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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Taylo v Fascia Future Ltd [2018] EWHC 3049 (QB) (09 November 2018) URL: http://www.bailii.org/ew/cases/EWHC/QB/2018/3049.html Cite as: [2018] EWHC 3049 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th November 2018

Ms Rowena Collins Rice :

Introduction

1. 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.
2. 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.
3. 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 6^th 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".
4. 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.
5. 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

6. 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.
7. 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?

8. 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

9. 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.
10. First, there was no dispute that he had had a period of sick absence following an injury, between 8^th May and 23^rd June 2000.
11. 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.
12. 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.
13. 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.
14. 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?

15. 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? In a job where asbestos was encountered, what proportion of the job involved the asbestos? The evidence was limited, and differed significantly, at any rate initially.
16. Mr Walpole's evidence was that the turnover of his business was around £90,000 a year, which averaged out at around 50 jobs. Mr Taylor did not recognise an average of one job a week – he thought it likely to be nearer twice that. The turnover figure seems to me to be a reasonable place to start, however, and a large number of variables are likely to have been involved in that average figure – demand, location, season, weather conditions, condition of the house, supplies, time necessarily spent on other things. An average of one job a week in these circumstances allows for two jobs a week to have been experienced often (as Mr Taylor recollected); an average of two jobs a week would have required more than that to have been encountered from time to time, and that was not suggested. Mr Walpole's evidence was not systematically challenged on the detail of this point. I accept it.
17. Mr Taylor's written evidence on the next question appears in a number of places in his statements. He said that: every job he did involved asbestos; he encountered it on a daily basis; "easily the majority of cases had asbestos gutters and soffits and occasionally asbestos fascias"; "almost every job we went to had some asbestos"; easily 90% of jobs involved some asbestos removal. Mr Pancoust thought about 50% of his (similar) work involved asbestos. Mr Walpole's written evidence was that asbestos was encountered "infrequently – maybe once a month"; of 50 jobs a year "around 10 of those would have had white cement asbestos guttering and maybe 20 would have had white cement asbestos soffits" giving a range (allowing for overlap) of 40-60% of jobs. He accepted that range under cross-examination, and that it was more than once a month (once a month being something like 25% of jobs), but maintained it was not 'most' or 'almost all'.
18. Some efforts were made to throw light on the matter by reference to business documentation. That documentation consisted of job quotations with references to 'disposal' from which some of the witnesses were invited to deduce frequency of asbestos encounter, job by job. The documentation had been prepared by Mr Walpole's father, from whom no evidence was taken; it was not otherwise referred to in the witness statements, it was incomplete, ambiguous on its face, and consistent with a range of possible conclusions. The Claimant submitted that I should disregard it. I am unable to gain significant assistance from it, and it was not in the end urged upon me by the Defendant that I should.
19. Further efforts were made by breaking the question down component by component. Mr Taylor's evidence was that the fascia component of a removal jobs was usually timber but occasionally an asbestos product. Mr Pancoust's witness statement had said the same, but his oral evidence was that this was a mistake: he had never encountered asbestos fascias himself and was unaware that Fascia Future jobs had ever involved asbestos fascia removal. Mr Walpole was clear that the fascias removed were always wooden and never involved asbestos. There was some support for that from the lack of reference to fascias in contemporary HSE guidance about where asbestos products might be encountered on the exterior of domestic properties.
20. It was common ground that the old soffits could be made of asbestos material or wood (timber or plywood); Mr Walpole's evidence was that they were also sometimes plasterboard. Mr Taylor's evidence was that he rarely encountered wooden soffits. He thought nearly all (90%) of the soffits were made with asbestos. Mr Pancoust thought asbestos soffits and guttering were encountered around half the time. The old guttering could be made of plastic, cast iron or asbestos cement (Mr Walpole accepted that old cast iron guttering was relatively unusual – not more than 20% of the jobs involved encountering it; that was similar to Mr Pancoust's evidence).
