestos was coming from Cape’s factory.”

He says that the wagons were unmarked and he does not know whether they came from a separate company or Cape themselves. All of this evidence relates, though, to the later period after 1966.

There are also the statements from other workers at Cape. Mr Purvis worked for Cape between 1956 and 1960 as a driver’s mate. He says

“We took asbestos materials in the form of damp waste from the pipe making department to Scout Road Tip and also to Peckett Tip. I took about half a dozen loads to Scout Road myself but other people from Cape took loads down there. The loads of asbestos were taken in Cape’s own lorries.”

He refers to one of the drivers being Mr Tommy Rudman.

Mr Roland King worked at Cape from 1955 to 1957. He says that he went to Scout Road with asbestos 3 or 4 times as did other drivers in Cape wagons from Acre Mill. He says he went to “Harry Brown’s Quarry”, a reference to the land at Scout End, and dropped the asbestos bags off there. Mr James Gregson worked at Cape for one period of four years and one of three years. He says in his statement dated 18 November 1985 that it was after the Second World War but at least 20 years ago. He says that he dumped the waste at Scout End Tip every week and then stopped all of a sudden. This was in his early period of employment.

I am satisfied on the totality of the evidence that Mr Pinder has established that the asbestos waste in which he played in the 1950s on what has been referred to as the Scout Road Tip, came from Cape and was transported in Cape’s own lorries by Cape’s own personnel. The evidence of those who were called was compelling, albeit hearsay evidence, on the knowledge that the asbestos was coming from Cape. The knowledge necessarily came from adult sources but the witnesses, particularly those with relatives or friends at the factory or working at the tip, each had independent recollections that they were told about it. This is also confirmed by the evidence of the hessian sacks which other evidence shows was the method by which Cape transported its waste. Further although the 1974 Report identified a manufacturer of clutch and brake linings as another possible source, the proximity of the factory at Acre Mill and the large levels of production point strongly to that being the source of the asbestos. The evidence of all the witnesses employed by Cape refers to Cape having their own workers and lorries which were used to transport the asbestos. Whilst some might have been transported by contractors, I am satisfied that substantial amounts of asbestos waste were dumped by Cape’s own personnel at Scout Road Tip where Mr Pinder played in the 1950s, as well as at Scout End Tip.

My overall conclusion is therefore that Mr Pinder’s mesothelioma was caused by his exposure to dust from asbestos waste which was disposed of at the Scout Road Tip by Cape from the Acre Mill factory, using Cape’s own lorries and personnel.

Having made those findings of fact, I now consider whether Mr Pinder can establish the necessary requirements for a claim: that Cape owed him a duty of care and that there was a breach of that duty in this case.

The question of the existence of a duty of care depends on general principles applied to the facts. However, where, as in this case, there are decisions which deal with the scope and extent of duties of care in the context of exposure to asbestos, I must obviously have regard to those decisions in deciding the scope and extent of the duty of care.

The natural starting point is, of course, the classic statement by Lord Atkin in Donoghue v Stevenson [1932] AC 562 at 580 where he said:

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be-persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.”

In this case the acts or omissions which are called into question relate to the disposal of asbestos waste from the Acre Mill factory. The question is therefore whether Cape could reasonably foresee that these acts or omissions would be likely to injure Mr. Pinder as a person who was so closely and directly affected by those acts or omissions that Cape ought reasonably to have had him in contemplation as being so affected when directing their mind to those acts or omissions.

In seeking to establish the existence of the duty of care Mr. Winston Hunter QC who appears on behalf of Mr. Pinder developed his argument. He submits that Cape, knowing that it had an obligation properly to dispose of the dangerous material, failed to do so in circumstances where they knew or ought to have known that it gave rise to a foreseeable risk of injury. He states that Cape deposited or allowed to be deposited significant quantities of asbestos without any attempt to ensure that it was covered or buried or otherwise reduce or restrict the risk of danger.

In relation to the foreseeable risk of injury, Mr Hunter submits that in the 1950s Cape, as an asbestos manufacturer, had a duty to ensure that in disposing of asbestos waste they did not create a risk of exposure similar to exposure which their employees might be exposed to. He contends that if there were continued and repeated deposits of significant quantities of asbestos dust then Cape should have foreseen that this would replicate the conditions within the factory workplace.

