Pinnegar v Kellogg International Corporation & Anor

The claimant is the daughter of Peter Skeen who died as a result of mesothelioma on the 30^th March 2017. He was 81 years old. She brings this action on behalf of her father’s estate pursuant to the Law Reform (Miscellaneous Provisions) Act 1934 and on behalf of her mother pursuant to the Fatal Accidents Act 1976. Throughout his working life he had worked as a plumber/pipe fitter. For several months during the tax year 1966/67 he worked as a pipe fitter for the first defendant at the second defendant’s Wilton site on Teeside.

The claimant’s case is that during that employment her father was exposed to asbestos when working alongside pipe laggers which materially increased his risk of developing mesothelioma. It is alleged that the exposure was caused by breaches by the defendants of the statutory and common law duties which they owed to him. Mr Skeen was the sole carer for his wife and the claimant’s mother who was and remains in ill health. Liability is denied by both defendants but damages are agreed, subject to liability, in the sum of £180,000.

Although a number of factual disputes have arisen in the case, the fundamental issue is the extent to which I accept Mr Skeen’s account of his exposure to asbestos which he gives in his witness statement signed on the 20^th February 2017 shortly before his death. The defendants challenge the reliability of Mr Skeen’s account but concede that if his evidence is accepted then that would constitute breach of duty and liability would be established. That said, the discrete issues I have to consider in considering Mr Skeen’s reliability are:

My consideration of Mr Skeen’s account is essentially a fact finding exercise. I have been assisted by expert evidence from Mr Chambers instructed by the claimant and Dr Jones instructed by the defendants. Both experts have expressed views in relation to the issues of fact which I have identified but it is trite to say that this is not a trial by expert and issues of fact are for me to determine on the totality of the evidence. To that end I have been referred to a number of documents disclosed by the second defendant concerning some of its operations at the Wilton site during the mid-1960s. There are no documents disclosed by Mr Skeen’s employer, the first defendant.

Reference has been made to the way in which some first instance judges have approached issues of fact and assessed the reliability of witnesses in other cases. In particular I was taken to the judgments of Leggatt J in Gestmin SGPS -v- Credit

In assessing the evidence of Mr Skeen, I take into account the following factors:

The relevant parts of Mr Skeen’s statement are at paragraph 9. It reads: “Kelloggs did work for ICI Wilton on the new Nylon 7 Plant. When I went to work for this company I was employed as a pipe fitter. I recall that everything to do with Kelloggs was painted green that was their colour. The person who was my gaffer at that time was a Mr Tetley who was a Canadian. We were building oilifines (sic). This was a new plant that was being built along an older plant at ICI Wilton. There were laggers working in close proximity to us. I do not know whether they were employed by Kelloggs or ICI or where [sic] outside contractors. The ICI plant was expanding rapidly and we had to connect the old pipe work in the older buildings to the new pipe work in the new building. To do this the laggers would knock off the old asbestos lagging. This would expose the steel pipe work. I would use pipe cutters to cut through the pipe and prepare it to be welded. Once it was welded it would then be pressure tested and then the laggers would relag the pipework again. If there was a straight run of pipe then they would have two pre moulded asbestos halves which would wrap around the pipe work and then be secured with silver bandings. The casting [sic] to go around the pipe work was premoulded but still needed to be cut to size by the laggers using hacksaws. If there was a junction of pipe work or a clear piece then they would also have to mix asbestos powder and then use a trowel to plaster it on. I can recall watching them tip large asbestos bags out into drums and mix it on site until it was the consistency of cement. I didn’t take a great deal of notice of the laggers but we did stop and talk to them as we were all working in the same part of the plant at the same time and our jobs overlapped. At the end of a typical day my work clothing, hair and face would be covered in white asbestos dust…” Later, at paragraph 19 he said:

“I believe that the longest most heavy periods of exposure to asbestos was whilst working at JM Guthrie and then ICI Wilton for Kelloggs.”