21. Trying to overlay what must necessarily be impressionistic recollections with a template of percentages is not an unreasonable endeavour, but it has its limitations. Put more simply, Mr Taylor's evidence was that jobs nearly always involved asbestos – nearly all the soffits were asbestos, the guttering often, the fascias occasionally. These materials were of their time; the old fittings that they removed would be anything from ten up to 50 years old and the houses had been built or fitted out in the past in batches – if asbestos was used at all it was used repeatedly in an area. By contrast Mr Pancoust, on reflection, thought it more accurate to say that asbestos was encountered as often as not. Mr Walpole was not prepared to put it much higher than that, but accepted that neither was it rare or 'infrequent' as he originally said.
22. I was asked to resolve the matter by relying more heavily on one witness than another. A difficulty with that at the outset was knowing how far any of the witnesses could in fact confidently distinguish between asbestos and non-asbestos materials at the time. Mr Walpole might have been expected to, but accepted that he was untrained in the matter and unaware of contemporary regulations and guidance about the use of asbestos. Under cross-examination, he was hesitant about the distinctions between different kinds of asbestos materials. Mr Pancoust said unhesitatingly that it was obvious, often from the ground and certainly closer to, whether a material was asbestos-based. But Mr Taylor's evidence was that at this time he himself was unable to recognise asbestos. It was only later, when he took over the business (or perhaps at the end of the 1990s when the tip stopped accepting asbestos) that he thought about distinguishing it from anything else. He had looked back at his earlier experience from that vantage point and identified asbestos as an everyday thing at that stage, rather than contemporaneously.
23. I was asked to note the discrepancies and concessions in the written and oral evidence of Mr Walpole and, to a lesser degree, Mr Pancoust. I do so, but as to credibility I accept that they both simply found that the more intensely they thought about things the more they had to refine or revise their initial accounts. There was candour in that. Mr Walpole was unhesitatingly candid about his unawareness of his regulatory responsibilities as an employer at the time, and Mr Pancoust was in my view genuinely trying to give as accurate and objective an account as he could. They were doing their best to describe the unremarkable and unrecorded routines of many years ago.
24. I was asked by the Defendant to be cautious about Mr Taylor's account as containing its own inconsistencies and, in all the circumstances, tending to an (understandable) overstatement. Despite Mr Livingston's care, Mr Taylor clearly found the experience of giving oral evidence under cross-examination, over a number of hours (albeit with breaks), stressful and frustrating. Mr Steinberg asked me, at trial, to make allowance for a rapid worsening in Mr Taylor's condition in recent weeks; I had no medical evidence as to the impact of his condition on his ability to recall and give evidence (Mr Steinberg suggested the deterioration had been too rapid to allow such evidence to be obtained). However I do of course take into account Mr Taylor's plight, his difficulty sometimes in giving oral evidence, and his determination to do so. He was resolute in the account he gave.
25. I was also invited by Mr Steinberg to be guided in resolving this issue by the approach of the Court of Appeal in Keefe v The Isle of Man Steam Packet Company Ltd [2010] EWCA Civ 683. This was an industrial injury case relating to hearing impairment. The claimant had to prove that he had been exposed for periods of over 8 hours to noise levels in excess of 85 decibels. The employer had been aware of noise problems (it had, for example, provided ear protections) but had failed to measure and record noise levels. The trial judge was satisfied that the claimant had been exposed to excessive levels of noise, sometimes in excess of 90 decibels, but not that there was exposure to excessive levels for periods of 8 hours with any regularity. The Court of Appeal allowed an appeal. Longmore LJ, giving the judgment of the Court, accepted that the level of the claimant's exposure to noise was essentially a question of fact, for the claimant to prove. However he noted that:

"in the present case there is the potent additional consideration that any difficulty of proof for the claimant has been caused by the defendant's breach of duty in failing to take any measurements. The judge does not appear to have given any weight to this important factor." (paragraph 18).

26. He continued (paragraph 19):

"If it is a defendant's duty to measure noise levels in places where his employees work and he does not do so, it hardly lies in his mouth to assert that the noise levels were not in fact excessive. In such circumstances the court should judge a claimant's evidence benevolently and the defendant's evidence critically. … [A] defendant who has, in breach of duty, made it difficult or impossible for a claimant to adduce relevant evidence must run the risk of adverse factual findings. To my mind this is just such a case."