In this case, given that the Scout Road Tip was in a populated area with a school nearby; that the tip had a public footpath running across it and that they knew or should have known that the tip would be an attraction or allurement to children, then Mr Hunter submits that Mr Pinder was within the class of people to whom Cape should have foreseen there was a risk of injury caused by dumping the asbestos waste. He submits that, as in Margereson, this is a case where Cape should have foreseen the risk of injury to children playing in the vicinity of the disposal of the asbestos waste.

Mr Hunter also submits that Cape could have taken minimal steps to avoid the risk by giving instructions that the asbestos should be covered over or wetted to prevent dust or other steps should have been taken to reduce the high levels of dust. He accepts that Cape could have discharged its duty by satisfying itself that it had entrusted the task of disposal to a competent third party. However, Mr Hunter submits that there is no evidence that they did take steps to satisfy themselves that someone else was disposing of it safely. Instead, he submits that there is no evidence that Cape took any such steps in relation to the Scout Road Tip.

Mr Charles Feeny who appears on behalf of Cape submits that the level of exposure which could arise from disposing of asbestos waste on a tip was not at a level which was thought to be hazardous up to the 1960s. The exposure, he submits, was occasional visible exposure not the type of exposure to which an employee might be exposed in the working environment and which at the material time was not thought to be dangerous. He submits that the level of exposure was not sufficient to give rise to a foreseeable risk of injury. In this respect he relies on Maguire.

In relation to a duty of care in respect of the asbestos waste, Mr Feeny submits that any duty would, in any event, have come to an end when the waste material passed to the Local Authority at the tip. Further he submits that there was not any duty to a person in the position of the Claimant.

The question of the existence of a duty of care in relation to the disposal of waste depends on the risk of injury as foreseen in the 1950s in relation to asbestos waste. There have been a number of cases, such as Margereson and Maguire where the general history has been set out. In this case, I concentrate on the position leading up to the 1960s. The relevant information is usefully set out by the engineering experts.

Mr Clark in his report has charted the history of the knowledge within the Cape group of companies. A convenient starting point is the investigation of the link between diseases of the respiratory system and occupational exposure to asbestos dust which was commenced in 1928 by Dr ERA Merewether. He collaborated with another colleague, Mr CW Price, in producing the Merewether Price Report in April/May 1930 which is now often referred to in these cases.

That report set out the following:

“It seems probable, therefore, although further research is very necessary, that not only is a certain minimal quantity of the dust required for the production of a generalised fibrosis, but that inhalation of the dust in high concentration results in the production of a more marked degree of fibrosis in a shorter time, than when the concentration is low.” [page 13]“The fibrosis resulted

“… from the inhalation of asbestos dust, the proximate causes being concentration of dust in the air breathed and length of exposure to it. Thus the incidence rate is highest in the most dusty processes and amongst those longest employed.” [page 16/17]”

Mr Clark states that although Merewether and Price found no definite case of fibrosis due to asbestos dust in workers with less than 5 years exposure, they did not rule out the possibility that such cases could occur following exposure to high concentrations of asbestos dust[pages 14/15]. Mr Clark refers to the introduction to the second part of the report which dealt with dusty processes and dust control measures, where Merewether and Price identified various categories of asbestos products including yarns, textiles and insulation materials. Having reviewed the dusty processes associated with the manufacturer of asbestos products, Merewether and Price concluded

“The appropriate methods for suppression of dust may only be fully determined when the harmful effects of comparatively low concentrations of asbestos dust are fully appreciated”. [Page31].

The publication of the Merewether and Price report resulted in a preliminary meeting between HM Factories Inspectorate and representatives of the asbestos textile manufacturers to consider methods for suppressing dust in asbestos textile factories. In response to a request as to “...how far the trade would be expected to go in regard to dust removal.” Dr. Bridge stated that it was “…essential to remove visible dust.” And Dr Merewether said that, in order to prevent the full development of asbestosis within an average working lifetime, the concentration of dust “…should be somewhat below that pertaining to spinning at the present time.” It was agreed that a committee would be set up to “...consider the problem in detail and to collect all information available concerning dust suppression methods.” James Gow,, who was the works Manager at Cape’s Barking factory, was one of the industry’s representatives on that committee.

The committee’s deliberations were published in April 1931 and in a covering letter, the Chief Inspector of Factories endorsed the Committee’s view that

“For practical purposes, the condition arising for flyer spinning carried on without exhaust under good general condition may…taken as the “dust datum” but added a rider that “… it is however desirable to emphasise that this limit is clearly provisional and is subject to alteration in the light of further medical experience.”.