In November 2016 Mr Skeen made an application for Industrial Injuries disablement benefit in which he wrote of these defendants:

“I worked alongside the laggers at Kelloggs at ICI. We fitted the pipes and the laggers lagged the pipes. They cut the asbestos to fit around the pipes where we were.”

As for the content of the witness statement a number of points are validly made on both sides:

I take all these factors into account when assessing Mr Skeen’s evidence against the various documents to which I have been referred and, in so far as it assists, the evidence of the experts. I now turn to the relevant factual issues.

Inland Revenue records show that he worked for the first defendant within the tax year 1966/67. This was one of five employments within that year. Mr Skeen’s statement makes reference to all of those five. He says he worked for R Quincy in Yarm for “a few months (probably no more than 6months)”; before that he had been self-employed; after R Quincy he went to work for the first defendant at the Wilton where he remained for “approximately 6-8 months”; thereafter he moved to Shouksmiths (a German firm) saying “I was only there for a month or so”; he then describes working for a number of other companies for a few weeks or months at a time – of those, Frank Watson appears in the Inland Revenue records for 1966/67.

It is probable that Mr Skeen had available to him the Inland Revenue tax records when he made his statement. However, I have no reason to doubt the broad accuracy of his recollection of the times he spent at each employer within that tax year and I accept it. I reject the suggestion made by Dr Jones that the tax year should be assumed to have been divided equally between five employers identified. There is no evidential basis for this.

Based on the history, I find that on the balance of probability that Mr Skeen worked for R Quincy for a few months after April 1966 before joining the first defendant, and that he left the first defendant’s employ at least one month before the end of the tax year during which time he worked for Shouksmiths and then Frank Watson. In those circumstance I find that he probably started working at the Wilton site in the summer of 1966 and probably did not work for the first defendant at Wilton after the end of February 1967 at the latest.

This finding is highly relevant to the issue to which I next turn namely where Mr Skeen worked on the site.

This has been the focus of much of the argument because the place of work informs the nature of the work he was doing and thus the potential for asbestos exposure. The parties’ positions have developed over the course of the litigation:

Dr Jones wrote at paragraph 3.9.3 of his report dated 12 December 2019:

“the Olefine 5 is listed as having a start-up date of 1969, so that appears to be the plant on the construction of which the deceased worked.”

Mr Chambers has now sought to draw back from the view expressed at paragraph 3.11 of his report in the light of subsequent evidence and disclosure. As result, a good deal of evidence and discussion at trial has been directed to whether or not it is likely that Mr Skeen was working at Olefine 5.

There are three documents which touch upon this issue. First, and importantly, there is the “Engineering Specification for Hot Insulation Material and Application” specifically for “No .5 Olefine Plant”. It is apparent from the front sheet of that document that it has undergone three revisions. It was initially dated 8 August 1966 “For Approval”; the first revision was on 10 February 1967: “Approved for Construction”; the second revision was on 22 March 1967: “Revised for ICI comments”; and the final revision on 15 December 1967: “General Revision to asbuilt requirements”. This is of importance because it is the claimant’s case that Mr Skeen was working alongside laggers who were insulating pipes. If the insulation and therefore lagging work started after Mr Skeen had left the Wilton site then his asbestos exposure could not have been at Olefine 5.

I have also been referred to a large plan of the site prepared in 2002 entitled “Current and Previous Land Allocation Wilton site” (which I will refer to as “the plan”) and a table in an Excel spreadsheet form of the various plants at the Wilton site prepared in about 2007 (which I will refer to as “the spreadsheet”). Both these documents were prepared significantly after Mr Skeen’s employment and the latter document contains the warning that “it has not been verified rigorously with data held in legacy records and all relevant site environmental reports”. There is no evidence as to why these documents were prepared but they are of some general assistance when I assess the reliability of Mr Skeen’s account.

None of these three documents were available to Mr Chambers when he prepared his report dated 1 November 2019. Having considered them, it is now his view, and indeed the claimant’s case, that on the balance of probabilities when Mr Skeen referred to “oilifines” in his witness statement he was making reference not to Olefine 5 but to a plant identified on the plan and spreadsheet as Butadiene 2.