27. Mr Steinberg asked me to accept that Mr Taylor's was also just such a case. Had Mr Walpole complied with the relevant regulatory regime at the time (The Control of Asbestos at Work Regulations 1987 SI 1987/2115, and 2002 SI 2002/2675) then, to put it at its lowest, the task of establishing extent of exposure would have been very much easier because there would have been relevant records. I do bear in mind, as submitted by Mr Livingston, the differences between the present case and Keefe. Keefe was a case concerned with establishing breach of duty; the focus of the present fact-finding exercise is causation. Causation cannot be inferred from the breach of duty admitted in the present case. Nor can the absence of records itself establish any particular facts. It remains for a claimant to do so.
28. I do, however, accept the relevance of Keefe to the present case to this extent. The Court was clearly focused in that case on the specifically factual component of liability, and even more specifically on the particular factual issue of frequency of exposure to a potentially causative hazard. In my view it would be fair to conclude that the Defendant in this case should not benefit from the absence of records by expecting me to do other than take the upper end of Mr Walpole's accepted range of frequency – 60% – as the lowest point of the credible range. I note Mr Pancoust's 'as often as not' (50%) estimate as being a little lower, but I also allow for the fact that his evidence necessarily relates to his own experience, not Mr Taylor's, that their total period of overlap may have been limited (Mr Pancoust worked for Fascia Future "on several occasions during the 1990s and early 2000"; "approximately 3 years on and off"), and that in all the circumstances of the present exercise a variation of ten percentage points is marginal.
29. I think it fair also in the circumstances to go further in hesitating to place real weight on the accuracy of Mr Walpole's recollection – unsupported as it is by documentation, and bearing in mind his admitted lack of particularity about the matter at the time – and in accepting that Mr Pancoust's experience is to a degree of analogous rather than direct relevance. However at the same time I take Mr Taylor's '(nearly) always' (90%) as the very upper limit of the credible range, bearing in mind his own lack of particularity at the time also. 90% is dramatically more than anything Mr Pancoust was prepared to contemplate, and I am unable in all the circumstances to give determinative weight to Mr Taylor's fixity on this point. I bear in mind the absence of evidence of such fixity prior to the creation of his first witness statement, and some contrary indications suggesting that certainty of such overwhelming levels of asbestos encounter was a largely post-diagnosis development.
30. I am not in all the circumstances persuaded that asbestos fascias were encountered to any relevant degree. I accept that asbestos soffits and/or guttering were encountered frequently. My conclusion is that, leaving aside the 90% figure as being less scientific than it might look, Mr Taylor's evidence, considered as a whole as guide to his authentic experience, is consistent with a factual situation in which asbestos was encountered frequently, more often than not; was encountered sometimes very often, where jobs were done on similar properties; but that it was not a memorable rarity over the years to encounter non-asbestos removal jobs either. I am satisfied that it would be fair to say, as a very general average, Mr Taylor encountered asbestos in as many as three quarters of the jobs he did. That sort of frequency is also, in my view, consistent with the patterns of asbestos disposal considered below.

B: Removal

Question 3: How were the soffits, gutters and fascias removed from the buildings? Did this liberate asbestos dust/fibres?

31. The issue in dispute here was the extent to which the processes of detaching asbestos materials from houses involved breaching the physical integrity of the materials (and therefore the release of particles of asbestos capable of entering Mr Taylor's lungs). Mr Taylor's account of a typical removal job was of sawing overhead materials and ripping or breaking them up with hand tools to get them off. He also latterly mentioned using electric angle-grinders. Mr Walpole on the other hand said that it was usual to encounter situations in which the materials could be removed simply by lifting them out, or at any rate could be removed in large sections without breakage.
32. I do not in the end think there was major divergence between the accounts in this respect. Mr Walpole did accept that soffits would need to be sawn through in situ at least where removal from a semi-detached or terraced property was concerned (which was frequently). He also accepted that the old materials could break or be damaged in the process of removal. He accepted that angle grinders might have been used (although more probably on cast iron guttering than on asbestos). Mr Walpole and Mr Pancoust said that the removal part of the job (including fascia, soffits and guttering) might take around 20 minutes per side of a property; that is not far from Mr Taylor's account that it might add up to 1-2 hours per job depending on size and accessibility. No doubt the materials were detached as quickly and simply as possible. They were cut or wrenched when necessary. They were old and damaged; sometimes they broke, and no doubt they were not treated with excessive respect. It was perhaps not common that they were removed intact; Mr Pancoust's estimate was that they could be got out cleanly perhaps in around 20% of cases. That seemed a reasonable estimate in the circumstances.