In the Annual Report for 1930, Dr. Bridge (senior Medical Inspector of Factories) referred to the passing of the Workmen’s Compensation (Silicosis and Asbestosis) Act 1930 and reported on 20 fatal cases of asbestosis which had been notified to date. He considered that the available data revealed a number of “…outstanding points…”:

“…the very certain and grave risk which accompanies continued exposure to heavy concentrations of asbestos dust.”

“…it seems clear that exposure to heavy concentrations of asbestos dust for a comparatively short period of years results in the appearance sooner or later of a disabling fibrosis,…”

Dr. Wyers was appointed as Cape’s first medical adviser in 1941 and submitted a PhD thesis in 1946 on his experiences of 98 fatal cases of asbestosis at the Cape’s Barking factory which contained the following references:

The Annual Report for 1949 included a review of the Asbestos Industry Regulations 1931 and a reminder for both manufacturers and users of “..the necessity of preventing, as far as possible the inhalation of asbestos fibre and dust.” It also referred to “…the unsatisfactory practice of packing raw asbestos fibre into unlined Hessian or jute bags…which renders workers handled them to considerable exposure to dust and fibre.”. It reminded readers of one of the requirements of the Asbestos Industry Regulations 1931 that “All sacks used as containers for the transport of asbestos within the factory shall be constructed of impermeable materials and shall be kept in good repair.”

In the joint expert statement dated 7 December 2006 prepared by Mr Clark and Mr Beauchamp, Mr Clark says that he:

“”

“concludes that, by virtue of Dr Wyers’ involvement with them since 1941 and of his analytical approach to the data on asbestos-related disabilities and deaths, [Cape] were well aware of the incidence of asbestosis in their Barking workforce, of the association of lung cancer with asbestosis, of the occurrence of the first case of endothelioma of the pleura in association with asbestosis and of the development of asbestos-induced conditions in some individuals after relatively short periods of exposure to asbestos-containing dusts. [Mr Clark] concludes that, during the material period, [Cape] were at the forefront of knowledge of asbestos-related maters and that they were not only aware of the consequences of being exposed to asbestos fibres and/or asbestos-containing dusts but that they also knew what control measures could and should have been taken to limit their employees’ occupational exposures to such fibres and/or dusts.”

Mr Beauchamp says that having considered the review and comments of Mr Clark, he agrees with those conclusions.

It was in 1965 that the publication in the Journal of Industrial Medicine of an article entitled “Mesothelioma of the Pleura and Peritoneum Following Exposure to Asbestos in the London Area” stated: “There seems little doubt that risk of mesothelioma may arise from both occupational and domestic exposure”.

In relation to the activity of handling and disposing of asbestos waste, the engineering experts state that these are not matters with which they have previously been greatly concerned and they acknowledge that they are beyond their normal expertise. They do, though, express a joint “commonsense point-of-view” on the persons who could be affected by the disposal of asbestos and on the steps which should have been taken to bury waste and fence the tip.

In the late 1960s the Asbestosis Research Council introduced Provisional Notes for Guidance containing “Recommendations for the handing and disposal of asbestos waste” and then a Code of Practice for the Handling and Disposal of Asbestos Waste. The copies of the two documents I have seen are dated June and September 1969 respectively. These documents appear, for the first time, to deal with steps that should be taken in relation to disposal of asbestos waste. They deal with the need to avoid dust from dry waste by dumping into water or covering the waste with inert material at the end of each day.

These documents coincided with the introductions of the Asbestos Regulations 1969 which were introduced in May 1970.

So far as the Cape factory at Acre Mill was concerned, the document produced by Mr Cross in 1974 contain only one reference to disposal of waste. In relation to the maintenance of dust control equipment in the factory it stated:

“A planned maintenance system was introduced in 1954; from at least 1949 the servicing of the filter units and the regular collection and disposal of waste was organised on a scheduled basis by a specialist team equipped with respirators and protective clothing.”

The evidence also shows that at the Scotland quarries, which were in use for the disposal of asbestos for an uncertain period up to 1970 there was, as I have stated above, a strict control over the method by which waste was deposited. Equally, at Pecket Well, from 1967 the council were introducing requirements for the method of dealing with asbestos waste. There is no evidence of any similar steps being introduced at Scout Road Tip.