I accept Mr Skeen’s evidence that he worked on what he considered to be an “oilifine” plant. In my judgment, it is highly unlikely that he would have made reference to such a specific term if he had not worked there. His recollection is, in broad terms, supported by the documentation that I have seen. The real question is which Olefine plant did he work on?

On the available evidence I find that it is unlikely that he worked alongside laggers on Olefine 5. A reasonable conclusion to be drawn from the revisions to the Engineering Specification is that lagging work on the Olefine 5 plant did not commence until after the insulation specification had been approved by the second defendant on 22 March 1967. I have already found that Mr Skeen probably stopped working at Wilton at the latest by the end of February 1967 and therefore, in my judgment, he was probably not on site when the lagging work on Olefine 5 started. I note that it has never been

The claimant therefore invites me to consider whether the evidence supports any reasonable conclusion that Mr Skeen’s recollection was a reference to another part of the site.

The evidence as to what other Olefin plants existed at the Wilton site is contained in the spreadsheet. In the first box of the spreadsheet the description “Olefin” is described as the “works” or “grouping” at the site for petrochemicals and plastics. The section headed “Olefines” identifies a number of plants which from time to time have been in that group. The most relevant of these for present purposes are Olefine 5 and Butadiene 2. Olefine 5 is recorded as having a start-up date of 1969 and is said to be an “asbestos free plant”. Butadiene 2 is recorded as having a start-up date of 1968. There is no further comment about Butadiene 2.

In my judgment, given my finding that Mr Skeen was probably not working on Olefine 5 for the reasons I have given, I consider it to be highly likely that his reference to “building oilifines” was a reference to the construction of Butadiene 2. This is for a number of reasons. As Dr Jones has pointed out, primary petrochemicals are divided into three groups depending on their chemical structure. One of those groups is the olefins and included within the group of olefins is butadiene. Butadiene is therefore a type of olefin. The Butadiene 2 plant was being built at about the same time as Olefine 5, and, as is clear from the plan, is broadly in the same area as Olefine 5. It is described in the spreadsheet as part of the Olefines group. It is therefore unsurprising that Mr Skeen and other tradesmen or contractors might have referred to it as such. Its construction was probably in advance of Olefine 5 given that it started up one year earlier. Further, in my judgment, on the evidence available to me, there is no reasonable alternative to account for Mr Skeen’s description, which I accept, of “building oilifines”.

I now deal with Mr Skeen’s reference to the Nylon plant, and in particular Nylon 7. In the spreadsheet, Nylon works are said to be part of the “fibres division” and Nylon 7 is specifically mentioned as having been part of an expansion in 1965, coming

“online” in 1966. There is no reference specifically to Nylon 7 on the plan although I note that those plants listed under Nylon 7 in the spreadsheet (such as ADN crude, Acids 2, Inters 2, HMD, and Catalyst) are all shown as part of the Nylon DuPont plant (as are most of the plants listed under the heading Nylon Works (Nitric acids 1&3, Acids 1, Inters 1, solvents, Nylon polymer, and thermex)). This evidence tends to support and give credence to Mr Skeen’s recollection that work was being carried out in the nylon plant during the course of his employment with the first defendant, that he has accurately recalled Nylon 7, and that the ICI plant at Wilton was generally “expanding rapidly”. There is no evidence or suggestion that there was any connection between the Nylon plant and the Olefins plants but it seems likely, given Mr Skeen’s evidence, that at some stage during his employment with the first defendant he did some work on the Nylon 7 plant during 1966. However, there is no further evidence about the nature of that work and it is not relied on by the claimant in support of her claim.

Mr Skeen was a pipefitter. It is not suggested that he worked directly with asbestos during his employment at Wilton. His case is that he worked alongside laggers who were variously involved in stripping, cutting and mixing asbestos. Consideration must therefore be given as to what lagging work it is likely was being carried out on the Butadiene 2 plant and the extent to which Mr Skeen came into proximity with it.