Question 4: How were these materials dealt with following removal?

33. Mr Taylor's evidence was that the old materials were simply dropped down from roof height, a process which could further damage the integrity of the materials. Once at ground level they could be damaged again by being trodden on or roughly handled as far as their van. They were then thrown into the van loose, and might be further broken up inside the van itself. Clearing up included dry-brushing rubble and dust.
34. Mr Pancoust described the longer pieces being passed or stepped down the ladder rather than thrown. The picture emerging from the totality of the evidence was consistent with smaller pieces being dropped down, larger pieces being pivoted or carried, reasonable account being taken of the risk of damaging other property below if larger items were carelessly dropped, but no especial respect being shown to the waste materials once removed. Mr Walpole disputed that materials were broken up in the van and said that they were simply stacked up. Mr Pancoust also recalled that the materials were usually simply placed in the van rather than regularly or systematically broken up there. No doubt the more that very long pieces were removed intact, the more probable it was that they needed to be broken (or simply broke) thereafter; likewise the more damage was done in the process of detachment, the less breaking up needed to happen in the van. No doubt also, no more effort was expended on breaking up loose waste material in the van than served the simple purpose of transporting it to the point of disposal.

C: Disposal

Question 6: How were asbestos containing materials disposed of before the late 1990s/1999?

35. There was no significant dispute about this. All of the waste materials, including the asbestos materials, were taken in Fascia Future's van to a rubbish tip and treated as general commercial waste. It appears that the waste material sometimes accumulated in the van from one job to another. Mr Taylor unloaded the waste from the van manually at the tip.
36. The frequency with which this happened is not certain. Mr Taylor suggested trips to the tip were once or twice a week; or were needed every three of four jobs. These might be alternatives (Mr Taylor's own working assumption was of a pattern of two jobs in a week). It is possible that the van was emptied out when it was needed for other things, even if not full. In any event, it was a regular practice, happening most weeks.

Question 7: How were asbestos containing materials disposed of after the late 1990s/1999?

37. Again, there was no material dispute about this. At around this time, the tip ceased to accept asbestos waste. The asbestos waste was therefore separated out, bagged up, and a contractor hired to collect and remove it. Mr Swan was such a contractor; apparently not the only one used by Fascia Future.

Question 8: Was Mr Walpole's mother-in-law's garage used to store waste asbestos?

38. This had been the Claimant's contention from the outset. Mr Walpole had stated clearly in his witness statement that Fascia Future never stored asbestos in this garage. In oral evidence he was equally clear that this was wrong; his recollection had since improved and he accepted that asbestos was indeed stored in the garage. The Defendant conceded in the light of that that this question must be answered in the affirmative.

Question 9: Did the Claimant smash the asbestos waste materials in the garage and, if so, (a) how frequently did he undertake this task? and (b) for how long on average on each occasion?