In coming to a conclusion on whether, in the relevant period between about 1952 and 1960, Cape owed a duty to people, such as Mr Pinder, playing on Scout Road Tip who would be exposed to occasional high levels of asbestos dust, there are two relevant considerations: Mr Pinder’s level of exposure of asbestos dust and the circumstances by which Mr Pinder came to be exposed to that dust.

In relation to the level of exposure, it is evident that there was increasing knowledge of the effects of asbestos dust upon employees between 1930 and the 1960s. The evidence of the research carried out by Dr Wyers from 1941 to 1949 showed that employees developed asbestos-induced injury after relatively short periods of exposure to asbestos-containing dusts.

The question of the level of exposure was considered in Maguire, particularly in the light of the decision of the Court of Appeal in Shell Tankers UK Ltd v. Jeromson (The Cherry Tree) [2001] PIQR 19. In that case which involved claims by employees exposed to asbestos it was held that as between employer and employee, the employer will be in breach of duty if he fails to reduce the employee’s exposure “to the greatest extent possible”. In coming to that conclusion, the Court of Appeal preferred the approach of Buxton J in Owen v IMI Yorkshire Copper Tube (Unreported, June 15 1995) where he held that an employer

“would have known from the middle 1950s that exposure to asbestos should be kept to the lowest possible level” and that from 1951 “the threats posed by asbestos were sufficiently well-known, and sufficiently uncertain in their extent and effect for employers to be under a duty to reduce exposure to the greatest extent possible.”

That approach was preferred over the approach of Waterhouse J who held in Gunn v. Wallsend Slipway and Engineering 9Times, January 23 1989) that it was a breach of duty by an employer before 1960 to subject his employees to “heavy and prolonged” exposure to asbestos because there was then a known risk of contracting asbestos.

In Maguire at para 51 Judge LJ considered The Cherry Tree and Owen and on the basis that these cases involved employees concluded that:

“It does not necessarily follow that an employer who should have appreciated the risk of harm to his employees, and taken precautions for their safety, or investigated the possible need for precautions against direct exposure at work, should simultaneously have appreciated, and addressed, a familial risk arising from secondary exposure.”

In relation to knowledge of the risk of exposure, Judge LJ said at para 56 of Maguire that:

“In relation to the present litigation this analysis begs the critical question whether it was, or by April 1965, should have been, apparent to those whose employees were working with asbestos, that the health of individuals whose contact with it came, so to speak, second-hand and intermittently, and whose exposure to it lasted for peak periods only, was under threat.”

His answer at para 57 was that

“Before 1965 neither the industry generally, nor those responsible for safety and health, nor the Factory Inspectorate, nor the medical profession, suggested that it was necessary, or even that it would be prudent, for risks arising from familial exposure to be addressed by the industry. In truth, the alarm did not sound until late 1965, when it began to be appreciated that there could be no safe or permissible level of exposure, direct or indirect, to asbestos dust.”

Longmore LJ concluded at para 97 of Maguire that it was not reasonably foreseeable between 1960-1965 that a wife washing the clothes of a husband who was himself exposed to asbestos to a negligent degree would herself be likely to suffer risk of personal injury. This was on the basis that before 1965 there was no indication that an employer ought to have appreciated the risk of exposure to asbestos dust on the part of those living in the same household as an asbestos worker.

The judgment of Judge LJ indicates that the level of exposure is a relevant consideration in considering the question of whether a duty of care is owed to a person who came into contact, secondhand and intermittently, with asbestos and whose exposure lasted for peak periods only.

In this case, even accepting that the level of exposure was, as Mr Clark assumes, for a period of 4 hours a week for 6 years with an average fibre concentration of 10 fibres/ml, I do not consider that such an occasional, relatively low exposure over a period of 6 years would be such as to make the risk of injury foreseeable to Cape in the 1950s. The relevant risk, as Russell LJ said in the Court of Appeal in Margereson at page P361, is that of some pulmonary injury not necessarily a risk of mesothelioma.

I consider that it was only in the 1960s that secondhand and intermittent contact by persons with exposure lasting for peak periods outside the workplace was a concern and I consider that to impose a duty of care to such people prior to the 1960s would be applying hindsight to the standards which applied in the 1950s. In 1960 HM Factory Inspectorate issued booklet No 8 entitled “Toxic substances in Factory Atmospheres” which suggested a limit of 177 particles per cubic cm based on American figures. Although there was no conversion in that booklet, the same Standard in the 1968 version shows that the 1960 limit of 177 particles per cubic cm is equivalent to 30 fibres/ml. Although there is an argument as to the appropriate conversion figure, I consider that this indicates that there was an acceptable figure of exposure, whatever that might be below the limit.