There is very little evidence about the Butadiene 2 plant. However, it is clear from aerial photographs of the site to which I have been referred that, in broad terms, it was similar in structure to the Olefines 5 plant although much smaller in size. Importantly, it is clear that the Butadiene 2 plant consisted of an extensive series of pipes running close to each other both horizontally and vertically.

Insulation is only likely to have been required on hot pipes. There is little evidence as to what pipes or vessels required insulation on Butadiene 2. However, it is agreed between the experts that both Olefin 5 and Butadiene 2 would probably have used steam, and that steam may have been, and I find probably was in the absence of evidence of any other source of steam, branched in to the existing network of steam pipes at the site. I am therefore satisfied on the balance of probabilities that there was at least one system of pipework within the Butadiene 2 plant which required insulation. There may have been more.

Although the aerial photographs only show the general area rather than the Butadiene 2 plant specifically, I am satisfied that the nature of the plant was consistent with Mr Skeen, as a pipefitter, having worked alongside or in close proximity to other tradesmen carrying out insulation work. There has been some discussion as to whether his work would be carried out on the same pipe as that being insulated. It is pointed out by the defendant, in my view with some justification, that lagging work would only be required once the fitting had been completed and the pipe tested. In those circumstances it seems less likely that a pipefitter would still be working on that pipe at the time it was lagged. However, Mr Skeen does not suggest that he was working on the same pipes as the laggers. He refers to the laggers “working in close proximity

Mr Skeen also describes connecting new pipes into old pipes. On the evidence available to me, the only possible connection to existing pipework would be when branching off steam pipes from the existing network. It is quite plausible that this work needed to be done although I accept that, at its highest, this would probably have amounted to no more than 6 connections (an input and output connection on each of three existing steam networks). Further, I accept that such work would probably have taken place at the site of the existing network, somewhat removed from the Butadiene 2 plant itself. That said, the pipe from the existing network into the Butadiene 2 plant and to its intended destination would have to be insulated.

Having considered this evidence, I am satisfied that Mr Skeen’s recollection that he worked in close proximity to laggers is accurate. He was able to describe what the laggers did when stripping or “knocking off” old insulation, applying new pre-formed insulation and mixing paste for insulation. He had no other experience of working with laggers and the fact that he was able to describe this work in the way that he did adds weight to the accuracy of his recollection. His description of talking to laggers, to them all working in the same part of the plant at the same time (I note that he does not say he was working on the same pipes) and that “our jobs overlapped” is entirely plausible and, I find, did happen. The “knocking off” of old insulation probably refers to the branching of steam pipes from the existing network. Although his description does lack detail as to the frequency and duration of such contact that is not surprising given the passage of time. I accept this part of his evidence as being accurate and consistent with the other evidence in the case.

There are two aspects to this issue. First, what was the material that the laggers were working with? And, second, if such material did contain asbestos to what extent, if at all was Mr Skeen exposed to it?

As to the nature of the insulation material, the experts agree that the lagging to the pre-existing steam pipe work is likely to have contained asbestos. They also agree that if Mr Skeen worked in close proximity to others removing that asbestos lagging he is likely to have been exposed to asbestos dust. Whether he did work in such close proximity to this work I shall consider later.

With regard to the application of insulation, I am satisfied that Olefine 5 was an asbestos free plant and that all insulation on Olefine 5 was carried out using nonasbestos-containing materials. There is no good evidence that asbestos materials were used on Olefine 5 and the documentary evidence (the Engineering Specification and the spreadsheet) points to the conclusion that it was not. However, as I have found that Mr Skeen did not work on Olefine 5 when lagging was being applied, the issue becomes whether or not asbestos was used on Butadiene 2.