39. Mr Taylor was very clear that asbestos waste was broken up in the garage and placed into red sacks for collection and disposal by the waste contractor. In his witness statements he said that the van continued to make trips to the tip a couple of times a week, where the waste was sorted and the non-asbestos waste dumped. The van then took the asbestos waste at the garage a couple of times a week, and at least once a month he took a full 8-hour day to smash and bag the asbestos. He said the contractor was paid by the bag and there was therefore an incentive to break the material up small and fill the bags as tightly as possible. In his oral evidence he accepted that he did not spend the full 8 hours smashing up the asbestos; he was 'in and out' of the garage over the course of the day, and the breaking process took perhaps two or three hours. The garage was also used to store some new materials for the replacement element of the jobs, and other property (including chairs); it also appears to have been in use by a car. It was an ordinary domestic garage. There was a limit to how much waste material could have been stored there at any one time. At the same time, the material in question characteristically comprised sizeable pieces of soffit and guttering.
40. Mr Pancoust agreed that asbestos waste was regularly smashed up in the garage roughly monthly (perhaps every 3-6 weeks, variably). He said that the actual business of smashing could be done in half an hour to an hour. The asbestos material broke up easily. In a single session perhaps six or seven red bags were filled.
41. Mr Walpole did not remember that breaking-up was undertaken in the garage. He had of course originally maintained that the waste material was not taken to the garage at all. Once he accepted that it was, and that he paid a contractor to remove it, then it surely follows that the process of transferring the waste (which had been placed loose into the van on site and sorted at the tip) into the bags very likely took place at the garage to which it had been taken. It is also very likely that that involved a process of breaking it down to at least some degree to place it into the bags. Mr Walpole had maintained that the waste was detached from the houses and transported in the van in large pieces; that necessarily suggests that those pieces needed to be reduced in size before bagging and collection.
42. I conclude that asbestos was broken up at the garage and bagged up for disposal at intervals of a month or a little longer. Once engaged on such a task, there was an incentive to break the materials down small to fill the bags as full as possible. The actual process of breaking up may not have taken more than an hour, or two at most. No doubt packing and stacking the bags ready for collection took time also. It is possible that other work was undertaken in the garage at the same time.

Question 10: Was asbestos waste placed into bags for disposal and removed from the garage by third parties? If so, how often?

43. Mr Taylor and Mr Pancoust spoke of collection at roughly monthly intervals. Mr Swan said that he removed red sacks of asbestos waste for Fascia Future from a garage in Northampton 'on a regular basis' over a period of time. This varied from year to year. Sometimes he might visit only once a year. Another year he might visit 4 times; another 8-10 times. Mr Walpole's evidence had been that the waste was removed by a contractor 'infrequently'. He did not disagree with Mr Swan's account. There was no other evidence.
44. -10 times a year is consistent with a pattern of a little less frequently than monthly. Mr Walpole agreed that he used other companies as well as Mr Swan's for waste disposal. The evidence seemed to converge around something like a pattern of monthly or less frequently than that.
44. I make some cautious observations here about the relevance of this sort of pattern to the key question about how frequently Mr Taylor encountered asbestos in the first place. Before 1999, the van used to take all of the old materials to the tip most weeks (it may or may not have been full on any occasion). Mr Taylor suggested that a similar number of weekly visits continued to be made to the tip, and the garage, after 1999. The evidence about the capacity limitations of the garage and the volume of bagged asbestos waste taken away at intervals of around a month is consistent – I put it no higher – with the conclusions I have reached above that the waste fascias, and rather more than 10% of the waste soffits and guttering, continued to be disposed of as non-asbestos waste.

Asbestos materials and asbestos dust

45. I have found that the processes of detachment, transport and disposal of the asbestos included both the deliberate breach of the physical integrity of the asbestos materials and the risk of accidental damage. The Claimant's evidence was that these were the occasion of the release of dust; that further exposure to dust was experienced in the processes of clearing (dry brushing) both on sites and in the van; that the atmospheres in the van and in the garage were dusty; and that dust was persistently encountered on clothing.
46. I did not understand the Defendant to dispute that if the physical integrity of asbestos material was breached then there was a risk of the release of dust. However it was apparent that the degree and potentially causative toxicity of that dust depended to some extent on the precise nature of the asbestos material involved. The Claimant asked me to make findings of facts about that; the Defendant asked me not to, on the grounds that this was an issue requiring expert evidence.
47. The issue of the possible different types of asbestos product was not put to the witnesses, or to the court, with sufficient systematic particularity to enable findings of fact to be readily made about it. The witnesses from whom I heard did not suggest to me that they had sufficient expertise in discriminating between asbestos products, either at the time or subsequently, for me to be able to make findings about the frequency with which specific types of asbestos were encountered. To the extent that any of the witnesses was prepared to make specific identifications at all, they were impressionistic only. It was difficult enough to recognise what the witnesses thought they were encountering in this respect, much less to deduce what they were encountering. I cannot make reliable findings of fact about the types of asbestos encountered on the evidence presented to me.
48. As to the creation of dust more generally, I have found that overhead sawing of (asbestos) soffits was undertaken in the process of detachment. That must have created sawdust. It also seems to me likely that the process of breaking up asbestos waste at the garage was dusty because it involved the reduction of the waste into relatively small pieces for bagging. The dry-brush clearing process is also likely to have raised dust, as was brushing out the van. Beyond that it is hard to go on the totality of the evidence before me. Clearly breakage in a confined space (van or garage) creates a more intense risk of exposure to dust than breakage in open air, but that is simple inference and there was no evidence about ventilation conditions in either environment, including for example whether the doors stood open or about seasonal variation. I have no basis for going beyond the findings I have already made.