In relation to the circumstances of Mr Pinder’s exposure, I accept that if it were reasonably foreseeable that a person outside the workplace might be exposed to levels of dust similar to those which would have given rise to a breach of a duty of care in the workplace then that person would be likely to have a cause of action based on a breach of a duty of care owed outside the workplace. This, in effect, was the basis for the decision in Margerson. As Judge LJ stated in Maguire at para 48 when considering Margereson:

“In summary, a family member is not precluded from establishing liability based on environmental contamination with asbestos dust. In an appropriate case, the environmental principle may apply to members of an employee's family as to anyone else living in the immediate vicinity of premises working with asbestos. However, in this case, it was not established that the dust to which Mrs Maguire was exposed effectively replicated her husband's level of exposure, nor indeed that her level of exposure, if repeated in factory conditions, would have constituted a breach of duty to an employee. Therefore liability on the basis of "environmental" exposure did not arise for consideration.”

However, in this case, besides the fact that the level of exposure would not have reached levels which would have amounted to a breach in the 1950s, the position of Mr Pinder as a visitor to the tip in Scout Road raises other questions of foreseeability. As the engineering experts agree,

“From a commonsense point of view, when considering the potential impact of the disposal of their asbestos wastes on persons who could be affected by such wastes, it is our view that such persons should have included those who handled and transported such wastes to waste tips, those persons who were likely to be exposed to airborne asbestos dusts/fibres as a result of lorry loads of asbestos waste being driven along public roads and those who were concerned with the ultimate disposal of such wastes at waste tips.”

At the relevant time the Scout Road Tip was in the control of Hebden Royd RDC who obtained a lease of the land and were granted permission by the County Council of the West Riding of Yorkshire for the use of the site. There is no evidence that Cape knew or ought to have known that children were playing in the waste at that tip. In those circumstances, I do not accept that Cape could reasonably have foreseen that the method of disposal of asbestos waste would have been likely to injure Mr. Pinder. I do not consider that Cape ought reasonably to have had in their contemplation children who might play on the refuse tip under the control of the local council after the waste had been deposited. Such people would, I consider, be outside the class of persons who Cape should have foreseen as being affected when directing their mind to the disposal of asbestos waste material.

I accept the engineering experts’ agreed position as to those who would have been in the contemplation of Cape as being affected but I consider that children playing on a tip in the control of the council after Cape had deposited the waste is an extension to the class of people which cannot be justified. The experts’ view is consistent with the evidence of Cape’s actions that from at least 1949 “the regular collection and disposal of waste was organised on a scheduled basis by a specialist team equipped with respirators and protective clothing.” Those collecting and disposing of waste were therefore, in fact, identified as being likely to be affected and they would, in the course of their employment be likely to be exposed to high levels of dust.

I do not consider that by the standards of the 1950s Cape should have taken particular steps after depositing the asbestos waste at the Scout Road Tip. The evidence is that the recommendations on such matters were developed in the late 1960s as was also evidenced by the steps taken at the Pecket Well tip in 1967. I do not consider that the evidence establishes that Cape should have been giving advice to local authorities or complying with particular standards in relation to the disposal of materials on tips in the 1950s. Neither do I consider that Cape had obligations relating to the management or organisation of the Scout Road Tip, such as fencing.

Therefore, I conclude that Cape did not owe Mr Pinder a duty of care in the 1950s as a child playing on the council tip after asbestos waste had been deposited on that tip. He was not within a category of person who Cape ought reasonably to have had in mind and, in any event, by the standards of the 1950s he was not exposed to a level of asbestos dust which would be reasonably foreseen as causing injury to him.

Obviously, I come to this conclusion with regret. Mr Pinder gave his evidence with resilience, with humour and with an understandable nostalgia for his childhood days in Mytholmroyd. He could not foresee that those happy escapades to Scout Road Tip would lead to the illness from which he now suffers. Equally, as I have found, there are limits on what Cape in Acre Mill could be expected to foresee. Unfortunately for the purpose of his claim, my conclusion is that Mr Pinder falls outside those limits.