The engineering specification for Olefine 5 provided that the non-asbestos material to be used on hot pipes was Newtherm F and on vessels Magnesia 66. The defendants argue that it is likely that the same or similar non-asbestos materials would have been

The evidence suggests that Newtherm F was only becoming available in 1967. I have seen minutes of a conference on “The Limitations of Thermal Insulation Arising from the Use of Asbestos” dated 11 April 1967 in which it is recorded that Newtherm F “has only been available about one month”, that field tests on durability had not proved conclusive, and that no plastic or paste form was available at that time. Although the defendants argued that a large industrial concern might have had access to Newtherm F before it was readily available elsewhere, there is no good evidence of this and I find it unlikely that it would have been used until it had passed tests of durability. On the available evidence it seems unlikely that Newtherm F was being used before March 1967. Therefore it is unlikely that Mr Skeen was describing Newtherm F being applied either in pre-formed or paste form before he left the Wilton site at the end of February 1967.

There is no other good evidence that any other non-asbestos based material was available for insulating hot pipes at the time Mr Skeen worked at the site. There is no evidence as to when Magnesia 66 became available. However, according to the documents I have seen, Magnesia 66 was only specified for use at lower temperatures and, in any event, the evidence suggests that it was pink in colour in order to distinguish it from asbestos materials. This is confirmed both in the record of the conference at Billingham on 11 April 1967, the record of a meeting in July 1967 at the second defendant’s Mond division entitled “The Selection of Thermal Insulation Materials, Elimination of Asbestos” and a further document dated 8 April 1968 which considers the stripping of asbestos lagging at the Olefin works in Wilton. If Mr Skeen’s recollection that the dust to which he was exposed was white is correct then it is highly unlikely that he was exposed to Magnesia 66.

Against this background, I conclude that there is no evidence to support a conclusion that any dust to which Mr Skeen was exposed came from a non-asbestos based material. In short, I am satisfied on the evidence before me that such materials were not available at the relevant time or, if they were, they are not consistent with what Mr Skeen describes as a white dust.

I am therefore driven to the conclusion on the balance of probabilities that if Mr Skeen was exposed to white dust from the lagging works as he claims then on the balance of probabilities it was asbestos-based material.

The defendant, through Dr Jones, has raised the possibility that any dust described by Mr Skeen may have been from concrete. I reject that as being speculative and unsupported by evidence. Whilst it is right that the new plant would have had a concrete base and consequently there was the possibility of concrete dust being present especially during times of drilling, I reject the suggestion that Mr Skeen has mistaken concrete dust for dust being generated by the work of laggers which he has described.

This largely comes back to the extent to which I accept Mr Skeen’s description contained in his witness statement. The defendants validly make the point that, in this case, the fact that Mr Skeen developed mesothelioma is not evidence that he was exposed to asbestos with these defendants. He has always acknowledged that he had asbestos exposure in other employments which could equally have caused or contributed to his condition.

I make the following observations:

I take into account all the points made on behalf of the defendants about the quality and therefore reliability of Mr Skeen’s evidence including the fact that there is no reference to the work being outdoors (which I find it probably was having seen the photographs of the BUTADIENE 2 plant) and that his reference to “buildings” in his description of the work is not entirely accurate.

However, looking at the totality of the evidence I find that Mr Skeen’s account is broadly reliable and I accept it. Importantly, I accept his evidence that “at the end of a typical day my work clothing, hair and face would be covered in white asbestos dust”. It may well be that his exposure was less frequent than that sentence implies, but I am satisfied that on many occasions Mr Skeen’s clothing face and hair were covered in a white dust at the end of the day and that that dust was probably asbestos which emanated from the work of laggers. I accept that that probably happened as a result of laggers either stripping asbestos in order to enable the steam pipes to be branched out of and into the existing network; and/or cutting pre-formed asbestos sections with hacksaws; and/or tipping large asbestos bags out into drums in order to mix it on site.

In the light of the concession made by the defendants (rightly in my judgment) that “if Mr Skeen was in fact required to work alongside laggers and became covered in asbestos dust by reason of that process then that would constitute a clear breach of duty and liability would be established” I need not go into the various breaches of duty alleged.

In short, I am satisfied that Mr Skeen was probably exposed to levels of asbestos dust during his work at the Wilton site. That that exposure was as a result of the tortious act of the defendants and that it materially increased his risk of developing mesothelioma.

It follows that the claim succeeds and there will be judgment for the claimant in the agreed sum of £180,000.