D: Risk Awareness

49. I was invited in two of the agreed 12 questions to make findings of fact about Mr Walpole's, and Mr Taylor's, contemporaneous knowledge of the risks attached to asbestos exposure. I was subsequently invited by Mr Livingston to make no finding on the former in the light of concessions made by Mr Walpole in the course of giving evidence. I was also invited by Mr Steinberg to contemplate entering into the question of contributory negligence, but he did not in the event pursue that thought. In the context of a fact-finding exercise focused primarily on enabling causation to be decided at a trial of liability, and in view of the limited basis on which evidence was taken and submissions made, I have necessarily taken a restrained approach at this stage to matters entering on questions of liability.

Question 11: What, if any, knowledge did the Defendant possess regarding the risks of exposure to asbestos during the course of the Claimant's employment?

50. Breach of duty is accepted by the Defendant. I summarise here Mr Walpole's oral evidence about his state of knowledge, which I accept. His evidence was that he had had no training in the risks of asbestos exposure. He was aware in a generalised way of the risks of some kinds of asbestos, but not necessarily of the risks of those regularly handled by Fascia Future. He said he was able to recognise materials containing asbestos, but was hesitant when his knowledge of different types of asbestos materials and their attendant risks was explored in any detail. He was unaware of the relevant regulatory regimes governing workplace health and safety. He had no knowledge of relevant industry guidance and good practice. He did not know about, and did not undertake, risk assessments, or cause sampling procedures to be undertaken on materials with which Fascia Future dealt. He was unaware of the importance of documentation and record keeping.

Question 12: What, if any, knowledge did the Claimant possess regarding the risks of exposure to asbestos during the course of his employment with the Defendant?

51. Mr Taylor's evidence was that he was unable to distinguish asbestos products (or between asbestos products), had not been specifically instructed or trained in handling asbestos, and was unaware of the risks associated with it, until he took over the business himself. At that point he undertook training and familiarisation with the applicable regulatory regime and guidance. He accepted he had had some earlier anecdotal background awareness of asbestos as a hazard. He accepted that his awareness increased at least when it became necessary in 1999 to start separating out asbestos waste when the tip stopped accepting it. He was also aware before that of signs at the tip warning of asbestos waste hazard.
52. I was surprised that Mr Taylor's two-year carpentry and joinery course had not provided him with more knowledge (he had passed with distinction), or that he was not more curious than he seemed to have been about the materials his chosen trade made it his business to handle daily. I accept that, at any rate when he first started working for Fascia Future, he was very young and inexperienced, and the example set by Mr Walpole (himself entirely untrained, as it appears) would have been a powerful influence in the direction of informality and unconcern about such matters. He seems to have been set no other examples. His close engagement after 1999 with the process of preparing asbestos waste for specialist, paid-for disposal might however have given him pause for thought.

Question 5: What, if any, measures did the Defendant implement to prevent or limit exposure to asbestos dust?

53. The only specific evidence relevant to this question related to the provision of face masks. In his first witness statement Mr Taylor said he was not provided with any masks, breathing apparatus or ventilation equipment. Mr Walpole said in his statement that dust masks were used when handling asbestos. Mr Taylor's third statement refined his recollection: he said that they were not provided with respirators or full-face masks, but he confirmed that they did have 'paper type dust masks'; he was never instructed to use these other than when removing birds' nests from fascias; otherwise Mr Walpole never wore a mask so neither did he. In his oral evidence he appeared to accept that at least sometimes paper masks were worn by Mr Walpole and himself when handling asbestos. Mr Walpole said that he did instruct his employees to wear a mask when handling asbestos but accepted that he did not enforce that. I conclude that paper masks were made available. Their use was not enforced or routine.

Conclusion

54. The facts as I find them are therefore as follows.
55. From June 1995 (when he left school) to September 1996 (the start of his second college year), Mr Taylor worked for Fascia Future 2 days per week during term time and full time during the school/college holidays. From September 1996 to June 1997 (when his college course ended) he worked 4 days per week during term and full time during the holidays. From June 1997 he became a full-time employee of Fascia Future.
56. From June 1997 to the end of 2005 his employment with Fascia Future was continuous, apart from a period of around half a year in 2004-05 when he was in London. He had a period of sick leave from 8^th May to 23^rd June 2000 following an injury.
57. Apart from the flat-roofing work from 1995-1999 (which was seasonally-dependent, and was undertaken around once every three weeks), Mr Taylor was employed on removing and replacing fascias, soffits and guttering. The removal work had a potential exposure to asbestos; the replacement work did not. The work was seasonally variable. Mr Taylor's conditioned hours were 8am to 5pm Monday to Friday (with a half hour lunch break, taken in the place of work). He worked some weekday overtime in the summer; in the winter there was significantly less removal/replacement work.
58. Mr Taylor was involved in around 50 removal and replacement jobs a year. Of these up to three quarters, on average, involved removing some asbestos - asbestos soffits and/or asbestos guttering.
59. Physical detachment took around 1-2 hours per job, including removal of the (non-asbestos) fascias. Soffits had to be sawn through in situ to remove them at least in cases where semi-detached or terraced properties were concerned (which was often), and otherwise depending on construction, size and accessibility. That created sawdust. Guttering was sometimes cut with power tools in similar circumstances. Soffits and guttering usually had to be removed with hand tools. The old materials were in poor condition; sometimes they broke of their own accord in the process of removal. They were removed as simply as possible, but without unnecessarily respectful treatment. Sometimes they could be detached intact, perhaps in up to 20% of cases, but more usually they were not.
60. Smaller fragments were dropped down to the ground from roof height. Larger pieces might be dropped, lowered, pivoted or stepped down the ladder. Unnecessary risk of damage to other property was not taken in the process, but nor was particular respect shown to the waste products.
61. The waste products were put loose into a van. Sometimes longer pieces broke or were broken there. Clearing up rubble and dust, on site and in the van, was done by dry brushing.
62. From 1995 to 1999, the practice was for the van to make regular trips, when it needed to be emptied, to a rubbish tip. That happened most weeks. There, all the waste material was unloaded manually and dumped indiscriminately.
63. From around 1999, the tip refused to accept asbestos waste. From then on, the asbestos waste had to be separated out and bagged up, and a contractor paid to collect it for specialist disposal. It was separated out on the trips to the tip; the asbestos waste was returned to or retained in the van for further transportation.
64. A domestic garage, belonging to Mr Walpole's mother-in-law, was used to store asbestos waste on an interim basis. The waste was transported there most weeks by the van. Mr Taylor went to the garage, at intervals of around a month, to break up the waste and pack it into bags ready for collection by a waste disposal contractor. The contractor was paid by the bag, so there was an incentive to break the material up small. The process of breaking took up to an hour or two per session; Mr Taylor spent further time each session bagging up the resulting waste and perhaps doing other work at the garage.
65. Paper face masks were available to Mr Taylor for protection from dust. Their use was not enforced or routine when handling asbestos.
66. Other than Mr Taylor's Moulton College course, both Mr Walpole and Mr Taylor were, during the relevant period, untrained as to the risks of the asbestos materials they were handling. 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.